State Consumer Disputes Redressal Commission
Panduranga Rao vs S.Raghavendra on 3 September, 2024
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. Complaint Case No. CC/57/2023 ( Date of Filing : 07 May 2023 ) 1. PANDURANGA RAO FLAT NO.307, ANJANADRI SUNRISE, 1ST CROSS, K.R. LAYOUT, J.P. NAGAR, 6TH PHASE, BENGALURU-560078. BENGALURU URBAN KARNATAKA 2. ABHIJIT P UTPAT FLAT NO.307, ANJANADRI SUNRISE, 1ST CROSS, K.R. LAYOUT, J.P. NAGAR, 6TH PHASE, BENGALURU-560078. BENGALURU URBAN KARNATAKA ...........Complainant(s) Versus 1. S.RAGHAVENDRA NO.34, 1ST CROSS, NETHRAVATHI ROAD, SUMUKHA LAYOUT, CHIKKALLASANDRA, BENGALURU-560061 BENGALURU URBAN KARNATAKA 2. S.N.MOHAN KUMAR NO.208/2, 11TH CROSS, WILSON GARDEN, BENGALURU-560027 BENGALURU URBAN KARNATAKA 3. M.JAMUNA NO.208/2, 11TH CROSS, WILSON GARDEN, BENGALURU-560027 BENGALURU URBAN KARNATAKA 4. S.N.SHEKAR NO.208/2, 11TH CROSS, WILSON GARDEN, BENGALURU-560027 BENGALURU URBAN KARNATAKA 5. B.R.KUSUMA NO.208/2, 11TH CROSS, WILSON GARDEN, BENGALURU-560027 BENGALURU URBAN KARNATAKA 6. S.N.BABU NO.858, 6TH MAIN ROAD, KSRTC LAYOUT, J.P NAGAR 3RD PHASE, BENGALURU-560078. BENGALURU URBAN KARNATAKA 7. V.ANITHA NO.858, 6TH MAIN ROAD, KSRTC LAYOUT, J.P NAGAR 3RD PHASE, BENGALURU-560078. BENGALURU URBAN KARNATAKA 8. M/S. ANJANADRI DEVELOPERS NO.34, 1ST CROSS, NETRAVATHI ROAD, SUMUKHA LAYOUT, CHIKKALLASANDRA, BENGALURU-560061 BENGALURU URBAN KARNATAKA 9. L.R.VIJAYA SHANKAR RAO NO.25/5, 18TH MAIN, PADMANABHANAGAR, BENGALURU-560070 BENGALURU URBAN KARNATAKA 10. C.SUDHAKAR NAIDU NO.21, 2ND FLOOR, 5TH CROSS, BALAJI NAGAR, UTTARAHALLI, SUBRAMANYAPURA POST, BENGALURU-560061 BENGALURU URBAN KARNATAKA 11. L.R.ARUNA NO.25/5, 18TH MAIN, PADMANABHANAGAR, BENGALURU-560070 BENGALURU URBAN KARNATAKA ............Opp.Party(s) BEFORE: HON'BLE MR. Krishnamurthy B.Sangannavar PRESIDING MEMBER HON'BLE MRS. Smt. Divyashree.M MEMBER PRESENT: Dated : 03 Sep 2024 Final Order / Judgement Date of filing:07.05.2023 Date of Disposal:03.09.2024 BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED: 03rd DAY OF SEPTEMBER 2024 PRESENT Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER Mrs.M.DIVYASHREE : LADY MEMBER CONSUMER COMPLAINT NO. 57/2023 ORDER
BY Mr. K. B. SANGANNANAVAR: PRL. DIST. & SESSION JUDGE (R)- JUDICIAL MEMBER This is a complaint filed against the above named OPs to take immediate steps to rectify the defects of water damp-age, leakage, broken tiles, cracks, broken door handles and main door is not locking properly and other defects by changing the nature of flats contravening with sanctioned plan and to pay Rs.2,500/- per day to the complainants for having use the common area for the business purpose to get income by them.
