AI Structured Summary
Not yet generated for this judgment
Judgment
V.K. Jain, Presiding Member
This appeal is directed against the order of the State Commission dated 03.01.2019 whereby the said Commission directed the appellant to pay a sum of Rs.32,40,000/- with interest and compensation quantified at Rs.10 lacs.
It transpired during the course of hearing that Smt. Sushila Biani had purchased an open plot on 05.11.2008 and constructed basement, ground floor and first floor on the said plot. She also obtained an electricity connection in the construction so raised by her. She executed a General Power of Attorney, for consideration, in favour of the appellant on 10.03.2011. The appellant then executed a Sale Agreement with respondent no.1 & 2 on 27.03.2012, in respect of the entire construction which existed in the above referred property at that time. Unfortunately, neither the Sale Agreement nor its complete copy has been filed either by the appellants or by the respondents. On the last date of hearing, both the parties were directed to file their respective affidavit disclosing therein as to who had retained the original Sale Agreement after it was executed. The appellant, in her affidavit, has stated on oath that the Agreement was retained by respondents no.1 & 2 and she had not retained any copy of the same. Respondents no. 1 & 2, in their affidavit, have maintained that two sets of the Agreement were executed out of which, one was retained by them and the other was retained by the appellant. However, respondents no.1 & 2 have not filed the original Agreement which they admit having retained and have stated that the same is not traceable. They have not even filed a copy of the complete Agreement. It is difficult for me to believe that the appellant would not have retained a copy of the Agreement which she had executed with respondents no.1 & 2. Similarly, it is difficult for me to accept that respondents no.1 & 2 do not have either the original Agreement or even the complete copy of the full Agreement. It appears that for some reason which is known only to parties, neither of them is willing to share the whole of the Agreement dated 27.03.2012 with the Commission.
Be that as it may, the fact remains that respondents no.1 & 2 had entered into an Agreement to purchase the house which had been constructed upto first floor. Thereafter, a Sale Deed in favour of respondents no.1 & 2 was also executed on 06.07.2012. The possession had already been given to them on 22.06.2012 even before execution of the Sale Deed.
At the time of executing the Agreement dated 27.03.2012, the parties had also executed Annexure-1 to the said Agreement which gives details of the works which the appellant was to execute in the said house. Annexure-1 to the Agreement reads as under:
Annexure-I
The guard room will be extended in length by around 2.5 feet.
A separate servant WC size approx. 3 x 3 feet will be constructed near gas bank on south side with complete sanitary and electrical fittings and drainage.
2 broken tiles in toilet (II floor) will be replaced.
A green color fibre sheet will be provided and fixed on the wooden beams on roof top to cover elevated party area.
Railing on basement entry - both sides.
Basement - Office table glass top to be cut with round edges.
Rear Courtyard - a tap to be provided with drainage arrangement.
Paint touch up at some places and cleaning.
Master bed room WC seat cover to be changed.
Basement - pipe alongwith wall on stairs.
The warranty cards of the electrical items will be made available to the buyer and their warranty will be as per the respective company's terms.
The builder will be responsible for any damp, leakage, major cracks and damage to structure due to manufacturing defects.The builder will also attend to the complainants regarding electrical and sanitary fittings such as leakage, breakage due to poor quality, during first 5 years.The routine maintenance will not be covered in this warranty.
A security door phone will be provided at main entrance.
A portable ladder will be provided.
All types of manufacturing defects would be under builders responsibility for the first five years from the date of registration.
After execution of the Sale Deed, the appellant executed a declaration, in favour of respondents no.1 & 2 which, to the extent, it is relevant, reads as under:
That proper care has been taken in the quality of material and fittings used in the construction of said house and other related work but in the event if any damage is caused due to material used in the construction of said house or any other manufacturing defect, then I shall be responsible to clear the same.
That if any loss of damage caused due to manufacturing defect or leakage or any complaint arises regarding material used in the construction of said house for the period upto 5 years from the date of registry, then I shall be liable and responsible to get the same rectified out of my own expense.
That if loss has been sustained by Smt. Suman Devi Ridhkaran Bachavat and Sh. Ridhkaran Bachavat due damaged is caused to the above said plot by natural calamity (fire or theft) in that event Smt. Namrata Sethia has no responsible for such losses and if Smt. Suman Devi Ridhkaran Bachavat and Sh. Ridhkaran Bachavat make any construction or altercation of their own, then they themselves shall be liable for any loss so caused and the purchaser shall be liable for misuse of land building and damage caused due to lack in maintenance.
