BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH,                                                                               MANGALORE

                                                                     Dated this the 16^thNovember 2016

PRESENT

    SRI. VISHWESHWARA BHAT D  :HONBLE PRESIDENT

     SRI. T.C. RAJASHEKAR: MEMBER

ORDER IN

C.C.No.294/2012

(Admitted on 13.09.2012)

1. Ms. Sharavathi M.

    Aged about 51 years,

2. Dr. Asha M. MBBS DGO

    Aged about 49 years,

    Both residing at 8/10.12,

    Anugraha Bali Compound,

     2^ndB.Cross, Kodikal,

     Ashok Nagar, Mangalore  575 006.

                                                         …....... COMPLAINANTS

(Advocate for the Complainants: KPR)

VERSUS

1. Dr. Jayaram K. Shetty, MBBS, DOMS,

Aged about 60 years,

S/o Late Hiriyanna Shetty,

2. Mrs. Vani J. Shetty,

Aged about 54 years,

W/o Jayaram K. Shetty,

Both residing near 1^st Railway Bridge,

Marnamikatta, Mangalore.

                                                         …......OPPOSITE PARTIES

(Advocate for the Opposite Parties: DS)

ORDER DELIVERED BY HONBLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

The opponent 1 & 2 are owners of the A Schedule Property mentioned in the complaint and after obtaining permission from the City Corporation Mangalore submitted that property to the provisions of Karnataka Apartment Ownership Act 1972(herein referred to as a Act).  The opponent sold different Apartments with undivided rights to different parties.  The opponent s in registered document dated 10.07.2009 bearing No.1382/0910 before the Sub Registrar sold these properties to complainants for valid consideration.

In October 2010 on enquiry regarding mutation of the property in complainants name in respect of proposed B schedule premises he was informed that the Door Number of the schedule B Apartment shown in the sale deed is wrong and Door number should have been 24.9.961/1(12).  Immediately thereafter in October and November complainant approached opponents for rectification of the errors as per the clause No.5, 6, 7 and 8 they stated pressurizing the complainant for additional sum are refusing to take steps to ratification.  Instead of payment of entire consideration amount to opponents are not provided with electricity and water connection to B schedule Apartment. Due to this deficiency in service complainant s are put toinconvenience,hardship, financial loss mental pressure.  Due to want of power and water supply to B schedule Apartment is not fit for occupation and the complainants are not in a position to use and enjoy the Apartments the complainants got issued legal notice but the demand was not complied.  They essessloss inconvenience and mental agony caused to him at Rs.15,000/ per month starting from October 2010 till filing of the petition date Rs.3,45,000/  As such seen providing power and water supply to B schedule Apartment from Corporation and MESCOM, execute rectification deed to rectify the error and for compensation of Rs.3,45,000/ and another Rs.15,000/ towards future inconvenience up to the date of providing relief’s 1 & 2 and for cause.

II.    The opponents on entering appearance through their counsel filed written version disputing the allegations made against them.  The Sale deed is executed in respect of registered Apartment No.204 of Mangalore City Corporation Door No.12.1.12/04 housed in the 2^nd floor of Mangala Arcade sold by opponents to complainant for a total sale consideration of Rs.12,44,000/ as per agreement dated 10.07.2009.  In respect of such sale deed the relief sought for execution of consumer as such matter requires agitated before court of competent jurisdiction by the civil suit or before as deals with revenue matter or before the Sub Registrar the Forum as no jurisdiction pertaining to rectification by giving direction to execute the rectification prayer.

          As per the perusal sale deed mentioned, the vendors i.e. opponents have never undertaken by virtue of any clause of the sale deed that it would rectify the errors that have statedly crept in the sale deed.  The allegations of the para 4 of page 2 the complainant as actuated by a pathological mendacity as the residential apartment complex constructed by opponents is provided with water supply as well as electricity supply.  The complainants required are put to very strict proof of their averment as to nonavailabilityof water and electricity.  There is no deficiency of service as all alleged.  The complainants with the malafide intention of extracting pecuniary advantage from the opponents other complainant making on claim for Rs.3,45,000/  Hence seeks dismissal of complainant. 

