State Consumer Disputes Redressal Commission
Oak Leaf Residents Welfare Association vs M/S Suvastu Estates Private Limited on 17 August, 2023
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. Complaint Case No. CC/76/2022 ( Date of Filing : 18 Apr 2022 ) 1. Oak Leaf Residents Welfare Association Rep by its President Indraneel Sengupta, Having Its office at Sy No.91/4, 91/5, 92. Chambenahalli, Vilage, Dommasandra P.O. Sarjapur Road, Bengaluru-562125 ...........Complainant(s) Versus 1. M/S Suvastu Estates Private Limited Having its office at 49, AMR Plaza, 18th Main, HSR Layout 3rd Sector, Bangalore-560102 rep by its Managing Director Mr. Arjun Kumar 2. Arjun Kumar Birendra Kumar Singh S/o Birendra Kumar Singh, Managing Director of Suvastu Estates, Private Limited, having Registered office at 49, AMR Plaza, 18th Main, HSR Layout 3rd Sector, Bangalore-560102 3. Smriti Arjun Kumar W/o Arjun Kumar Director of Suvastu Estates, Private Limited, having Registered office at 49, AMR Plaza, 18th Main, HSR Layout 3rd Sector, Bangalore-560102 4. M/S N.D Developers Private Limited Having its office at Sri Balaji Nilaya No.25, 3rd Main 5th Cross, Dollars Colony N.S. Palya BTM 2nd Stage Bengaluru-560076 5. Malur Krishnappa Iyengar Sridhara Director of N.D. Developers Private Ltd., Having its office at Sri Balaji Nilaya No.25, 3rd Main 5th Cross, Dollars Colony N.S. Palya BTM 2nd Stage Bengaluru-560076 6. Ayesha Sultana W/o M.K.K. Durani Director of N.D. Developers Private Ltd., Having its office at Sri Balaji Nilaya No.25, 3rd Main 5th Cross, Dollars Colony N.S. Palya BTM 2nd Stage Bengaluru-560076 7. Jyothi Director of N.D. Developers Private Ltd., Having its office at Sri Balaji Nilaya No.25, 3rd Main 5th Cross, Dollars Colony N.S. Palya BTM 2nd Stage Bengaluru-560076 8. Dr. T.V.S. R.K.V. Prasad Aged about 57 years, Son of T Venkatramaiah, Resident of : Padmavathi Nagar, Piler-517214, Chittoor District Andra Pradesh ............Opp.Party(s) BEFORE: HON'BLE MR. Ravishankar PRESIDING MEMBER HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER PRESENT: Dated : 17 Aug 2023 Final Order / Judgement BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE (ADDL. BENCH) DATED THIS THE 17th DAY OF AUGUST 2023 PRESENT MR.RAVISHANKAR: JUDICIAL MEMBER MRS.SUNITACHANNABASAPPABAGEWADI: MEMBER CONSUMER COMPLAINT NO.76/2022 OAK LEAF RESIDENTS welfare Association, Represented by its President Indraneel Senugupta, Having its Office at- Sy No 91/4, 91/5, 92 Chambenahalli Village Dommasandra P.O, Sarjapur Road, Bengaluru-562125, Karnataka. Complainant/s V/s 1. M/s Suvastu Estates Private Limited, A company registered under the Companies Act 1956, Having its office at #49, AMR Plaza, 18th Main, HST Layout 3rd Sector, Bangalore-560102. Represented by its Managing Director Mr.Arjun Kumar. Opposite Party/s 2. Mr.Arjun Kumar Birendra Kumar Singh, S/o Birendra Kumar Singh Managing Director of Suvastu Estates Private Limited, Having Registered office at #49, AMR Plaza, 18th Main, HST Layout 3rd Sector, Bangalore-560102. 3. Mrs. Smriti Arjun Kumar, W/o Arjun Kumar, Director of Suvastu Estates Private Limited., Having Registered Office at #49, AMR Plaza, 18th Main, HSR Layout 3rd Sector, Bangalore-560102. 4. M/s N.D Developers Private Limited, A company registered under the Companies Act 1956, Having its office at Sri Balaji Nilaya, No.25, 3rd Main, 5th Cross Dollars Colony, N.S Palya, BTM 2nd stage, Bengaluru, Karnataka-560076. 5. Malur Krishna Iyengar Sridhara, Director of ND Developers Private Ltd, Havings its office at Sri Balaji Nilaya, No.25, 3rd Main, 5th Cross Dollars colony, N.S Palya, BTM 2nd stage, Bengaluru, Karnataka-560076. 6. Smt Ayesha Sultana, W/o M.K.K. Durani, Director of ND Developers Private Ltd., Having its office at Sri Balaji Nilaya, No.25, 3rd Main, 5th Cross, Dollars colony, NS Palya, BTM 2nd Stage Bengaluru, Karnataka-560076. 7. Smt. Jyothi, Director of ND Developers Private Ltd., Having its office at Sri Balaji Nilaya, No.25, 3rd main, 5th Cross Dollars colony, NS Palya, BTM 2nd stage, Bengaluru, Karnataka-560076. 8. Dr.T.V.S R.K.V. Prasad, Aged about 57 years, S/o T.Venkatramaiah, Resident Of: Padmavathi Nagar, Piler-517214, Chittor District, Andhra Pradesh. O R D E R
