V.T. SAMPATH KUMARAN Vs. BRIGADE ENTERPRISES LIMITED

JUDGEMENT

(1.) Heard Mr. V.T. Sampath Kumaran, (the complainant, In Person) and Mr. Sanjoy Kumar Ghosh, Advocate, for the opposite party.

(2.) V.T. Sampath Kumaran has filed above complaint for directing opposite party to pay (i) INR 300000/- towards repair and rectification costs; (ii) INR 250000/- as litigation costs; (iii) INR 500000/- to National Consumer Welfare Fund, as compensation for mental agony and harassment of the complainant; and (iv) any other relief which is deemed fit and proper in the facts of the case.

(3.) The complainant stated that M/s. Brigade Enterprises Limited (the OP) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects. The OP launched a high-end project of residential villas in the name of 'Brigade Palmgrove", at Village Bogadi, Kasaba Hobli, Mysore Taluk, in the year, 2018 and made wide publicity of its amenities and facilities. The complainant booked Villa No. 16 in 'Brigade Palmgrove' and paid Rs.1734474.00 on 7/3/2018, Rs.171000.00 on 9/3/2018, Rs.1905280.00 on 7/4/2018 and Rs.16395801.00 on 17/4/2018, total Rs.19054740.00 for the villa and Rs.1151815.00 for common amenities and facilities, additional expenses, property assessment, club membership, maintenance and corpus fund. The OP handed over possession of the villa on 22/4/2018 and executed registered sale deed dtd. 23/5/2018 of it in favour of the complainant, for which, Rs.190550.00 as stamp duty and Rs.25000.00 as registration charges and legal expenses was paid. Right from the day of taking possession of the villa on 22/4/2018, the complainant noticed several defects in construction quality and brought to the notice of the Estate Manager, Supervisor, Executive and Engineer of the OP through email messages, telephonic conversations and directly. The complainant first noticed the problem of defective mounting of washbasins and gradually over a period of time he became aware of the fact that the issue was more serious due to inferior materials used for supporting the washbasin and/or poor workmanship. The complainant brought to the notice of the OP on 3/5/2018, reporting 'leakage under the sink in the ground floor bathroom. The defects can be classified as pertaining to flooring, polishing of marble floors, water seepage, electrical fittings, washbasin mounting, paint peeling, plumbing and sanitary etc. The OP rectified minor defects, which have been acknowledged time to time in writing. The problem manifested in various rooms, as the root cause of the problem was not addressed by the OP. Nearly 100 messages were exchanged between the parties in making requests again and again for rectification of the defects. In roof, only temporary fixes have been done. Few important defects surfaced within few days of rectification and persist even today. The OP did not rectify major defects in spite of repeated request. In the meantime, Covid-19 spread in the country and lock down was imposed. When lock down was withdrawn, then the OP took plea that their defect liability period had expired and declined to rectify the defects. On 4/9/2021, granite pieces of washbasin fell down. At that time, it was being used but fortunately, it did not cause injury. In spite of information in this respect, the OP refused to rectify it. Then, the complainant filed CC/70/2022 on 23/2/2022 before District Consumer Disputes Redressal Commission, Bangalore. The OP raised the issue of lack of pecuniary jurisdiction. District Commission, vide order dtd. 18/10/2022, held that as 'consideration paid' in the present case exceeds Rs.50.00 lacs as such it had no pecuniary jurisdiction and returned the complaint for presentation before appropriate forum. Then, this complaint was filed through e-filing on 5/12/2022 and physical copy on 5/1/2023. Some defects were dangerous to the safety of the building. Seepage was not attended for a long time, in spite of complaint in this respect on email was made in November, 2018 and repeated requests, which resulted in peeling of the plasters and paint in several places, especially in the walls adjacent to the ground floor, bedroom and the powder room near the stair case. In order to avoid any un-happening and further damage, the complainant consulted with a reputed Government approved Chartered Engineer in September, 2022, who inspected the villa and gave report dtd. 21/9/2022 stating that (i) Exterior Eastern wall (especially of south-east corner below parapet) plastering de-bonding has occurred and portion of plastering surface has fallen, may be in the near future, the remaining portion may fall anytime. This has to be attended immediately. (ii) The seepage/dampness noticed on the western portion of the powder room and wall some other areas, it requires immediate attention. (iii) The wooden flooring in the first floor is not in good condition and it has to be relayed. In view of this report, the complainant started rectification of two major defects from 2/11/2022 at own costs and incurred Rs.300000.00 on it. 5. This Commission issued notice in the complaint, vide order dtd. 25/1/2023, which was served upon the OP on 14/2/2023. As statutory period of 45 days from the service of the notice expired and the OP did not file written reply as such, vide order dtd. 11/9/2023, right of the OP to file written reply was closed. The OP filed written reply on 20/9/2023, along with IA/12265/2023 for condoning the delay in filing the written reply. Supreme Court in New India Assurance Company Limited Vs. Hilli Multi-purpose Cold Storage Private Limited, (2020) 5 SCC 757, held that the Commission has no jurisdiction to extend the period for filing written version beyond 45 days from service of the notice. As such, IA/12265/2023 and the written reply are rejected. The complainant filed Affidavit of Evidence of V.T. Sampath Kumaran and documentary evidence. The OP filed Affidavit of Evidence of Udaya Kumar. The OP filed IA/1617/2023 for filing email dtd. 4/12/2023 as additional evidence. Both the parties have filed their written synopsis. 