Karnataka

StateCommission

CC/303/2010

Suncity Consumer Association - Complainant(s)

Versus

Corporate leisure & Property Development (P) Ltd., - Opp.Party(s)

M/s Nextlegal services

24 Apr 2024

ORDER

Date of Filing:18.12.2010

Date of Disposal :24.04.2024

 

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

 

DATED:24.04.2024

 

PRESENT

 

HON’BLE Mr JUSTICE HULUVADI G RAMESH: PRESIDENT

 

Mr K B SANGANNANAVAR:JUDICIAL MEMBER

 

Mrs DIVYASHREE M:LADY MEMBER

 

CONSUMER COMPLAINT No.303/2010

 

M/s Suncity Consumer Association
Rep. by its

1) President

    Mr Arun Kumar Singh

    S/o Late T.K. Singh

    Aged about 66 years  

 

2) Secretary

    Mr Richard J Rodrigues,

    S/o Late Joseph Rodrigues

    Aged about 63 years

 

Having their office at Suncity Apartments,

Near Outer Ring Road,

Sarjapur Road Junction,

Ibblur, Bengaluru -  560 102
(By M/s Next Legal Services)                                          Complainant

 

V/s

 

1. M/s Corporate Leisure & Property Development (P) Ltd.,
    Ground Floor, 108,

    Oxford Towers, 139,

    Old Airport Road, Bengaluru - 560 008

    (By Mr Bhaskar, Advocate)

 

2. Mr Govindachary
    Director,

    Corporate Leisure &

    Property Developments (P) Ltd.,

    Ground Floor

    No.108, Oxford Towers,

    139, Old Airport Road,

    Bengaluru - 560 008.

    (By Mr Venkatesh R. Bhagat, Advocate)                   Opposite Parties

 

:ORDER:

 

HON’BLE Mr JUSTICE HULUVADI G RAMESH, PRESIDENT

 

1. This is a complaint filed under Section 17 of CP Act, 1986 for the following prayer with direction to OPs;

 i) Declare that the actions of the OPs are deliberate act of deficiency of service and OPs have indulged in Unfair Trade Practice ;

 ii) To hand over the Maintenance Fund collected from the Complainant members (Rs.70/- Sq ft on the super built up area) to the Complainant Association or to the registered Apartment Owners’ Association (Suncity Apartments Owners Association) with immediate effect ;

iii)  To disclose the record with the details of the Maintenance Fund collected from the Complainant and interest accrued on the same and also details of the expenditure incurred by the OPs towards the Maintenance (from year 2004-05 till date) and hand over to the Association, all related documents showing maintenance expenditure, including without limitation, Vouchers, Bills, Receipts or acknowledgements, with immediate effect;

iv)  To refund the amount collected from the complainant towards amenities.

v)   To prevent the OPs personnel from using the access roads belongs to sanctity campus for ingress and egress into the other neighboring projects owned by the OPs and to complete construction of the Boundary wall ;

vi)  To pay a sum of Rs.10 Lakhs towards compensation to     the members of the complainant and towards the inconvenience and mental agony caused due to deficiency of service from the OP.

 

2.       The facts in brief of the case is that, the Complainant is an Association formed by the 40 Flat Owners of the Apartment Complex called ‘SUNCITY’ under the name and style of ‘SUNCITY CONSUMER ASSOCIATION’. The OP1 is a Company incorporated under the provisions of Indian Companies Act 1956, engaged in the business of development /construction, sale of residential apartments, commercial complexes which is located at Ground Floor, 108, Oxford Towers,139, Old Airport Road, Bengaluru 560 008 and OP2 is the Director of the OP1 Company.   OPs have entered into a Joint Development Agreement with the owners of the land bearing Sy.No.17/2 18, 19, 20, 22, 23, 25, 26, 28 and 29 situated at Ibbbalur Village, Begur Hobli, Bangalore South Taluk.  Based on Joint Development Agreement, OPs have formulated a Scheme for developing a mini township under Group Housing Scheme, consisting of residential apartments, comprising several blocks of Buildings with amenities of all infra-structure, spread across 20 acres of land with Club House, Swimming Pool, free Gymnasium, Health Club, Tennis Court, Children Park etc., known as ‘Suncity’.  Complainant booked the Apartments, after paying the booking amount and separately entered into a Sale & Construction Agreements and Sale Deeds were executed with the individual owners of the Apartments, from 2005 onwards with the OP.  As per the Terms & Conditions of the Agreements, OP had to complete the construction strictly in accordance with schedule and hand over the flats to the individual owners in a livable condition according to Sanctioned Plan issued by the authorities, but, OP failed to complete the Project as agreed in the Construction Agreement and also deviated from the agreed terms.

