State Consumer Disputes Redressal Commission
Genesis Apartment Owners Association vs Corporate Leisure & Property on 31 January, 2022
CC. No.443.2017
Date of filing: 08.09.2017
Date of Disposal:31.01.2022
BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL
COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED:31.01.2022
PRESENT
HON'BLE Mr JUSTICE HULUVADI G RAMESH : PRESIDENT
Mr K B SANGANNANAVAR: JUDICIAL MEMBER
Mrs DIVYASHREE M: LADY MEMBER
Consumer ComplaintNo.443/2017
1. Genesis Apartment Owners Association,
Office at: Ground Floor, Club House,
Genesis Apartment, Ibluru Village,
H.S.R Post, Bengaluru - 560102,
Represented by its President,
Mrs. Gomathy Sankaran.
2. Mrs Smruti Rath,
Aged about 32 years,
D/o Mr Bimal Kumar Rath,
Apartment No.B-1/306,
Genesis Apartment, Ibluru Village,
H.S.R. Post, Bengaluru - 560102.
3. Mr Sujit Dagadu Jadhav,
Aged about 39 years,
S/o Mr Dagadu Bhanudas Jadhav,
Apartment No.B-4/303,
Genesis Apartment, Ibluru Village,
H.S.R. Post, Bengaluru - 560102.
4. Mr Sachin Pandhare,
Aged about 38 years,
S/o Mr Dattatray Pandhare,
Apartment No.B-3/303,
Genesis Apartment, Ibluru Village,
H.S.R. Post, Bengaluru - 560102.
2
CC No.443/2017
5. MrBinu John,
Aged about 37 years,
S/o Mr John Mathew,
Apartment No.B-4/204,
Genesis Apartment, Ibluru Village,
H.S.R. Post, Bengaluru - 560102.
6. Mr. Vijayakishan Narayanan,
Aged about 38 years,
S/o Mr Narayanan Muthukuttiparambil,
Apartment No.B-1/204,
Genesis Apartment, Ibluru Village,
H.S.R. Post, Bengaluru - 560102. Complainants
-Versus-
M/s Corporate Leisure & Property Developments (P) Ltd.
Office at: No.108, Ground Floor,
Oxford Towers, No.139, Airport Road,
Bengaluru - 560008.
Represented by its Director,
Mr.Govindachary Opposite party
:ORDER:
BY Mr JUSTICE HULUVADI G RAMESH, PRESIDENT
1. The Complainant has filed thisComplaint under Section 17 of Consumer Protection Act 1986 requesting for a direction to the OP to pay a sum of Rs.97,81,864/- along with interest @ 12% p.a. from the date of this Complaint till the date of actual payment. Further, to direct the OP to handover custody of the original documents relating to the converted residential land bearing Sy.Nos 29, 30 & 34/2 (totally measuring 5 Acres 27 Guntas) of Ibbalur Village, Begur Hobli, Bengaluru South Taluk and with costs.
2. The 1st Complainant is a Society of Apartment Owners' Association to promote & protect the common welfare & interest of 3 CC No.443/2017 its Members ; who are Purchasers of Apartment(s)/Flats in the Residential Apartment Complex developed in the name & style of "Genesis Apartments" with Common Facilities & Amenities viz. Swimming Pool, Club House, comprising of Ground & 3 upper Floors and a Lift, Sewage Treatment Plant, Open Space between "A" &"B" Blocks which is being used by the Children of the Owners of the apartments/occupants as play area, Senior occupants walking area and for hosting cultural & social events for occupants.OPis a Builder/Promoter, who had developedand converted the land into Residential apartments, 2ndto 6th Complainants being Purchasers of their respective apartments in the Apartment Complex and other similarly placed Purchasers have incorporated the 1 stComplainant Association to promote &protect their interests as purchasers of the units/apartments.
3. The OP after the completion of each Block and inperformance of the Terms of Agreements concluded with the Purchasers,has executed individual Absolute Sale Deedsconveying their un- divided share and Unit/Flat. Subsequently, OP called upon each of the Purchasers to payMaintenance Deposit at the rate of Rs.75/- per Sq. Ft. andKPTCL and BWSSB Deposits at the rate of Rs.125/- per Sq. Ft. assuring each of the purchasers that OP would maintain the common amenities & facilities for a period of 4 years from the date of possession.OP handed over possession of individual Apartments to the respective Purchasers between December 2010 and April 2011.
