State Consumer Disputes Redressal Commission
C.P Mathew vs M/S.Brigade Enterprises Ltd., on 3 September, 2022
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. Complaint Case No. CC/127/2014 ( Date of Filing : 04 Jul 2014 ) 1. C.P Mathew Aged about 51 years, S/o Late C.A Philipose, R/at No.B-6, Elite Residency, Near Layola School, C.H Area, Bistupur, Jamshedpur - 831 001 . ...........Complainant(s) Versus 1. M/s.Brigade Enterprises Ltd., Corporate office at Hulkul Brigade Centre, No.82, Lavelle Road, Bangalore-560 001. A company incorporated under the provisions of companies Act, 1956 and represented by its Chairman, Sri.M.R Jai Shankar . 2. M.R Jai Shankar, Major, The Chairman, M/s.Brigade Enterprises Ltd., Corporate office at Hulkul Brigade Centre, No.82, Lavelle Road, Bangalore-560 001 . 3. Viswa Prathap Desu Vice-President, Sales, M/s.Brigade Enterprises Ltd., Corporate office at Hulkul Brigade Centre, No.82, Lavelle Road, Bangalore-560 001 . 4. A. Udaya Kumar Deputy General Manager, Legal, M/s.Brigade Enterprises Ltd., Corporate office at Hulkul Brigade Centre, No.82, Lavelle Road, Bangalore-560 001 . 5. Ganesh M Senior Manager - Sales, M/s.Brigade Enterprises Ltd., Corporate office at Hulkul Brigade Centre, No.82, Lavelle Road, Bangalore-560 001 . ............Opp.Party(s) BEFORE: HON'BLE MR. Ravishankar PRESIDING MEMBER HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER PRESENT: Dated : 03 Sep 2022 Final Order / Judgement BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. DATED THIS THE 3rd DAY OF SEPTEMBER 2022 PRESENT MR. RAVISHANKAR : JUDICIAL MEMBER MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER CONSUMER COMPLAINT NO. 127/2014 Mr. C.P. Mathew, Aged about 51 years, S/o Late Mr. C.A. Philipose, R/at No.B-6, Elite Residency Near Layola School, C.H. Area, Bistupur, Jamshedpur 831 001. (By V. Vijaya Kumar) .... Complainant/s V/s 1. M/s Brigade Enterprises Ltd., Corporate Office at Hulkul Brigade Centre, No.82, Lavelle Road, Bangalore 560 001. A Company incorporated under the provisions of Companies Act, 1956 and represented by its Chairman, Sri M.R. Jai Shankar. (By M/s Indus Law) .... Opposite Party/ies 2. Mr. M.R. Jai Shankar, Major, Father's name not known to Complainant, The chairman M/s Brigade Enterprises Ltd., Corporate Office at Hulkul Brigade Centre, No.82, Lavelle Road, Bangalore 560 001. 3. Mr. Viswa Prathap Desu, Major, Father's name not known to Complainant, Vice-President - Sales, M/s Brigade Enterprises Ltd., Corporate Office at Hulkul Brigade Centre, No.82, Lavelle Road, Bangalore 560 001. 4. Mr. A. Udaya Kumar, Major, Father's name not known to complainant, Deputy General Manager - Legal, M/s Brigade Enterprises Ltd., Corporate Office at Hulkul Brigade Centre, No.82, Lavelle Road, Bangalore 560 001. 5. Mr. M. Ganesh, Major, Father's name not known to complainant, Senior Manager - Sales, M/s Brigade Enterprises Ltd., Corporate Office at Hulkul Brigade Centre, No.82, Lavelle Road, Bangalore 560 001. (By Sri V.S.R. for OPs 2 to 5) ORDER
MR. RAVISHANKAR , JUDICIAL MEMBER
1. This is a complaint filed by the complainants alleging deficiency in service on the part of the Opposite Parties in implanting the STP just below the flat of the complainant and prayed to pay compensation to the tune of Rs.98 lakhs with interest and other reliefs deemed fit.
