Case: THE MANAGING DIRECTOR (SHRI GRISH BATRA) M/S.PADMINI INFRASTRUCTURE  DEVELOPERS (I) LTD.    Vs. THE GENERAL SECRETARY  (SHRI AMOL MAHAPATRA) ROYAL GARDEN RESDIENTS WELFARE ASSOCIATION

claim of the complainant for maintenance charges, though the local Commissioner had nothing to do with the same. 22. The Commissioner appointed by the National Commission was an architect by name Amit Bahl. When he carried out the inspection, 4 persons representing the opposite party, which included the advocate of the opposite party and the deponent to the affidavit of objections were present. The architect examined each one of the items and not only found that they were not operational on date but also found, (i) that the equipment for the water softening plant was incomplete, ineffective and inadequate; (ii) that the fire-fighting equipments were not in operation due to incomplete commissioning of the system as a whole and that even the fire safety certificate dated 05.11.2001 noted down the same; (iii) that while the first health club in the basement of the Tower Blue Heaven-2 was fully furnished and functional, the second health club was not adequately furnished though the civil works are complete; (iv) that the second swimming pool was not complete and operational, as the filtration plant was non- functional and the pump was removed after installation and that even the change rooms and showers have not been provided for; and (v) that in so far as the club house in the basement of Eden tower is concerned it was kept under lock and key by the opposite party and found to have been used as a store for keeping various building materials. 23. In the light of the aforesaid findings by an independent architect appointed by the National Commission it is not open to the opposite party to create a façade as though all essential services and amenities were handed over in a fully functional state. If all the aforesaid services had been handed over in a fully functional state, the opposite party should have taken an acknowledgment in writing from the complainant. In the alternative, the opposite party should have insisted upon an appropriate provision in the Agreement dated 15.11.2003. 24. As noted by the Commissioner, even the fire safety certificate dated 05.11.2001 states that though the majority of the equipment have been satisfactorily installed, some equipment have been removed and stored for security purposes and that the inference therefore is that the system never got commissioned. 25. It is not impossible for an experienced architect to find out whether the condition in which the aforesaid amenities and services were found on the date of the inspection, was entirely due to lack of maintenance or due to non-commissioning or incomplete commissioning. 26. As noted by the National Commission, the affidavit of objections filed on behalf of the opposite party to the Report of the local Commissioner does not deal with the cost of estimates indicated by the Commissioner in his Report. In addition, the affidavit of objections does not even deal with the finding relating to the club house at Eden Tower, said to have been kept under lock and key by the opposite party for storing building materials. The very fact that at the time of inspection by the local Commissioner, the possession of the club house in Eden Tower was with the opposite party, goes to show that the opposite party was still retaining control of at least some part or certain services in the complex, perhaps due to the fact that there were about 45 unsold flats. 27. In view of the above, we are not convinced that the reliefs granted by the National commission in favour of the complainant warrant any interference. Therefore, the appeal in C.A. No.2998 of 2010 is liable to be dismissed. 28. But before we do that, we should take note of the fact that as per the operative portion of the order of the National Commission (which we have extracted elsewhere) the opposite party is obliged to make the systems/facilities at prayer clauses 2, 3, 4, 5 & 6 of the complaint, fully operational/complete and they are also obliged to obtain a certificate of completion from an independent architect. If the opposite party failed to do so within the time stipulated by the National Commission, the opposite party was obliged to pay the cost as estimated by the Commissioner in his Report dated 08.07.2008. 29. The costs estimated by the local Commissioner in his Report dated 08.07.2008 are as follows :- 1. Water softening plant Rs. 20,29,962 2. Fire fighting equipment Rs. 83,00,000 3. Second health club Rs. 7,60,000 4. Second swimming pool Rs. 2,70,000 5. Furnishing the club house in Eden Tower Rs. 2,75,000 Total Rs.1,16,34,962 30. While ordering notice in C.A.No.2998 of 2010, on 29.03.2010, this Court granted stay of operation of the impugned order on condition that the opposite party–builder deposit Rs.60,00,000/- within 8 weeks. Subsequently, the order was modified on 14.05.2010, permitting the opposite party to deposit the sum in two equal instalments, the first instalment before 22.05.2010 and 2nd instalment before 15.07.2010. It appears that the amount has been accordingly deposited and the amount has been invested in a Fixed Deposit which is renewed from time to time by the orders of this Court. 