J PARTHASARTHY Vs. HOMEFINDERS HOUSING PROMOTERS LTD

JUDGEMENT

(1.) This is an appeal filed by the complainants, J. Parthasarathy and others against the order of the State Commission dismissing their complaint.

(2.) Brief facts of the case are that all the 14 complainants purchased flats from the 1st respondent, M/s. Homefinders Housing Promoters Ltd., possession of which was obtained during January-April, 1992. Alleging deficiency in service on the part of the 1st respondent relating to non-provision of lift, park for relaxation, proper drainage/efficient treatment of sewerage, etc. and claiming Rs. 5 lakh towards mental agony, Rs. 4.75 lakh as damages and Rs. 10,000/- as costs, the complainants filed the complaint before the State Commission who after hearing both the parties and examining each of the alleged deficiency on merits passed an order dismissing the complaint; it is against that order that this appeal has been filed.

(3.) On behalf of the appellant, it was argued by the learned Counsel, Mr. Rohtagi that the State Commission has erred in arriving at the conclusion it did; his main argument centred on the non-provision of lift. According to him provision of lift was part of price charged from the complainant and the pretext that under the local regulation lift is to be provided on a construction of 1 + 4 floors is not valid in this case. It is an admitted fact that as the complex comes in the flight path and is near the airport, building higher than 1 + 3 cannot come up. Since money had been charged for the purpose. 1st respondent was obliged to provide the lift, its non-provision is deficiency in service. He argued that the State Commission read too much on the existence of two Flat Owners Association. In fact they merged long time back. The order of the State Commission needs to be set aside and the 1st respondent be directed to carry out the repairs/provide necessary facilities etc. On the other hand, it was argued by the learned Counsel for the 1st respondent, Mr. Abdul Rahim that the complaint itself is not being maintainable as it is time-barred. On merit also it was stated by him that there was no provision for lift in the Agreement. Basically there is a dispute between two parallel Flat Owner Associations with which the 1st respondent has nothing to do. All the items/facilities, as per the agreement have been provided. These have been examined at length by the State Commission and have found no deficiency on the part of the respondent. Hence, the appeal needs to be dismissed. Our perusal of the material on record reveals that admittedly the possession of flats was given/taken during January-April, 1992 and the complaint before the State Commission was filed in October, 1994. Period provided in the C.P.A. for filing appeal is two years. No clear explanation on this point was forthcoming from the learned Counsel for the complainant except to state that cause of action was continuing till date. Since the possession was taken in January-April, 1992, the residents immediately came to know of the deficiency especially of lift, etc. We find no merit in this argument of the complainant and find that the complaint indeed was time-barred. Even on merits, we find that admittedly there is no provision for a lift in the Agreement. Payment on this account is not proved. Respondent did not violate the local laws as lift is to be provided for buildings having 1 + 4 floors whereas this complex has 1 + 3 floors. Under these circumstances, we find no merit in this allegation. State Commission has held that "park" has been provided but is being used by the residents for playground; sewerage/water treatment is as per plan approved by MMDA, collection of sales tax is held as a trust-disposal of which depends upon the outcome of the decision of the Supreme Court where the matter was pending; no evidence was led in support of allegation of cracks in the wall or defects in the flooring; free access to Association Building, Maintenance Building, Common Room, Common land and Common properties; Computer for education appears to be related to the two Residents' Association and it has nothing to do with the 1st respondent; finding of the State Commission that "Midlanding connected corridors" were abandoned on the request of flat owners for the purpose of security, has not been challenged by providing any proof to the contrary. In fact, it is the contention of the 1st respondent that there was no such provision in the Builder's agreement. No copy of the Agreement was produced before us by the complainant to support his case in favour of providing lift, midlanding connecting corridors, etc.