2. The averments in the complaint are as hereunder;
It is the case of the complainant that purchased a flat bearing No.G-127 in Brigade Courtyard - G Wing built on 3 acres 15 guntas by paying an amount of Rs.74 lakhs and accordingly Sale Deed was executed on 04.08.2011 vide Document No.PNY-1-03704/2011-12 of Book I & stored in CD.No. PNYD 479 registered in the office of Sub Registrar, Peenya, Bangalore. At the time of execution of the Sale Deed, the Opposite Parties have only given a constructive possession of the schedule property and not permitted him to visit the flat and also not given any opportunity for detailed inspection to verify the amenities and facilities which are assured. The said flat is situated at ground floor with exclusive space for parking vehicles. As per the plan handed over to him and at the initial agreement of sale, the Opposite Parties have furnished the sanctioned plan and reflected that there is a parking place available just below the flat. Such being the case, in the month of January 2013 when he visited Bangalore to receive the physical possession of the flat, he noticed that Opposite Parties have installed STP just below the said flat purchased by him which causes heavy noise (rumbling sound) all the time and also causes very serious vibration which is conspicuously felt inside the complainant's flat and its walls and he also noticed that the plant emits foul smell throughout the day and night. Infact the said plant was not to be located just below the flat purchased by him as per the sanctioned plan. In violation of the said sanctioned plan, the Opposite Parties have erected the said STP just below his flat.
3. The complainant further submits that the Opposite Parties have erected the said STP intentionally knowing fully that the complainant does not stay at Bangalore and he stays at Jemshedpur without his permission. The complainant could not resides in the flat due to continuous vibration and sound along with foul smell throughout the day and night, hence, alleged deficiency in service and complaint requested the Opposite Parties to choose some other places to install the said STP, but, the Opposite Parties have not done same. Hence, the complainant is not able to reside in the said flat. It is due to installation of the said STP the complainant flat rendered unfit for human habitation and secondly sudden deprive of actual user and occupation of the same, hence, it is a clear case of deficiency in service, therefore, the complainant is entitled for compensation to the tune of Rs.98 lakhs which is the present market value of the flat due to said STP the complainant deprived of its user and occupation of the flat and loss occurred to the complainant. Therefore, the Opposite Parties are liable to pay rental value at the rate of 25,000/- per month during the correspondence period which amounts to Rs.6,00,000/-. The complainant made several trips to Bangalore to discuss with respect to the replacement of the STP to negotiate the matter, but, the Opposite Parties have failed to comply the request made by the complainant and the complainant spent Rs.1,00,000/- towards transportation, hence, the Opposite Parties are liable to pay said amount also. In total the complainant prays compensation to the tune of Rs.98,00,000/- along with interest and also prays to provide an alternative flat in different location in the same condominium in which the schedule flat is located.
4. After service of notice, the Opposite Parties have appeared through their counsel and Opposite Party No.1 filed their version and contended that the complainant has filed this false complaint and is not maintainable either in law or on fact, therefore, liable to be dismissed in limine. He has filed this complaint with malafide intention and there is no cause of action arose in the complaint. The Opposite Party further contended that the complaint is barred by limitation as the Sale Deed entered into by the complainant and on 04.08.2011 and after the said purchase the complainant has not raised any objections with respect to the STP. In the year 2014, he approached this Commission alleging deficiency in service, hence, barred by time. The allegations made in the complaint do not attract deficiency in service as contemplated under Consumer Protection Act, 2019. Hence, the complaint is not maintainable as the complainant has purchased the flat from the Opposite Parties and executed a Sale Deed on 04.08.2011. There are no any allegations with respect to the flat purchased by him, hence, the complainant is not a 'Consumer' as per the provisions of the Consumer Protection Act, 2019, hence, prays for dismissal of the complaint.
5. The Opposite Party further contended that the complainant and Opposite Party No.1 have entered into a Sale Deed executed before the Sub Registrar Office and he has accepted the terms and conditions of the Sale Deed with eyes wide open and fully understanding the meaning and import of the various clauses contained therein. The complainant has chosen to purchase the schedule flat in the project Brigade Courtyard after evaluating all the options with his eyes wide open, hence, there is no basis to file a complaint. This Opposite Party is one of the group companies of the nationally renowned Brigade Group which has earned several accolades for itself over the years as one of the foremost real estate project developers in the country. The Opposite Party No.1 obtained the plan sanction from BBMP vide L.P.No. JC/W/Mall/1061/06-07 dt.08.03.2007 and the proposed STP has also reflected in the sanctioned plan issued by BBMP as being below the schedule flat. The complainant having came to know of the project, approached Opposite Party No.1 and shown interest to purchase the flat. On scrutiny of all the documents pertaining to title and scheme of construction, including the plan sanction, the complainant entered into an Agreement to Sell and an Agreement to Built the complainant was very much aware of the STP was located below the schedule flat. After completion of the construction of the entire project, on inspection of the same from BBMP have issued Occupancy Certificate vide letter No.AC/RRN/BBMP/PR/2897/2009-10 dt.18.03.2010. The BBMP issues Occupancy Certificate only after satisfying with the entire project including every element of construction including STP is in compliance with the plan sanction with all applicable laws. The STP has been installed after obtaining all the required permission that are needed for installing STP in residential complexes and STP was constructed in accordance with all laws, bye-laws, rules and regulations which have been approved by the BBMP. Hence, there is no any basis for allegations made by the complainant that this Opposite Party has intentionally installed the STP beneath the flat of the complainant.
