SUDHIR KUMAR SINGH & 9 ORS., vs M/s. LANDCRAFT DEVELOPERS PVT. LTD. & ORS.,

Although, this is a case by consumers/allotttees of flats against the owner and builder, yet the dispute is not regarding possession but in respect of defective flats, the possession of which has already been given.

This complaint has been filed by ten complainants detailed above. They came to know that M/s Landcraft Developers Pvt. Ltd. and M/s Carol Infrastructure Private Limited, arrayed as opposite parties 1 and 2, respectively, (Builders and Developers), were going to have a project that was coming up at Raj Nagar Extension on NH 58, Ghaziabad by the name of River Heights. They were to get the land under Ghaziabad Development Authority, which has been arrayed as opposite party No. 3. When the complainants visited the spot, they found that opposite parties 1 and 2 had already constructed some towers, which had been allotted to various applicants and were ready for delivery/possession. The towers, which had already been constructed appeared to be in good condition. A model of the proposed tower was kept for display for the prospective consumers and the same appeared to be of very high standards with all the modern facilities, which are adequate for a comfortable living. Copy of brochure has been placed on record as annexure A-1 (Colly).

The complainants booked flats in October, 2009. The complainants and opposite parties 1 and 2 entered into an agreement in 2009 and made entire payment in instalments. They paid Rs.1,34,28,400/- in respect of all the flats. They took housing loan. The measured area of the flats of the complainants was 970 sq. ft. each and the entire tower consisted of 12 floors each having 11 flats. The chart showing the costs of each of the flat has been annexed as Annexure A-2 with the complaint. The entire payment was made around April-May, 2012. Copy of no dues Certificates as well as possession letter and Sale Deed are collectively annexed and marked as Annexure A-3 (Colly). They are in possession of their respective flats.

It transpired that out of the two lifts installed by the opposite parties 1 and 2, both would always remain under repair. There was also a persistent problem of water entering the lift pit from below the ground of the lift because of which the same used to become unusable. KONE, the company, in their maintenance report mentioned that there is problem of water entering the left pit and because of the same, the metallic parts of the lift were getting rusted and they underlined that any accident because of the above would be at the risk and consequences of the user/complainants. Copy of maintenance report is annexed as Ex. A-4. Again, it is almost impossible to climb the stairs for flats located on the 10 11 and 12 floors daily. th th th

Secondly, the parking area on the ground floor is structurally defective. The opposite parties No. 1 and 2 have made a park over the roof of the parking area and the roof is constructed with inferior quality of material, due to that, there is constant seepage. The parking area due to rain water and watering done in the park always, remains water logged and the roof of the parking area has also swollen because of the same. It is apprehended that the roof of the parking area may come down any day. Due to this fears, no allottee wants to go in the parking area. The photograph of the parking area has been attached as A-5 (colly). Thirdly, the swimming pool never became functional, which was constructed over the club house due to problem of seepage and water logging. On 16.04.2013, there was earthquake of a very low intensity. The building suffered major damages and cracks at a number of places, including pillars, rooms, balconies. The nature and pattern of cracks were common in most of the flats. It reveals the inferior quality of material used and also the defect in the type of constructions. On 6.6.2013, there was a storm and because of the storm, the boundary wall on the roof top of the tower fell down on its own and the entire structure consisting of 12 floors started shaking. The complainants fear that this

building at any point of time can fell down like a house of cards. However, no casualty was reported. Few photographs were taken, which were annexed as Annexure No. 6 (colly). The said incident was covered by newspapers and was even shown on National TV news channels. Copy of the newspaper cutting is annexed as Annexure A-7. The complaints were made through emails to the opposite parties 1 and 2 but those did not ring the bell. The complaint was also made with G.D.A.. Copy of the letter dated 7.6.2013 is placed on record as Annexure A-10. Ultimately, this complaint was filed on 10.10.2013 with the following prayers:-

"a) Direct the opposite parties to pay to the complainants an amount equivalent to the current market rate of each of the flats of the complainants including the costs of registration and other charges;

b) Direct the opposite parties in the alternative to allot similarly situated flats of equal size and similar location in another apartment/tower to each of the complainants with cost of registration and other charges;

c) Direct the opposite parties to pay to each of the complainants an amount of Rs.5,00,000/- for the cost of the money spent on the flats by each complainant;

d) Direct the opposite parties to pay to the complainants a sum of Rs.10,00,000/- each towards mental torture and harassment etc.;

e) direct the opposite parties to pay to the complainant Rs.5,00,000/- each as costs of litigation;

f) Direct the opposite party to pay interest at the rate of 24% upon the above said amount.

And/or

g) Pass such other order or orders as this Hon''ble Commission may deem fit and proper in the facts and circumstances of the case.

DEFENCE

Opposite party No. 1 has denied all the allegations. M/s Carol Infrastructure Private Limited/opposite party No. 2 filed written version through Shri Deepak Gupta, who is authorised to file the written statement on behalf of opposite party No. 2. Opposite Party No. 2 is the lawful owner of land admeasuring 71930.18 sq. mtr. situated at Village Noor Nagar, Raj Nagar Extension, NH-58, Tehsil & District Ghaziabad and planned development and construction of a residential multi storied group housing complex namely River Heights.