          In support of the above complainant Dr. Asha filed affidavit evidence as Cw1 and answered the interrogatories served on her andMr.Srinivas U.K filed affidavit evidence as Cw.2 produced documents got marked as Ex.C1 to C.22 detailed in the annexure here below.  On behalf of the opposite party Dr. Jayarama Shetty (Rw1) also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked Ex R1 and Rs detailed in the annexure here below.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainantis entitled for any of the other reliefs claimed?
3. What order?

 We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

Point No. (i): Affirmative

Point No. (ii): Affirmative

 Point No. (iii): As per the final order.             

                                                                                   REASONS

IV.      POINTS No. (i):The complainant purchased the flat from opponents 1 & 2 under registered sale deed is not dispute by the opponents.  As such opponent being provider of flat to complainant they are the service provider and the complainant is consumer as defined as 2 (i)(d) Act.

          As to the dispute is admittedly the opponents executed registered sale deed in favour of complainants as per Ex.C3 dated 10.07.2009.  The complainant claim is there is an error in mentioning the door number of the flat sold to them by the opponent in registered sale deed as per ExC3 and this aspect is disputed by opponent.  Hence there is a dispute as defined U/s 2(1) (e)of the Act.  Hence point No.1 is in the affirmative.

POINTS No. (ii):  Ex C3 is the registered sale deed executed in favour of complainant in respect of residential Apartment No.204 in Mangala Arcade and by mentioning made as to the date of declaration documents No.MGC.1.04411.2006.07 in Cd No MGCD 50 dated 11.10.2006 and further amendment deed document MGCD 4885/2008.09 in CD No. MGCD 88 dated 9.1.2009.  This reference in schedule B of Ex C3 corresponds to the document Ex.C1 & C2 respectively.  In fact the description of the Apartment building constructed by opponents is described as Mangala Arcade at Ex.C1 clause IV at page 3 the extent of flat No.204 is mentioned in both Ex C1 & C2 with area and undivided extent of land.  In respect of the flat No.204 Ex C2 corresponds to Ex.C1 the extent of the flat mentioned in B schedule of Ex C3 corresponds to the extent of flat No.204 in Mangala Arcade as mentioned at Ex.C1 & C2 is established by complainant. 

          The allegations made by complainants is the door number is not correctly mentioned in sale deed and contended that when complainant approached the Corporation authority he has informed that there is no City Corporation door number i.e. 12.1.12/04 but there is door number i.e. 24.9.961/1(12) in Mangala Arcade situated at Attavar Village, Marnamikatte Road, and there is electricity supply to this flat given in the name of Dr. Jayarama Shetty who is none other than opponent No.1.  The complainant produced the Revenue extract issued by the City Corporation Mangalore in respect of the property completed in the month of March 2009.  There are 17 door numbers in which door No.24.9.961/1(12) is in Sl.No. of the 2^nd floor. At Ex.C3 in B schedule property sold to complainants by the opponents described as is situated in the 2^nd floor of the residential apartment complex commonly known as Mangala Arcade situated in A schedule property.  It is nothing but situated in Attavara Village, MarnamiKatte Road within the No.24^thAttavara Ward within Mangalore City Corporation.

          As mentioned earlier from Ex.C5 the information furnished under RTI to the complainant by the Revenue and Public Information Officer of City Corporation Mangalore in respect of the door number building number the names of the owner is situated at 24^th ward Attavar Village Mangala Arcade.  The extract of newly constructed building within the 17 door number referred earlier in this attached none of the door number in this Mangala Arcade is shown as 12-1-12/04.  Hence the complainants in the circumstances in our view succeeded in establishing that there is an error in mentioning the door number in the registered sale deed executed by opponents in favour of complainants as per Ex.C3.

