Date of Filing:16/03/2015
Date of Order:07/09/2016
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed Under Section 12 of the Consumer Protection Act, 1986 against the opposite party (hereinafter referred in short as O.P) alleging deficiency in service and unfair trade practice on the part of the O.P and prays for direction to the O.P to refund the amount of Rs.51,368/- along with interest @ 18% per annum on the amount of Rs.98,519/- from 29.01.2006 to 26.08.2013 and interest at the rate of 18% per annum on the amount of Rs.51,368/- from 27.8.2013 till the date of payment to the complainants and seeking compensation of Rs.50,000/- towards mental agony and to pay cost of the proceedings.
2. The brief facts of the complaint is that, the complainants have purchased the apartment bearing No. E-907 from the O.P through registered sale deed dated 31.08.2005. The complainants also separately paid Rs.98,519/- in the year 2006 towards maintenance of park and open spaces belongs to the O.P. In pursuance of the registered sale deed that the complainants got rights over the common areas and facilities which has been detailed in the sale deed. The property in question situated in a land of 22 acres and 19 guntas of O.P campus and the same is divided in to public, semi public and private properties as per Government order. The park and open spaces forms schedule-B public property. The complainants alleges that, though O.P knowing well collected the amount in the name of Government owned property as unlawful. The O.P also indulged in discrimination and misrepresentation in collecting such funds and it is alleged to the unfair trade practice. Further complainants states that, on repeated demands O.P finally refunded Rs.47,151/- on 26.8.2013 acknowledged by the complainants under protest. Hence the complainants alleges that the O.P are legally bound and required to refund the entire balance amount of Rs.51,368/-. Hence this complaint.
3. Upon issuance of notice, O.P appeared through its counsel and filed a detailed version. In the version it is contended that, complaint is not maintainable either in the eye-of-law or on facts and the same is filed with a mala-fide intention. The complaint is filed to make an attempt to unjust to escape from the obligations binding the complainants as per sale deed dated 31.08.2005. It is contended that, the vendor of the complainants also agreed to pay the proportional charges for upkeep and maintenance of the common area in Brigade Millennium Project. The complainants also not alleges any deficiency in service on the part of the O.P. It is strictly in accordance with the terms and conditions of the sale deed dated 31.08.2005. It is contended that, during the year 2007 the general public started using the path way comes within the premises within the schedule B property belongs to O.P. and the public forcibly using different parts of the area. On account of earlier existing path way for the main i.e. Puttenahalli main Road was closed down due to reasons. Hence, on account of political pressure the general public using the path way of B-Schedule property. On account of using path way by the public area reduce in the B-Schedule property and thereon O.P. has refunded the amount of Rs.47,151/- out of Rs.98,519/- and remaining amount is using for the maintenance of common areas. Hence O.P. contended that there is no deficiency in service on their part and ultimately prays for dismissal of the complaint.
4. To substantiate the above case, both parties have filed the affidavit evidence along with documents. We have heard the arguments.
5. On the basis of pleadings of the parties, the following points will arise for our considerations are:-
(A) Whether the complainants has proved
deficiency in service on the part of the O.P?
(B) Whether the complainants is entitled to the
relief prayed for in the complaint?
(C) Whether the complaint is barred by
limitation?
(D) What order?
6. Our answers to the above points are:-
POINT (A) & (B) : In the negative.
POINT (C): In the affirmative.
POINT (D): As per the final order
for the following:
REASONS
POINT (A) & (B):-
7. At the outset it is not in dispute that the complainants purchased the apartment from the O.P through registered sale deed dated 31.08.2005 and in turn complainants purchased the same through registered sale deed. On perusing the copy of the sale deed dated 31.08.2005 it reveals that, the complainants purchased the apartment from the O.P. by paying the sale consideration. On perusal of the B schedule of the property in question it consists of 127963.15 Sq. Mts and bounded shown as East by Area earmarked for school, West by Club house area in Schedule B property, North by road in Brigade Millennium and South by road known as Millennium Avenue.
8. It is worth to note that, it is not in dispute that the road in the B schedule shown in the sale deed is used by the general public and hence the relinquish deed executed by the O.P in favour of the BDA and the same is mentioned in the earlier sale deed. Further during the course of arguments it has been brought to the notice of the Forum that the BDA given back the other areas such as park and common areas to upkeep and maintain the same. On perusal of the copy of the relinquish deed 30.4.2002 it also discloses that, the O.P. executed the relinquish deed in favour of the BDA in respect of the handing over the common areas in question. On perusing of the letter dated 17.2.2003 it also discloses that, as per the resolution of the BDA O.P are directed to hand over the land and after that to develop the park and maintain the same. The above said letter is also evident that, the O.P also executed relinquish deed in favour of the BDA. Furthermore the BDA has given authority to the O.P to develop and upkeep the parks, inspite of the relinquish deed. Inspite of it, that, the O.P refunded the amount of Rs.47,151/- to the complainants. It is not in dispute that there are no other common area available to maintain. In these back drop of facts claiming refund of the whole amount paid towards the maintenance i.e. of Rs.75,046/- cannot be acceptable by any prudent man. Also on perusing of the B Schedule of the sale deeds it clearly discloses that, two sides of road are situated i.e. towards Northern and Southern sides. It is evident that, the general public are using the road and rest of the areas obviously O.P has to maintain to upkeep the same. Viewing from any angle complainants failed to establish deficiency in service on the part of the O.P and therefore the complainantss are not entitled for any relief as sought in the complaint. Accordingly we answered the Point No.(A) and (B) in the negative.
POINT NO.(C):
9. It is pertinent to note that, the complainants purchased the property from the O.P. through registered sale deed dated 31.08.2005 and the complainants paid the maintenance amount in question during year 2005 itself. Whereas on perusal of the letter dated 17.2.2003 and the general public are making use of the road in the B schedule of the common area since 2007. The actual cause of action accrued to the complainants from 17.2.2003 and on the date when the complainants executed the relinquish deed and the time runs from 17.2.2003 as well as the date of execution of the relinquish deed dated 30.4.2002. Though parties to the proceedings were exchanged the legal notices and it cannot extend the limitation nor refunding of the amount will not give raise to cause of action. On this score also complaint is hit by limitation. Accordingly we answered point No.(C) in the affirmative.
POINT (D):
10. On the basis of the findings given on the points No.(A) to (C) and in the result, we proceed to pass the following:-
ORDER
01. The complaint is dismissed. No order as to cost.
02. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 7th Day of September 2016)
MEMBER MEMBER PRESIDENT
*Rak