The Housing project was checked for gravity and earthquake load in accordance with I.S. Codes by the Indian Institute of Technology, Delhi (in short, ''IIT'') and found the project safe and adequate. The consultancy report dated 2.7.2008 categorically certified that: "The structural design and drawings for above mentioned Group Housing Project at Noor Nagar, Ghaziabad was checked for gravity and earthquake loads in accordance with relevant I.S. Codes and found safe and adequate.

The reinforcement details were made for ductility requirements of earth quake in accordance with relevant IS Codes. Hence, it is approved."

Its report has been placed on record as Annexure R-1.

OP 2 received various approvals. It was approved by IIT and a certificate dated 19.6.2009, annexure R-3, regarding proof checking of structural design and drawings was issued. Again, a certificate certifying that the proof checking of structural design and drawings are in conformity to the Indian Standard was issued by IIT on 13.06.2011, which runs as follows: "It is certified herewith that the Structural Design and Drawings for the Building Plan (Tower 1 to 15) of M/s Carol Infrastructure Pvt. Ltd. at Khasra No. 891, 892, 893, 895, 551, 548, 549, 888, 557 and 553 in village Noor Nagar, Ghaziabad, U.P. have been checked and found to be conforming to the recommendations of the relevant codes of practice as per the latest Indian Standards. All the stipulated combinations of Gravity Loads and the relevant Lateral Load (Wind/Earthquake) have been considered and duly incorporated in the analysis and design. Structural drawings have been checked both for design as well as detailing."

Its copy has been placed on record as Annexure R-4.

Ghaziabad Development Authority also sanctioned the site plan. Its true copy, annexure R-5 dated 16.11.2011 has been placed on record. Both the lifts are working smoothly since their installation and regular service is being done. Copies of installation, Ext. R-6, copy of AMC, Ext. R-7 and a certificate dated 9.12.2003 issued by the Assistant Director (Electricity Department), Government of U.P., Ghaziabad have been annexed with this complaint as Ex. R-8. At the time of execution, the complainants have satisfied themselves about the quality of construction and categorically stated in para 2 of the sale deed: "That the vacant and peaceful possession of the said apartment hereby sold has been delivered by the Vendor to the Vendee and the Vendee has satisfied himself about the quality, specifications and extent of construction and design of the said apartment and undertakes not to raise any dispute hereto after in connection therewith."

The sale deed was signed on 9.5.2012 and the complainants are stopped from raising any dispute in respect of construction, quality and specification thereof. A full set of sale deed has been placed on record as Annexure 9.

A tripartite maintenance agreement consists of a force mafeure clause in para 8.9. stating as under: "In this article force majeure circumstances shall include Acts of God, war, terrorism, civil commotion, riot, fire, earthquake, floods, theft, strike etc. and any circumstances beyond control of the Company and/or FM agency"

Its true copy is annexure R-10.

The case is not maintainable against OP 1 as it does not have any role to play in this case. This case entails complex question of law. Therefore, this Commission has no jurisdiction. The relations between the complainant and the opposite party No. 2 are governed by the terms and conditions of the sale deed and flat buyers'' agreement as per Polymat India P. Ltd. and anr. Vs. National Insurance Co. Ltd. and Ors. AIR 2005 SC 286:

" The terms of the contract have to be construed strictly without altering the nature of the contract as it may affect the interest of the parties adversely." All the other allegations have been denied.

Type of Vehicles Capital sum insured (Rs.) Premium (Rs.) Cover

Motorized Two Wheelers 1 lakh 50/- i. 100% of CSI for Death, Loss of Two Limbs or sight of both eyes or one limb and sight of one eye etc?.

Private Cars 2 lakhs 100/- i. 100% of CSI for Death, Loss of Two Limbs or sight of both eyes or one limb and sight of one eye.

ii. 50% of CSI for Loss of one Limb or sight of one eye.

iii. 100% for Permanent Total Disablement from injuries other than named above.

The principal argument urged by both the counsel is ''whether the construction of the premises in dispute is of superior quality or inferior quality?'' Learned counsel for the opposite party placed reliance on consultancy report dated 2.7.2008, Ex. R-2, the building was approved by IIT, Delhi and a certificate dated 19.6.2009, annexure R-3 detailed above, were produced in proof of their case. It was also argued that a tri-partitite agreement was executed which is already detailed above. The OPs are not liable for the loss occurred due to earthquake. It was argued that the complainants are now stopped from raising such objection.

The learned counsel for the OPs vehemently argued that all the complainants have not got ''same interest''. They have different causes of action. There is no similarity in the prices, dates etc. The provisions of Sections 12(1)(c), 13(6) C.P. Act and Order I Rule 8 do not stand proved and the case is liable to be dismissed.

