NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2359 OF 2012
(Against the order dated 11.5.2012 in Appeal No. 30 of 2010 of the
Goa State Consumer Disputes Redressal Commission, Panaji )
1. M/s Milroc Development Co.
A partnership Firm duly constituted
Under the Indian Partnership Act
Having its office at 501,
Milroc Lar Menzes,
Swami Vivekanand Road,
Panaji, Goa
2. Mr. Kantipudi Kulasekhar
S/o Mr. K. Chandramohan
Partner of M/s Milroc Development Company
R/o Kasturi, Plot No. E-11,
La Citadel, Dona Paula, Goa
3. Mr. Kamlesh Shantilal Jhaveri
S/o S.G. Jhaveri,
Partner of M/s Milroc Development Company
Having its office at 501,
Milroc Lar Menzes,
Swami Vivekanand Road,
Panaji, Goa.
4. Mrs. Shobha Kamlesh Jhaveri
W/o Kamlesh Shantilal Jhaveri
Partner of M/s Milroc Development Company
Having its office at 501,
Milroc Lar Menzes,
Swami Vivekanand Road,
Panaji, Goa.
5. Mr. Allaparthi Durga Prasad
S/o Allaparthi Gopalkrishnamurthy,
Partner of M/s Milroc Development Company
Having its office at 501,
Milroc Lar Menzes,
Swami Vivekanand Road,
Panaji, Goa. ........ Petitioner (s)
Vs.
Mrs. Antonieta Ribeiro De Souza
W/o Jose Feliciano de Souza
R/o Flat No. G-1/B-31,
Rabindar Retreat, Rabinder
Ilhas, Goa …….Respondent (s)
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner : Mr. Kaustubh Sinha, Advocate with
Mr. Dewat Singh, Advocate
For the Respondent : NEMO
Pronounced on 1st November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. This revision petition has been filed by M/s Milroc Development Co. and its partners, Mr. Kantipudi Kulasekhar, Mr. Kamlesh Shantilal Jhaveri, Mrs. ShobhaKamlesh Jhaveri and Mr. Allaparthi Durga Prasad. The complainant, Mrs. Antonieta Ribeiro de Souza and the petitioners/opposite parties entered into an agreement wherein the complainant agreed to purchase flat in the apartment project developed by the opposite parties for construction cum sale of a flat having a built up area of 135 sq. mt. The possession of the flat was given to the complainant on 8.7.1998. The sale deed was executed and registered by the parties on 29.3.2006.
2. The complainant filed a consumer complaint before the District Forum, North Goa at Porvorim alleging deficiency in service coupled with defective construction and seeking certain directions. In the complaint, it is averred that brochure described the project as a township consisting of 350 apartments and an exclusive shopping centre, a club house as well as community hall. The brochure further stated that the complex would be walled on four sides, with gates, entry way, manned by security personal round the clock. Again, it would have a shopping complex enabling the purchasers to live a self contained existence within the Retreat by providing daily amenities and services, such as provision stores, bank, beauty parlour, shopping arcade and restaurants. The brochure also promised a Club House with well-equipped health club. Consequently, the complainant booked one flat for which she paid Rs.9,47,500/- and one time maintenance costs of Rs.39,813/-. However, in the sale deed, the amenities mentioned above found no place. It is further averred that the quality of the construction is very poor. It transpired that there was lot of absorption of water on all the outer walls of the apartment, cracks had developed practically on all inner walls and there was dampness on the walls resulting into formation of fungus, particularly, in the bedroom walls. This dampness attracted and provided an ideal media for insects and other microscopic life. Those affected the skin of the complainant and her husband. Again, there was tremendous absorption of water on the roof of the toilet of the master bedroom. Dark brown and gray patches developed all over the roof of the toilet of the master bedroom resulting in the formation of fungus and foul smell pointing to corrosion of the street wires in the slab above the bedroom. It affected the health of the complainant and her husband. They were medically treated. Again, there was seepage of water even through the beams and walls, which had affected the crockery of the complainant. Moreover, the glazed tiles in the bathroom are of poor quality as the tiles of the master bedroom had developed cracks and holes and the holes need replacement. The granite stone on the platform of the kitchen is full of holes and beautifully filled with cement of the same colour, which could not be seen at the time of taking the possession. After sometime, the cement started peeling off and the holes have started showing clearly indicating that second quality material was used.