BY SMT. SUNITA.C.BAGEWADI, MEMBER The complainant filed this complaint against the Opposite Parties alleging deficiency in service and prays to direct the Opposite Parties to pay a sum of Rs.47,72,208/- towards BWSSB charges, to refund collected amount towards BESCOM of Rs.47,72,208/-, to refund Rs.21,00,000/- in the head of DG, to rectify the Sewage treatment plant, to obtain occupancy certificate from Anekal Planning Authority, to transfer electronic khata in the name of individual flat owners, to provide car parking space for individual flat owners, grant a compensation of Rs.12,60,000/- for not taken any action for encroachment of approached road of the Apartment Complex by the neighbours along with compensation of Rs.20,00,000/- for mental agony and Rs.5,00,000/- towards litigation expenses.
2. The brief facts of the complaint are as under:-
The complainant is the registered Owners Association in the name and style of OAK LEAF RESIDENTS Welfare Association having its registered office at Sy No. 91/4, 91/5, 92 Chambenahalli Village Dommansandra P.O, Sarjapur Road, Bengaluru-562125 Karnataka, bearing Registration No.DRB3/SOR/11/2022-23. The complainant states that the Opposite Party No.8 are the absolute owners of all piece and parcel of land bearing sy no.91/4 measuring about 17 guntas, survey no.91/5 measuring 18 guntas and sy no.92 measuring 04.04 guntas situated at Chambenahalli Village, Sarjapura Hobli, Anekal Taluk and same is converted from agriculture to non-agricultural residential purpose vide conversion certificate bearing No.BDis/ ALN (A) - (S) /SR/15/2012-2013 dated 30.06.2012.2.BDis/ ALN (A)-(S)/SR/10/2012-2013 and BDis/ ALN (A)-(S)/SR/98/2012-2013. Issued by the Deputy Commissioner, Bangalore District.
3. Further the complainant states that the Opposite No.8 and OP-2 have agreed to develop the schedule property by constructing and putting up multi-storied residential apartment building subject to the terms and conditions of the registered Joint Development Agreement dated 18.07.2013 bearing Doc No. BNG(U)BSK-04523/2013-2014 and subsequently rectified by the deed of declaration of Joint Development Agreement bearing Doc No.8141/2013-2014 where OP-2 herein do hereby declare, affirm and state that the description of the Second Party/Developers in the afore mentioned Joint Development Agreement dated 18.07.2013 shall be amended and rectified. Subsequently, the OP-8 executed a General Power of Attorney in favour of the Opposite Party No.2 bearing Doc No. BNG(U) BSK 157/2013-2014 dated 18.07.2013 and subsequently rectified by deed of rectification bearing No.508/BK IV and/ or its nominees, empowering it to proceed with obtaining licenses, consents for plans and in this regard to the Building to be constructed on the schedule property and authorizing the Developer to represent before all and any of the statutory Authority and General Power of Attorney with the terms of the General Power of Attorney, the General Power of Attorney was executed on 18.07.2013. The complainant submit that a Supplementary Agreement was executed by and between the Opposite Party NO.1 & 2 and Opposite party No.8 to the Joint Development Agreement already entered into between the parties of all the piece and parcel of property, have mutually agreed to share the flats to their respective share in the project known as SUVASTU OAK LEAF.
