BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU (ADDL. BENCH)
DATED THIS THE 7th DAY OF NOVEMBER 2023
PRESENT
MR. RAVISHANKAR : JUDICIAL MEMBER
MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER
CONSUMER COMPLAINT NOs.79, 124, 125 & 126/2019
CC.NO. 79/2019
Col. Rejiv Eipe Koshy, S/o Lt. Col. VE Koshy, Flat No.6, ASHRAYA, 9/1, Primrose Road, Bengaluru 560 025, (In person) | .…… Complainant/s |
CC.NO. 124/2019
Lt. Col. BP Sharma, S/o Late Shobhakar Sharma, Aged about 75 years, R/at No. H27, 0301, Sandeep Vihar, Hoskote Road, Kannamangala Post, Kadugadi, Whitefield, Bengaluru 560 115. (In person) | .…… Complainant/s |
CC.NO. 125/2019
Lt. Col. Nirmal Sinha, S/o Late DB Sinha Chhetri, Aged about 67 years, R/at No. H26, 1001, Sandeep Vihar, Hoskote Road, Kannamangala Post, Kadugadi, Whitefield, Bengaluru 560 115. (In person) | .…… Complainant/s |
CC.NO. 126/2019
Lt. Col. Vivek Mahajan, S/o Sh Ved Mahajan, Aged about 37 years, R/at No. 82, Abhay Garh Scheme, OP. K.V. No.01, AF Jodhpur, Rajasthan 342 011. (In person) | .…… Complainant/s |
V/s
1. | AUC Sandeep Vihar, Alias Sandeep Vihar Owners Association, Alias Sandeep Vihar Owners Welfare Association, Alias Management Committee Sandeep Vihar Office in ‘ H Block ’, AWHO, Sandeep Vihar Complex, Whitefield, Hoskote Road, Kannamangala, Bengaluru 560 067, Karnataka, Represented by its Manager. (In person) | ... Opposite Party/ies |
2. | AWHO, South Hutments, Kashmir House, Rajaji Marg, New Delhi 110 011, Represented by its Manager. (By Sri M.C. Ravikumar, Advocate) Opposite Parties are same in all the complaints. | |
COMMON ORDER
MRS. SUNITA CHANNABASAPPA BAGEWADI, MEMBER
The above complaints are filed by the complainants seeking direction to the Opposite Parties 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 society, 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. As the matter in issue is one and the same, 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 Parties, the complainants were booked a flat in the Opposite Party No.2 Project namely ‘Sandeep Vihar’ and paid the amount as per the demands made by them. Later, the Opposite Party No.2 increased the cost of the flat without any reason. The Opposite Party No.2 promised to complete the project by June 2013. But without any valid reason, the Opposite Party No.2 delayed the project and failed to complete the project and handover the flat as promised by them. After regular follow-ups, the Opposite Party No.2 has given Occupation Certification from BDA. The complainants further alleged that the project was not completed by that time also with all promised amenities and common areas were also not constructed. The Opposite Party No.2 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 No.2 threatened them to levy heavy penalties if they were not taken over the flat/s. Under duress and threat of Opposite Party No.2, the complainants arranged taking over of uninhabitable flat. The Opposite Parties 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 Parties were mandated to handover the flat/s only after Occupancy Certificates were received though the flats are in uninhabitable condition. Further alleged that the Opposite Parties 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 No.2 charged for salary and allowances for its staff from home buyers. The Opposite Party No.2 never shared its share of maintenance expenditure. The Opposite Party No.2 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 No.2 was 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 Nos. 1 & 2 appeared through counsel and filed their separate version. The Opposite Party No.1 in their version denied all the averments made in the complaints and they are filed solely to gain undue publicity and to obtain unjust enrichment from the Opposite Party No.1. Further contended that the complaints are neither maintainable on law nor on facts which liable to be dismissed in limine. The Opposite Party No.1 contended that it is a Registered Society of Apartment Owners of Sandeep Vihar falls within the ambit of Karnataka Societies Registration Act, 1960. Further contended that the complainants are being the members of Opposite Party No.1 Society who are the allottees of flat/s paying maintenance as per their obligations and in adherence to the byelaws of the Society. It is contended that the amount paid for the society which used for various services such as sweeping, security and electricity consumption etc., the Society determines the share of each member according to approved formulas and collects the same from the members without any service charge or consideration for the Society itself. The service given by the Society is free of charge, such service is Not Service and the Society itself is not a Service Provider under the Consumer Protection Act.
5. In the present cases, the complainants are seeking compensation from the Opposite Parties for the alleged deficiency in service caused. On contrary it is submitted that the prayer sought is not specific does not make any grounds for this Commission to entertain the complaints. Hence, on this ground also, the complaints deserve to be dismissed. Many averments made by the complainants pertain to Opposite Party No.2 and the same are not within the knowledge of the Opposite Party No.1. The allegation that the office bearers of the Association are handpicked by the Opposite Party No.2 is denied and false and baseless. The maintenance charged legally and according to the clauses of the byelaws. Further any measures taken to recover the dues do not constitute any deficiency in service or offence. Further, the Opposite Party No.1 denied that they had threatened the complainants to pay the money. The Opposite Party No.1 being a Registered Society diligent on its part in functioning and following as per its registered byelaws. If the complainant were unhappy with the functioning of the Society, they could approach the District Registrar of the Society with their grievance, but, they filed these complaints before this Commission with malafide intention. Being members of the Society, the complainants do not avail any services from this Opposite Party, therefore, the question of deficiency in service and unfair trade practice on the part of the Opposite Party No.1 does not arise. No restrictions of any kind has been placed on the complainants as alleged by them and denied all the other averments made by the complainants and prayed to dismiss the complaints in the interest of justice and equity.
6. The Opposite Party No.2 in the version contended that some other person 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.
7. 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.
8. Both parties have filed their affidavit evidence but not marked any documents. Heard the arguments.
9. On perusal, the following points will arise for our consideration;
(i) Whether the complaint deserves to be allowed?
(ii) What order?
10. The findings to the above points are;
(i) Affirmative
(ii) As per final order
REASONS
11. 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.
12. 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.
13. 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.
14. Since the Opposite Party No.1 is an Association formed by the owners of the apartment at ‘Sandeep Vihar’ including the complainant and the responsibility is to see all the amenities are provided and maintenance of the flats has to be up-to-date. The very purpose of the formation of the Association is to protect the welfare of the inmates of the entire apartment. The complainants cannot allege any specific allegations against the Association where they themselves are members of the Association. We are now directed the Opposite Party No.2 to provide all the amenities and to maintain the entire apartment up-to-date. With such direction given to the Opposite Party No.2, the Opposite Party No.1 is also directed to insist for the same to Opposite Party No.2. With this direction, the complaints against Opposite Party No.1 are dismissed as there is no any specific allegation against the Opposite Party No.1. 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 No.2. Hence, the following;
ORDER
The CC.Nos. 79/2019, 124/2019, 125/2019 & 126/2019 are allowed with costs of Rs.25,000/- against Opposite Party No.2.
The complaints against Opposite Party No.1 are dismissed.
The Opposite Party No.2 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 No.2 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 No.2 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*