The Brief facts of the case of the complainant Nos.1 and 2 would be: they are the father and son and are the Consumers in respect of Schedule-B property described under Sale Deed dated 21.10.2020, which measures 577sq.ft. of undivided shares comprising in Schedule-A property with 03 Bedrooms, 01 Hall, 01 Kitchen, 01 Pooja Room, 03 Bathrooms and 01 Utility Apartment bearing No.307 (East Facing) in the 03rd Floor measuring 1600 sq.ft. of super built up area with vitrified tiles flooring, with 01 car parking slot be the part of multistoried residential complex known as "Anjanadri Sunrise" constructed on Schedule-A property. The OP Nos.1 to 6 are land owners while OP Nos.7 to 11 are developers under the name and style M/s Anjandri Developers, have executed a Sale Deed in respect of Schedule-B property on 21.10.2020 mentioning of amenities described at Schedule-B. The Land owners and developers divided their respective shares and put the complainants in the position. The Property purchased from the builders share are 50%. All transactions such as Agreement/Sale Deed and Consideration were made in the name of builder and as residential apartment and nowhere mentioned about any changes, it is the sole responsibility of the builder for having suppressed the facts and having made the changes. The complainants in continuation of enjoying the flat purchased by them, some alteration work started without getting any permission or sanction from the BBMP authorities. The same has been objected and the complainants were themselves made protection by putting up Iron Gate. As such Schedule-C and D property mentioned in the Sale Deed, the both builders and flat owners have to enjoy their respective amenities as well as common area shown by the OPs. There are several changes made without obeying the terms and conditions laid down while sanctioning the plan to be constructed. No permission has been sought from the BBMP authorities. The complainants were chosen to make complaint relating to the changes made and nature of the flat but no action has been taken for irregular changes made by the flat owners. There is an irregular construction and as a result several damages were notified in the flats like leakage of water, cracks, broken titles, broken door handles and main door does not close properly when locked and other flaws which are notified and informed to the builders, but they are not ready and willing to rectify the said defects. Even at the time of those defects were repaired and the same has been brought to notice to them and all the liabilities has been thrown on the flat owners. In this regard, legal notice were caused on OPs to remove the defects but still they are not ready and willing to answer for the same or to clear the bills which are cleared by complainants. They have bought to the notice of OPs about irregularities and obstructions as stated in para-08(a to m) and further bought to their notice about several defects as stated in para-09(a to f) in the complaint for stating market value of the apartment purchased by them is valued at Rs.95,00,000/- and now the present market value is more than Rs.1 Crore 50 Lakhs. In such allegations they have filed a complaint before the District Forum in CC/106/2023 on the file of II Additional DCDRC, Bengaluru, which came to be returned for presentation before the State Commission on the ground that value of the property is more than Rs.50,00,000/-. Accordingly they have presented the complaint before this commission to direct OPs to take immediate steps to rectify the defects of water damp-age, leakage, broken titles, cracks, broken door handles and main door is not locking properly and other defects by changing the nature of flats contravening with sanctioned plan and to pay all necessary charges incurred by the complainants and direct OPs to pay Rs.2,500/- per day for having used the common areas for the business purpose to get income by OPs.
This complaint is presented through advocate on 07.05.2023 and the Commission ordered notice against OP Nos.1 to 11, of whom OP Nos.1, 2 to 6 unclaimed, OP Nos.7 and 10 refused to receive the complaint notice and even OP Nos.8, 9 and 10 found as per postal track consignment unclaimed. It is therefore, the service of the notice of the complaint is held sufficient service and are held exparte and proceeds to hold an enquiry by receiving affidavit evidence of complainant No.1 Mr.Panduranga Rao, S/o G Gururaja Rao, who has submitted documents along with few photographs of M/s Anjanadri Sunrise and photographs to show water damp-age, leakage, broken titles, cracks, broken door handles and main door is not locking properly and to show that OPs have changed position of common areas are utilized the said area for their business purpose. After closure of enquiry, Commission heard learned counsel and examined contents of affidavit sworn in by complainant No.1 and documents.
Now the points that arise for consideration of the Commission would be:
Whether complainant Nos.1 and 2 are entitle for Rs.2,500/- per day from OPs for having used the common areas for the business purpose as they are earning income?
Do they made out a case to give direction against OPs to take immediate steps to rectify the defects as alleged?