 

3.       Further, Complainant contends that 60’ Road, which goes through the Suncity premises has now become a public road and there is no boundary wall or gate to prevent the public from entering the Suncity premises and most of the access roads inside the Suncity Campus, which is meant for the use of the residents alone as stated in the Sale Agreement and Construction Agreement, are being used by the neighboring apartment owned by the OP and public, thereby creating a lot of nuisance, to the members of the Complainant.  In view of the Group Housing Scheme, OP had to surrender an extent of approximately 2% of the total land area to the Bangalore Development Authority and now the road which goes inside the Suncity campus became a public road and thereby cheated the complainant/members, with an intension to extract money from them. 

 

4.       Complainant further contended that, OPs collected a deposit of Rs.70/- per Sq ft each, from all the Flat owners individually towards the maintenance of the apartment and on 26.05.2010, OPs issued a Notice asking the individual owners to pay approx. Rs.25,000/- per Flat, towards the maintenance of the Apartment, for the coming year. The object behind collecting maintenance amount is to provide facilities and maintenance of the Suncity for the welfare of Apartment Owners and OPs mis-utilised the funds for some other purposes and demanding more & more money from the complainant.   Further, OPs had not re-painted the building even after the expiry of 5 years of handing over of the building to the individual owners of the apartment and not done any maintenance of the building like repairing of damaged tiles in the common areas and staircase, to repair the Generator back-up system and Lifts, changing or repairing of the non-functioning lights in the common areas etc., and completely failed to manage and utilize the Corpus Maintenance Fund. Further, Complainant contended that on 28.05.2010, OPs refused to transfer the Corpus Fund to the Apartment Owners Association, which was formed and registered under the Act in the year July 2007 and even after the lapse of 4 years of the formation of the Association.  Maintenance Deposit amount held by the OP is substantial and should ensure smooth hand over of the Corpus Fund to the Association for continued and ongoing maintenance work.

 

5. that there is no Boundary wall in the Suncity campus, including on the Northern side, where a Coconut plantation exists and the residents have complained about the presence of thieves, reported about the incidents of thefts and they have been attacked by the stray dogs on many occasions were brought to the notice of the OPs but, for reasons best known to them only, OPs, chose to remain silent.  The OPs have been permitting for the setting up of commercial stalls in the Suncity campus, on common areas including sale & exhibition by marketing agencies during the weekend and even for film shootings, by collecting money, running a private gym and a Super Market in the Suncity campus, without the permission of the residents or their Association.  The intention of the OP is to make money by using the property of the Apartment Owners, by utilizing the areas provided for civic amenities. OP had specifically undertaken to provide Cauvery water supply to the SUNCITY for which purpose, collected Rs.95/- per Sq ft amount from the individual owners towards KPTCL & BWSSB, but not provided the Cauvery water.  Since water is a basic and essential amenity and the complainant was kept in dark about the current status of the effort of the OP.  The attitude of the OP by not completing the project according to the specifications mentioned in the agreements after accepting a huge amount as consideration of the property, caused irreparable mental agony and hardship to the complainant members, which cannot be compensated in terms of money only. The OP is liable to provide all such faculties/amentias assured as per agreements and non providing assured facilities resulted in untoward hardship to any residents, including the complainant and many of the owners of the flat find it extremely difficult to resale their Flats, since the intending buyers feel it unworthy of investment.  On 24^th Feb 2007, the residents of the Suncity submitted a representation to the OPs, showing the current state of affairs at that time with the list of pending works and the OPs acknowledged the same, but the residents did not get any response from OPs.  Again, on April, 24th 2007 submitted a letter to take some definite steps to solve the issue of Suncity and OPs on 12 June 2010 given a written undertaking to our Registered Apartment Owners Association, promising them to complete the boundary wall and swimming pool by August, 10th 2010 and other amenities by June 26^th and has specifically undertaken to transfer the corpus fund to the Association.  But, the OP completely failed to provide the facilities as agreed and not handed over the maintenance fund collected from the complainant members. Therefore, Complainant having no other alternative issued a Legal Notice on 27.10.2010 to the OPs through registered post acknowledgement due demanding to hand over the  maintenance fund collected from the Apartment Owners to the complainant  or to the registered Apartment owners Association to disclose the  records of the Maintenance fund and interest.  Inspite of service of Notice, OPs failed to rectify or to provide any attention to solve the issues.  Hence this Complaint with prayer as stated supra.

