Date of Filing : 20.10.2008
Date of Disposal :30.07.2021
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 30th DAY OF JULY-2021
PRESENT
Mr. KRISHNAMURTHY.B.SANGANNANAVAR : JUDICIAL MEMBER
Mrs M.DIVYASHREE : LADY MEMBER
CC-NOs.88 to 90 of 2008
#8, “Srinivasa”, 1st Main,
Siddivinayaka Layout,
Banashankari 3rd Stage,
Bangalore-560 085.
… Complainant in CC-No.88/2008
(Inperson)
No.124, 11th Main,
Banashankari 1st stage,
-
Bangalore-560 050.
… Complainant in CC-No.89/2008
(Inperson)
Ramanathan Shankara
Subrahmania Sharma,
Flat No.SF3, Second Floor,
Elegant Shine New #12/
Old # 72, 4th Cross,
SBM Colony, Banashankari
Stage-I, Bangalore-560 050.
… Complainant in CC-No.90/2008
(Inperson)
-Versus-
Elegant Builders,
# 99/1, RamaRao Layout
Kathriguppe, B.S.K 3rd Stage,
Bangalore-560 085.
Represented by:
- Sri.B.Narasimhulu Naidu (partner)
- Smt. Sampoornamma (Partner)
- Sri. M.Subramani (Partner)
- Smt. V.Prabha (Partner)
..OP in all these Complaints
(By Sri/Smt. S.S.C Advocate in all these Complaints)
COMMON ORDER IN CC-NO.80/2008
Mr. KRISHNAMURTHY.B.SANGANNANAVAR : JUDICIAL MEMBER
1. These are the complaints filed u/s 12 of the Consumer Protection Act, 1986 by the above named respective complainants against the OP, who is common in all the complaints.
2. The respective complainants alleged deficiency in service and unfair trade practice on the part of the OP, sought for refund of excess money collected by the OP, award of compensation and other reliefs.
3. The brief facts of the case in each complaints are as under:
The respective complainants being attracted away with the publicity and advertisement made by OP, thought of purchasing flats in the project floated under the name and style “Elegant Builders”. In this regard, each of the complainants has paid more than Rs.25-26 lakh towards purchase of flats in the said project. Although they are expected to pay only Rs.25 or 26 lakh, however, somehow OP illegally collected more than 46-48 lakh. In CC-No.88/2008 OP has collected Rs.46,69,000/-, in CC-No.89/2008 Rs.42,79,000/- and in CC-No.90/2008 has collected Rs.48,12,500/-, thereby collected excess amount of Rs.18,69,000/-, Rs.17,59,000/- and Rs.21,90,025/-, respectively from the complainants.
4. The sale deeds executed by OP in favour of all these complainants speak otherwise about the value of said flats. The OP failed to refund excess of amount collected as stated above. The OP has constructed the building in contravention with the approved building plan issued by B.B.M.P. Though, the basement floor reserved for car parking, OP converted the said basement, illegally into a two room apartment. Though there is a provision for only five car parking slots, OP sold the said slots to nine persons. The request and demand made by complainants not to violate the approved plan, otherwise there is a scope for demolition of the structure, which may cause them monetary loss and mental agony, went in vain.
5. The OP received the entire sale consideration, including stamp duty, registration charges, miscellaneous expenses etc., but failed to get the occupancy certificate and also not returned the Mother Deed with respect to the property in question. There is a deficiency in service on the part of OP with regard to maintenance of lift, common area use, use of staircase etc. The lift was not functioning properly. OP failed to obtain rain water harvesting certificate and there is some violation with regard to BESCOM connections and sewage line connections. For want of occupancy certificate, complainants are unable to get their khata certificate from the BBMP. Though complainants requested OP to furnish the detailed accounts, he has not furnished the details of accounts in their favour. In such situation they are constrained to raise consumer complaints before this Commission by invoke of Section 12 of C.P Act, 1986, seeking various reliefs.
6. The OP put his appearance through learned counsel and resisted all the complaints contending that complainants purchased the property in the year 2007, he has executed sale deed and put them in possession, they are enjoying the purchased properties. The complaints filed by complainants are belated, not fair and honest, since he has discharged his obligations as per the construction agreement, sale agreement and also executed the registered sale deed, whatever the cost of flats that is received is not in excess. Some of the flat owners are residing in the flat and some of them have let them out.
7. He denied the allegations of violation of the approved building plan, since the maintenance is undertaken by the Association of apartment owners. If there is any defect in the lift, common area, electricity etc., Association has to be looked into. The OP has nothing to do with these matters. Khata in respect of the flats are bifurcated and they are paying the tax, so the other allegations are baseless.
