DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 18th day of July, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 30/04/2021
CC/86/2021
- Mohandas M.R.,
S/o. Ramachandran,
“Karthika”,
Plot No.2, Pazheri Illam Housing Project,
Karattuparambil Road,
Vella Road, Mankara, Palakkad – 678 613
- Karthika,
W/o. Mohandas M.R.,
“Karthika”,
Plot No.2, Pazheri Illam Housing Project,
Karattuparambil Road,
Vella Road, Mankara, Palakkad – 678 613 - Complainant
(By Adv. M/s Sreenath S. & Rajani R. Mohan)
Vs
- Pazheri Properties & Developers Pvt. Ltd.,
Pazheri Plaza, Kodathipadi,
Mannarkkad, Palakkad – 678 762.
- Prakash E. Warrier,
Rep. of Pazheri Properties & Developers Pvt. Ltd.,
& Partner of Pazheri Illam Housing Project,
S/o. Ikkanda Warrier,
Arakurrissi Variath House,
Arakurrissi, Mannarkkad, Palakkad – 678 582.
- Sanil C.M.,
S/o. Manikandan C.K.,
Chamakkad, Koodallur PO,
Thaloor, Palakkad – 679 554. - Opposite parties
(OP1 by Adv. M/s. C.P.Pramod & Shiju Kuriakose
Case abated against OP2
OP3 is ex-parte )
O R D E R
By Sri. Vinay Menon V., President
- As can be ascertained from complaint pleadings, complainants are husband and wife who purchased property from OPs 1 & 2 who were the promoters of a project called Pazheri Illam Housing Project. OP3 is a private contractor who entered into an agreement with complainants to construct the villa on behalf of OPs 1 & 2. Even though a contract was entered into between the 1st complainant and O.P.3 for construction of a residential building having 978 sq. ft. Construction was defective. As can be seen detailed in paragraph 5 of the complaint, the construction suffers from 7 specific defects. This complaint is filed seeking a compensation of Rs. 15 lakhs from OPs 1 & 2 and for compensation of Rs.5 lakhs from O.P.3. Cost and incidental expenses are also claimed.
- O.P.s 1 & 2 filed similar versions stating that they had initially floated a project as Illam Heritage Park which failed to take off. O.P.s 1 & 2 are having no contact with O.P. 3. O.P. 1 has no connection at all with the complainant. O.P.2 is merely a seller of land, but did not construct property. They sought for dismissal of the complaint.
- Notice issued to O.P.3 returned with endorsement “unclaimed”. Hence O.P.3 was set exparte.
- The following issues were framed for consideration:
- Whether OP1 is a necessary party to the complaint?
- Whether OP2 is a necessary party to the compliant?
- Whether the construction carried out was a part of Illam heritage?
- Whether the residence of complainant suffers from any defects?
- Whether there is deficiency in service on the part of OPs 1,2 or 3?
- Whether the complainant is entitled to any of the reliefs sought for?
- Any other reliefs?
5. (i) Documentary evidence of complainant comprised of proof affidavit and Exhibits A1 to A7.
Marking of Exts. A2, A5 & A6 are objected to on the ground they are photocopies. Objection is overruled since this Commission is not bound by Indian Evidence Act or BSA. Further OP has no objection that these are forged or concocted documents.
(ii) 2nd complainant was examined as PW1.
(iii) O.P.1 filed proof affidavit but there was no documentary evidence.
(iv) Eventhough IA 16/2024 to cross examine OP1 and the same was allowed, 1st OP failed to enter the box. Hence, his cross was dispensed with liberty to resort to any adverse inference.
(v) Report filed by the Expert Commissioner was marked as Ext.C1.
Issue No.1
5. The complainant has pleaded that they had purchased a villa which was under a project floated by the O.P.s 1 & 2. O.P.1 opposed this contention stating that even though there was a project as such the said project fail to take off and therefore the same was shelved. He is not part of any of the transactions.
6. In order to prove their contentions, the complainant has marked Ext.A1 brochure. This is a brochure issued by one Pazheri Property and Developers Pvt. Ltd. The Project is seen as Illam Heritage Park. It is this project that the OPs 1 & 2 contend that failed to take off.
Complainants marked Ext.A2 sale deed bearing No. 1555/2018 of Kottayi SRO. This is a sale deed entered into between Shri. Prakash E. Warrier acting for and on behalf of one partnership firm, Illam Housing Project. This sale deed pertains to transfer of 0.0174 hecters of land comprised in resurvey 345/26 of Mankara Village in favour of complainants.