We see merit in these arguments in a measure. All these arguments lack conviction. It must be borne in mind that the project is same. The opposite parties are the same. All these cases pertain to flats. Patna High court in the case of Pachu Singh and Ors. Vs. Bilaso Kuer and Ors, 1968 (16) BLJR 515 , in para 7, has held as under: "7. It was contended by Mr. Lalnarain Sinha appearing for the appellants that as the plaintiffs and other villagers whom they purported to represent owned different plots and had distinct rights in respect of them. Though they had similar interest, they cannot be said to possess "the same interest" in the subject matter of the suit as contemplated by Order 1 Rule 8, Code of Civil Procedure. According to him, "the same interest" means identical interest in entirety in the land to be irrigated. In the case of The Duke of Bedford And Ellis 1901 A.C. 1, Lord Macnaghten, with whom majority of their Lordships agreed, while interpreting Rule 9 of Order 16 of the Rules of Supreme Court, which also contains the expression "the same interest", observed:

Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent.

It would thus appear that the expression "the same interest" in rule S of Order 1 cannot be interpreted to mean identical interest in its entirety, as contended by Mr. Sinha. It means nothing more than common interest. In the case of Sivagurunatha Chettiar v. Ramaswami Iyengar 15 I.C. 399, Abdur Rahim, J. of Madras High Court also held that Order 1, Rule 8 of the Code of Civil procedure applies not

only to cases where concurrent interest are concerned but also where they are similar though distinct. Rule 8 of Order 1 of the Code of Civil Procedure is nothing but a rule of procedure for the convenience of the litigants where the number of persons interested in the subject matter of litigation is numerous, and there will be no justification for putting a stricter interpretation on the expression "the same interest" as not to cover cases of similar but distinct interest of persons having common grievance."

Certain photographs have also been attached to show the good position of the flats. On the other hand, there is report of National Test House, Northern Region, Ghaziabad. The observations were made as under:

"1: The bottom of the slab is not smoothly finished.

2: Significant amount of deflections of the slab is seen in the many areas.

3: Proper drainage system to drain out water is not available/non functional.

4: Severe leakage of water and stains of water leakages are seen in the many areas in the slab.

5: The drainage system provided later by inserting PVC pipes at many places is not only aesthetic but also draining out water on the floors of parking places in a rude way without any engineered system.

Swimming pool on the terrace of the club:

1: Severe water leakages through the bottom of the slab, beams are observed at many places.

2:Leakages stains are expanded to all neighbouring concrete member threatening the severe damage of the structure due to corrosion and spalling of concrete.

3:Arrangements made for water drainage is not proper and not controllable.

4:Using the swimming pool without proper repair and rectification of drainage system contribute to the severe damage of the RCC structure.

There are General observations, which run as follows:

The cellar slab using as parking area is not smoothly finished at the bottom side.

Deflections are observed due to settlement of shuttering at some places.

The Hairline to mild cracks in the plasters are observed in the corridors nearer to the adjoin places of the columns with masonry walls especially at columns nearer to the flats 1058 and opposite to Flat 1262 near the stair case.

Mild cracks are observed in the masonry wall plasters nearer to the door opening places in the Flat 1058.

The complainants have also placed reliance on record certain other photographs, which show poor and precarious condition of few flats. There is one newspaper cutting pertaining to Ghaziabad Edition dated 17.6.2013 in Hindi language, which shows that due to cyclone and rains, some of the trees were uprooted and a balcony had fallen down. The statements of the complainants are supported by their affidavits. It is, thus, clear that the OP used inferior material in constructing this project. Although, it is a ground that the opposite parties will not be negligent for an earthquake yet, now a days, there are so many treatments for preventing loss caused by the earthquakes. Again, there was cyclone and torrential rains but that does not come with the exception clause. Again, it must be borne in mind that the above said grounds of earth quake, cyclone and torrential rains occurred within one year from putting the complainants in possession of the premises in dispute. Even if the loss by earthquake may not be considered, yet there is loss to the building due to cyclone and torrential rains. It must be understood that toys and pucca houses are entirely different. It is but natural that the complainants and their family members must be living in constant fear and threat to their lives.

The complainants are in their houses for a pretty long time. It is not possible either to refund the money or put them in an alternative accommodation. Their grievances can be compensated by payment of costs. The complainants have paid the entire amount in the sum of Rs.1,32,28,400/- but as per the prayer clause, they are demanding more amount then the total price of the flats.

However, we partly allow this complaint. The OPs are hereby directed to repair both the lifts within 90 days from receipt of the copy of this order. The certificate of their cent percent correction/their being flawless be issued by KONE. It is the responsibility of OPs and KONE that these must function properly and without any flaw. The report be accompanied by the OPs and maintenance department, failing which, OPs will be liable to pay penalty of Rs.5,000/- per day till the needful is done.

Almost similar order is passed in respect of swimming pool. It should be constructed/repaired within 90 days above said otherwise the OPs will be liable to pay penalty of Rs.5,000/- per day till it is fully repaired.

It is apparent that other repairs would be difficult to be raised. We, therefore, keeping in view all the facts and circumstances grant Rs. 1 lakh each to six flat owners. The same be paid within 90 days mentioned above otherwise it will carry interest at the rate of 12% p.a. till realisation. The flat owners will get the needful themselves. Costs of Rs.25,000/- to each of flats owners are also granted. Same be paid within the said 90 days otherwise it will carry interest at the rate of 12%.