ORDER

(Passed on  29/10 /2018)

PER SHRI.ATUL D.ALSI, PRESIDENT.

               The complainant has filed this complaint U/s 12 of the Consumer Protection Act, 1986 for non completion of construction work as per agreement and non issuance of completion certificate from the competent authority and thereby seeking direction to complete the incomplete construction work, obtain completion certificate from the competent authority and to pay compensation and cost.

2.   The story in short is that the complainant is a resident of 
Charur Khati and for his residential purpose after retirement, he wanted to have a house at Warora. Therefore he entered into an agreement with opposite parties number 1 to 3 who are builders and developers, to purchase flat bearing number 201 from Veda Vastu apartment admeasuring 33.86 square metre for a consideration of Rs. 10 lacs to be constructed at mouza warora Survey No. 280, plot number 3 admeasuring 357.80 square metre. The apartment is to be constructed as per the plan sanctioned by the sanctioning authority and as per the registered agreement between the complainant and the opposite parties. It is agreed between the parties that a good quality of construction will be provided within a period of one year and the sale deed would be executed after the completion of one year from the date of agreement dated 9/2/2014. But the sale deed of the flat has been executed in favour of the complainant on 1/6/2016. The opposite party also failed to complete the construction work and to obtain and issue completion certificate of the flat in favour of the complainant. Other facilities were also not provided as per the agreement. There were leakages in the rooms, the Plaster is of poor quality, there are cracks to the wall, the material used in doors and windows is of very substandard quality, the complainant requested from time to time to remove the defects in construction. But the opposite party avoided to do so. Therefore the complainant issued legal notice dated 3 February, 2017 through his advocate Mr Praveen Zade. The notice was Served on O.Ps and the OP. assured to remove the defects in construction, but no work has been started as yet. The building has been inspected through approved Architect Shri Pallarawar. The report of the architect has been filed along with the petition. The complainant again issued a notice dated 8-1-2018 through advocate Abhay kullarwar calling upon opposite parties to remove the defects as per architect report but the opposite parties did not comply the notice. Therefore the petition has been filed with a prayer that the services of the opposite parties be declared as defective, to issue direction to the OPs to remove the defects in the construction as per inspection Report dated 2/11/2017 of architect Shri Pallarawar which is filed at exhibit 13 and further to pay compensation of Rs.75,000/- besides cost of proceeding.

3.           The complaint was accepted and the notices where served on the opposite parties. But in spite of due service of notice, the opposite parties failed to appear before the forum. Hence the case proceeded ex Parte against the opposite parties.

 
4.         We have gone through the complaint, documents,  affidavit hand written notes of argument file by the complainant. Also heard the oral argument advance by the Advocate of the complainant. Following issues emerged for our consideration.

ISSUES FINDING
1. Whether the complainant is a consumer ?                                         Yes

2. Whether there is a deficiency in service on the

    part of opposite parties ?                                                                     Yes  

3.  What order ?                                                                  As per final order..

REASONING

As to issue number 1 to 3

5.          A Registered agreement to purchase the flat has been executed between the complainant and the Opposite parties on 9/2//2014. Hence the status of the complainant as a consumer is not disputed. The sale deed of the flat has been executed in favour of the complainant on 1/6/2016. The complainant has issued legal notices to the opposite parties before execution of sale deed and even after execution of sale deed calling upon the opposite parties to remove the defects in the construction as per the report of independent architect shree Pallarawar. Report of architect Shri Pallarawar is filed on record as per list of documents at serial number 6.  The complainant has also filed photographs of the shortcomings in the construction at serial number 13 along with affidavit of architect Shri Pallarawar dated 28/08/2018  at exhibit 10. Therefore it is proved that the construction has not been carried out as per the agreement and there are shortcomings in the construction. On perusal of architect report, it is clear that the construction of the flat is not according to the agreement. After service of notice to remove the defects and even after survey by the architect, the opposite parties failed to remove the defects. Therefore it is deficiency in service on the part of opposite parties.

6.            In the matter of B.Venu Madhav Vs.National Consumer Disputes Redressal Commission, Represented by its Registrar, New Delhi and Ors., in W.P.No.30394 of 2011, dated 18/01/2012 reported in CDJ 2012 APHC 421, wherein it was held that “when there is immovable property and the amenities promised by the opposite party were not provided, The National Commission held that it can be construed as continuing cause of action and it cannot be said to be barred by time. The above judgment squarely applies to the present matter and hence the complaint is within limitation.

               In view of above observations the petition is partly allowed as per following order..

FINAL ORDER

1.     The Petition is partly allowed.

        2.     The opposite parties No.1 to 3 are directed to jointly and severally

                 remove the defects in the construction as per inspection Report of

                 Architect Shri Pallarawar dated 2-11-2017 and to obtain   

                 completion certificate of the apartment from the competent

                  authority.

        3.    The opposite parties No.1 to 3 are further directed to jointly and

                severally pay to the complainant a compensation of Rs. 10,000/-

                besides Rs.10,000/- as cost of proceeding.

        4.    Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President