8. The complainants, before purchase of the flats, have thoroughly verified documents, including building plan, license etc., and being satisfied with the saleable title which OP possessed, they have purchased the same. The minor repairs here and there would be rectified, since he is ready to rectify the same. If once complainants form their own association, OP will handover the parent documents. The construction made in the basement is for the utilization of the association of the flat owners, not with any other ulterior motive. He has not deviated the approved building plan. As such demolition of the building does not arise. There is no deficiency on his part much less unfair trade practice. Thus, denying the allegations of complainants made against him in the matter of deficiency of service and unfair trade practice, sought for dismissal of all the complaints.
9. In view of rival contentions of respective complainants and OP, Commission held an enquiry by receiving Ex.C1 to C20, evidence of respective complainants, Ex.R1 to R4 and evidence of OP. It is to be noted herein that, these matters once dismissed by this Commission vide order dated 31.10.2008 holding that proper remedy for the complainants to recover the excess of amount paid is by approaching the Civil Court and on the other reliefs claimed does exceed Rs.20 lakh have to approach the District Forum concerned to redress their grievances and seek the relief accordingly, if so advised. Being aggrieved by such orders, complainants preferred First Appeal in F.A.No.526 to 528 of 2008, respectively before the Hon’ble National Consumer Disputes Redressal Commission, New-Delhi and the Hon’ble National Commission vide order dated 10.02.2009 allowed the appeals thereby remanded all the matters back to this Commission to deal with the same as expeditiously as it may be possible and dispose of the complaints on merits. Accordingly, after remand of all the matters from Hon’ble National Commission, these parties led the evidenced as stated above and the Commission vide order dated 20.10.2010 allowed all the complaints and granted some reliefs in favour of respective complainants, including refund of excess amount collected by OP and aggrieved by such order for not granting all the reliefs sought by the respective complainants preferred F.A.No.402 to 404/2010 before the Hon’ble National Commission, New-Delhi. On the contrary, OP has also preferred F.A.No.439 to 441/2010 and the Hon’ble National Commission vide order dated 28.07.2016 allowed appeal No.439 to 441/2010 filed by OP and consequently set aside the impugned order dated 28.10.2010 passed by this Commission in CC-No.88 to 90/2008 and matter is remanded back to the Commission to decide the complaints expeditiously afresh, after considering construction agreement executed between the parties and after giving an opportunity of being heard to the parties.
10. Further, as impugned order has been set aside, F.A.No.402 to 404 of 2010 filed by the complainants are held become infructuous. This order is dated 28.07.2016. The records of these cases after remand were placed before the Commission on 03.10.2016, parties to these matters appeared, placed nothing on record, except filing a memo by OP stating that they are unable to get occupancy certificate. The complainants submitted their written arguments on 09.04.2018, copy of construction agreement is filed, which in fact is not filed in all the three cases and on 02.04.2018, the Commission directed to produce construction agreement, which is not on record and not placed any additional evidence either on behalf of complainants or OP. The OP remained absent, even after issuance of Commission notice, whereas complainants submitted their written brief. In such circumstances, now the Commission has to decide whether complainants have proved deficiency in service and unfair trade practice on the part of OP and if so are entitle for the reliefs claimed?
11. It is an undisputed fact that, each of the complainants purchased flats of their choice from OP in the project Elegant Builders represented by its Partners 1 to 4. The documents, in particular, sale agreement dated 30.07.2007, construction agreement is also of the same date are agreed between the parties herein and the sale deed dated 20.08.2007 executed by OP in favour of each complainants are not disputed and they are to be read as they are. Since, OP even after remand of the matters by the Hon’ble National Commission has failed to place any additional evidence in support of construction agreement arrived in between the parties on the date of agreement of sale viz., 30.07.2007 to establish that the sale price agreed under agreement of sale dated 30.07.2007 and the price mentioned under agreement of construction are entirely different and the price mentioned in these two agreements are to be considered together for the sale price of flats agreed to be sell to each of the complainants. As such keeping in mind the sale price mentioned under agreement of sale and construction agreement, now we would like to appreciate the evidence on record.
