JAYBHAI PATEL vs GOKUL CORPORATION

PRESENT complaint is filed by the complainants with the prayer that the opponents be directed to complete the work and pay compensation for the loss incurred or alternatively repay the entire cost of such construction with interest. The entire cost is estimated to Rs. 19,68,831.

IT is alleged in the complaint that the complainants are members of Sakan Twins, New Memnager Co.op. Housing Society, near Management Enclave, Vastrapur, that they had booked the residential premises in 1988-89 but the builders have not provided amenities as per the brochure. Complainants are residing in the respective premises since 1993. In the very first month after taking possession the complainants made complaint regarding the infirmities in the civil work and non-completion of the work as listed in the advertisement and the brochure. As some of the construction is left out half-way it gives a deserted look, that incomplete structures are dangerous for the life and the residents of the Society are subject to health hazards like malaria, cholera, etc. Because of non-completion of the work it causes damage to the vehicles. Compound wall is not erected, even the work was not completed in the time-schedule. IT was to be completed on or before 1991. IT amounts to deficiency in service on the part of the opponents. Watchman had retained one room in the first floor of the proposed Club House. As per the estimate given by the Architect and Engineer the work to be completed is estimated to Rs. 19,68,831. Hence the complainants have claimed the same amount from the opponents with interest. The complainants have relied upon brochure, development agreement dated 12.6.1989 and notice given to the builder dated 2.8.1994. These documents are produced with list at Exhibit 5.

The replies are filed at Exhibit 10. It is specifically contended in the reply that the complaint is time-barred. Opponent Nos. 1 to 4 have nothing to do with the development of the premises and opponent No. 1 has no concern with regard to the scheme in question. M/s. Shyam Enterprises was appointed as project coordinator and developer for tenements Nos. 1 to 5, 18 to 29 and 40 to 61 and rest of the tenements are constructed and developed by M/s. Sneh Shraddha Developers and that the complainants are required to file separate complaints against both the developers.

IT is admitted in the reply that opponent Nos. 2 to 4 are partners of the aforesaid developers. The brochure dated 1.7.1992 has been produced along with the reply. IT is contended that work is completed as per the brochure dated 1.7.1992. IT is also contended that the complainants are admitted as members by resolution in the year 1992-93 and possession is also given to them during the period 1993-1994. The dates of payments of the amount to the builder are narrated in the reply. At the time of taking possession of the respective premises by the complainants they have expressed their full satisfaction regarding the civil work and the quality of the workmanship. Therefore, the allegations made in the complaint are denied in toto. After the possession was handed over to the members of the society for four years they have not taken care of the amenities provided to them. It is alleged that R.C.C. road is not provided by the builder, but as per the resolution of the Society members are agreed to provide tar road and accordingly tar road is provided. Round-the-clock water facility is provided by the overhead water tank and putting bore well which are working properly. Main gate was constructed by the members and the amount was paid by the builder. Members can sign the necessary forms of the A.E.C. and can get the bills in their names. Whatever amount was paid towards drainage charges by the members the same are paid to AUDA. Water proofing components were added while carrying out the plaster. In case of abnormal rain, even all roads and streets are water logged such water logging cannot be avoided. Termite treatment was carried out for the problem of white ant.

WATCHMAN did not vacate the room and filed a Civil Suit and, therefore, he could not be removed. The said situation was beyond the control of the opponents. Particulars of the damages estimated are given and, therefore, the complaint is ought to be dismissed. The opponents have relied upon the copy of the brochure, copy of the letter of the Association and copy of the resolution of the Association passed in the general body meeting. Rejoinder is filed at Exh. 14 by the complainants.

REPLY to the complaint by the opponent Nos. 1(A) and 1(B) is at Exh. 25. wherein the same facts are narrated as narrated by opponent Nos. 1 to 4 in their reply. Rejoinder of the complainants to the reply of the opponents 1(A) and 1(B) is at Exhibit 35.

COMPLAINANTS further relied upon forwarding letter of valuer, Surveyor and assessor with the project report and abstract of the estimate. Copy of the agreement between the complainants and the watchman is also relied upon by the complainants whereby it is shown that the complainants have paid Rs. 1,00,000 to the watchman for vacating the room in the first floor.

No further evidence was led by the parties.