6.       On service of Notice, OPs entered appearance through their learned Counsels and submitted their respective Versions. OPs pleaded that Complaint is not maintainable, as the Complainant is having no locus standi to file this Complaint U/S 12 of the Consumer Protection Act 1986 (for short ‘Act’) as there is no privity of contract between them. Complainant claims to be an Association is not a Consumer, within the meaning of Section 2 of the Act and on that ground, Complaint is liable to be Dismissed.   The Complainant has filed the present Complaint in the year 2010 and the so called default is pertaining to the year 2004-05 and hence, complaint is hopelessly barred under Section 24A of the CP Act.  The complainant has sought for revision of maintenance fund collected by the OP at the rate of Rs.70/- sq. Ft. on the super built up area and each members have paid Rs.97,000/- therefore, on that ground also this Hon’ble Commission is having no pecuniary jurisdiction to entertain to try and decide the complaint as pecuniary jurisdiction of this Hon’ble Commission is beyond the subject matter.  OPs have no knowledge about constitution of the complainant – Association and the so called agreement dated 12.11.2010 said to have been executed between the members of Suncity Consumer Association is nothing but a sham document and there is no privity of contract between OPs and the complainant – Association.   OPs have completed the project in a phased manner and the entire Suncity Township consists of 1256 apartments, therefore the complainant is having no right, whatsoever, to espouse their cause of the every Owner, who are not Member of the complainant Society, which is non-existent and un-registered Association and having no legal sanctity. Complaint being an un-registered Association and without making all its Members as party to the present Complaint is not maintainable.  Therefore, the Complaint is also liable to be Dismissed for non-joinder of necessary parties. The Complainant had not given the specification of 40 Sale Construction Agreement, as it claims to be the representatives of the said 40 owners and mere producing one copy of the Sale Agreement and Construction Agreement, clearly confirms  the fact that it is not having support of the 40 members as claimed by it.  Therefore, an adverse inference can also be drawn in this regard.

 

7.       OPs denied that they have not deviated from the Construction Agreement and access road inside the Suncity campus is not meant for the residents alone, as the roads formed in the Layout shall be the property of the Authority, which had given sanction and it amounts to a public road.  As per the Sanction Plain, on completion of the Project, the Developer is bound to surrender the road mentioned in the scheme to the BDA.  Therefore, the question of concealing the relinquishment in respect of the BDA does not arise. The Complainant appears to be not well versed regarding the roads in the Layout are concerned. OPs had an idea of collecting Maintenance Deposit @ Rs.70/- Per Sq. Ft. of Super built up area and having an idea of maintaining it as a corpus, but, same was later given up and no documents have been produced by the Complainants to show that they have paid Rs. 70/- Per Sq Ft. On 26.05.2010, OPs asked the owners of the apartment to pay a sum of Rs.25,000/- towards maintenance of the apartment per year, as the corpus which was not generated in view of the non-payment of the said fund by the flat owners and denied that they arbitrarily collected Maintenance of Rs.1 Lakh per flat towards maintenance of the Apartments or re-painted the same, even after expiry of 5 years.  On the other hand, formation of the Apartment Owners’ Association is in pipeline, which governs the entire Suncity Complex consisting of 1256 apartments.  Therefore, the Complainant Association is having no right whatsoever to claim any maintenance from OPs.  All the facilities were provided to the Apartment owners and the Swimming Poolisalready ready for usage. Some other facilitieslike provisioning of Fire Fighting and Club Facilities are in pipeline. Suncity Apartment Complex being huge Complex consisting of 1256 flat owners, will take sufficient time to provide all the agreed facilities.  Therefore, the Complaint in question is a premature one.

 

8.       OPs pleaded that, the Project being a huge project and after obtaining the necessary permissions, 12 Blocks are completed and agreed facilities or amenities are provided to each of the blocks.  Therefore, the present complaint by  a negligible minority of a small number of flat owners i.e., 40 complaining non completion of the Project is nothing but a Cock &Bull story, made with a view to tarnish the image of the OPs.  Further pleaded that, there is no risk or otherwise, with regard to the safety of the residents, as out of 1256 residents, 1160 flat owners are having no problem whatsoever and complainant consisting of 40 flat owners are formed an illegal association to trouble this OP.  The attacks by the stray dogs are concerned is the look out of the BBMP and such attacks are prevalent throughout the city of Bangalore and the incident of thefts is the look out of the local police. All the safety and security measures are takenup by the OPs and complainant cannot blame the OPs. Some commercial establishment in Suncity Complex has to give further amenities & facilities to the flat owners and it is for the benefit of the inmates of the Apartment and as on today, Suncity or its campus is not handed over to the Association and under such circumstances, this OP being the Developer is still having full control of all the 1256 flats and the facilities provided in the campus is for the benefit of the residents therein.  Further pleaded that, applications were made to the BWSSB for sanction and OPs making all effort to take Cauvery water connection and when Cauvery Water is not yet reached the Suncity complex or nearby area, under such circumstances, the claim of the Complainant is premature one.  On the other hand, as per the Agreement and as per the Sanctioned plan, the Project is in the verge of the completion and the allegation of the complainant is bald, mere bunch of 40 flat owners are un-necessarily creating problems in the  peaceful campus of the Apartment Complex to gain their personal mileage, the question of handing over the Maintenance Fund to the Complainant does not arise, as neither the association is representing all the Apartment Owners nor it is having any authority to represent 1256 owners nor any Fund has been collected by these OP’s.  Under such circumstances, claim of the complainant is illegal, OPs are not answerable as the complainant has no authority to challenge the acts of the OPs, as there is no contract between them and in the absence of any application for condonation of delay in filing the Complaint, the same may be dismissed at the threshold as hopelessly time barred and thus OPs sought Dismissal of the Complaint.