6. The Opposite Party further contended that after obtaining the Occupancy Certificate being issued by BBMP prior to entering into the Sale Deed, the complainant personally inspected the schedule apartment and the entire project and being satisfied with the same, the Sale Deed has been executed by the Opposite Party No.1 in his favour and the STP was constructed prior to the Sale Deed being executed. Therefore, the complainant is very much aware that the STP was installed in the situated place of the schedule apartment. The complainant has also agreed that he does not have any claims against the Opposite Party No.1 with respect to the schedule apartment including entire building the same is located as stated in Clause 6.2 of the Sale Deed. This goes to show that the complainant inspected and satisfied with the schedule apartment as well as entire building which includes STP.
7. The Opposite Party No.1 has completed the entire project and possession of all common areas/facilities have been handed over to the Resident's Association of which the complainant is one of the member has taken possession of the same only on inspection of the amenities and facilities and after being fully satisfied with the compliance of the project to applicable laws has taken possession. Thus the STP being one of the facilities provided met approval from the Resident's Association. The Opposite Party further contended that once the entire project/building with all amenities has handed over to the residential association, this Opposite Party is not longer responsible for its maintenance. It is submitted that no complaint so far has been received from the Resident's Association with respect to the STP and as per their knowledge the association is maintaining without any hurdle.
8. It is false to allege that the Opposite Parties have not handed over the flat to the complainant after execution of the Sale Deed and it is also a false allegation that the STP was installed when the complainant was not in station. Infact prior to the execution of the Sale Deed, the STP was installed in the schedule as shown in the sanctioned plan. The complainant has purchased the schedule flat in total consideration of Rs.74,00,000/- and it is not in dispute that the Opposite Party executed a Sale Deed dt.04.08.2011 in favour of complainant with respect to the schedule flat. It is false to say that this Opposite Party has given only a constructive possession of the apartment and not handed over the physical possession. Infact the keys were handed over to the complainant as soon as the Occupancy Certificate was issued and Sale Deed was executed.
9. This Opposite Party has no knowledge that whether the complainant stays in Bangalore or Jemshedpur and they have not taken any advantage of the same and clandestinely installed the STP below the schedule flat. The complainant has provided all the opportunity to further verification either to purchase the schedule property, but, the complainant has chosen to purchase the said flat only after the inspection and noticing the sanctioned plan where the STP was installed as such there is no any deficiency in service on the part of the Opposite Party as alleged by the complainant. The complainant has claimed an amount of Rs.98,00,000/- as compensation without any basis. Further, the complainant sought for a prayer for alternative flat which has no basis, hence, prayed for dismissal of the complaint. The Opposite Party No.1 further contended that they have no knowledge about that the complainant has been deprived of the use and occupation of the flat for last two years and he has incurred Rs.6,00,000/- and suffered loss of an amount of Rs.25,000/- per month as rental value. It is also not in their knowledge that the complainant made several trips to Bangalore to discuss and negotiate the matter with Opposite Party for which he incurred Rs.1,00,000/-. The allegations are totally false and the complainant has not made out any primafacie case with respect to the allegations of deficiency in service on these Opposite Parties, hence, prayed for dismissal of the complaint with costs.
10. The complainant has filed his affidavit evidence and documents at Ex.C1 to C13 are marked. Opposite Party No.1 filed affidavit evidence and no documents are marked. Heard the arguments.