Do they prove the allegation of rendering deficiency in service on the part of OPs?
What order?
The findings are recorded as below:
Point No.1: Does not survive for consideration in this complaint filed by an individual . Point No.2 & 3: In the affirmative. Point no.4: As per final order for the following: REASONS
On Point No.1 to 4: Complainant Nos.1 and 2 herein being father and son have obtained a Sale Deed from OPs on 21.10.2020 in respect of the apartment in which they have now in possession. They have stated that M/s Anjanadri Developers is a partnership firm comprising of OP Nos.7 to 11 as partners. It is stated that the Schedule-A property totally measuring 13,068sq.ft. or 12 guntas bearing khata no.1170/12/1A/1A/2 belonging to OP Nos.1 to 6, as they are owners thereof. In other words, the relationship between OP Nos.1 to 6 on one part and 7 to 11 on the other part is that of owners and developers in connection to the Schedule-A property, while the complainant Nos.1 and 2 having been purchased the Schedule-B property from them under the Sale Deed are come within the definition of Consumers under CPA. In other words, the relationship between complainants and OPs, is that of the relationship of the Consumer and Service Provider.
The complainants have purchased flat No.307 situated in 03rd Floor as per agreement dated 27.09.2018 from developers namely OP Nos.7 to 11 for Rs.95,00,000/-. The payments made by complainant in favour of developers as stated and as found from the documents is to the sum of Rs.95,00,000/-. In fact it is mentioned in the Sale Deed at para-01(a to e) and property purchased by complainant Nos.1 and 2, is described as Schedule-B, is part and parcel of the Schedule-A property. The rights of and obligations of purchaser are well stated in the sale deed as per Schedule-C and D respectively and similarly the liabilities and obligations of owners and developers/vendors also are well defined. In para-22 of this Sale Deed states that the developer/owner/anyone shall not put up any construction/holdings/advertisements on the terrace of the building even if the authorities permit. The undivided share of the flat owners is protected. In Para-23 - the common areas and facilities shall remain undivided and no flat owners including purchaser/s shall bring any action for partition or division of any part thereof. Further the purchasers shall not seek partition of undivided share in the Schedule-A property. In para-24 - the purchasers can make use of the common areas and facilities in accordance with the purpose for which they intend without hindering or encroaching upon the lawful rights of other flat owners in "Anjanadri Sunrise". Thus suffice to hold that developers/owners are anyone shall not put up any construction and even the purchaser cannot seek division of any part thereof with an intention to hindering or encroaching upon the lawful rights of other flat owners. We have placed all these facts found from sale deed, because complainants have sought for a direction against OPs to pay Rs.2,500/- per day, as they are using the common area for the business purpose to get income without their consent and to find support complainants have placed endorsement obtained from BBMP dated 16.04.2024 that in the ground floor as per sanctioned plan permitted to construct 07 residential flats wherein in violation of the sanctioned plan OPs are using the entire ground floor for non-residential purpose and further to substantiate commercial usage of common area few photos along with softcopy is placed on record and has placed an endorsement issued by Pollution Control Board Inspection dated 27.11.2023 coupled with Copy of the Sale Deed dated 05.06.2022 executed in respect of commercial unit, Copy of Sale Deed in respect of unit No.301 dated 07.02.2020 and unit No.101 dated 07.12.2020 are also placed.
As already placed on record that OP Nos.1 to 11, who are owners and developers of the property purchased by complainant are placed exparte. In our view as they are not laymen, since involved in the field of real estate business activities, have to be held had notice of the complaint proceedings. They knew the complaint proceedings have refused to receive the complaint notice and few of them unclaimed to evade the Commission process and legal consequences. It is shown by complainants, as per postal tract consignment, notice sent were delivered, suffice to draw an inference, they had notice of the complaint, since complainants have also caused a legal notice prior to institution of the complaint on 26.09.2022, calling upon Ops immediately to do the works, wherever the defect is available and on their failure to comply with sought permission to complete the works after assessment of the charges are responsible and liable to pay all expenses and exemplary charges, yet failed to participate in the complaint proceedings, give rise to draw an inference against them.