4. The complainant submits that the OP NO.1 represented by Mr.Arjun Kumar applied for plan sanction before the Anekal Planning Authority in respect of schedule property in the building known as OAK LEAF APARTMENT and after scrutinization of all documents and the necessary fees paid by the Opposite Party, the Anekal Planning Authority, had sanctioned plan dated 15.11.2014 bearing No. APA/CC/535/2014-2015. The planning Authority has approved 72 flats to construct. The complainant states that as per the sharing agreement dated 27.04.2016. The OP No.8 had sold out some portion of flats and other were retained by them and both OP No.1 represented by OP No.2 altogether sold out 42 flats out of 72 flats which was duly approved by the Anekal Planning Authority.
5. Further, it is contended that in pursuance of the offer made by the Opposite parties, the members of the complainant Association entered into individual agreements for sale and construction agreements on several dates at different prices at more than 45 lakhs each. Further, in addition to sale price of the residential flat owners were charged towards BESCOM, Bangalore water supply & Sewerage Board (BWSSB in short hereinafter), Legal expenses, provided sufficient STP, commencement certificate and occupancy certificate by the Opposite Parties. The Opposite Party has promised in the sale Agreement that they will provide all the amenities, proper STP for 72 flat owners, provide occupancy certificate, BWSSB (providing Cauvery Water connection) and allotted proportionate car parking space after executing the sale deed for which they have collected proportionate amount from all individuals under different heads. The Opposite Party No.1 represented by Opposite Party No.2 to 8 agreed to provide water from BWSSB and also give BESCOM connection permanently and collected Rs.2,16,900/- under the head of BWSSB & BESCOM charges from all individual flat owners, i.e., 42 flats as of current date only one borewell is functional out of Two promised Borewell. The apartments were sold and registered through different sale deed to the Apartment owners between the year 2015 to 2022 and there is no back up borewell motor provided by the builder. The Borewell water is not suitable for drinking. The complainant had requested the Opposite Party No.1 as well as Opposite party No.2 many times to get the water connection from the concerned authority but the reply to the complainant's request was only a formality and it appears that there is no earnestness in the approach since he did not make any efforts to get water connection for so many years and has not taken any steps to deposit the sum collected by it with the BWSSB for getting Cauvery Connection. It is submitted that the STP in the project is not functioning properly and it is resulting in fluting entire vicinity with breeding mosquitoes, bad odour etc and there is no provision made to effect and to connect the sewage lines provided by the BWSSB in that area. STP as promised in the basic amenities, is still incomplete and no proper planning for disposal of sewage water has also been done till date. The sewage water overflows many days which is creating a very bad smelly surrounding environment for residents as well as logged sewage water has also been infested by large numbers of mosquitoes which causes mosquito borne diseases, but the Opposite parties have taken the full consideration amount of the owner of the flats and did not heed any kind of importance to resolve the issues which shown the deficiency of service from the end of the Opposite Parties. In the past the residents of Apartment have suffered with no electricity for multiple days as BESCOM disconnected the service due to non-payment of dues. It is submitted that the Complainant has requested the Opposite Party No.1, Opposite Party No.2 to 7 to handover all the original documents in respect of land as well as the building of the Apartment and provide all the Approvals, documents, Original Deed documents, NOC from concerned department, Commencement Certificate, Occupancy Certificate, all warranties and sketches and AMCS with respect to the LIFT,DGS,STP etc. However, the Opposite Party No.1 & 2 opted not to respond to the complainant with respect to the above grievances till date.