The 3rd document by which the complainant seeks to establish a connection between the 1st OP is the receipt issued by Illam Housing Project. This receipt is marked as Ext.A4.
7. It is to be noted that even though Ext.A1 project is advertised as being floated by OP1, rest of the documents provided by the complainants themselves to prove their case i.e. Exts.A2 sale deed & A4 receipt, disagrees with such a contention in as much as they are issued by an entirely different partnership. It is seen from Ext.A2 sale deed that the Illam Project has availed the entire consideration for the cost of the plot. i.e. immovable property.
8. Counsel for O.P.1 had cross examined the 2nd Complainant was examined as PW1. Even though she has repeatedly stated that the 1st OP is part of the transactions, in lines 2 to 9 in page 7 of her deposition she has deposed as herein below:
“Ext.A7 മാതൃഭൂമിപത്രം ഹാജരാക്കിയിട്ടുള്ളത് പ്രകാശ് E വാരിയര് മരിച്ചു എന്ന കാണിക്കുന്നതിനാണ്. 2-)0 എതിര് കക്ഷിയുടെ office 1-)0 എതിര്കക്ഷിയുടെ ഉടമസ്ഥതയില് മണ്ണാര്ക്കാടുള്ള കെട്ടിടത്തില് വാടകയ്ക്ക് പ്രവൃത്തിക്കുന്നതിന്റെ ഭാഗമായാണ് 1-)0 എതിര്കക്ഷിയെ ഈ കേസില് കക്ഷി ചേര്ത്തിരിക്കുന്നത് എന്ന പറഞാല് ശരിയാണ്.”
9. Thus, not only has the complainant failed to prove that the 1st O.P. is a complicit in the transaction but also admitted that he was impleaded merely because the 2nd O.P. was having an office in the building owned by O.P.1.
10. We hold that OP1 is not in any way connected with the transactions between the complainants and OPs 2 & 3.
11. O.P.1 is an unnecessary party to the proceedings.
Issue No. 2
12. The 2nd question pertains to the maintainability of the case as against O.P.2.
13. 2nd O.P. died pendent lite. The successor in interest of partnership firm or his legal heir, as the case may be, was not impleaded. Therefore, case as against OP2 stands abated. Yet for pedantic reasons we are resorting to discussion on this issue.
14. Per complainants, O.P.2 was hand in glove with O.P.1 in construction of the building. Over and above Exts. A2 & A4 which were already discussed supra, the complainant has filed another document as Ext.A6. This is a land sale agreement entered into between complainants and OP2. There is nothing in Exts.A6 or A2 that would show that the 2nd O.P. had entered into any agreement for construction of a residential building with the complainants. Both these documents are merely agreements for sale of property.
15. Since Consumer Protection Act does not contemplate a transaction wherein immovable properties are the subject matter of sale, we hold that this complaint is not maintainable as against OP2 for the reliefs sought herein.
Issue No. 3
16. Complainant has pleaded that the construction was a part of Illam Heritage Project. But the documentary evidence that were hitherto discussed i.e. Ext.A1, A2, A4 & A6 are in sufficient prove that building construction was a part of Illam Housing Project.
Yet another document filed by the complainant and marked in evidence is a construction agreement entered into between the 1st complainant and the 3rd OP. The 3rd OP is a Civil Engineer and a Private contractor who is running his business in the name and style of ‘Paradise Homes and Interiors’ with its own various designs and plans for building of independent villas as per the plans and specifications of OP3 (As cited in page 2 of Ext.A3).
17. On a perusal of Ext.A3 it transpires that construction agreement was entered into between ‘Paradise Homes and Interiors’ and the complainant. There is nothing that would show that the villa constructed was a part of either Pazhery properties or Illam Housing Project.
18. Thus, we have no hesitation to hold that the villa constructed by the 3rd OP is not a part of Illam Housing Project.
Issue No. 4
19. Per pleadings, the residential building of the complainant suffers from the following 7 defects.
1) Top portion of septic tank is projecting from ground level.
2) Fixation of granites and tiles are not even.
3) Huge cracks had developed in the compound wall and the same is not plastered
properly.
4) Termite infestation due to use of low-quality wood.
5) Hand rail of stairs was not installed properly.