It is found from endorsement issued by BBMP that in Schedule-A property OPs have obtained permission to construct 28 residential flats consisting of ground floor + 03 floors. In other words, to construct 07 apartments in each of the floor and the BBMP gave an endorsement that the apartment constructed in 1, 2, and 3rd floor comprising 21 flats are residential flats and the respective purchasers have obtained a registered Sale Deed are subject to BBMP Tax under B-register. However, 07 flats situated in the ground floor are used contrary to the sanctioned plan and building bye-laws of BBMP. Now, considering the fact that OPs have obtained sanctioned plan from BBMP to put up 28 flats in Schedule-A property and out of which 21 flats were purchased by respective buyers, who are in occupation of their respective flats situated in 1, 2, and 3rd floor respectively and they are also paying taxes. However, these two complaints being one unit as they have purchased one flat bearing no.307, situated in 03rd floor, cannot sue OP Nos.1 to 11 to seek a relief from Commission to pay Rs.2,500/- per day for having used the common area for the business purpose. In this regard, it would be appropriate to make mention of Sec.35 which provides for Manner in which complaint shall be made since this provision corresponding to Sec.12 of CPA, 1986. Sec.35(1)(c) provides -
one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested;
and this procedure to be followed by District Commission shall also applies to the State Commission, while exercising the jurisdiction of Sec.47 to try the complaint case. Herein this complaint, complainant Nos.1 and 2 being father and son are represent one unit out of 28 units built on Schedule-A, have failed to follow the procedure as contemplated U/s 35(1)(c) R/w Sec.47 of CPA, 2019, as such in our view they cannot maintain a complaint to seek relief against OPs to pay Rs.2,500/- per day to them for having used the common area for the business purpose or commercial purpose as the case may be.Hence we are of the considered view that complainants cannot seek such reliefs in their complaint filed against the OPs. In such view of the matter ourfinding on point No.1 would be record, does not survive for consideration.
In view of recording finding on point No.1 and in view of appreciation of the materials placed on record by complainants, besides reiterated affidavit sworn statement of complainant No.1, coupled with Occupancy Certificate dated 02.11.2020, issued by BBMP with certain conditions mentioned as conditions No.1 to 12, colour photographs along with CD, suffice to hold complainants, have proved defects of water damp-age, leakage, broken titles, cracks, broken door handles and main door is not locking properly and have shown other defects which are not at all rectified despite such defects were bought to the notice of OPs through legal notice dated 26.09.2022 and on the contrary, the Ops not only failed to reply the legal notice but also failed to participate in the complaint proceedings which give rise to the commission they have rendered deficiency in service as alleged in the complaint, are liable to rectify the defects. They defects which they have alleged are stated in the complaint prayer and are to be shown by them at the time of rectification. In such circumstances, findings on point Nos.2 and 3 would be record in the affirmative.
In view of findings on point Nos.1, 2 and 3 the complaint raised by complainant Nos.1 and 2, having been represented the Schedule-B property in the Sale Deed dated 21.10.2020 is hereby allowed in part against Ops 7 to 11 for rectification of the defects as shown in the photographs which being reiterated in the affidavit evidence. They are directed to take up immediate steps to rectify water damp-age, leakage, broken titles, cracks, broken door handles and proper locking of main door and other defects if any shown by changing the nature of Schedule-B property contravening in sanctioned plan within 60 days and on their failure to rectify the defects the complainants are permitted to complete the works, after due assessment of the said charges from an expert engineer and to get it reimbursement from Ops 7 to 11. The OP Nos.7 to 11 are liable to pay Rs.25,000/- towards mental agony and physical hardship for the inconvenience caused for rendering deficiency of service and do pay Rs.25,000/- towards litigation cost within 60 days, failing which amount shall carry interest @ 08% p.a. from such default date till realization. The relief sought by the complainants as per para-15(b) is not granted in this individual complaint for the reasons stated in this order.
Furnish copy of this order to parties to the complaint for information.
Lady Member Judicial Member *GGH* [HON'BLE MR. Krishnamurthy B.Sangannavar] PRESIDING MEMBER [HON'BLE MRS. Smt. Divyashree.M] MEMBER