          The learned counsel for complainant as drawn our attention to clause 4, 5, 6, 7 & 8 at page 4 of Ex.C3 are reads thus:

4. That the schedule property hereby conveyed in favour of the PURCHASERS is free from all types of prior agreements, encumbrances, liens, charges, mortgages and court order of injunction or attachment and as the like.  On this assurance and representation of the VENDORS, the PURCHSERS have agreed to purchase the schedule property.
5. The PURCHASERS shall be entitled to get the Revenue Khatha, Tax assessment Khatha etc., in respect of the schedule properties changed into their name of virtue of this Sale Deed and he shall pay the assessment and other taxes to the concerned authorities hereafter.
6. That the VENDORS hereby undertakes to support the PURCHASERS at the cost of the PURCHASERS in all the proceedings before all the authorities for more fully and perfectly assuring the schedule property unto the PURCHASERS.
7. The VENDORS further undertakes to indemnify and keep harmless the PURCHASERS against any damages, costs or expenses which the PURCHASERS may incur, sustain or suffer in case the title of the schedule property is questioned or on account of any subsisting liability upon the said property or on account of any breach by the VENDORS of the several covenants contained herein.
8. That the VENDORS hereby covenants and undertakes to co-operate and execute all such documents that may be necessary for confirmation having conveyed the said property more effectively in favour of the PURCHASER.

Referring to this the learned counsel for complainant argued that opponents are bound to execute rectification deed in respect of the property sold i.e. flat sold as per Ex.C3 in favour of complainants. 

This agreement is correct.  Thus from the discussions above it is clear there is an error in Ex.C3 & other relevant documents referred by us earlier there is error apparent on the face of record in describing the flat number sold by opponents sold by them apartment No.204 mentioning as 12.1.12/04 instead of 24.9.961/1(12) in schedule B of sale deed as per Ex.C3 requiring correction. 

          In fact it is be noted in viewof clause 8, at Ex.C3 we are of the view opponents who are vendors cannot escape from the liability to convey  title to the buyer i.e. complainants by executing regd. rectification deed.

          Another aspect to be noted is door number mentioned in by the City Corporation Mangalore is at Ex.C5 is atleast in before the end of March 2009.  This sale deed as per Ex.C3 in favour of complainants is dated 10.7.2009.  Hence it is clear there is an error apparent on the face of record in the sale deed as per Ex.C3 executed by opponent in favourof the complaint in mentioning property number of complainant.

          Another aspect raised by complaints are that there was no electricity and water connection provided to the flat purchased by the complainant.  As the property door number mentioned in the sale deed to the complainant is different from actual door number given by the Corporation authorities.  And there was no property answering the description of property described in the sale deed to complainants by opponents as mentioned at in B schedule of Ex.C3.  Ex.C14 is an endorsement issued by MESCOM to complainant No.2 mentioning there is power supply provided to Mangalore City Corporation door number 24.9.961/(12) and the power supply commenced on 24.03.2010 and the power supply stands in the name of Dr. Jayarama Shetty who none other than the opponent No.1. The learned counsel for opponent argued there is power supply provided to flat of complainants and in this connection referred to the series of Electricity Bills issued by MESCOM.  Of course the original bills and also payment receipts are produced by opponents andthose bills stand in the name of Dr. Jayarama Shetty opponent No.1.  However as seen from the bills bills are towards minimum charges and the power consumption is shown in the bills is almost Nil.  This shows probably no one occupied the premises in question.  Further the production of this original bill issued by MESCOM and the receipts for payment of this bill amount by opponents indicate the power meter stands in the opponent No.1 and he is making the payment and not the complainants and the meter is not changed into the name of complainant.  Considering to this even through there is power supply provided by MESCOM to the residential premises Khatha was not changed in the name of complainant.  As such we are of the view that the complainant succeeded in establishing towards power supply to premises number 24.9.961/1(12) and that it is not occupied by any one as there is no power consumption.

          Thus has Katha was not changed even the power connection has not changed to the name of complainant.  We are of the opinion it is a fit case that the opponents are in error in not complying with  demand made by the complainant under legal notice as per Ex.C12 dated 12.9.2012 in the case disputed noncompliance on the part of opponent.

          Infactas seen from the reply to the legal notice copy of which in produced in the case mentioned there is an error in mentioning door number of the property sold to complainant as No.12.1.12/04 instead of 24.9.961/1(12).  Hence it is fit case to direct to opponents to execute to execute the rectification deed in respect sale deed of the ‘B’ schedule property as per Ex.C3.

