BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 07^th DAY OF JUNE 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to issue direction to OP immediately constitute Association of Apartment Owners as per Karnataka Apartments Owners Association Act 1972, declare that the engagement of the maintenance agent Mr.C.B Richard Alleys as illegal and improper and pass orders holding that the complainant is not obligated in law to comply the demand made under the invoice generated by the OP and direct the OP to pay him a compensation of Rs.1,60,000/- at the rate of Rs.1,000/- per day for having deprived electricity with the direct connection of BESCOM and direct future payment of Rs.1,000/- per day together with costs of the proceedings.

2. The brief averments made in the complaint are as under:

The complainant is absolute owner of flat no.B7, 803 having purchased the same under registered sale deed dated 14.09.2011.  The said flat building belongs to the OP.  That the OP is indulged in serious deficiency of service by claiming and collecting exorbitant maintenance charges.  That the OP is claiming maintenance charges in a sum of Rs.19,595/- as charges for the month of December 2013 and anticipated maintenance charges for the first quarter of 2014 in a sum of Rs.16,020/- in all amounting to Rs.35,279/- together with service tax and interest totaling to Rs.40,181/-.  That the complainant has paid an advance maintenance amount of Rs.1,10,300/- for the period of three years from the date of purchase thereby there was no liability to pay the maintenance charges till August 2014.  As a matter of fact the previous owner of the flat had cleared all his dues and sale deed was executed in favour of the complainant.  There was no liability of any arrears of maintenance payable by previous agreement holder and subsequently by the complainant.  Therefore a notice dated 16.01.2014 was issued clarifying the factual position to the OP and the same has been received by the OP on 16.01.2014 itself.  That the OP after having received a notice issued a letter by taking a very inconsistent stand and in total deviation from the Karnataka Apartments Ownership Act 1972 and insisted that the invoice demand is correct.  That by the virtue letter dated 11.06.2014 OP contended that at their discretion they have handed over the maintenance of entire residential complex of ‘Elita-Promenade’ to a maintenance agency namely M/s.C.V Richard Ellis (CBRE)/Asset services-Bangalore.  Thus having entrusted the responsibility of collecting and maintaining the common areas and amenities and placed a demand in sum of Rs.58,351/- as if due towards second quarter of 2014 with interest of 15%.  Further OP demanded Rs.2,000/- as charge for legal notice.  The OP has no right to claim the said maintenance charges since the complainant has paid maintenance charges in advance for future three years from the date of purchase of the flat.

That the OP has indulged in depriving the electricity facility generated from the installed generator to the flat of complainant whenever there is power cut and also have prevented electricity power supply by BESCOM to the flat of the complainant thereby causing serious deficiency of service.  Due to the said conduct of OP, the complainant has been put to great hardship and inconvenience as he has school going children and his wife is also a Assistant Professor.

That the complainant evaluates the damage component at the rate of Rs.1,000/- per day against the OP from 16.01.2014.  Hence a total compensation of Rs.1,60,000/- is claimed and future damages of Rs.1,000/- per day until a clear undertaken to submit to the Forum.

For the reasons mentioned above, the complainant prays for allowing the complaint as prayed for.

3. In response to the notice issued, the OP appeared through their advocate and filed their version contending in brief as under:

The complaint is bad for non joinder of necessary party as his wife is co-owner of the apartment.  Since his wife has not been made as a party to the complaint filed by the complainant.  It is quite obvious that the co-owner of the apartment does not have grievance with the maintenance charges being collected by the OP from the owners of the apartments in ‘Elita Promenade’.  The complainant alleges that the OP is collecting excessive maintenance charges thereby indulging in serious deficiency of service.  As far this grievance of the complainant is concerned, it is necessary to state that the residential complex known as ‘Elita Promenade’ is a large condominium consisting of 17 blocks and the Respondent has handed over the maintenance of the entire residential complex as per clause 8(d) of Sale Agreement.  In accordance with the contract between the parties the developer at its sole discretion can handover the maintenance of said residential complex to a maintenance agency.  Accordingly, M/s.CB Richard Ellis (CBRE)/Asset Services – Bangalore a property management company of international repute has been appointed as the Managing Agent.  CBRE is responsible to manage the daily upkeep and maintenance of the common areas, amenities of said residential complex and to supervise the administration of Owner’s Manual until the Owners Association is formed.  CBRE as caretaker for and behalf of Elita Promenade Apartment Owners Association pending its formation is responsible to collect quarterly maintenance charges from the owners/occupants of the residential complex and manage the daily upkeep and maintenance of common areas, amenities of the complex and to supervise the administration of the Owner’s manual until the Owners Association is formed.  Further, the quarterly maintenance charges are collected to provide common services to the residents of the complex which include pay and allowances of the property management agency, security, housekeeping personnel, operation and annual maintenance contract of diesel generator, sewage treatment plant, fire protection, intercom, swimming pool, club house amenities like gymnasium equipments, lifts, garbage collection and disposal, organic waste converter, M & E maintenance, landscaping, horticulture consumables, diesel for running of diesel generator and rent and allied charges for water and common area lights supplied by BWSSB and BESCOM respectively.  Prior to 01.05.2009 the maintenance charges of all the apartments including the unsold apartments were borne by the OP has been maintaining residential complex by collecting quarterly maintenance charges from the owner/occupants.