4. It is alleged by the Complainants that, OP was required tomaintain the "Genesis Apartment" Complex's common facilities & amenities atleast till the end of April 2015 andOP called upon the 1st Complainant, which was incorporated by then, to take over the management of the common areas/amenities with effect from 4 CC No.443/2017 01.04.2014, without even obtaining Occupancy Certificate and without completing different works and failed to rectify the defects that were brought to Notice of OP. The 1 st Complainant, in an effort to establish smooth & effective taking over of the management of the common areas, requested OP to continue the management of the common areas at least until December 2014which was refused by OP.
5. It is further alleged by the Complainants that, OP not only delayed in handing over the management of the common areas/facilities of the Apartment Complex, but also failed in executing • certain works is clear case of deficiency in rendering services and also failed to obtain Occupancy Certificate and to hand over the original documents relating to the property to the 1 st Complainant as agreed and there are deviations in construction, though marginal & compoundable, and therefore, he will have to make necessary applications under the Akrama-Sakrama Scheme of the Government, for regularizations of such deviations or pay penalty to obtain the Occupancy Certificate & regular Khatha for the respective units with the BBMP. Further, there is certain amount due to be paid BESCOM by OP and they have issued notices to OP to pay a total sum of Rs.2,11,884/- and threatened disruption of Electricity to the Apartment Complex, in the event of non-compliance to the demand. Therefore, with no other alternative, OP1 was constrained to pay the amount in default and called upon the OP to reimburse the same which was not paid by the OP, despite repeated requests. Therefore, the OP isliable to pay to the Complainants Rs. 2,11,884/-.That apart, the Karnataka State Pollution Control Board has also issued Notices for Non-Compliance under the provisions of Water Cess (Prevention & Control of Pollution) Act for payment of Rs.28,202/-, which the 1st Complainant was duty bound to 5 CC No.443/2017 comply and accordingly paid the same but, yet again OP has not refunded this amount. Further, OP has not provided necessary STP facility for the Apartment Complex. Further, the Complainants also paidRs.6,37,300/- towards the repairs of the LIFTS, which as per the Contract ought to have been carried out by the OP . Thus, in view of the multi-farious encountering of avoidable problems,Complainant lodged the instant Complaint alleging deficiency in service on the part of OP, with prayers as stated supra.
6. On service of Notice, OP entered appearance and filed his Version, wherein, he pleaded that heis being represented by his Director, who has successfully completed many Projects andthat they have maintained good rapport with their customers and also in market. Further, the Company has been running successfully for years without any complaint, whatsoever, from its customers. The entire allegations in the complaint are concocted by the Complainants and there is no sort of deficiency of service rendered by the OP. He launched a Residential Project of Apartments called Genesis Apartment as per the Plan sanctioned by the CMC (City Municipal Corporation) in the property bearing SyNos 29, 30 & 34/2, measuring 5 Acres 27 Guntas, situated in Iblur Village, Begur Hobli, Bengaluru South Taluk and he entrusted the responsibility of maintaining the entire Genesis Apartment Complex for a period of 4 years by collecting Maintenance Charges from the respective Apartment owners. The individual apartment owners have used all the facilities provided in the Apartment Complex for the period of 4 years including LIFT, STP, club house and other amenities provided by the OP company without any complaints. After completion of 4 years of maintenance, Complainant No.1's Association came into existence in the year 2013.
6 CC No.443/20177. Further pleaded that, OP constructed the Apartment Complex in accordance with the Plan sanctioned by the then City Municipal Council (CMC), which was later taken over by Bruhat Bangalore Mahanagara Palike (BBMP). In view of the process of transition, the Occupancy Certificate is yet to be issued by the BBMP, as such, there is no fault whatsoever, on the part of the OP on this subject. However, the delay in issue of Occupancy Certificate by the BBMP does not give rise for a cause under the Consumer Protection Act for alleging deficiency in service and the Complainants cannot imagine that there is deviation in the construction and further imagine an amount to regularize the same.
