State Consumer Disputes Redressal Commission
M/S. Daadya Developers & Builders vs Sri. S. Kannan on 19 September, 2011
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. DATED THIS THE 19th OF SEPTEMBER 2011 PRESENT HONBLE JUSTICE MR.K. RAMANNA : PRESIDENT SRI. A.M. BENNUR : MEMBER SMT. RAMA ANANTH : MEMBER Appeal No.3108/2011 M/s. Daadya Developers & Builders No. 383, 9th Main, 7th Sector HSR Layout Bangalore 560029 By its Partners Boby Sebastian and Suresh Babu (By Shri/Smt Sri. K. Prasanna Shetty ) Sri. S. Kannan S/o. V.N. Subramaniam R/at No. 13 A 12th Main, BTM 1st Stage Bangalore 560029. Opposite Party before the DF .Appellant -Versus- Complainant before the DF .Respondent O R D E R
HONBLE JUSTICE MR.K. RAMANNA : PRESIDENT This appeal is filed under Section 15 of the C.P Act, 1986 by the OP with a prayer to set aside the order dated 03.08.2011 passed by the II Addl., DF, Bangalore in Complaint No. 1658/2009 whereby the complaint filed by the respondent/complainant came to be allowed directing this appellant to provide alternative villa and execute the registered sale deed of the same in favour of the complainant in the same layout with same measurement within 60 days from the date of the order. After taking possession of the alternative villa, complainant has to reconvey the subject villa in favour of the OP. In the event of non compliance of the order by the OP within the said period, OP shall have to pay Rs.5,000/- per month as compensation (loss of rent) to the complainant till handing over of possession of alternative villa/house. Further directed to pay litigation expenses of Rs. 2,000/-. Therefore, it has come up with this appeal on various grounds.
2. We have heard the arguments of the LC for the appellant on admission and perused the records.
3. In view of the above said facts, the point that arises for our consideration is:
1.
Whether there is any prima-facie case to entertain this appeal?
2. If so, what order?
4. As could be seen from the materials, the respondent herein being the owner of the property bearing No. 131, Khata No. 3541 formed in Sy. No. 63, situated at Kammasandra village, Attibele Hobli, Anekal Taluk, Bangalore Urban District measuring 1500 sq.ft., which was purchased from this appellant through registered sale deed dated 31.03.2005. Since the appellant/OP is a partnership firm engaged in the real estate business, the complainant entered into a sale agreement with the OP for purchasing a site on 23.02.2005 and also a joint development agreement for development of the said site and also entered into a sale deed on 31.03.2005 and paid a sum of Rs. 25 lakhs as sale consideration amount towards construction of a residential flat at the site. The further case of the respondent is that, the appellant/OP agreed to handover the property to him on 26.12.2007 and both of them agreed certain specifications to be followed in the construction but, the appellant/OP failed to do so to adhere some specifications. During the monsoon that is in the month of August-2008, the rain water started flowing into the premises, the water stagnated up to the height of about 3 feet over and above the ground level. The water level reached the entrance door and the water entered into the neighbors house and spread over the whole ground floor. Even small amount of rain fall results in flowing of water towards the villa. The water tank through which the water supplied to the whole building, is constructed at the ground floor for storage of water, the rain water which flows along with the drainage results in contamination of the tank water, thereby making it unusable. Due to increased level of ponds around the site, the water could not drain and the foundation is an ordinary one is got immersed throughout the year which amounts to improper construction of the house which amounts to negligence. This was brought to the notice of the OP by oral and written letter dated 18.12.2008 with a request to look into the matter to stop the water flowing in, but in vain. Therefore, he got issued legal notice, but there was no reply.
Therefore, prayed to provide alternative villa in the layout of the same measurement and to pay Rs.5,00,000/- as compensation.
5. The OP has kept separate 10 HP diesel motor for regular pulling out of the water. As per clause 23 of the joint development agreement if any dispute between the parties, should approach the Court of civil jurisdiction and the complaint filed against it is not maintainable. After considering the evidence of both parties, order came to be passed by the DF. On careful scrutiny of the reasons assigned by the DF, it is clear that a commissioner was appointed at the instance of the respondent which came to be allowed and the Executive Engineer, No.1, PWD, Building Division, Bangalore had been appointed as Commissioner.
Asst. Executive Engineer was appointed as inspecting officer who inspected the building on 31.08.2001 i.e., Villa No. 131, Khata No. 3541, formed in Sy. No. 63 at Kammasandra village.
Report came to be submitted stating that, the villa is located in low laying area of the layout formed and when there is downpour the water enters the villa as the drains provided are not functioning properly. The Asst. Executive Engineer has also noted in the report that, plinth level of the villa is at lower level than the villas at the rear side and also villas constructed on the opposite side of the villa. The layout area itself is situated just side of the Kammasandra and it is also noted that, surface water enter into the house when there is heavy downpour and the drains provided along with the road are not functioning properly.
Therefore, considering the facts and circumstances of the case, in our considered opinion the DF by relying on the oral and documentary evidence placed on record by both the parties and the report of the Commissioner, allowed the complaint. Viewed from any angle, we dont find any perverse or incorrect finding recorded by the DF. Hence, appeal is liable to be dismissed. Accordingly, we pass the following:
O R D E R Appeal is dismissed at the stage of admission.
The amount deposited by the appellant in this appeal shall be transferred to the DF to enable the DF to pay the same to the respondent/complainant after due notice to him.
PRESIDENT MEMBER MEMBER Rhr*