6. It is further submitted that without occupancy certificate the concerned authority of Village Panchayat will not issue the khata in the name of the flat owners, due to which the members of the complainant Association will not be able to pay the property taxes before the concerned authority. Without obtaining occupancy certificate from the concerned authority the Khata bifurcation in respect of Individual flat cannot be possible for which the cost of the Apartment in the market value will not increase. In these circumstances, the Opposite Parties are liable to pay compensation a sum of 25,000x42=10,50,000 since date of project completion as per RERA completion date of Dec 2018 i.e.3 years which amounts to 31,50,000/-. It is submitted that the OP No.1 represented by OP Nos.2 & 3 have promised a plethora of amenities like swimming pool, Jogging track, children play area, Rain water harvesting, clubhouse and gyms/Health Club and assured the members of the complainant Association with respect to the amenities but did not provide all the amenities as mentioned in the brochure. In the said Apartment are 4 floors divided into two blocks and as per the construction agreement 2 lifts, one each for a block has to be provided which is still pending. It is submitted that they found some quality issues in the construction of the flats like cracks, seepage issues, improper basement flooring and also with respect to the exterior painting. Another basic amenities that the Opposite Party had never prioritized is the main entrance gate. The gate has been half demolished since Dec 2018, for which it is very big security risk for the Apartment Complex. The complainant also submit that the Opposite parties has not allocated covered car parking space for the individual owner for which the Opposite parties has taken Rs.1,75,000/- each from individual owner. The complainant also submit that the Opposite parties has not provided handle bar for support in the B block stair case which possess a danger for elderly as well as physically handicapped people. There is also no proper earthling done for the flat for which the life risk can be possible towards the member of the Residents of the Apartment. The complainant further submits that the approach Road has not been constructed from the main road. Hence, the complaint.
7. Inspite of service of notice through RPAD, OP No.2 to OP No.8 remained absent - hence placed exparte and inspite of service of notice by way of paper publication in Kannada Daily Newspaper, Kannada Prabha. OP No.1 absent- hence OP No.1 also placed exparte.
8. The complainant has filed affidavit evidence and marked documents at Ex-C-1 to Ex-C-13. Heard the arguments of complainant.
9. On perusal, the following points will arise for our consideration;
(i) Whether the complainant has proved the deficiency of service on the part of the Opposite Parties?
(ii) Whether the complainant is entitled for the reliefs as sought? (iii) What is the order? 10. The findings to the above points are; (i) Affirmative (ii) Partly affirmative (ii) As per final order R E A S O N S
11. Perused the complaint, evidence affidavit and documents produced by complainant, we noticed that the complainant is the Registered Owners Association in the name and style of Oak Leaf Resident Welfare Association having its registered office at Sy No.91/4, 91/5,92, Chambenahalli Village Dommasandra Post Office, Sarjapur Road, Bengaluru and bearing Registration No.DRB3/SOR/112022-23. Further, the OP No.8 are the absolute owners of the land bearing sy No.91/4 measuring about 17 guntas, survey No.91/5 measuring 18 guntas and sy No.92 measuring 04.04 guntas situated at Chambenahalli village, Sarjapura Hobli, Anekal Taluk and same was converted from agricultural to non-agricultural residential purpose vide conversion certificate bearing No.BDis/ ALN (A) - (S) /SR/15/2012-2013 dated 30.06.2012 and 2. BDis/ ALN (A) - (S) /SR/10/2012-2013 and BDis/ ALN (A) - (S) / SR/98 /2012-2013 issued by the Deputy Commissioner, Bangalore District.
12. Further, the OP No.2 and OP No.8 have agreed to construct up multi-storied residential apartment building subject to the terms and conditions of the registered Joint Development Agreement dated 18.07.2013 bearing No. BNG(U)BSK-04523/2013-2014 and subsequently, rectified by the deed of declaration of Joint Development Agreement bearing No.8141/2013-2014 and OP No.8 executed a General Power of Attorney in favour of the OP No.2 bearing No. BNG(U) BSK 157/2013-2014 dated 18.07.2013 and rectified by deed of rectification bearing No.508/BK IV and authorizing the developer to represent before all and any of the statutory Authority and General Power of Attorney with the terms of the General Power of Attorney.