12. As per agreement of sale and construction agreement, the agreed price with respect to the flat of complainant in CC-No.88/2008 was Rs.23.31 lakh, in respect of CC-89/2008 it was Rs.22.50 lakh and in respect of CC-No.90/2008 it was Rs.23.50 lakh. In so far as the price of flats agreed to be purchased by them under sale agreement is concerned, is not disputed by OP. Thus, with such fixing of sale price for the flats, the total amount for registration of the flats including cost would be Rs.26 lakh, Rs.25.25 lakh and Rs.26.20 lakh respectively, which is also stated in the respective complaints and they are liable to pay this much of amount to the OP. However, enquiry reveals that, they have paid Rs.46.69 lakh, Rs.42.79 lakh and Rs.48.125 lakh, respectively; thereby OP has collected Rs.18.69 lakh, Rs.17.59 lakh and Rs.21.925 lakh respectively, in excess. As such they have sought for refund of excess collected money from OP. In this regard, complainants would argued much that such collection of excess money from consumer and without refunding amount, despite repeated requests not only amounts to deficiency in service on their part, but also amounts to unfair trade practice. It is to be noted herein that, OP has not disputed the receipt of such amount, which has been paid by each of the complainants and it is found in agreement of sale Clause-16, which reads: “the prices decided will not be subject to any escalation and will be inclusive of service tax, VAT levies with the exception of charges mentioned in clause 13 that may be applicable at the time of hand over of the premises/property”. In other words, these clauses bound the parties to the complaints. As such, each of the complainants are right in contending that, OP cannot claim escalation charges, yet they have collected huge amount with an ulterior motive as contended, as some factual force considering the terms of clause stated above and the terms of agreement to sell and construction agreement. We carefully examined agreement of sale dated 30.07.2007 and agreement of construction, which is also of the same date, wherein could see the cost of each apartment agreed to be constructed by OP shall be the same amount as fixed under agreement of sale. In such circumstances, the agreement of sale and construction agreement, which are arrived at between the parties on 30.07.2007 so far as sale price fixed agreed to be sell in favour of each complainants would be the same price as found in agreement of sale, which is averred not only in complaints, but in evidence supported by these two documents coupled with sale deed dated 20.08.2007 executed by OP. The OP arrayed in agreement of sale and construction agreement as first party and each of the complainants are as second party. If we examine the details of property and agreement of sale and construction agreement, which are similar and even the terms agreed between the parties are similar. In other words, they cannot be held distinct agreements arrived in between the parties in respect of fixing of sale price of each of the flat agreed to be sell in favour of each complainants. If the sale price agreed to be sell in favour of each complainants in agreement of sale is fixed one figure/amount and in agreement of construction a different figure/amount, then the matter would have been different. However, what has been fixed in agreement of sale is similar as in the construction agreement. Further, if we examine the recitals of absolute sale-deed, could see the consideration amount as fixed under sale agreement. In such circumstances, OP having been collected amount, in excess of the amount fixed under sale agreement from the complainants, have to be said practicing unfair trade practice and not returning the amount in favour of complainants, amounts to deficiency in service.
13. The OP has produced Ex.R1 and R-2-copies of sale agreement and sale deed, which in fact are not disputed at all. It is therefore, at the very outset, Commission opined that these two documents and construction agreement arrived in between the parties are to be read as they are. The OP has failed to place any additional evidence to show that the sale price fixed under sale agreement is only a portion of amount and the remaining amount is fixed under construction agreement. As already stated above that they are arrived in between the parties on the same day and the price also could be similar. The sale agreement is dated 30.07.2007. The details of the property could be seen in this agreement. It is not that each of the complainants purchased plot/site under agreement of sale and they agreed under agreement of construction that OP to build construction on such plot/site. Since under agreement of sale, could see the super built up area and number of flats, the undivided share of each of the complainant also could be seen. In such circumstances, when OP agreed under this agreement of sale, fixing a sale price, which could not be said that each of the complainants are still agreed to pay price for construction of flats. In so far as construction of apartments, the undivided share would be very meagre and during 2007 viewed from any angle, it cannot be said that for around 400+ sq.ft such a huge price was fixed and similar such price was fixed under agreement of construction. It is therefore, Commission is of the opinion that, OP has miserably failed to show that the price fixed under construction agreement is quite different. In this regard, we have further to observe herein that if the price fixed under sale agreement and similar such amount found under construction agreement taken place on similar day, has to be considered together, which would even more than what each of the complainants have paid to OP. It is therefore, we reiterate, OP has failed to prove construction agreement price is different, than the price fixed under sale agreement.
14. In such conclusion, we satisfy to hold that OP has collected huge money in excess of the price fixed under the agreement of sale and each of the complainant are only liable to pay Rs.26 lakh, Rs.25.20 lakh and Rs.26.20 lakh, respectively for registration of the flats and hold that OP has collected excess amount of Rs.18.69 lakh, Rs.17,59 lakh and Rs.21.925 lakh, respectively, which the OP is liable to refund in favour of each of the complainants.
