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2021 Supreme(SC) 525
SUPREME COURT OF INDIA
HEMANT GUPTA, V. RAMASUBRAMANIAN, JJ.
The Managing Director (Shri Grish Batra) M/s.Padmini Infrastructure Developers (I) Ltd. - Appellant
Versus
The General Secretary (Shri Amol Mahapatra) Royal Garden Resdients Welfare Association - Respondent
Civil Appeal No. 2998 of 2010 With Civil Appeal No. 4085 of 2010
Decided On : 28-09-2021
For the Appellant(s) :Rahul Sharma, Hardeep Singh Anand, Iqram Govind Singh, Advocates
For the Respondent(s):Abha R. Sharma, Sujeeta Srivastava, Advocates
IMPORTANT POINT
Reliefs were granted by National Commission on the basis of Report of local Commissioner are usually not liable to be interfered with.
Headnote:
Consumer Protection Act, 1986 – Section 23 {Consumer Protection Act, 2019 – Section 58} – Real estate – Lack of amenities in construction – Reliefs granted by National Consumer Commission related to water softening plant, fire-fighting, second health club equipment, second swimming pool and space for club house in Eden Tower – These reliefs were granted by National Commission on the basis of Report of local Commissioner – In light of findings by an independent architect appointed by National Commission it is not open to opposite party to create a façade as though all essential services and amenities were handed over in a fully functional state – If all such services had been handed over in a fully functional state, opposite party should have taken acknowledgment in writing from complainant – In alternative, opposite party should have insisted upon an appropriate provision in Agreement – It is not impossible for an experienced architect to find out whether condition in which the amenities and services were found on date of inspection, was entirely due to lack of maintenance or due to non-commissioning or incomplete commissioning – Very fact that at the time of inspection by local Commissioner, possession of club house in Eden Tower was with opposite party, goes to show that opposite party was still retaining control of at least some part or certain services in complex, perhaps due to fact that there were about 45 unsold flats – Reliefs granted by National commission in favour of complainant do not warrant any interference – In view of the fact that possession of common amenities were handed over by opposite party to complainant Association 18 years ago (under Agreement dated 15.11.2003), it may not be possible at this distance of time to compel opposite party to make those facilities/systems at relief clauses 2, 3, 4, 5 and 6, fully operational now – Interests of justice will be met if order of National Commission is modified in such a manner that complainant Association shall receive in full and final settlement, deposit now lying in Registry of this court, towards adequate compensation for reliefs that they are held entitled to by National Commission; and That opposite party is directed to remove all building material stored in club house in basement of Tower Eden and hand over possession of the club house to complainant – Appeals Partly allowed with directions and observations. (Paras 19, 23, 25, 26, 27, 31, 32, 35 to 42)
Facts of the case:
Both the consumer (who was the complainant) as well as opposite party before the National Consumer Disputes Redressal Commission, have come up with these appeals, former aggrieved by the rejection of some of the reliefs sought and the latter, challenging the reliefs granted in favour of consumer. The purchasers of flats formed themselves into an association known as Royale Garden Residents Welfare Association and got it registered on 30.09.2003 under Societies Registration Act, 1860.The Residents Welfare Association entered into an agreement on 15.11.2003 with the opposite party for taking over the maintenance of the apartment complex.
Findings of Court:
Refusal of the National Commission to grant the reliefs mentioned in prayer clause nos.1, 7, 8, 9 and 10 warrant no interference. Therefore, the appeal of complainant in CA No.4085 of 2010 is liable to be dismissed.
Result : Appeals Partly allowed.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
What is the remedy or relief allowed where National Commission's reliefs were based on a local Commissioner’s report in a defective amenities case?
What is the approach to limitation under Section 24A(1) of the Consumer Protection Act, 1986 in long-standing maintenance/amenities disputes involving unsold flats?
What are the circumstances under which the appellate court may modify or uphold reliefs granted by the National Commission in consumer housing/amenities disputes?
JUDGMENT :
V. Ramasubramanian, J.
1. Both the consumer (who was the complainant) as well as the opposite party before the National Consumer Disputes Redressal Commission, have come up with these appeals, the former aggrieved by the rejection of some of the reliefs sought and the latter, challenging the reliefs granted in favour of the consumer.
2. We have heard the learned counsel appearing on both sides.
3. A residential apartment complex was promoted by M/s Padmini Infrastructure Developers (India) Ltd. (hereinafter referred to as ‘the opposite party’), on a land allotted by New Okhla Development Authority (‘NOIDA’ for short). It appears that the opposite party constructed about 282 apartments and offered them for sale. The purchasers were put in possession during the period from 1998-2001, but the completion certificate itself was issued only in December, 2001.
4. The purchasers of flats formed themselves into an association known as Royale Garden Residents Welfare Association and got it registered on 30.09.2003 under the Societies Registration Act, 1860.
5. The Residents Welfare Association entered into an agreement on 15.11.2003 with the opposite party for taking over the maintenance of the apartment complex. Thereafter, the Residents Welfare Association ((hereinafter referred to as the ‘complainant’), filed a consumer complaint in Complaint No.9 of 2007 before the National Consumer Disputes Redressal Commission.
6. The reliefs sought by the complainant before the National Commission were as follows:
“1. to pay the monthly maintenance charges for unsold flats amounting to Rs.9,05,810/-
2. to complete the water softening plant and make it operational.
3. to complete fire fighting equipments and make the same operational and to obtain safe working certificate from Fire Safety Department of NOIDA and handover the same to the Complainant.
4. to furnish and equip a second health club for which space is available in half portion of basement of Tower Blue Heaven-2.
5. to complete a second swimming pool and get cement plastered and white washed the stilts.
6. to provide furnished space for a, Club House in the basement of Eden Tower which is existing but locked.
7. to get the rented portion of the terrace (roof) vacated meant for the resident of Tower Eden of the Complainant rented out by the Opposite Party to HUTCH (P) Limited and earned rent after on 15.11.2003 to be returned to RWA with 24% interest.
8. not to sell or rent out the remaining flats about 45 till the facilities mentioned above are provided to the Complainant.
9. to direct the OP not be sell stilt and open car parking to future or present purchasers.
10. to pay the cost to the Complaint and damages for harassment mental torture, agony etc. caused to the Complainant by the OP.
11. to pass any other or further orders which this August Commission deems fit in the circumstances of the case to meet the ends of justice.”
7. The complaint was resisted by the opposite party both on merits and on the ground of limitation. The opposite party also claimed that the Agreement dated 15.11.2003, entered into with the complainant contained an arbitration clause and that whatever facilities/amenities were promised at the time of promotion of the complex, have been put in place.
8. The National Commission by its interim order dated 04.06.2008, appointed a local Commissioner, to inspect the systems/facilities relatable to the reliefs claimed in prayer clause nos. 2 to 6 of the complaint and to submit a report. The said Commissioner submitted a report on 08.07.2008 after making a local inspection, in the presence of the representatives of both the parties.
9. Accepting the report of the local Commissioner and overruling the contention of the opposite party regarding limitation, the National Commission allowed the complaint partly by an order dated 05.01.2010. The operative part of the order of the Co
