BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:24^th July 2015         

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 142/2015  

Complainant/s:

Dr.Yallanasa s/o.Narayansa Irakal,       Age:74 years, Occ: Medical Practitioner, R/o. “Shreya Hospital”, Opp: Dist. Court Campus, Dharwad 580008.

(By Sri.B.S.Hoskeri, Adv.)

v/s

Respondent/s:

Mr.Giridhar Tirumala Ganji, Proprietor, M/s. Super Builders & Developers, Shanti Nagar, Bengeri, Hubballi 580001.

(Exparte)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondent to install lift facility, to secure water and electricity connections, to get CC of the building, to pay Rs.10 lakhs global compensation with interest @15% P.A. from 2013 till realization, to pay cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, the complainant in order to have residential plot for him & to his 2 sons the complainant approached the respondent who is the developer during the month of August 2012. Accordingly the respondent assured to provide 3 units as desired by the complainant. As per the negotiations and understanding arrived between the complainant and respondent on 22.09.2012 to purchase 3 units in accordance with the brochure provided by the respondent the complainant entered into an agreement on 11.01.2013 regarding the payment and also pay the penalty of Rs 2 lakhs per month if the construction and delivery of possession of the completed residential plots is not delivered beyond April 2013. In view of the said agreement the respondent executed sale deed on 18.01.2013 and hand over the possession of the plot 01 in the lower ground floor and 102 and 103 in the upper ground floors of the respondents apartment. As per the terms and conditions of the agreement the complainant had paid major amount payable to the respondent. While handovering the possession there was also understanding between the parties  to complete the construction work within 6 months and to obtain CC from the concerned authorities and to provide lift facilities to the apartment. From the date of agreement in one or other way the complainant was harassed by the respondent. The harassment extended to the extremity of filing false case against the complainant by the respondent. The respondent did not complied as per the agreement and also as per the sale deed and memorandum of understanding entered in between the complainant & respondent. Hence, towards the compliances several notices were exchanged between complainant and respondent. After protest and serious agitation by the complainant towards the completion of the work again on 23.03.2013 agreement was made  to complete the construction work as per the brochure inclusive of elevator and gym facilities. Despite of it and also conciliations held in the presence of elders and well wishers the respondent did not cared and complete the construction work as promised. The act of the respondent amounts to deficiency in service. Though the construction work is not in accordance with the terms and conditions and even though complainant had done sub standard works and installation of affixtures and doors, applying of low quality paint, however seeing the attitude of the respondent, the complainant compromised and insisting only for fixation of necessity amenities affixtures like installation of lift, water and electricity connections and to get CC from the HDMC. Even after compromising with regard to the sub standard construction work the respondent did not complied and installed lift, water and electricity  connection and secure CC. Hence, the complainant got issued legal notice to the respondent on 02.01.2015 calling upon to comply the same, but the respondent did not cared and complied. At the instance of respondent, the complainant subjected to physical and mental harassment. As a last resort the complainant approached the Forum and filed the instant complaint praying for the relief as sought.

3.     Despite service of notice the respondent remained absent. Hence, the respondent is placed exparte and exparte proceedings was initiated.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

The complainant admits his evidence by way of sworn to evidence affidavit apart from examining himself the complainant admits sworn to evidence affidavit of 2 more witnesses & relied on documents. Apart from argument the complainant also relied on citations.  Heard. Perused the records.

Finding on points is as under.

1. Affirmatively 
2. Accordingly  
3.  As per order

Reasons

Points 1 and 2

 5.    On going through the pleadings & evidence coupled with documents it is evident that there is no dispute with regard to the fact,  the complainant has taken the possession of the flats he booked under the sale agreement entered between him and the respondent on 11.01.2013 through a registered sale deed dt.18.01.2013 of flats bearing no. 01 in lower ground floor and 102 and 103 in the upper ground floor. The grievance of the complainant is, the respondent though undertaken did not installed lift and water and electricity connection & secured CC from the HDMC.

6.     The above facts have been further rectified by perusal of the sale agreement Ex.C2, registered sale deed Ex.C3.

7.     The disputed fact is only with regard to the non installation of lift, water connection, electricity  & secure of CC from HDMC.

8.     The crux to be determined is non securing the requirements as per the agreement and sale deed by the respondent amounts to a deficiency in service, if so for what relief the complainant is entitled.

9.     By admission of the complainant that though the respondent has not performed the works as undertaken by him with worst workmanship by utilizing sub standard construction materials the complainant honestly and sincerely approached this Forum with a grievance that the main amenities  have not been secured by the respondent as per the agreement which are pivotal and daily necessity requirements certainly non compliance and non secure of the daily requirements & necessity amenities amounts to a deficiency in service. To establish the deficiency in service in non installing the facilities as mentioned supra the complainant led two additional witnesses evidence. Those witnesses are also dwellers of the same apartment and they corroborates the contentions & grievances expressed and putforth by the complainant. Even look into the Ex.C5 memorandum of understanding entered between the complainant and respondent entered on 23.03.2013 which further fortifies the contention of the complainant. The legal notice Ex.C6 got issued on 02.01.2015 which was served on the respondent as per Ex.C7 (a) and (b) further rectified and fortifies, till date of filing of the present complaint the respondent did not complied the same. Since the respondent remained absent and exparte proceedings has been initiated against the respondent the contentions and evidence of the complainant stood unimpeached and which goes in favour of the complainant So also relied case laws 2000 (II) CPJ 418 (NC) & 2012 (III) CPJ 403 (NC) added and supports to establish deficiency in service against the respondent. Accordingly the complainant is entitled for the relief as sought.

10.   As per the admission of the complainant in his complaint pleadings the complainant is having no certainty with regard to whether he has paid entire amount as per the agreement under sale deed towards the value of the property handedover by the respondent under the sale deed Ex.C3. The complainant baldly stated that he has paid almost all the cost of the  flat. As per Ex.C9 entries of pass book an amount of Rs.41,90,000/- was paid to respondent through Cheque. But perusal of memorandum of understanding Ex.C5 entered between complainant and respondent on 23.03.2013  at the bottom of page.3 there is an undertaking (endorsement) by the respondent to the effect that the respondent has instituted cheque bounce case against the complainant and it will be withdrawn soonafter execution of the MoU Ex.C5. When it is the case of the complainant he has paid all the money to the respondent under what circumstances complainant issued the cheques which have been bounced and why bounced Cheque case was filed against complainant. With regard to this no evidence is putforth with regard to whether the complaint is withdrawn or the amount which have to be paid by the complainant to the respondent have been paid or not.

11.   So also as per the prayer made to the Forum with regard to issue direction to install lift facilities, water and electricity connection and to secure CC from HDMC the complainant also have to shown he has performed his part and he has paid all the amount payable to the respondent. That apart the requirements & amenities sought in the prayer are not only to the complainant it is for the necessities of all the dwellers of the apartment. Under those circumstances in order to secure those amenities as prayed in the complaint all the dwellers including complainant also have to pay entire amount for which the respondent is entitled under the agreement & sale deed in respect to all the dwellers. In the event  if the amount payable is not paid to the respondent the complainant including other dwellers to pay and to settle all the amount, in such an event the respondent shall secure all the amenities as prayed in the prayer column.

12.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmatively and accordingly  .

13.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

        The complaint is partly allowed. The respondent is directed to secure all the amenities which are sought in the prayer column as per the observation made in the order within 60 days from the date of receipt of copy of this order along with Rs.3,000/- towards the compensation and Rs.2,000/- towards cost of the proceedings. This order do not comes in the way of respondent in recovering the amounts if any payable due by the complainant including other dwellers.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 24^th day of July 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR