State Consumer Disputes Redressal Commission
Sumadhura Shangrilla Apartments vs M/S Sumadhura Constructions & Ano., on 24 November, 2011
Appeal Nos Complaint No.43 of 2009 Date of Filing 20/04/2009 Date of Disposal 24/11/2011 BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. DATED THIS THE 24th DAY OF NOVEMBER 2011 PRESENT HONBLE JUSTICE MR.K. RAMANNA : PRESIDENT SRI. A.M. BENNUR : MEMBER
SMT. RAMA ANANTH : MEMBER Complaint No. 43 OF 2009
1. Sumadhura Shangrilla Apartments Sy.No.1/8, Seetharamapalya, Mahadevapura P.O. Bangalore 560 048.
Rep. by its President Sri.K.R.Balan.
.....Complainant (By Shri/Smt S.K.Rajendra ) V/s
1. M/s Sumadhura Constructions No.117/2, Singasandra Village, Begur Hobli, Near Manipal County, Bangalore 560 068.[Project Office].
2. M/s Sumadhura Constructions No.294, D.V.Arcade, Street No.10, Himayatnagar MainRoad, Hyderabad 500 029.
[Registered Office].
Rep. by its Managing Director Sri.G.Madhusudhan.
.....Opposite Parties (By Shri/Smt. Imaran Pasha) (OP2 served absent.) :-O R D E R:-
SRI.
A.M. BENNUR, MEMBER This complaint is filed U/s 12 of the C.P Act 1986 by the complainants association seeking certain reliefs against the OP alleging both deficiency in service and unfair trade practice.
The brief facts of the case are as under:
2. Complainant being an association represents Sumadhura Shangrilla Apartment owners. There are in all 84 flats. All the flat owners being lured away with the advertisement and publicity issued by the OP who claims to be the Builder, Developer and Promoter of multistoried flats thought of purchasing the flats of their choice and entered into an agreement in the year 2006. Op promised to complete the project by the end of June 2007. Complainants have paid the entire flat value as per the agreement. Though OP executed the registered sale deed and put them in possession but failed to provide the basic amenities and facilities like Jagging Park, Club House, Basket ball hook, swimming pool, court yards, kinds play area etc as promised in the project. The repeated requests and demands made by the complainant went in vain.
OP collected BWSSB charges, VAT etc, but failed to pay the same to the concerned statutory departments. OP is obliged to get katha bifurcated and changed in the name of individual flat owners, for that also he has collected lump-sum, but failed to pay the tax and get the katha changed. It is further contended that OP failed to provide the exclusive car parking and other facilities. The construction of the building is very poor, materials utilized is of inferior quality. Though OP collected lump sum amount towards maintenance charges failed to maintain the said flats as promised and committed delay in handing over of the possession of the said flats. It is agreed by the OP that he is going to pay a compensation of Rs.8/- per Sq.Ft. per month for the delayed period, but failed to pay the same. Car parking ceiling fall down, it was not attended to by the OP. Complainants Flat owners are unable to park their vehicles in the said slot. The repeated requests and demands made by the complainant to OP to compensate them went in vain. The legal notice is caused to the OP, but OP did not respond. Under circumstances, complainants felt deficiency in service and unfair trade practice on the part of OP. Accordingly filed the complaint and sought for the reliefs.
3. On appearance OP filed the version denying all the allegations made by the complainant in to-to. According to OP complainant is not a consumer. It has no right to agitate this dispute. There is an involvement of complicated question of law and facts. Complainant would have approached the civil court to redress his grievance. There is no proper representation of 84 Flat owners. Complaint is false and frivolous based on imaginary grounds. Complainant has not approached this Commission with clean hands. OP provided all the facilities as per the terms of the contract and the agreement. Complainant took possession of the said Flat after due execution of the registered sale deed without any protest or objection. The Flat owners being satisfied with the quality of work took the possession. The delay in handing over the flats is due to delay in payment made by the apartment owners. The allegations of the complainant that OP failed to pay BWSSB charges, VAT, the katha charges, property tax to the BBMP are false and baseless. OP got transferred katha in the name of the apartment owners as promised. Once when complainant formed its association, it is incumbent upon the complainant to maintain the said flats. When OP was maintaining the said flats there were no defects with the construction leave apart the ceiling of the car parking area.
