Tuesday , 28 February 2017
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Builder’s rosy promises are binding

By Adv. Jatin Ramaiya

Ruksana Sayed, Vasco, approached the Consumer Forum, S Goa, alleging deficiency of service by her builder.  Sayed said that she booked a triple bed room flat bearing No. F-No.205 for Rs 32 lakh price  inclusive of fittings, fixtures etc. and common amenities like swimming pool, children’s park and proportionate area in the property. The agreement for construction and sale was signed on October 7 2009 and registered before the sub-registrar, Mormugao, Vasco.

Sayed said that she booked the flat as it was a luxurious one with common swimming pool, stilt car parking, children’s park, lift with backup power and accordingly paid the entire consideration by cheques and cash and by obtaining loans. However the builder started demanding more which she was constrained to pay as she wanted to take over possession. Sayed’s grievance was that  after handing over the  possession the  builder did not construct the swimming pool or the children’s park and according to her till date the roof tiles on slanting roof slab have also not been fixed as shown in the brochure. Also there is no arrangement made to drain out the rain water which gets stagnated on the ground floor, which according to her amounts to deficiency-in-service and unfair trade practice .

It was her case that the builder needs to be directed to construct the promised amenities or refund of Rs 55,000 with interest and she was entitled for compensation. Members of the Forum issued notices to the builder who in his defense disputed the claims of  Sayed. According to the him the brochure is not binding as it does not form part of the contract and since the owners of land on which building stood were not arrayed as parties the complaint was not maintainable. The builder said that he had informed  Sayed  that it was not possible to construct the swimming pool as the customers in the said project were not interested for additional payment towards the pool and he had to discard the idea.    According to the builder the rates of the flat were also revised and Sayed had accordingly paid a reduced amount for the flat. The Forum, directed the builder to execute the sale deed for the flat in favour of  Sayed, which was not executed till date.  He was also directed  to provide for  hildren’s park and make arrangement to drain out the rain water. The Forum observed, “there is nothing on record to prove what prevented the builder from not constructing the pool inspite of taking the full money in 2012 for a flat. Once he has received the hefty amount he is duty bound to construct and complete the pool or should refund the amount received towards construction and completion of the for construction of the pool. It is not acceptable that the builder is not bound by the promises made in the brochure. He is bound by the rosy promises made in the brochure given to  prospective purchasers. If he had doubts about the promises made in the brochure he ought to have added a disclaimer clause. He should have said that he deserves the right to amend the lay out and amenities and specification without proper notice.

The opposite party is therefore liable to refund Rs two lakh collected towards construction of the swimming pool. Failure of the builder to provide the complainant with a swimming pool is  tantamount to deficiency in service as well as unfair trade practice.”

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