BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU (ADDL. BENCH)

DATED THIS THE 7^th DAY OF NOVEMBER 2023

PRESENT

MR. RAVISHANKAR                           : JUDICIAL MEMBER

MRS. SUNITA CHANNABASAPPA BAGEWADI :      MEMBER

CONSUMER COMPLAINT NOs. 78, 80 & 81/2019

CC.NO. 78/2019

CC.NO. 80/2019

CC.NO. 81/2019

V/s

COMMON ORDER

MR. RAVISHANKAR, JUDICIAL MEMBER

The above complaints are filed by the complainants seeking direction to the Opposite Party to award amount towards deficiency in service, unethical services and unethical trade practices with interest for delay in handing over the possession, compensation towards rent of land occupied by Opposite Party, delay in completion and commissioning of swimming pool, club house, unusable car garage, threat of charges being demanded by Opposite Party from the complainant for giving permission to sell his apartment, charges for loss on account of not receiving land title in the name of legally formed society of complainant despite making full payment for it, charges for loss on account of illegal contract with CIT & others, charges for loss on account of salary & others, charges for share of defects in common areas left incomplete by Opposite Party, compensation for mental & physical harassment by Opposite Party, non-opening of separate bank account by Opposite Party, increasing cost of flat without any legally tenable reason, charging excess of 20% of cost as advance, not forming legally tenable socity, handing over defective flat, not providing project documents, not sharing common area expenses incurred on behalf of not-handed over flats and any other compensation may deems fit to award.  In all the above complaints, the Opposite Party is one and the same and the matter in issue is also one and the same.  Hence, to avoid duplication work, all these complaints are clubbed together and disposed-off by a Common Order.

2.      The averments in the complaint are as hereunder;

It is the case of the complainants that enticing by the advertisement given by the Opposite Party, the complainants were intended to purchase a flat in their Project namely ‘Sandeep Vihar’ and paid the amount as per the demands of the Opposite Party.  Later, the Opposite Party have increased 20% of the cost of the flat without any reason.  The Opposite Party promised to complete the project by June 2013.  But without any valid reason, the Opposite Party delayed the project and failed to complete the project and handover the flat in promised time.  After regular follow-ups, the Opposite Party have given Occupation Certification from BDA.  The complainants further alleged that the project was not complete by that time also as all promised amenities of common areas were not constructed by then, but, the Opposite Party ordered the complainants to take over the flat despite fact that Occupancy Certificate was not ordered to project by relevant authorities and flat was not in inhabitable condition.

3.      Further alleged that the Opposite Party threatened them to levy heavy penalties if they were not taken over the flat/s.  Under duress and threat of Opposite Party, the complainants arranged taking over of uninhabitable flat. The Opposite Party forcibly charged three months advance of maintenance and a deposit despite not handing over all the amenities and habitable flat for which advance payment was charged. The Occupancy Certificate was not accorded for buildings and Opposite Party No.2 was mandated to handover the flat/s only after Occupancy Certificates were received though the flats are in uninhabitable condition.  Further alleged that the Opposite Party No.2 did not form any Society/ Company as it was not interested in vacating the land and area occupied by its functionaries in Sandeep Vihar Project.  It is also pertinent to mention that the Opposite Party charged for salary and allowances for its staff from home buyers.  The Opposite Party never shared its share of maintenance expenditure.  The Opposite Party not yet handed over the title of land to the complainants despite Opposite Party charged full payment for it.  Instead it has made complainants to spend on registry charges in addition to land cost two times, still land is not transferred to them and also third time asking for registry charges to transfer land in the name of the complainants legally formed society.  Further alleged that the Opposite Party were not completed many works as promised by them and also not formed legally tenable Society.  Hence, the complaints.

4.      After service of notice, the Opposite Party appeared through counsel and filed version and contended that the one Mr. Col. Jitendra Jain is represented all the complaints, but, the flat has been registered in the name of the complainants, hence, the complaints are bad for non-joinder of necessary and proper party.  The averments made in the complaints do not constitute sufficient grounds for the grant of relief prayed for, hence, liable to be rejected.  The complainants are residing at Bangalore and allottee and owner of apartment at AWHO (Army Welfare Housing Society), Sandeep Vihar, Whitefield, Bangalore.  The Opposite Party is a Society registered with the Registrar of Societies, Delhi under the Societies Registration Act XXI of 1860 which promote and provide housing in the form of dwelling units to serving/retired personnel and their widows all over India on “No Profit No Loss” basis.  The ‘Executive Committee’ of AWHO is charged with carrying out the day to day welfare activities of the organization and assists the Board of Management of AWHO comprising of a Chairman, Secretary, Managing Director assisted by a team of executives with necessary staff.  The complainants have filed these cases at Bangalore which has no geographical locus standi with respect to jurisdiction in accordance with the Master Brochure.  They have directed approached the Court without any prior notice.  The complaints are not maintainable not only on the ground of territorial jurisdiction, but, also barred by limitation.