The sub-registrar who registered the sale deed will not register unless there is a proof of katha certificate, tax paid receipt etc. Under circumstances, allegations of the complainant are unfounded. There is no deficiency in service much-less unfair trade practice on the part of OP. Hence, OP is not liable to pay any compensation. Complaint is devoid of merit. Among these grounds, OP prayed for dismissal of the complaint.
4. Then the litigating parties lead their evidence, complainant got marked Ex.C1 to C54 and OP got marked Ex.R1 to R63.
5. We have heard the arguments.
6. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:
1.
Whether the complainant has proved deficiency in service on the part of OP?
2. If so, whether the complainant is entitled for the relief claimed?
3. What order?
7. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs, our findings on Point Nos. 1 & 2 in the Affirmative and on Point No.3 as per the final order:
:-REASONS:-
8. It is the case of the complainants association that they being lured away with the advertisement and publicity given by the OP who claims to be the promoter and developer of multistoried buildings thought of purchasing the flats of their choice in the project floated by the OP in the name and style of Sumadhura Shangrilla in the year 2006. They have paid the entire cost of the flat. OP promised to deliver the said flat by the end of June-2007, in case of default he has agreed to pay Rs.8/- per Sq.Ft. per month as damages till handing over the possession. OP failed to keep up its promise, it has committed delay in handing over the possession. The possession was handed over in the last week of October 2007.
9. The fact that OP executed the necessary sale agreement, construction agreement as well as registered sale deed and put the complainants in possession of the said respective flats is not in dispute. Now the grievance of the complainants association is that OP promised to provide amenities like jagging park club house, court yard, basket ball hook, swimming pool, kids play area, but failed to provide the same. Hence, they felt deficiency in service.
10. It is further contended by the complainants that OP collected a huge amount of Rs.50,000/- from each one of the flat owner to be paid to the BWSSB apart from VAT, tax and corporation tax with respect to the property held by them. But unfortunately when complainant got cross-checked the said payment invoking RTI Act to their shock and surprise BWSSB amount is not paid including VAT and the property tax to the BBMP. The documents to that effect are produced by the complainant. The evidence of the complainant finds full corroboration with the contents of the undisputed documents. Hence, it deserves to be believed in to-to
11. As against this it is contended by the OP that the delay in handing over of the possession is mainly due to the delay in payment of the cost of the flats by the respective flat owners. We do not agree with the same. OP though contended that it has made payment of property tax to the BBMP as well as to the BWSSB, no document is produced to support the same. The fact that OP collected Rs.50,000/- from each one of the Flat owners to be paid to BWSSB, VAT, property tax to BBMP etc is proved and established. Unfortunately OP retrained the same and failed to pay the same to the departments concerned. This speaks of deficiency in service on the part of OP.
12. Of-course OP though undertaken to pay a compensation of Rs.8/- per Sq.Ft. Per month, but he failed to do so. On the close scrutiny of the pleadings and the evidence lead on behalf of the complainant, the delay is hardly of about four months. In the ordinary course of time when huge apartments are built such delay used to occur. So we have to give certain concession with regard to the delay in handing over of the possession. But as far as the payment of money to the BWSSB is concerned fault lies with the OP.
There is some mistake crept in getting the Katha, bifurcation of Katha, payment of the tax. OP is expected to pay the property tax right up-to handing over of the possession. The BBMP has reported to the complainants that they have not received such tax.
Under such circumstances, there is nothing to discard the contention of the complainant in that regard.