          As to compensation claimed by the complainants what they have claimed is towards non supply of electricity and water.  There was power supply to the premises in question in evident from the endorsement given by MESCOM authorities with effect from 24.03.2010 and as discussed above.  Of course as to water supply was provided are not there is claim and counter claim made but we have to say is considering power supply since 24.03.2010 the water supply was also provided to the premises by the opponent.  In the circumstance the claim for compensation at Rs.15,000/ per month from October 2010 cannot be accepted for two reasons.  Firstly the error came to the notice of complainant only after purchase of the property in October 2010.  However the information furnished by the Revenue authorities indicate the details furnished cause is to wrong mentioned of door number was in Ex.C5 on dated 30.4.2012.

          It is not the case of complainant that because of the wrong mention of the door number she was unable to occupy the flat purchased by opponent are to that the complainants have to obtain another premises on rental basis.  Hence the question of compensation Rs.15,000/ per month cannot be accepted.  In this circumstance while directing the opponent to execute the rectification of deed by mentioning the property sold to complainants in the sale deed as per Ex.C3 24.9.961/1(12) instead of door number 12.1.20/04.  Wherefore the description of property was mentioned in the schedule sale deed as per Ex.C3.

          The learned counsel for opponents argued that the complainant is barred by time in as much as the sale deed was executed in 17.7.2012 but the complaint before this Forum is filed on 13.9.2012.  However it is noted that the error in the sale deed is corrected.  In our view it is a case of continued cause of action. Hence the allegations of delay in lodging the complaint cannot be accepted.

          The learned counsel for opponents referred to a reported judgment of the Apex Court (2009) CJ 564 (S.C).  this is telled in the reported Judgment:

1. Consumer Protection Act, 1986 Section 2(1)(g) and 14(1)(d) read with Section 24A Banking and financial services Deficiency in service District Forum Directed Appellant Bank to pay Rs.2,47,154/ as compensation with interes @ 15% per annum-Question of limitation At the first available opportunity in written statement itself Bank raised plea that complaint was barred by limitation However, objection with regard to limitation went unnoticed by all the three For a Complainant was filed beyond the statutory limitation period of two years No application for condonation of delay nor and sufficient cause shown, question of condonation of delay in filing complainant does not arise Complainant barred by time and ought to have been dismissed as such Appeal allowed Complainant dismissed as time barred.
2. Consumer Protection Act, 1986-Section 24A Complaint Limitation It is peremptory in nature and requires consumer forum to see before it admits complaint that it has been filed within two years from date of accrual of cause of action-Consumer forum must deal with complaint on merit only if complaint has been filed within two years from date of accrual of cause of action and if beyond said period, sufficient cause has been shown and delay condoned for reasons recorded in writing-It is duty of consumer forum to take notice of Section 24A and give effect to it-If complaint is barred by time and yet, consumer forum decides the complaint on merits, forum would be committing an illegality and aggrieved party would be entitled to have such order set aside.   

          However we are of the view unlike in the reported case under the facts and circumstances of present case the error in the description of the property as per Ex.C3 is at a continuous cause of action to the complainant the consumer view expressed by the Apex Court under the Lata Construction and OrsVsDr.RameshchandraRammiklal Shah and another judgment dated 12^th August 1999 is not applicable to facts on hand. 

In in Indian Kanoon.  It is held in this reported Judgment interlia ……..Seen right under the agreement on 1987 Indian Kanoon up by the respondence there was a continuing cause of action running against the opponent and the claim was there after not beyond the time.

          Thus viewed from any angle we are of the view that the complainants succeeded in establishing there is an error apparent on the face of records i.e. sale deed as per Ex.C3 in describing the schedule property sold by the opponents to complainants.  Hence the opponent shall directed to execute registered rectification deed to sale deed as per Ex.C3.