6. The complainant submitted that seepage was not attended for a long time, in spite of complaint in this respect on email was made in November, 2018 and repeated requests, which resulted in peeling of the plasters and paint in several places, especially in the walls adjacent to the ground floor, bedroom and the powder room near the stair case. In order to avoid any un-happening and further damage, the complainant consulted with a reputed Government approved Chartered Engineer in September, 2022, who inspected the villa and gave report dtd. 21/9/2022 stating that (i) Exterior Eastern wall (especially of south-east corner below parapet) plastering de-bonding has occurred and portion of plastering surface has fallen, may be in the near future, the remaining portion may fall anytime. This has to be attended immediately. (ii) The seepage/dampness noticed on the western portion of the powder room and wall some other areas, it requires immediate attention. (iii) The wooden flooring in the first floor is not in good condition and it has to be relayed. In view of this report, the complainant started repairing of major defects from 2/11/2022 at own costs and incurred Rs.300000.00 on it. The OP submitted that admittedly, possession was handed over on 22/4/2018. At the time of taking possession, the complainant thoroughly checked the villa and gave a list of snags, which was promptly attended by the OP. The complainant after verification acknowledged the same on 30/6/2018. The complainant again pointed out snags on 4/3/2019, which was again promptly attended and rectified as acknowledged by the complainant vide his emails dtd. 13/3/2019 and 18/3/2019. The complainant, thereafter, vide email dtd. 25/6/2020, made a complaint that floor tiles of master bedroom have been damaged and entire floor has been laid without giving mandatory space around the edges despite our repeated protestations The complainant made second complaint vide email dtd. 14/9/2021, in respect of washbasin mounting. The complainant claimed for reimbursement of the bills of repairing done after November, 2022. Clause-23 of the agreement for sale dtd. 3/4/2018 provides defect liability period as one year from the date of handing over possession. As such, the OP is not liable to reimburse this bill. 7. We have considered the arguments of the parties and examined the record. The complainant, in his email dtd. 2/7/2018, made complaint that wooden flooring in three bedrooms were improperly laid. Reminder for wooden flooring was given vide emails dtd. 10/9/2018 and 3/10/2018. In Email dtd. 14/11/2018, pointed out defects (i) flooring in bedroom, (ii) dampness in wall, and broken tiles in front porch, caps for pipes, rusted balcony grills. In email dtd. 22/12/2018, made complaint that several tiles were damaged in master bedroom. In email dtd. 26/8/2019, complained that plastering reveals very poor workmanship as was peeling off at several places. The complaint of falling of granite of washbasin was made on 20/9/2021. The report of Chartered Engineer dtd. 21/9/2022 stated that (i) Exterior Eastern wall (especially of south-east corner below parapet) plastering de-bonding has occurred and portion of plastering surface has fallen, may be in the near future, the remaining portion may fall anytime. This has to be attended immediately. (ii) The seepage/dampness noticed on the western portion of the powder room and walls some other areas, it requires immediate attention. (iii) The wooden flooring in the first floor is not in good condition and it has to be relayed. From the photographs filed by the complainant it is proved that plasters were peeled off at several places. The seepage in the wall, for which complaint was made on 14/11/2018, damaged plasters of the walls at several places and also painting on the walls, which was pointed out vide email dtd. 26/8/2019. These defects were pointed out during 'defect liability period' but were not cured by the OP. The bills as filed by the complainant are in respect of the damages caused due to seepage, for providing water proofing, correcting skirting of the walls, painting and Rs.5000.00 for granite of washbasin. The complainant is entitled for reimbursement of the repair costs. The consumer complaint in respect of defects pointed out on 14/11/2018 could be filed within two years as per Sec. 24-A of the consumer Protection Act, 1986 (now Sec. 69 of the Consumer Protection Act, 2019). Supreme Court in Suo Moto Writ Petition No.3 of 2020 waived the limitation from 15/3/2000 to 29/5/2022 due to spread of Covid-19 in the country. The complaint was initially filed before District Commission on 22/2/2022, i.e. within the period, when limitation was waived and was within time. District Commission, vide order dtd. 18/10/2022 that it had no pecuniary jurisdiction and returned the complaint for presentation before appropriate forum. Then, this complaint was filed through e-filing on 5/12/2022. During pendency of the complaint repair was done to avoid any major accident. The complaint is entitled for the cost of the repairs.