State Consumer Disputes Redressal Commission
G. Senthil Kumar vs M/S Best Golden Developers Pvt Ltd on 1 April, 2022
1
Complaint No.268/2016
Date of Filing :22.11.2016
Date of Disposal :01.04.2022
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED:01.04.2022
PRESENT
HON'BLEMr JUSTICE HULUVADI G RAMESH: PRESIDENT
MrKB SANGANNANAVAR:JUDICIAL MEMBER
Mrs DIVYASHREE M:LADY MEMBER
CONSUMER COMPLAINT No.268/2016
1. Mr G Senthil Kumar,
S/o Mr N Gopalakrishnan Nair,
Aged about 41 years
2. Mrs Sreesha S Kumar,
Wife of Mr G Senthil Kumar
Aged about 36 years,
Both are residing at
No.104/1, Flat No.CL2,
Santara Magan Place,
Off Bannerghatta Road,
Kammanahalli Village,
Bengaluru -560 076 Complainants
V/s
1. M/s. Best Golden Developers Pvt. Limited,
A Company incorporated
under the Companies Act 1956,
having its Registered Office
At No.8, Tumkur Road,
Yeshwanthpur, NH-4,
Bengaluru -560 022
Represented by its Authorized Officer
2. M/s. Golden Gate Properties Limited.,
A company incorporated
under the Companies Act 1956,
2
Complaint No.268/2016
having its Registered Office
„Golden House‟, # 820, 80 Feet Road,
8th Block, Koramangala,
Bengaluru -560 095,
Represented by its Authorized Officer Opposite Parties
(By Mr Ramu Srikantaiah, Advocate
for OPs 1 and 2)
:ORDER:
HON'BLE Mr JUSTICE HULUVADI G RAMESH, PRESIDENT
1. This is a Complaint filed U/S 17 of CP Act1986, with a prayer to direct OPs to complete the pending & defective works in the Flat bearing No.AB 1702 and complete the facilities &amenities as per the Terms &Conditions of the agreement; direct OP to extend the defect liability period for the Flat and structures to 3 years from the existing 1 year as the rain water seepage can be assessed only during the rainy season and direct the OPs to extend the defect liability period for the towers, structures, common area like common walls, roofs etc., as per Industry standards; provide Completion & Occupancy Certificate to the Complainants with compensation at Rs.20,000/- per month from 30/11/2014 till the competition of the facilities/amenities as assured in the agreement and brochures by the OP. Further direct OP to pay a sum of Rs.25,00,000/-as damages to the Complainants for the mental agony, pain and sufferings, suffered by the Complainants due to such actions and in-actions on the part of the OP and litigation expenses.
2. It is the case of the Complainants that the OP offered a proposal to the Complainants for purchase of Flat/Apartment, which was being developed & built jointly through a Joint Development Agreement with in Sy.No.90/1,90/2,91,93,94/1,94/3 & 95 of Yeshwanthpur Village and Hobli, Bengaluru in Ward No.2, measuring to an extent of 13 Acres 4.5 Guntas. OP2 obtained sanction for the Group Housing Plan from Bangalore Development Authority vide BDA No.77/2007 and LP NO.BDA/TPM/GH-28/05-06/5110/2006-07 dated: 30.3.2007 for the 3 Complaint No.268/2016 specified property, which was named as "Golden Grand" comprising of various Blocks of residential buildings with provisions for various common facilities & civic amenities such as Club House, Swimming Pool, Basket Ball Court, Tennis Court, Temple, Ampi Theatre , play ground, etc.,
3. Based on the representations & assurances made by OPs, Complainants agreed to purchase a Flat and booked by paying the requisite Fee. After receipt of the Advance payment, OP executed a Sale Deed on 31/10/2014 to the Complainants. It is alleged by the Complainants that the Alpine Block in which the Flat in question is situated, has not yet been notified as complete by the respective statutory authorities and the OPs have not been able to get a „Completion Certificate‟ from the said statutory authority. Further allegations of the Complainants are that, on the one hand, failed to complete the building and make available the promised amenities/facilities within the stipulated time frame; on the other hand, in the guise of the execution of the Sale Agreement, has forced the Complainants to pay Maintenance Charges for one year as on the date of execution of the sale deed itself, such claim for payment of the Maintenance Fees for the facilities which they are yet to provide, amounts to Unfair Trade Practice and intentionally delaying the completion of such amenities/facilities within the time as per the terms of the agreement failed to perform his part of completing the construction of civic amenities on or before the agreed stipulated time. Further, the common areas in the Alpine Tower are not completed and work is under process, which is causing inconvenience and hardship for living. Therefore, they have requested OPs to complete the construction of civic amenities, but the OP‟s failed to specify any date for the competition and handing over the facilities as promised, ignoring and avoiding the Complainants for reasons bet known to them only.