          In respect of the argument of learned counsel for opponents that the remedy of complainants if at all is under the Specific Reliefs Act before the Civil Court and not under this Forum.  From C P Act 1986 remedy available under this Act does not exclude the remedy available to the party in any other law of the land.  Instead the Act specifically mention the remedy under this C P Act is in addition to remedies available under other enactment before any other Forum or Courts. Hence argument on this count is rejected.

 The question is what would be the compensation the complainants would are entitled too.  As mentioned earlier compensation of Rs.15,000/  per month from October 2010 is out of question as reasoned earlier.  In our view the sum of Rs.35,000/ as total compensation.  Hence we answered point No.2 in the affirmative.

POINTS No. (iii):Wherefore the following order

ORDER 

The petition is partly allowed.  The opponents are directed to execute rectification deed in respect of Sale Deed executed by them in favour of complainants as per Ex.C3 registered on 17.7.2010 by correcting the Door Number of the Apartment mentioned in B schedule as 24.9.961/1(12) instead of  12.1.12/04 in Doc.No.1382/0910 within 30 days from the date of this order at the cost of opponents.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 14 Dictated to the Stenographer typed by her, revised and pronouncedin the open court on this the 16^thNovember 2016)

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1 Dr. Asha

CW2 Srinivas U.K

Documents markedon behalf of the Complainants:

Ex.C1:10.10.2006     Photo copy of the Deed of Declaration  Regd. As Doc.No.4411/2006.2007 in the office of the Sub-Registrar

                                      Mangalore City.

Ex.C2: 09.01.2009    Photo copy of the Amendment of  Deed of Declaration Regd.as Doc No. 4885/08.09 in the officer of the Sub

                                    Registrar, Mangalore City. 

Ex.C3:10.07.2009     Certified copy of the registered sale Deed regd.as Doc.No.1382/2009.10 Before the Sub-Registrar, Mangalore

                                   City.

Ex.C4: 30.04.2012    Reply given by Revenue Officer City Corporation Mangalore under R.T.I  Act. Containing 4 sheets.

Ex.C5: 06.08.2012    office copy of the notice issued to Opposite parties

Ex.C6: 06.08.2012    Postal receipt of the notice issued to Opposite party No.1

Ex.C7: 06.08.2012    Postal receipt of the notice issued to Opposite party No.2

Ex.C8: 08.08.2012    Postal acknowledgment signed by Opposite party No.2

Ex.C9:                     Postal acknowledgment dated17.05.2012 signed by 1^st opposite Party in respect of the envelope Sent by 1^st                                                 Complainant

Ex.C10:                   Postal acknowledgment dated15.05.2012 signed by 2^nd opposite Party in respect of the envelope

                                Sent by 1^st Complainant

Ex.C11:                   copy of the letter dated 11.02.2010 Written by 1^st Complainant

Ex.C12:                      Reply notice dated 21.09.2012 issued  On behalf of the opposite party

Ex.C13: 25.04.2013   Application filed by the complainant  No.2 before the Public Information Officer, MESCOM Attavara,                                                         Mangalore, under the Right to Infor Nation Act. (Copy)

Ex.C14: 01.06.2013   Reply from the Assistant Executire  Engineer, No.1 Sub division, MESCOM, Attavara, Mangalore.

Ex.C15:                   Form No.76A issued by the Station House South Police Station Mangalore, D.K.,

Ex.C16:                    Complaint given by Sham Gopal Shetty

Ex.C17:                  Reply statement given by complainants

Ex.C18:                 Endorsement given by South Police Station, Mangalore, D.K.

Ex.C19:                 Tax paid receipt (containing five pages)

Ex.C20:                 Notarized copy of the sale deed dated 24.04.2009

Ex.C21:                 Building tax receipt in respect of House No.24-9-961/1(5) dated 6.6.2014

Ex.C22:                 Order of the District Consumer Forum In Consumer complaint No.182/11 Dated 31.01.2014

Witnesses examined on behalf of the Opposite Parties:

RW1:  Mr. Jayarama Shetty

Documents marked on behalf of the Opposite Parties:

Ex.R1: Coloured photographs

Ex.R2: C.D

Dated:  16.11.2016                   PRESIDENT