13. Further, the OP No.1 represented by Mr.Arjun Kumar applied for plan sanction before the Anekal Planning Authority in respect of the schedule property in the building known as OAK Leaf Apartment and after scrutinization of all documents and the necessary fees paid by the Opposite Party, the Authority had sanctioned the plan dated 15.11.2014 bearing No. APA/CC/535/2014-2015 and approved 72 flats to construct.
14. Further, OP No.1 represented by OP No.2 altogether sold out 42 flats out of 72 flats which were approved by the Anekal Planning Authority. Further the members of the Complainant Association entered into individual agreements for sale and construction agreement and construction agreement on several dates at different prices more than 45,00,000/- each. In addition to sale price of the residential flat owners were charged towards BESCOM and BWSSB, Legal Expenses provided sufficient STP, commencement certificate and occupancy certificate by the Opposite parties. The Opposite parties have promised that they will provide all the amenities, proper STP, provide occupancy certificate, car parking after executing the sale deed. However, inspite of sufficient requests made but OP/s have failed to hand over all the original documents irrespective of lands as well as the building of the apartment and provide all the approvals, documents, original title deeds documents, NOC from concerned Department, commencement certificate, occupancy certificate of all warranty and sketches and AMCS with respect to the BGS, STP etc., even till date. Also the OP/s have failed to provide amenities like swimming pool, Jogging track, children play area, Rain water harvesting, club house and gyms/ Health Club as per the Bouchers.
15. Perused the photographs produced by the complainant, we noticed that there were cracks, improper basement, flooring, seepage issue, external passaging no handle bar to the stair case etc., also road has not constructed by the OP/s from main road to the apartment. Also terrace door for both the blocks are not properly fixed, security room and common toilet for security personal also not been constructed, common areas lighting and final coat of paint in the common areas also not been done. Hence, all these allegations of the complainant is true and believable.
16. It is well settled a legal position that after the payment of all consideration amount of flats, the OP/s have not provided the basic amenities as promised. Hence it is deficiency of service on the part of the OP/s. Moreover, inspite of service of notice, the OPs remains absent. Hence, the allegations made by the complainant remained unchallenged. Hence, considering the facts and discussion made here, we are of the opinion that the complainant has proved the deficiency of service on the part of the Opposite Parties. Accordingly, we proceed to pass the following:
O R D E R The complaint is allowed.
The OP Nos. 1 to 8 are jointly and severally directed to pay an amount of Rs.42,60,900/- to the complainant paid towards BWSSB charges along with 9% interest from 2018, till the date of realization.
Further, the OP Nos.1 to 8 are jointly and severally directed to give BESCOM meter connection to all individual 72 flat owners or to refund the collected amount of Rs.42,60,900/- along with 9% interest paid towards BESCOM from 2018, till the date of realization.
Further, the OP No.1 is directed to rectify the sewage treatment plant and to connect sewage approved by the BWSSB.
Further, the OP Nos.1 to 8 are directed to obtain Occupancy Certificate from the Anekal Planning Authority and handover to the complainant and to transfer electronic Khata in the name of the owners of the flats.
Further, OP Nos.1 to 8 are directed to provide Car parking space for the individual flat owners.
Further, OP No.1 to 8 are directed to pay an amount of Rs.10,00,000/- as a compensation towards deficiency of the service to the complainant/apartment Association and Rs.25,000/- towards litigation costs.
The Opposite Parties are directed to comply the order within 45 days from the date of receipt of this Order.
Send a copy of this order to both parties.
(Sunita.C.Bagewadi) (Ravishankar) Member Judicial Member P* [HON'BLE MR. Ravishankar] PRESIDING MEMBER [HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi] MEMBER