5.      The Opposite Party further contended they have promoted a housing complex comprising of apartments namely “Sandeep Vihar” situated at Whitefield, Bangalore.  The complainants registered their name to purchase a flat and accepted all the terms and conditions of allotment.  The allegations made by the complainants are baseless.  It is purely false that the project was not complete even when the Occupation Certificate was obtained from BDA.  It is false that the works are not completed and also the works done by them are defective.  All the plans have been executed in accordance with the Technical Brochure.  Further contended that they have provided all the amenities to the complainant as promised and even all the necessary documents were also handed over to the complainants.  Therefore, there is no any deficiency in service on the part of the Opposite Party, hence, prayed to dismiss the complaints.

6.      Both parties have filed their affidavit evidence but not marked any documents.  Heard the arguments.

7.      On perusal, the following points will arise for our consideration;

(i)       Whether the complaint deserves to be allowed?

            (ii)      What order?

          8.      The findings to the above points are;

                   (i)       Affirmative

                   (ii)      As per final order

REASONS

9.      Perused the contents of the complaint, version, affidavit evidence and documents produced by the both parties.  We noticed that the Opposite Party have admitted that the complainants have booked the flat/s from the Opposite Party and provided Occupation Certificate to the complainants and the complainants are in possession of the flat/s and they have filed these complaints after a lapse of 3 years taking actual possession for deficiency in service on the part of the Opposite Parties, hence, the complaints are barred by limitation.  Perused the documents produced by both parties. The allegation of the complainants are even after paying the entire amount as admitted by the builder, there is a delay in completion of the project and also the Opposite Parties have not provided many amenities as promised in brochure even today and even the construction quality is also not good.  There are defects/deficiency in such as tile and wooden flooring, very poor plastering and workmanship, no telephone & TV cables, club house, swimming pool, solar water heaters were either installed or functional.  The maintenance charges are different to each flat.

10.    Perused the contents of the complaints, objections filed by the Opposite Party.  We noticed that there is no dispute about the possession of the flat/s by the complainants.  The only dispute is regarding the amenities which we are not provided by the Opposite Parties as per the brochure, even after possession of the flat/s.  As per the Consumer Protection Act, 2019,

LIMITATION PERIOD

(1)     The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2)     Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

          PROVIDED that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.

As there is a continuous cause of action, the complaints are not barred by time.  Moreover in real estate matters, cause of action continuous until the Opposite Parties have provided the Occupancy Certificate and the amenities promised by them to the flat owners.

11.    In the present cases, the Opposite Party has not provided amenities as promised, however, the Opposite Party has produced some documents before this Commission to show that they have already provided all basic amenities as promised by them to the complainants also produced photocopies of Occupancy Certificate issued by BDA in favour of Opposite Party for securing the Occupancy Certificate, Registration Certificate from Registrar of Cooperative Societies, Government of Karnataka which clearly show that the Opposite Party have complied part of its obligations as promised.  However, there are many obligations are still pending as alleged by the complainants.  Hence, it is the duty of the Opposite Party to complete the project with all amenities as promised.  The complainants have purchased the flat/s in long back and upto date of filing of the complaints, OC for entire project has not been given according to the BDA and also many works are pending till today.  The Opposite Party has not fulfilled the promises as per brochure which is deficiency in service and unfair trade practice on the part of the Opposite Party.  On the account of which, the complainants have suffered mental agony, hence, the complainants are entitled for compensation.  Considering the facts and discussion made here, we are of the opinion that the complainants have proved deficiency in service and unfair trade practice on the part of the Opposite Party.  Hence, the following;

ORDER

The CC.Nos. 78/2019, 80/2019 & 81/2019, are allowed with costs of Rs.25,000/-. 

The Opposite Party is directed to provide all the amenities as promised which are pending as per the Master Brochure to the complainants and also maintain the entire building in a proper manner. 

The Opposite Party is also directed to pay sum of Rs.1,00,000/- as compensation to the complainants in each case for the mental agony suffered by them.

The Opposite Party is directed to comply the abovesaid Order within 45 days from the date of receipt of this Order.

Forward free copies to both the parties. 

     Sd/-                                                                 Sd/-

MEMBER                                          JUDICIAL MEMBER

KCS*