 

9.       In view of rival contentions of the respective parties and upon examination of the Affidavit Evidence of both the parties and documents produced by the Complainant is marked as Ex-C1 to C27andthat of the OPs, no documents are marked.

10.     This Commission heard the arguments of the learned Counsels on record.

11.     During the course of arguments, the Learned Counsel appearing for the Complainant filed an Application under Order XXVI Rule 9 of CPC, seeking for appointment of Commissioner to visit and inspect the Suncity Apartments situated in Ibblur, Bangalore with work memo.  Learned counsel appearing for OPs filed an objection to the said IA.  After hearing the arguments on IA, this Commission Dismissed the IA, as devoid of merits, with an observation that the main relief sought in the Complaint is different from the Work Memo filed by the Complainant.

12.     It is an admitted fact that, as per Ex-C4 & C5, the Complainants (49 individual owners) entered into an Agreement of Sale & Construction Agreement on 12.04.2004 with the OP’s and Developers.  Further, it is also an admitted fact that, as per Ex-C6, the Sale Deed dated 17.03.2007 was executed in favour of the respective buyers. On perusal of these documents, it is seen that the ‘Suncity’ Project consists of several Blocks, with varying dimensions of individual Apartments. OPs under this project, constructed 1256 Apartments, according to the Sanctioned Plan & Agreements. After completion of the project, OPs handed over the Apartment to the respective individual owners. According to OPs, they have provided all the amenities as per Construction Agreement and formed the Road as per the sanctioned plan of concerned Authority.   Further, creation of a Swimming Pool has been completed and it is ready for usage of the residents.  However, Complainant has not produced any evidence to disprove the same. 

 

13.     According to complainant, OPs have collected a deposit at Rs.70/- per sq. ft on the Super Built up Area (approximately, Rs.1 lakh each) from all the flat owners, individually towards the maintenance of the apartments, which is as per Clause VIII (4) (b) of the Agreement for Sale dated 12.04.2004 and thereafter, OPs have issued a Notice to Complainant on 26.05.2010 directing to pay Rs.25,000/- per flat, for the coming year towards the maintenance of the apartments.  OPs have stated in their version that on 26.05.2010 they informed the complainant to pay a sum of Rs.25,000/- towards maintenance of the apartment per year, as the corpus which was not generated in view of the non-payment of the said fund by the flat owners and inspite of having given up by the maintenance activities of the apartment, question of payment of Rs.1 lakh does not arise. In this regard, the document marked as Annexure-G produced by the Complainant, it is observed that, it is a letter of OPs, wherein, OPs have stated as here under:

  “We would like to get to your kind attention that the maintenance deposit amount you had paid while purchasing of your apartment has been completely utilized.  The details of expenditure of entire deposit amount and the interest accrued thereon already has been displayed in the notice board.     

 

It is therefore, proposed to collect the maintenance amount on yearly basis from the clients whose maintenance deposit amount has become NIL/Negative as on 31.03.2010”.

Thus, it is clear that OP’s have stated in their letter that, creation of corpus fund towards maintenance of the apartment as become NIL as on 31.03.2010 and this fact is also known to the complainant. Thus mere averment as to payment without production of the document is not sustainable. 

 

14.  The allegation of the complainant with regard to the attacks by stray dogs of un-known passerby, has been disputed by the OPs, stating that it is not their role, but, it is the duty of the concerned designated Authorities to look into the matter.   Similarly, a complaint about the thefts in the Suncity apartment areas, same is disputed by the OPs, stating that, it is the role of jurisdictional police and not by them.  Further, the allegation of the complainant that OPs has not completed the committed connection of Cauvery Water to the complexes, OPs have stated that they have completed their part of the role, by submitting the required documents to the Authority concerned and reaching of Cauvery water to Suncity Apartment is not in their hands.  Thus complainant failed to prove deficiency in service on the part of OPs.

 

15.     In such a view of the matter and in the absence of any specific document, the complainant un-necessarily seeking for providing of amenities & facilities is without any basis, as there is no deficiency in service on the part of OPs. As such, the Complaint is liable to be Dismissed for want of cogent evidence to prove the allegations leveled against OPs.  In the result, we proceed to pass the following

         O R D E R            

                     Complaint is Dismissed with no order as to costs.

 

Send a copy of this Order to the parties concerned.      

 

Lady Member                  Judicial Member                         President

*s