A.S.Chakravarthy vs M/S. Asvasidh Homes Builder And Developer

THE complaint of the present appellants against respondent/M/s. Asvasidh Homes and its managing partners was dismissed by the AP State Consumer Disputes Redressal Commission in CCSR/1733/2012. The State Commission came to a conclusion that the complaint was not maintainable before it and therefore directed the same to be return to the Complainants. The decision is sought to be challenged in the present proceedings.

CHALLENGING the order of the State Commission, the Complainants filed a revision petition under Section 21 B of the Consumer Protection Act, 1986, terming it as a review petition. The same has been admitted as an appeal before this Commission and taken up for consideration under Section 19 of the Consumer Protect Act, 1986. The appeal has been filed with delay of 59 days for which an application for condonation has subsequently been filed on 25.2.2013. The application has been perused. The main explanation as contained in para 3 thereof is:- "It is humbly submitted that the Petitioners/appellants have been representing themselves in person before this Hon ''ble Commission and as also before the State Commission. That since the services of an Advocate were not utilized by the appellants as a result of the same the appellants had wrongly preferred a Revision Petition instead of a First Appeal. Thus, an unintentional delay was caused in filing of the present First Appeal which was initially filed as a Revision Petition presuming the limitation period to be 90 days. "

In the circumstances of the case, the above explanation is accepted and delay of 59 days is condoned.

WHILE deciding to return the complaint, the State Commission has taken into consideration the nature of relief sought by the Complainant and the fact that the genesis of the complaint lies in purchase of a flat from the OP under a registered sale deed of 30.10.2010. Six months later, the consumer complaint was filed before the State Commission on 28.4.2012. The State Commission has therefore observed that :- "Considering the nature of the claim and the fact that the title of the flat has already been conveyed to the complainant, and he having been in possession of the property, he can seek rectification of defects and even compensation for any deficiency of service. We fail to understand how he can seek refund of sale consideration and compensation. More so when title as well as possession was transferred in his favour, under guise of complaint recoursing to the provisions of the Consumer Protection Act filed the complaint the reliefs of which can be granted by Civil Court, even assuming he can maintain all these claims in a suit, obviously in order to get over payment of court fee etc. Therefore, we are of the opinion that the complaint is not maintainable before this Commission, and the complainant is directed to approach appropriate court for the reliefs. "

THE appellant/Complainant has challenged the order of the State Commission on the ground that he is a consumer ''under the law ''. Therefore, it is alleged that without hearing both sides the State Commission could not have come to a conclusion that the matter needed to be decided by the civil court. However, neither the appellant nor the appellant ''s counsel have made any attempt to substantiate this claim with reference to the provision in Section 2 of the Consumer Protection Act, 1986. Learned Counsel for the appellant relied upon the decision of this Commission in RP No. 4002 of 2011 in M/s. Daddys Developers and Builders Vs. Sri S. Kanan decided on 4.4.2012. and argued that the State Commission should have directed the OP/respondent to give an alternative flat in replacement of the defective one. From a perusal of the above decision it is seen that the respondent S.Kanan, had entered into an agreement with the petitioner/Daddy ''s Developers for purchasing a plot and construction of a villa on it. The sale deed of the plot was signed on 31.3.2005 and the respondent also paid about Rs.25,00,000/- as sale consideration and for construction of a residential flat thereon. It was the case of the respondent that the petitioner agreed to hand over the property to him on 26.12.2007 and both the parties agreed to certain specifications to be followed in the construction. Allegedly, the petitioner failed to adhere to the specifications which led to the rain water flowing into the premises during the monsoon. In the month of August 2008, water stagnated upto the height of about 3 feet over and above the ground level. Having failed to obtain any solution from the developers, he filed a complaint before District Forum, with the prayer to direct the OP to provide an alternative Villa in the same layout and also to pay compensation. His complaint was allowed and the District Forum held that:- "OP is directed to provide alternative Villa and execute the registered Sale Deed of the same in favour of the Complainant in the same layout with same measurement within 60 days from the date of this Order. After taking the possession of the alternative Villa, Complainant has to reconvey the subject Villa in favour of the OP. " The above view taken by the District Forum was upheld by the State Commission and confirmed by the National Commission in the decision cited above.

PER contra, the case of the appellants in the present proceedings arises from a very different set of facts. A perusal of the complaint filed before the State Commission shows that the entire matter arises from the registered sale deed of 30.10.2010 for purchase of a Flat No.105 in Asvasidh Abode. The complaint has listed 14 deviations from the approved plan and 11 deficiencies in construction. The relief claimed includes not only compensation of Rs.30 lakhs towards deviations, deficiencies and mental agony but also full refund of the purchase price of Rs.31 lakhs, interest on housing loan and other funds of Rs.4.38 lakhs and refund of the registration charges of Rs.1.6 lakhs. There is no explanation how a prayer for refund of the sale price and all other costs is made in a completed transaction of sale of property. There is no quantification of the cost of rectification of the alleged defects. For violations of the approved plan, if any, the builder developer is answerable to the concerned authorities. There is no explanation why the complainant should be entitled to be compensated for them. Significantly, the prayer is not for provision of a comparable alternative flat by the Developers/OP. Nor, is it limited to rectification of alleged defects. The appellants/Complainants can therefore derive no support from the decision of this Commission cited above.

THE State Commission has very rightly refused to entertain the petition filed by the appellants/Complainants. There is no justification to interfere with the order of the State Commission, which has left it open to the appellants/Complainants to seek their remedy in an appropriate court. The appeal is therefore, dismissed. No order as to costs.