SANDRA VAZE CORREIA, J. - (1.) THE Complainant, a Housing Co -operative Society is before us alleging defective/incomplete works in the construction of the building complex Indradhanush as well as deficiency -in -services rendered by the Opposite Party. Succinctly stated, it is the Complainants case that its members entered into an agreement with the Opposite Party for purchase of flats in the building complex Indradhanush at Borda, Margao and have taken occupancy of their respective flats. A strip of land towards the eastern side of the property was reserved for parking and road side gutters. Likewise, the entire roof was to be sloppy type with Mangalore tiles and a sump had to be provided for the buildings in terms of the Municipal license. However, the Opposite party failed to construct the building in accordance with the approved plans and licenses and provide amenities promised under the agreement. The Opposite Party permitted the Municipality to construct a road. on the strip on the eastern side thus making it impossible for the strip to be used for scooter parking. The roof of the building was not as per the approved plan and the Mangalore tiles had been improperly fixed. Sump has not been provided. A large number of garages have been built with the intention to convert them into commercial spaces. There is heavy seepage of water along the western walls of the building. The Opposite Party did not co -operate in redressing the grievances. The Complainants consultant valued the cost of remedial works required to be carried out at Rs. 11,60,000. The Opposite Party had not executed a conveyance transferring the ownership of the building and the property in favour of the Complainant. The Complainant prayed for a direction to the Opposite Party to rectify the defective works or alternatively to pay a sum of Rs. 11,60,000 and further amount of Rs. l,00,000 as compensation.
(2.) PER contra, the Opposite Party entered its written version. Briefly the Opposite Partys defence may be summarized as follows: Preliminary objections on the issues of maintainability and limitation were raised. It was denied that the building was not constructed as per the approved plans and amenities not provided as per the agreements. The allegation that the Opposite Party had permitted the P.W.D. to construct a road on the eastern side of the property was denied. It was submitted that the road was constructed by the Municipality to help the allottees of premises under 20 point programme and the same was constructed without the permission or consent of the Opposite Party. As regards the roof of the building, it was stated that the type of roof as per the discretion of the Architect, and some of the flat purchasers on the third floor had requested that the roof be partly sloping and partly flat. There was no violation of regulations on this account and the Margao Municipal Council had issued Occupancy Certificate to the buildings. Thereafter, the garages in building C1 were converted into shops with the approval of the Margao Municipal Council. The allegation that the western walls of all the buildings are getting heavy seepage of water was denied. It was also denied that the members of the Complainant individually brought any grievances and difficulties faced by them to the attention of the Opposite Party. While it was admitted that the Opposite Party had attended the meeting of the Complainant -Society on 12.9.2000 it was explained that the Opposite Party was present for the meeting in his capacity as a member of the Society and not as a mark of any agreement to solve the alleged grievances. The letter dated 12.9.2000 was addressed to the Complainant as a matter of goodwill and the Opposite Party at no time admitted that there were any defects in the construction. The allegations contained in para 9 of the complaint were denied and it was submitted that the incomplete and deficient works claimed therein were not required to be done. The entire project was completed much before July 1999 and all the members of the Complainant had taken possession of their premises in 1996 -1997 and just a few members took possession in the year 2000. The allegations regarding formation of the Society and appointment of the chief promoter were denied. Nothing prevented the members from filing petitions within two years from taking possession of their premises in case they really had any grievances, hence the petition was hopelessly time barred.
(3.) COMPLAINANT entered its affidavit -in -evidence through its chairman Shri Edmund Cardozo, and examined Shri Vikas Dessai, Civil Engineer. On the other hand Shri Madhav Talak Managing Partner of the Opposite Party firm filed his affidavit -in -evidence along with their expert Shri S. N. Bhende. Shri Madhav Talak was also cross -examined. Parties filed brief written submissions. Shri C. Coutinho submitted that the Opposite Partys explanation as regards the partly flat roof could not be considered as there was no discretion since the SPDA and the Margao Municipal Council had approved sloppy roof for the entire building. Besides, none of the members of the Complainants society were informed that the roof would be partly flat. As regards the sump, the same was a requirement under the construction license, and the member of the Complainant -Society had entered into agreement with the Opposite Party based on the license granted. The falsity of the Opposite Partys defense as regards appointment of Chief Promoter of Society was exposed in the cross -examination, and it was submitted that the Chief Promoter was in connivance with the Opposite Party. Likewise, the so -called letters issued by purchasers of flats on the third floor requesting for flats were fabricated as these were dated even prior to the date on which the said flat purchasers entered into agreements with the Opposite Party, and this was exposed in cross -examination of the Opposite Party.;