HEARD learned Advocates for the parties. It is alleged in the complaint that opponent No. 1 is a partnership firm and opponent Nos. 2 to 4 are the partners opponent No. 1. Opponent No. 1 had entered into building contract of the Society, but the facts seems to be not correct because it is opponent No. 1(A) and opponent No. 1(B) who have entered into building contract with the Society as per the documents and copy of the development agreement. Though opponent Nos. 2 to 4 who are the partners of opponent No. 1 are also the partners of opponent Nos. 1(A) and 1(B). So it is evident that opponent No. 1 and opponent Nos. 2 to 4 as partners of opponent No.1 had nothing to do with the scheme. That is only opponent No. 1(A) and opponent No. 1(B) who are joined at a later stage are the developers of the Society and the agreement was entered into between the complainant and opponent Nos. 1(A) and 1(B).

IT is alleged in the complaint as well as in the affidavit of the complaint that the amenities as stated in the brochure are not provided civil work is left uncompleted. IT is hazardous to live in the society. Facility of 24 hours drinking water are not provided. R.C.C. roads are not provided. Plantation and gardening are not provided. Children park is not provided. Equipments of the children park are not provided. Compound wall is not erected. Hence the present complaint is filed. The say of the opponents is that all these allegations of the complainants are not correct. Opponents have relied upon the possession letter wherein the complainants have stated that they are fully satisfied with the work carried out by the opponents. Therefore the say of the complainants that they are not satisfied with the Civil Work is not upheld. Complainants have taken possession of the respective residential premises in 1993 as stated in the complaint whereas the present complaint is filed in 1997 with the aforesaid allegations. The complaint required to be filed within two years after accrual of the cause of action. In the present case on hand the cause of action arose on the very first month of the possession was handed over to the complainants. There is nothing on the record to show that there was any attempt on the part of the opponents to carry out the work in regard to the allegations of the complaint. Therefore, the period of limitation also commenced from the date on which the complainants came to reside in the premises and they found that the civil work was not completed and the amenities are not provided as per the brochure. So as per the provisions under Section 24A of the Consumer Protection Act, 1986 complaint ought to have filed within a period of two years. Here in the present case the complaint was filed on 4.3.1997 exactly after four years after taking possession of the premises. Therefore, the complaint is time-barred.

IT has been laid down in II (2002) CPJ 83 (NC), in the case of Pushpa Builders Flat Buyers Association v. Pushpa Builders Ltd., that when the complaint is filed after four years of taking possession it is time-barred. Here in the present case also the complaint is filed after four years of taking possession. Therefore, relying upon the principle laid down in the aforesaid citation it is held that the complaint is time-barred.

LOOKING to the brochure electric poles at every 10 mtrs. is not shown in the brochure. Even the halogen lights are not shown in the brochure. Even the trees at the distance of 5 metres, play ground equipments, etc. are also not shown in the brochure. Therefore by not providing those facilities will not amount to deficiency in service. Opponents have produced copy of the resolution of the society wherein complainants are agreed that in place of RCC road tar road be provided. Therefore, there cannot be any deficiency by not providing RCC road. So far as the room of the watchman is concerned he had filed a civil suit and got injunction in his favour restraining the opponents from evacuating him from the room. Therefore, this is beyond the control of the opponents. So this also cannot be termed as deficiency in service thereafter during the pendency of that suit if the complainants have paid the amount to the watchman that will not count any liability on the opponents because eviction could have been obtained by the decree of the Court. In the circumstances say of the complainant that the opponents did not remove the watchman from the room thus amounts to deficiency in service is not upheld.

Opponents have erected compound wall, club house, tube well (bore) and the water tank, children play ground, etc. Therefore it cannot be said that there was deficiency in service with regard to erection of compound wall, club house, tube well or children play ground equipments, RCC road, electric poles at the distance of 10 metres, tree plantation at a distance of 5 metres, etc. It will not come to the rescue of the complainants in view of the above discussion.

LOW-lying areas where there is water logging in case of exceptional heavy rains, that would not be deficiency in service. The main gate was constructed at the discretion of the complainants and the amount was paid by the opponents. There is no evidence to show that construction is dangerous to human life and damaging the vehicles as no compound wall is provided. There is no evidence of deficiency in service as narrated by the opponents. On merits also there is no substance in the complaint. Hence considering all these facts that complaint is time barred as well as there is no merits in the complaint, the complaint deserves to be dismissed.

HENCE the following order : Complaint is dismissed with no order as to cost. Complaint dismissed.