6) Actual dimension of rooms varies from the measurements in the plan.
7) Foundation of the house in the south west corner is not plastered.
20. In order to prove their case complainants took out an Expert Commissioner, whose report was marked as Ext.C1.
As per Ext.C1, the residence suffers from the following defects:
- Granite slabs are not fixed properly. Granites on steps are moving (observation III of Ext.C1)
- Vertical cracks in compound wall are small. (Observation IV)
- In wood work, small cracks are present. Cracks on shutters may be due to lack of seasoning of wood. Frame of front door is damaged. Room door frame is also damaged. (Observation V)
- The final finishing of stainless-steel hand rail is not done. The cups are not welded. (Observation VI)
- Slight change in alignment of wall is noted. (Observation VII)
- Drainage is open to road. (Observation IX)
21. From out of the 9 points sought to be noted by the Expert Commissioner, we have left out
observations I, II & VIII & one item in IX.
- Observation I is made pursuant to a request to note whether the builders had provided the amenities as mentioned in Ext.A1 brochure issued by OP1. Since we have already found that the construction has no connection with OP1 or OP2, this observation is out of place.
- Observation II is in connection with the projection of septic tank. The expert has made an observation that presently the top of the septic tank is in the same level as of the ground level.
- Observation VII pertains to plastering of the foundation. Expert has reported that this area is now plastered.
- One item in observation IX that we had let out is the observation that air holes are not cleaned. Cleaning of air holes is a function of the residents therein. It is not the function of the builder.
22. Based on the observations the Expert Commissioner has stated his opinions as below:
1) The building which is inspected is occupied and under use.
2) The facilities assured in the brochure are not provided.
3) No major structural damages are noted. Only defects due to lack of workmanship is
noted.
23. As already stated supra, the 2nd opinion of the expert that the facilities assured in the brochure are not provided cannot be taken into consideration. But as per Ext.C1 the building suffers due to lack of workmanship.
24. The complainant has succeeded in proving that their residence suffers from defects.
Issue No. 5
25. In the result, we hold that there is deficiency in service on the part of OP3.
26. OPs 1 & 2 are absolved of any liability or responsibility.
Issue No. 6
27. In view the discussions and findings above, the complainant is not entitled to any reliefs sought for from OPs 1 & 2.
28. Complainant has sought for an amount of Rs.5 lakhs as compensation from the OP3. They have also sought for Rs.50,000/- towards mental agony and Rs.5,000/- towards cost of these proceedings.
29. Even though the observations made by the Expert Commissioner with regard to the construction are not grave, items 5 & 7 are not minor. The change in alignment of the wall is not something that can be corrected without resorting to a major make over of the building. With regard to the defects suffered by the doors also we find huge amounts will have to be expended.
30. Therefore we find that the reliefs sought for by the complainant as against OP3 is justifiable.
Issue No. 7
31. Resultant to the discussions and findings above we dispose off this complaint with the following orders:
- OPs 1 & 2 are absolved of any liability.
- Complainants are entitled to Rs.5,00,000/- for deficiency in service from the 3rd O.P.
3. The 3rd O.P. is directed to pay an amount of Rs.50,000/- as compensation for mental agony.
4. Complainant is entitled to a cost of Rs.5,000/- payable by the 3rd O.P.
5. The above directives shall be complied within a period of 45 days from the date of receipt of a copy of this Order, failing which the 3rd O.P. shall pay an amount of Rs.1,000/ as solatium per month or part thereof from the date of this Order till the date of compliance of the directives.
32 . Accordingly, this complaint stands allowed in part.
Pronounced in open court on this the 18th day of July, 2024.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Original Brochure issued by Illam Heritage Park
Ext.A2 – Copy of Sale Deed bearing No.1555/2018
Ext.A3 - Original construction agreement dated 13/3/2019
Ext.A4 - Original receipt dated 10/10/2018
Ext.A5 – Copy of sale deed bearing No.2675/2012
Ext.A6 – Copy of land sale agreement dated 15/11/2018
Ext.A7 – Original Mathrubhoomi newspaper dated 26/5/2022
Exhibits marked on the side of the opposite party: Nil
Court Exhibit:
C1 – Expert Commissioner’s report dated 22/1/2023
Third party documents: Nil
Witness examined on the side of the complainant:
PW1 – Ms.Karthika (2nd Complainant)
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