8. Further OP pleaded that complainant No.1 has miserably failed in maintaining the Residential Apartment Complex after having taken over the responsibility of the same without any demure in the year 2014 itself. The 1stComplainant is not in a position to distinguish between the recurring expenses towards normal wear & tear due to prolonged usage of facilities and deficiency of service in providing the same. The Complainants have made an attempt to project the recurring expenses incurred by them in maintenance of building as deficiency of service on the part of OP Company, after having used the facilities for more than 8 years. The Complainants have also projected the notified cess by the Karnataka State Pollution Control Board and deposits of BESCOM which are notified by respective departments from time to time, which are also a recurring expenditure, which the owners of the Apartments are liable to pay as per their Bye-Laws. Since the Director of the OP Company has initiated a Suit against the 1stComplainant for enforcing his easementary right to approach the property, the 1stComplainant has adopted the arm twisting tactics against the OP herein, in order to see that the Director of OP concede to the illegal demands of the 1st 7 CC No.443/2017 complainant, as a result of the same, the above frivolous complaint is filed. Hence OP sought Dismissal of the Complaint.
9. To prove his case, Complainant No.2 filed her Affidavit Evidence. The authorized signatory of OP also filed his Affidavit Evidence. No documents were got marked by both the parties. Heard the arguments of the parties to the case. It is not in dispute that,OP executed Sale Deed conveying un-divided share and Apartment(s)/Flats in the Residential development called "Genesis Apartments" with comprising of Ground & 3upper Floorswith a LIFT, along with common Facilities & Amenities viz. Swimming Pool, Club House, Sewage Treatment Plant, Open Space between "A" and "B" Blocks, which is being used by the owners of the apartments/occupants as children play area, Senior occupants walking area and for hosting Cultural & Social events for occupants.OP is a Builder/Promoter, developed & converted land bearing Sy Nos 29, 30 & 34/2 (totally measuring 5 Acres 27 Guntas) situated at Ibbalur Village, Begur Hobli, Bengaluru South Taluk and handed over possession of Apartments between December 2010 to April 2011 to respective Purchasersand OP would maintain the common amenities & facilities for a period of 4 years from the date of handing over possession. OP after completion of each Block and in performance of the terms of agreements concluded with the purchasers, has executed Absolute Sale Deeds conveying un- divided share and Unit/Flat. Subsequently, OP called upon each of the Purchasers to pay Maintenance charges @ Rs.75/- per Sq. Ft. and KPTCL & BWSSB charges @ Rs.125/- per Sq. Ft. assuring each of the purchasers that OP would maintain the common amenities & facilities for a period of 4 years from the date of handing over of possession.
10. Admittedly,Complainant No.1 Association came into existence in the year 2013. The allegations of the Complainants that after taking 8 CC No.443/2017 into custody for maintenance of the Apartment Complex, from the Seller, it was observed that there is amountdue to BESCOM for Rs.2,11,884/- ,Rs.28,202/- to the Karnataka State Pollution Control Board besides Rs.6,37,300/- towards the repairs of the LIFTS. Further, OP has also failed to handover the custody of the original documents relating Apartment complex as well as Occupancy Certificate.
11. According to OP, there is a process of transition from the CMC to BBMP and consequently, the Occupancy Certificate is yet to be issued by the BBMP. Further, OP alleges thatsince the Director of the OP Company has initiated a Suit against the 1stComplainant for enforcing his easementary right to approach his property, he avers that the 1stComplainant has adopted the arm twisting tactics against the OP herein, with the assumption that in order to see that the Director of OP concede to the illegal demands of the 1stComplainant, hence, there is no deficiency in service on the part of OP.
12. With regard to Complainants having made to pay arrears of payments due to be paid, but not paid, to BESOM, PESCB & repair charges towards LIFT. We have not been appraised as to the vintage of the payments and accordingly we are tend to agree with the submission of the OP that these expenses are towards running expenses and not accumulated during the initial period of his maintenance of the Apartment Complex for 4 years.
13. Thus, under the facts & circumstances of the case, it appears that Complainants mainly alleging deficiency in service against OP is with reference to they not being issued with the Occupancy Certificate of the Apartments to the purchasers. In this regard, we are of the considered opinion that it is for the Complainants/Owners of the Apartments, as well as Apartment Owners' Association to do the needful by submitting 9 CC No.443/2017 an application along with necessary documents to the concerned Authority concerned for getting the Occupancy Certificate, within one month from the date of receipt of this Order. Further OP is also directed to associate in the matter by approaching the Authority concerned and expedite follow-up for issuance of Occupancy Certificate to each of the Apartment Owner and comply with this Order within 3 months from the date of receipt of this Order. Accordingly, Complaint is disposed of with no order as to costs.
Lady Member Judicial Member President *s