13. It is further contended by the complainant that the ceiling of the car parking fell down as such they have to get it repaired, after getting the estimation from the engineer and OP is obliged to pay the same. On the perusal of the complaint complainants association came in force from the month of July 2008. So after 2008 complainant has taken the charge pof maintenance of the said building and flats. The defect occurred in the ceiling of the car parking area subsequent to formation of the association, by that time OP seized to maintain the said Flats. Hence, for these reasons we find OP is not liable to pay the so-called estimated cost of repairs of the car parking area. It is the look out by the complainants association to maintain their building.
14. Of-course OP has raised the objection that there is a complicated questions of law and facts involved and this commission cannot decide the same in a summary proceedings and also contended that complainant is not a consumer and has no right to file this complaint. OP filed an I.A. U/s 13 of the C.P.Act and this commission passed considered order on 03/06/2010 dismissing the said I.A. and that order is not challenged, it appears it has reached the finality. Under such circumstances, now OP is estopped from again raising the said question with regard to the jurisdiction, competency of the complainant to file this complaint and so-called question of law and facts leading to complicated issue to be decided by the civil court. We do not find any bone of contention in the said defense raised by the OP. Of-course voluminous evidence is placed by way of producing documents. In our view the dispute and the point for consideration with regard to litigation raised by the parties is in the narrow compass which cannot be tried and decided by this Commission.
15. As already discussed by us in the above said paragraphs we are of the opinion that complainant is able to establish the deficiency in service on the part of OP. OP retained the huge amount of Rs.42,00,000/-to be paid to the BWSSB thereby accrued wrongful gain to self and caused wrongful loss to the complainants that too at no fault of theirs. Under such circumstances, OP is liable to refund the same together with some interest to the complainants association. Of-course complainant has claimed the damages of Rs.11 lakhs and odd to get repair the car parking ceiling area. As already observed by us complainant is not entitled for the same. The another prayers sought by the complainants is with regard to the cost of the Gym. On going through the records there is no commitment made by the OP to provide the Gym. No agreement is there to that effect. The agreement is only to provide jagging park, club house, court yard, basket ball hook, swimming pool, kids play area. As far as these amenities are concerned there is no claim made by the complainant in the prayer. On the other hand, OP has also fairly submitted that he has provided the said amenities subsequently.
16. Under such circumstances, complainant is not entitled to claim Rs.5,00,000/- towards cost of the Gym. Of-course complainant claimed for handing over of the relevant documents pertaining to the individual flats which they are entitled. As already observed by us OP is obliged to pay property tax to the BBMP till handing over of the possession. We find there is substance in the complaint. Due to the hostile attitude of the OP complainant though invested their hard earned money they are unable to reap the fruits of their investments for no fault of theirs they were made to suffer many more inconvenience. It is all because of the carelessness and negligence on the part of OP. Under such circumstances, they must have suffered both monetary loss and mental agony.
17. In the interest of justice, we find complainant association is entitled to claim Rs.25,000/- by way of damages. The defense raised by the OP appears to be defense for defense sake just to save their skin out of sin. The approach of the OP in withholding such a huge amount is not fair and honest and for these reasons we find it is a fit case wherein complainant deserves certain relief. Accordingly we answer point Nos. 1 & 2 and proceed to pass the following:-
:-ORDER:-
The Complaint is allowed in part.
OP is directed to pay Rs.42,00,000/- to the complainant towards BWSSB water connection together with interest at the rate of 10% per annum from the date of execution of the sale deed till realization.
OP is directed to pay Rs.25,000/- to the complainant towards damages.
OP is directed to pay litigation cost of Rs.10,000/-.
OP is directed to hand over the concerned relevant documents pertaining to the said flats to the complainants association.
OP is directed to pay property tax to the BBMP with regard to 84 Flats till handing over of the possession and obtain necessary Katha and bifurcate the said katha in favour of each one of these apartment owners.
This order is to be compiled within 60 days from this date.
MEMBER PRESIDENT MEMBER TSS**