11. On perusal, the following points will arise for our consideration;
(i) Whether the complaint is deserves to be allowed? (ii) What order? 12. The findings to the above points are; (i) Negative (ii) As per final order REASONS
13. On going through the pleadings, affidavit evidence and documents produced by both parties, there is no dispute that the complainant had purchased the flat No. G - 127 in Brigade Courtyard - G Wing which was built in 3 acres 15 guntas in Myakala Chennenahalli Village, Bangalore by paying an amount of Rs.74,00,000/- and executed a Sale Deed on 04.08.2011. It is also not in dispute that the Opposite Parties have issued Occupancy Certificate as soon as the Sale Deed was registered. The dispute raised by the complainant is that he was living at Jemshedpur when he visited Bangalore, he noticed that the Opposite Parties have implanted the STP below the flat which was actually not informed to the complainant, hence, alleged deficiency in service. Further submits that due installation of STP human inhabitation is not possible due to intolerable sound and foul smell, hence, prayed for alternative flat along compensation to the tune of Rs.98,00,000/-. On the other hand, the Opposite Parties have contended that as on the date of Sale Deed, they have installed the STP for the benefit of the respondents and as per the approved sanctioned plan issued by the BBMP which is mandatory at the time of construction of the apartment. The complainant also very well knew about the installation of the STP below the flat. Knowing fully the complainant had purchased the flat and he was not residing in the said flat at all and his intention to purchase the apartment is in order to earn some rent out of it. After completion of the entire project, they have handed over the possession of the apartment, to the association formed by the residents of the apartment including the complainant, hence, submits there is no deficiency in service on the part of the Opposite Party they are not liable to provide alternative flat to the complainant without any valid reasons, hence, submits to dismiss the complaint.
14. The plan produced by the complainant was approved by BBMP and now it is BBMP had made mandatory to install STP whoever constructs the apartment exceeding 10 and more flats. Accordingly, the Opposite Parties have installed the STP in order to facilitate the residents and to save water source. Mere installation of the STP not amounts to deficiency in service on the part of the Opposite Party. We noticed here that as on the date of the Sale Deed, the entire construction was complete there is no any allegations with respect to non-completion of the building or flat from the complainant as on the date of execution of the Sale Deed and Occupancy Certificate. It is also pertinent to note that the Occupancy Certificate is going to be issued by the BBMP only when the entire facilities to the residents are provided including STP installation and it is an admitted fact that the complainant is not at all residing in the flat after purchase and execution of the Sale Deed. The said flat is vacant for the best reasons known to the complainant himself.
15. We are of the opinion that mere installation of the STP that too in the ground floor will not cause any intolerable sound or emits foul smell to the residents. In order keeping in good condition, the said STP has to be maintained by the association. The process of STP is a sealed one and not exposed to open to get foul smell and the water treatment is taken place inside the sealed STP, hence, the sound or foul smell could not be caused. We noticed here that as soon as the Occupancy Certificate collected and registration of Sale Deed were executed, the Opposite Parties have handed over the possession of the entire project to the association which was formed by the residents of the said apartment including the complainant. It is an association who has maintain STP in good condition. If it is maintained in good condition periodically, no harm causes to the residents including the complainant though it is installed below the flat. Further we noticed here that no complaint so far was given by any other residents of the apartment even from Association with respect to the sound and foul smell from STP. Under these circumstances, the allegations made by the complainant are not justifiable. We found that there are no valid reasons to direct the Opposite Parties to provide an alternative flat to the complainant merely for the reason of installing the STP below the flat of the complainant.
16. The complainant has not made an Association as a party this complaint to know whether any intolerable sound or foul smell emits from the said STP. In the absence of such materials, the allegations cannot be accepted. As such the complainant failed to establish the deficiency in service on the part of the Opposite Parties. Apart from this, the complainant has not made any allegations with respect to the apartment sold to him. As such the complaint is liable to dismissed. Further, we found that there is no any valid reasons for claiming a huge amount of Rs.98,00,000/- as compensation for a mere installation of STP. Under these circumstances, the complainant failed to establish any deficiency in service on the part of the Opposite Parties. As such the complainant is not entitled to get any reliefs as claimed in the complaint. Hence, the following;
ORDER The complaint is dismissed.
Forward free copies to both the parties.
Sd/- Sd/- MEMBER JUDICIAL MEMBER KCS* [HON'BLE MR. Ravishankar] PRESIDING MEMBER [HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi] MEMBER