15. Even after remand of matters, OP filed a memo on 04.04.2017 stating that, they are unable to secure occupancy certificate and they have failed to place nothing on record to show about formation of Association by owners of apartments and their submission on record to show that the basement meant for exclusive car parking, wherein OP built two room apartment is occupied by the Association formed by owners of apartments. It is therefore, the contention that two room apartment built occupying the exclusive car parking space is meant for the use of such association is held baseless, when the said flat owners have not yet formed such Association. The OP has admitted building of two room apartment in violation of approved building plan issued by BBMP is nothing but deficiency in service on their part, which amounts to unfair trade practice. Even the OP in his version not denied that, basement floor meant for exclusive car parking made for 5 parking slots is allotted to 9 persons. This fact is not otherwise denied by them, which amounts to violation of terms and conditions of the agreement.
16. In so far as providing of lift, staircase, sewage connection and electrical connections etc., are agreed to be provided by OP, since complainants have alleged lift is not working properly, the configuration of the lift is erratic, which is not denied by the OP, except contending that, maintenance of the lift lies with Association, which is nothing but a mere contention, since, association of owners of the apartment is not formed. In other words, such maintenance of lift still lies with OP. As already stated that, OP has failed to secure occupancy certificate from concerned authority, which in fact is submitted by way of filing a memo is already stated. In so far as contentions of each of the complainants that they are entitle to have separate electrical meters and there can be a proper connection from BESCOM has to be considered by OP being a builder and seller of apartments of flats in favour of complainants. It goes without say that when OP has failed to secure occupancy certificate for simple reason for violation of approved building plan by BBMP. In such circumstances, we have to hold that, OP is bound to provide proper lift, separate electrical meters with proper connection from BESCOM as they have paid for such flats under agreements of sale coupled with construction agreement and sale deeds, respectively. The OP is bound to hand over certificate of rain water harvesting as well as mother deeds in favour of each of the complainants, till then OP cannot be held discharged his obligations agreed under 03 documents stated supra. OP is bound to secure occupancy certificate, completion certificate and is bound to handover all relevant documents pertains to flats purchased by each of the complainants. These complainants have invested at the relevant time their hard earned money, still are unable to enjoy the fruits of their investment because of the indifferent attitude of OP.
17. The documents placed by parties to the complaints discloses that, the BBMP has taken steps for demolition of unauthorized construction put up by OP in violation of the approved building plan and in the event of such violation, naturally complainants would be put to greater hardship. It is found from the notice issued by BBMP that, OP has violated 100% and there is likelihood of demolition of 3rd floor portion. No doubt OP has placed an interim order passed by K.E.T staying the notice issued by BBMP, but the fact remains is that, OP has violated approved building plan while constructing the building. It has come in the evidence of each of the complainants that, OP was requested not to violate approved building plan, but without caring their requests, violated the approved building plan and if for any reason in due course of time the demolition notice issued by BBMP would be implemented, naturally complainants would be put to greater hardship. In such circumstances, the OP herein could not have been issued occupancy certificate and completion certificate for each of the flat owners, connecting BESCOM meters, which in our opinion are grave and the OP is bound to fulfil it in favour of each complainants.
18. In such conclusion, even after consideration of construction agreement arrived in between complainants and OP for the reasons recorded supra, we hold that, OP has collected excess amount and they are bound to return and the each of the complainant are held entitle for the reliefs sought in their complaints.
19. Accordingly, we order to allow CC-88/2008 to 90/2008 and direct OP to refund Rs.18.69 lakh to the complainant in CC-88/2008, Rs.17.59 lakh to the complainant in CC-89/2008 and Rs.21.925 lakh to the complainant in CC-90/2008. Further directed OP, in case of demolition of unauthorized construction by the BBMP in pursuance of violation of the approved building plan, is directed to rebuild the same as per approved plan at his cost. Further, OP is directed to reserve and earmark proper car parking slots as agreed under agreement of sale, construction agreement and sale deed in favour of each of the complainants and they are directed to secure occupancy certificate, completion certificate and handover to complainants. Further directed to rectify defects with respect to lift, sewage connection, BESCOM connection and obtain safety certificate, rain water harvesting certificate from concerned authorities and handover all such documents to the complainants along with mother deeds. OP is directed to pay Rs.10,000/- as compensation towards mental agony and litigation cost of Rs.1,000/- to each of the complainants. OP is directed to comply with this order within 03 months from the date of receipt of this order, failing which to pay interest @ 6% p.a on the amount order to be refund from the date of filing of the complaints till realization. Keep the original order in CC-No.88/2008 and copies in other connected matters.
Lady Member Judicial Member
*J*