31. In view of the fact that the possession of the common amenities were handed over by the opposite party to the complainant Association 18 years ago (under the Agreement dated 15.11.2003), it may not be possible at this distance of time to compel the opposite party to make those facilities/systems at relief clauses 2, 3, 4, 5 and 6, fully operational now. The cost of estimate which works out to approximately Rs.1.16 crores, includes within itself the cost of fire fighting equipment and this constitutes the major component (it works out to Rs. 83 lakhs). As seen from the Commissioners Report, the mistake committed by the opposite party was in removing a part of the equipment but not putting them back. This finding is as per the fire safety certificate. Therefore, it may not be appropriate to ask the opposite party to bear the entire burden.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]16. In the affidavit filed by the local Manager of the opposite party by way of evidence, it was admitted that certain works in relation to fire-fighting equipment continued up to the year 2005. In fact, the opposite party filed certain bills, which were dated 27.02.2005, 22.04.2005, 01.05.2005, 19.07.2005, 29.10.2005 and 12.12.2005, to show that the opposite party was honest and diligent in carrying out their obligations.17. The affidavit in evidence filed by the opposite party and the aforesaid bills establish that the cause of action continued at least till December, 2005. The complaint before the National Commission was filed in February, 2007. Therefore, the National Commission was right in rejecting the objection relating to limitation.19. The reliefs granted by the 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 the National Commission on the basis of the Report of the local Commissioner.23. In the light of the aforesaid findings by an independent architect appointed by the National Commission it is not open to the opposite party to create a façade as though all essential services and amenities were handed over in a fully functional state. If all the aforesaid services had been handed over in a fully functional state, the opposite party should have taken an acknowledgment in writing from the complainant. In the alternative, the opposite party should have insisted upon an appropriate provision in the Agreement dated 15.11.2003.24. As noted by the Commissioner, even the fire safety certificate dated 05.11.2001 states that though the majority of the equipment have been satisfactorily installed, some equipment have been removed and stored for security purposes and that the inference therefore is that the system never got commissioned.25. It is not impossible for an experienced architect to find out whether the condition in which the aforesaid amenities and services were found on the date of the inspection, was entirely due to lack of maintenance or due to non-commissioning or incomplete commissioning.26. As noted by the National Commission, the affidavit of objections filed on behalf of the opposite party to the Report of the local Commissioner does not deal with the cost of estimates indicated by the Commissioner in his Report. In addition, the affidavit of objections does not even deal with the finding relating to the club house at Eden Tower, said to have been kept under lock and key by the opposite party for storing building materials. The very fact that at the time of inspection by the local Commissioner, the possession of the club house in Eden Tower was with the opposite party, goes to show that the opposite party was still retaining control of at least some part or certain services in the complex, perhaps due to the fact that there were about 45 unsold flats.27. In view of the above, we are not convinced that the reliefs granted by the National commission in favour of the complainant warrant any interference. Therefore, the appeal in C.A. No.2998 of 2010 is liable to be dismissed.28. But before we do that, we should take note of the fact that as per the operative portion of the order of the National Commission (which we have extracted elsewhere) the opposite party is obliged to make the systems/facilities at prayer clauses 2, 3, 4, 5 & 6 of the complaint, fully operational/complete and they are also obliged to obtain a certificate of completion from an independent architect. If the opposite party failed to do so within the time stipulated by the National Commission, the opposite party was obliged to pay the cost as