3. Shri S. N. Bhobe, an Architect visited the flat on 3.10.2003 and gave its report ext. ‘E’. The Architect has opined that the dark patches on the walls show that there is seepage of water through the beams, thereby the steel has started corroding thereby endangering the entire structure of the building. As per agreement, for Construction-cum-Sale, each unit was to be provided with underground sump with an electric pump and an overhead tank. The same was not provided. On the other hand, the petitioners had constructed the huge massive tank which is connected to the water supply. In addition, the petitioners have dug 2/3 Bore Wells and they pump water from the bore wells also into the tank, which mixes with the water from the Public Works System. From this tank, water is supplied to all the apartments. For quite some time, the water was being supplied to the apartments, including the apartment of the complainant. The people are not getting clean water. It was prayed that the opposite parties be directed to execute the deed of rectification so as to incorporate all the clauses of the agreement of Construction cum Sale, which were not incorporated therein and which have been in the agreement for Construction cum Sale dated 31.3.1997. The opposite parties be further directed to rectify the problem of dumpness in the outer walls and inner walls and ceiling of the apartment including the roof of the master bedroom and to repair all cracks in the walls and to replace the glazed tiles which have cracked both in the kitchen as well as in the bathroom, to provide clean and potable water to the complainant’s apartment. Besides this, compensation in the sum of Rs.1 lakh be granted in favour of the complainant.
4. The opposite parties contested this case. In the written statement, the opposite parties submitted that the complainant is not a consumer. No negligence on their part has been spelt out. The case for rectification is not maintainable. The case is barred by time. The relief for mandatory injunction or specific performance cannot be granted and all the pleas have been denied.
5. The District Forum partly allowed the complaint. It directed the opposite parties to rectify the problems of dampness in the outer walls and inner walls and ceiling of the apartment including the roof of the master bedroom; to repair all cracks in the walls; to replace the glazed tiles which have cracks both in the kitchen as well as in the bathroom and to provide clean and potable water to the complainant’s apartment. It also granted compensation in the sum of Rs.50,000/- towards inconvenience and discomfort caused to her.
6. The State Commission dismissed the appeal filed by the opposite parties.
7. The revision petition has been filed by the opposite parties. Argument advanced by the learned counsel for the petitioners has two prongs. He vehemently argued that the present case is barred by time. He places reliance on two authorities reported in Raja Ram Maize Products Etc. etc. vs. Industrial Court of M.P. and Ors. AIR 2001 SC 1676 and Annu Enterprises India vs. Haryana Urban Development Authority & Ors. I(2012) CPJ 552 (NC).
8. The facts of these authorities are different. This is a case of continuing cause of action. The main document in this context has been placed on record, which is the agreement entered into between the two parties. Last portion of clause 7 reads as follows:-
“Upon possession any cracks to the plaster/dampness in external plaster walls shall not be considered as defective work unless the architect of the Vendor opines otherwise.”
7. The petitioners-opposite parties also took an expert opinion from Mr. Jayant V. Pai Vernekar, who inspected the spot and gave the following report dated 14.10.2003.
“This has reference to our visit to the above flat with you to assess the Spot/patches on the toilet ceilings of the above flat on 11/10/2003.
We checked the ceilings of both the bathrooms of this flat and found that the ceiling were thoroughly dry everywhere. We noticed some spots and patches on the ceiling of one toilet and the beam side of the other toilet. These were earlier leakages spots, which were found to be completely dried up during the inspection. The whole ceiling had old fungus marks created due to condensation of atmospheric moisture on the cold surface of the ceiling.
You mentioned that a few months back the nahani traps in the upper toilets were grouted with cement water and waterproofing compound to plug any crevices and avoid the possibility of any moisture in the toilet below. This has stopped the ingress of moisture that was earlier noticed causing marks on the ceiling as mentioned above.
We also noticed condensation marks on the wall between the bedroom and the living room. These are caused due to the cool air from the air conditioner in the bedroom, mainly when atmospheric humidity is high. These marks have nothing to do with the toilet of the upper flat.
In case you need any further assistance in the matter, please do get in touch.
Thanking you,”
8. The report of this expert engaged by the petitioners themselves reveals so many defects. It is surprising to note that the walls are incapable to tolerate the cool air coming from the Air conditioner. It shows the poor quality of the material used there. The facts of this case speak for themselves. The allegations leveled against the petitioner stand proved.
9. The petitioners themselves admit that the development of cracks of tiles in bathroom was due to wear and tear and rough handling by the complainant. It was observed that the granite stone placed in the kitchen was in good shape and had no blemishes. It was also communicated that filling of holes with cement is only imaginary and cannot be technically possible. It was communicated that if cement is filled, the holes cannot be lost even one month as it is a natural stone. This cannot be said to lucid explanation.
10. The complainant has also produced the report of Architect, Mr. S. N. Bhobe, which goes to support the case of the complainant. The case of the complainants is supported by adequate evidence discussed above.
11. It is also noteworthy that all the terms and conditions mentioned in the agreement were not included in the sale deed.
12. The revision petition is without merit and the same is therefore dismissed.
..…………Sd/-………..………
(J.M. MALIK, J.)
PRESIDING MEMBER
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(VINAY KUMAR)
MEMBER
Naresh/reserved