Respondents no.1 & 2 had also executed two Agreements, after taking possession of the above referred house from the appellant. One Agreement they had executed with Tanishq Construction Company on 27.06.2012 and with M/s Agarwal Enterprises on 29.06.2012. The Agreement with Tanishq Construction Company required them to furnish and decorate the house at the cost of Rs.52,92,000/- whereas the Agreement with M/s Agarwal Enterprises required them to carry out the works recorded therein at the cost of more than Rs.49 lacs.
The work to be executed by Tanishq Construction Company reads as under:
1.
Civil work, flooring, tiling stone work, fitting, cutting, designing, fall ceiling paints polish etc.
18,67,000/-
2.
Landscaping at GF level and outside house, including horticulture work as per the drawings given to the client. Plants to be used Green/Black Palm, Norlina Palm, Phoenix Palm, Golden Dhurmat, Lal Sag, Snow Bush, Christmas Tree, Palmeria Pudaka, Addemiums, Jak Monisha etc., alongwith anti termite treatment & compost manures.
Lum-sum
17,00,000/
3.
Water proofing treatment on terrace alongwith laying of stones in aesthetic combinations.
Lum-sum
7,50,000/-
4.
Landscaping on terrace and construction of fountain alongwith lights and complete mechanism.
Lum-sum
9,75,000/
TOTAL
Rs.52,92,000/-
The work to be executed by M/s Agarwal Enterprises was described as under in the estimate given by them to respondents no.1 & 2:
Providing and installing bath cubicles in 12 mm toughened glass as per the design approved by the FIRST PARTY.
Providing tiling fittings, sanitary cabinets in toilets complete with veener/laminate & polish, bathroom vanities & toilet accessories.
Providing and fixing MDF Jali's complete with antique wooden melamine polish at.
Providing & fixing wooden flooring in GF-MBR, Child Bedroom & Gym.
Providing & fixing sofas complete with coil springs, rubber strips, 40 density seating foam, pine wood structure, soft foam & fabric (D-Decor)
Providing & fixing modular kitchen alongwith O/H cabinets with complete fittings and accessories, lights etc. from HETTICH and other appliances such as chimney, microwave oven, OTG, Burner from GLEN.
The case of the complainants/respondents no.1 & 2 is that there were several defects in the work which had been executed in the house by the time it was sold to them by the appellant as the Attorney of respondent no.3. The case of the appellant on the other hand is that there was no defect in the work which had been executed by the time the house was sold and the defects pointed out by the Civil Engineer appointed by the complainants are in the works which were executed by Tanishq Construction Company and M/s Agarwal Enterprises. Though an affidavit of the Civil Engineer Mr. Vinay Kumar Soni was filed before the State Commission, it is not clear from his report as to whether all the defects noticed by him were found in the works which had been executed before possession of the house was given to the complainants or they were found in the works which were executed thereafter.
It therefore, becomes necessary to examine the above referred Civil Engineer of the complainants in order to find out which out of the defects, found by him in the house, were in respect of the works which had been executed before the possession of the house, had been given to the complainants and which defects found by him were in the work which had been executed by the other two agencies namely Tanishq Construction Company and M/s Agarwal Enterprises.
For the reasons stated hereinabove, the impugned order is set aside and the matter is remitted back to the State Commission for deciding the complaint afresh after summoning the Civil Engineer Mr. Vinay Kumar Soni and giving an opportunity to both the parties to cross-examine him on the above referred limited issue. It is made clear that while deciding the complaint afresh, the State Commission will go only into the limited question as to which of the defects reported by Mr. Vinay Kumar Soni were in the works which had been executed before possession of the house was given to the complainants on 22.06.2012 and which of the defects were in the works which had been executed thereafter. The State Commission shall decide the complaint afresh in terms of this order within six months of the parties appearing before it.
Depending upon the finding of the State Commission on the above referred limited issue, the said Commission will also be entitled to re-visit the quantum of compensation awarded to the complainants for the mental agony and harassment alleged to have been undergone by them or not. The parties shall appear before the concerned State Commission on 21.01.2020.
The Appeal stands disposed of.