estimated by the Commissioner in his Report dated 08.07.2008.30. While ordering notice in C.A.No.2998 of 2010, on 29.03.2010, this Court granted stay of operation of the impugned order on condition that the opposite party–builder deposit Rs.60,00,000/- within 8 weeks. Subsequently, the order was modified on 14.05.2010, permitting the opposite party to deposit the sum in two equal instalments, the first instalment before 22.05.2010 and 2nd instalment before 15.07.2010. It appears that the amount has been accordingly deposited and the amount has been invested in a Fixed Deposit which is renewed from time to time by the orders of this Court.31. In view of the fact that the possession of the common amenities were handed over by the opposite party to the complainant Association 18 years ago (under the Agreement dated 15.11.2003), it may not be possible at this distance of time to compel the opposite party to make those facilities/systems at relief clauses 2, 3, 4, 5 and 6, fully operational now. The cost of estimate which works out to approximately Rs.1.16 crores, includes within itself the cost of fire fighting equipment and this constitutes the major component (it works out to Rs. 83 lakhs). As seen from the Commissioners Report, the mistake committed by the opposite party was in removing a part of the equipment but not putting them back. This finding is as per the fire safety certificate. Therefore, it may not be appropriate to ask the opposite party to bear the entire burden.33. Now coming to the appeal CA No.4085 of 2010 filed by the complainant against the refusal of the reliefs in prayer clause nos.1, 7, 8, 9 and 10, we think that the National Commission was justified in rejecting those reliefs. The claim for monthly maintenance charges for the unsold flats, amounting to Rs.9,05,810/- sought as per prayer clause no.1, was made by the complainant on the basis of clause 10 of the Agreement dated 15.11.200335. Though the National Commission did not deal with the relief claimed at prayer clause No.1 in sufficient detail and the National Commission did not also provide cogent reasons for rejecting the relief, we find that the complainant may not be entitled to the said relief. There are two reasons as to why we say so. The first reason is that the complainant did not provide detailed calculations about the plinth area of the unsold flats, the period during which they remained unsold and the manner in which the amount indicated in para 16 of the complaint was arrived at. In any case the payments were to be made under clause 10 of the agreement, first within seven days of the agreement in respect of the advance payment for six months and thereafter by way of annual payments in advance. Therefore, a major portion of the claim for money was obviously barred by limitation when the complaint was filed. Moreover, the opposite party raised a dispute about the quantum and asserted in para 16 of their reply before the National Commission that what was due was only Rs.232750/-. Thus, the question became a disputed question of fact on which both parties did not lead sufficient evidence. Therefore, the rejection of the claim at prayer clause No.1 was legally correct.36. The relief claimed at prayer clause no.8 is to direct the opposite party not to sell or rent out the unsold flats till the facilities mentioned in prayer clause nos.2 to 6 are provided. By its very nature, this relief is in the nature of an interim relief and, hence, was rightly rejected by the National Commission in the final judgment.37. The relief claimed in prayer clause no.9 relates to stilt and open car parking. There was no evidence before the National Commission to grant such a relief and, hence, the refusal to grant the relief mentioned in prayer clause no.9 is in order.38. The claim for costs and damages for harassment, mental torture, agony etc., made in prayer clause no.10 was not granted by the National Commission, and rightly so, in view of the fact that after handing over the common amenities under the Agreement dated 15.11.2003, the opposite party continued to carry out at least some works. This is why the complaint was lodged in 2007. Therefore, we find no reason to grant the relief prayed for in prayer clause no.10.39. That leaves us with the relief claimed in prayer clause no.7. This was for a direction to the opposite party to vacate the tenant occupying the terrace of Tower Eden. According to the complainant, the terrace of Tower Eden was let out by the opposite party to a company, leaving the residents of Tower Eden without a terrace for common use. But the relief of eviction involves a third party and hence the National commission rightly left it to the complainant to pursue the remedy in an appropriate Forum.40. Thus, we find that the 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 the complainant in CA No.4085 of 2010 is liable to be dismissed.