4 Complaint No.268/20164. The main allegation of the Complainants arethat lack of good construction practices, carelessness, greed and negligence has lead to leakage and seepage problems in the flat; in addition, the flow of water in bathrooms is also improper, leading to seepage of water; the walls have started developing cracks particularly near the grill area, the skirting work, the silicone filling on grills, cracks and uneven doors, the walls are not straight etc., has been poorly done. Due to such improper work, the Complainant was forced to spend money from their pockets to rectify the issues, due to low quality work of the OPs. Furthermore, the parking area, which has been allotted to the Complainants, submerges during heavy downpour, leading to damage of the vehicles parked. The OP‟s have failed to provide sufficient floor drains for the outflow of water from the parking area; this in turn has become a breeding place for mosquitoes, risking the lives of the residents; not provided an approach road connecting the main road as promised etc., such improper planning on the part of OP‟s also amounts to deficiency of service, as defined under the Consumer Protection Act. The act of the OPs of receiving the entire consideration towards the Apartment as per the Agreement and failing to adhere to the Terms of the Agreement by changing the Master Plan and failing to provide the amenities, as promised on time, amounts to deficiency of service causing un- necessary financial burden and losses to the Complainants, since inspite of paying a sum of Rs.3,00,000/- plus applicable taxes to the OPs towards the Club House Membership in accordance with clause 2(c) of the Agreement and Rs.50,000/- towards Maintenance Deposit, plus 12 months Advance Maintenance charges prior to Registration, but the OPs have failed to provide the amenities assured in the Agreement. Hence, this Complaint.
5. On service of Notice, OPs entered appearance and filed their Version. In their statement of Version, OPs admitted the booking of Apartment and execution of Agreement of Sale and pleaded that the 5 Complaint No.268/2016 Complainants have not produced any document to show that they have been suffering mental tension, pain and financial loss for substantiating their exorbitant Claim of Rs.20,000/- per month from 30.11.2014 till completion of facility/amenities and Rs.25 Lakhs as damages. As per Clause 20, Interim Maintenance Clause (3) of the Agreement of sale dated 14.03.2008 which clearly discloses that in the event of any dispute or difference arising between the parties hereto in regard to any matter relating to or concerned to or connected with Assignment Agreement, the same shall be referred to Arbitration of a sole Arbitrator and the arbitration proceeding shall be in accordance with the provisions of the Arbitration and Conciliation Act 1996 and the decision shall be final and binding on both the parties. Hence, matter may be referred to Sole Arbitrator for adjudication of the matter.
6. Further OPs pleaded that, the Complainants have received the Apartment in good condition as per the Registered Sale Deed and hence they have no claim against the OPs with respect to Apartment regarding construction or specification or quality of the construction. OPs denied other averments made in the Complaint and sought for Dismissal of the Complaint.
7. To prove their case, Complainant No.1 filed his Affidavit Evidence in lieu of his Oral Arguments and no documents were got marked. Per contra, inspite of giving sufficient opportunities, OPs have not filed their Affidavit Evidence, hence, the same is taken as NIL.
8. Heard the arguments. Admittedly, as per Sale Deed on 31.10.2014 Complainants have purchased the Apartment bearing No.AB-1702 on the 17th Floor of Alpine Block of the Apartment Complex known by the name „Golden Grand‟ measuring 1825 Sq. ft of super built up area along with one covered and one Car park which is more fully described in the schedule B property with un-divided share of 438 6 Complaint No.268/2016 sq. ft in Schedule A property for total sale consideration of Rs.1,00,44,938/- i.e., cost of un-divided share of the land being Rs.57,48,750/- and Rs.42,96,188/- towards constructing, internal finishing‟s, common areas, external amenities, development charges, car park and PWS.
9. According to the Complainants, OPs have not been able to get a „Completion Certificate‟ from the concerned statutory authority and failed to complete the building and make available the promised amenities/facilities within the stipulated time and forced the Complainants to pay Maintenance Charges for one year as on the date of execution of the Sale Deed. Further, the OPs failed to perform their part of completing the construction of civic amenities on or before the agreed stipulated time. Apart from this, OPs failed to provide proper amenities which amounts to deficiency of service causing un-necessary financial burden and losses to the Complainants since inspite of their having paid a sum of Rs.3,00,000/- + applicable taxes to the OPs towards the Club House Membership, in accordance with Clause 2(c) of the Agreement and Rs.50,000/- towards Maintenance Deposit + 12 months Advance Maintenance Charges prior to Registration
10. OPs, denied the allegations made in the Complaint with regard to defects found in the Apartment. Further OPs have taken a contention that the Complainants have received their Apartment in good condition.
11. Thus, the dispute boils down to the fact that OPs have not given Completion Certificate from concerned statutory authority as per Sale deed and failed to perform his part of completing the construction of civic amenities on or before the agreed stipulated time, to which the Complainants were made to pay Maintenance Charges for one year, as on the date of execution of the Sale Deed. Complainants have produced the copies of photographs evidencing the poor quality of construction of 7 Complaint No.268/2016 the OPs with regard to leakage and seepage problems in the flat; in addition, the flow of water in bathrooms is also improper, leading to seepage of water; the walls have started developing cracks particularly near the grill area, the skirting work, the silicon filling on grills, cracks and uneven doors, the walls are not straight etc., In such circumstances, OPs cannot escape from the their liability, stating that as per Terms & Conditions of the Agreement of Sale matter has to be refer to a Sole Arbitrator for Adjudication of the matter on the ground Complainants have received the apartment in good condition, but facts remained shown apartment is not in good condition. Under the circumstances, OPs are liable to compensate for the same in not handing over the apartment in time and so also for not completing the apartment in good condition & not issuing Occupancy Certificate. In the result, we proceed to pass the following ORDER Complaint is allowed in part. OPs are directed to complete the pending and rectify defective works in the flat bearing No.AB 1702 within 60 days, failing which to pay compensation of Rs.5 Lakhs and to issue occupancy certificate as early as possible and do pay Rs.25,000/- towards litigation costs not later than three months from the date of receipt of this order.
Send a copy of this Order to the parties concerned.
Lady Member Judicial Member President *s