This being the case, the complainant had paid a sum of Rs.1,10,295/- to the OP out of which a sum of Rs.99,995/- was towards maintenance charges and service tax of Rs.10,300/-.  Notice of handover of the said unit was issued on 18^th July 2011.  The unit was handed over on 16^th September 2011.  As per clause 3.3 of NOH the maintenance charges shall commence 14 days after the date of NOH or immediately after the possession of the apartment whichever is earlier.  The maintenance of the complainant apartment started from the month of October 2011 and as per the statement of accounts maintained by the OP the total maintenance charges due from the complainant towards his apartment was Rs.1,49,006/- as on 30^th June 2014 and this statement of account was furnished to the complainant along with invoice and he was requested to pay the same to the OP.  Since the complainant failed to comply with the request made by the OP for payment of maintenance as per the invoice raised by the OP left with no other option got issued a legal notice dated 11.06.2014 calling upon the complainant to pay a sum of Rs.58,351/- being the maintenance charges due along with interest up to the 2^nd quarter of 2014.  Instead of complying with the legal notice, the complainant has approached this Forum by filing this false and frivolous complaint in order to wriggle out of the situation in not making the payment of maintenance charges to the Respondent.  Since the complainant failed to pay the amount as mentioned in the invoice he was not provided with the power generated from the generator set which is run on diesel purchased out of the maintenance amount received from the residents of the complex that the OP has never informed or prevented direct electricity from BESCOM to the apartment of the complainant.

As far as the prayer of the complainant with respect to formation of an Association of Apartment Owners as per the Karnataka Apartment Owners Association Act 1972 is concerned, this Forum does not have jurisdiction to issue direction to the OP to constitute an association and moreover the matter with respect to Association of Apartment owners is pending adjudication before the Hon’ble City Civil Judge, Bangalore in O.S No.8192/2011.  That the Deed of Declaration was registered in the office of the Sub-Registrar, J.P Nagar, Bangalore on 07.10.2011 thereby paving way for formation of an Owners Association however some of the owners of the residential complex under the name of M/s.Elita Promenade Apartment owners have instituted a suit in O.S No.8192/2011 on the file of City Civil Judge, Bangalore against OP seeking relief of declaration to declare that the deed of declaration as null and void and not binding on them.  That the said suit is pending before the City Civil Court at Bangalore.  The OP has always been ready and willing to form an association of Apartment Owners.  However the owners of the residential complex are not coming forward to form the association and therefore having left with no other option the OP is maintaining the residential complex as per the sale agreement by appointing the maintenance agency known as M/s.CB Richard Ellis (CBRE)/Asset Services – Bangalore to look after the maintenance of the entire residential complex until the owners of the residential complex form an Association.  The complainant is not entitled for any of the reliefs sought in the complaint.

For the reasons mentioned above, OP prays for dismissal of the complaint by awarding exemplary costs.   

4. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

5. After version was filed by the OP, the complainant was called upon to file his affidavit evidence.  Accordingly, he submitted his evidence by way of affidavit.  Thereafter, the OP filed affidavit evidence of their senior CRM Executive Mr.Gladys in support of the averments made in the version.  Both the parties have submitted their written arguments apart from various documents in support of their respective case.

6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both parties, written arguments various documents filed by both sides and other materials placed on record.

7. Our answer to the above issues are as under:

REASONS

8.  The main grievance of the complainant is that, despite payment of advance maintenance amount of Rs.1,10,300/- at the time of purchase of said villa on 14.09.2011, the OP has again demanding exorbitant maintenance for the same period thereby indulging himself in various criminal acts such as disconnecting the electricity connection to the flat etc.  The complainant claims that the OP is demanding maintenance charges for a sum of Rs.19,595/- upto December 2013 and anticipated maintenance charges for the first quarter of 2014 in a sum of Rs.16,020/- in all amounting to Rs.35,279/- and together with service tax, interest etc., comes to Rs.40,181/-.  The complainant asserts that the OP has no right what so ever to demand the above mentioned maintenance charges in view of the fact that he has paid advance maintenance charges at the time of purchasing the said flat on 14.09.2011.  The complainant has produced the relevant documents for having paid the advance maintenance charges which is also incorporated in the registered sale deed.  Copy of which is produced by him.

9. The OP admits the payment of advance maintenance charges for three years by the complainant and contends that in view of the increase in various tariffs such as water, labour etc., the maintenance charges have been revised therefore the complainant is required to pay the difference of the maintenance charges as demanded in the invoice served on the complainant.  The complainant sworn to and stated that he is not liable to pay any revised charges as claimed by the complainant as there is no such provision in the sale deed.

10. The learned advocate for the OP referring to clause.8(d) of Agreement of Sell argued that, as and when there is upward revision or increment in the cost of common area maintenance the OP shall intimate the proportionate increase in the advance maintenance charges to the purchaser and the same shall be paid by the purchaser within the time period intimated by the vendor/OP.  For the purpose of more clarity clause-8(d) of the agreement to sell is reproduced herein.

(d) Advance maintenance charges for the initial period of 36 months, amounting to Rs.50,000.00 for a two-bedroom apartment and Rs.1,00,000.00 for a three-bedroom apartment, which will not carry any interest, shall be paid to the Vendor at the time of taking possession of the Schedule B Property and Schedule C Apartment or within 15 days of the Vendor informing the Purchaser that the Schedule B Property and the Schedule C Apartment are ready for possession, whichever is earlier.  The advance maintenance charges shall be used towards recurring common maintenance charges including service or any other taxes payable by the Vendor in this regard, wherever applicable.  In case, there is an increment in the cost of common area maintenance, the Vendor shall intimate the proportionate increase in the advance maintenance charges to the Purchaser and the same shall be paid by the Purchaser within the time period intimated by the Vendor.  The Purchaser hereby agree that the Vendor may maintain itself or hand over the maintenance of the residential complex to any maintenance agency at its sole discretion and the Purchase is required to pay the advance maintenance charges and the per month maintenance charges including any increment thereon to the Vendor/the maintenance agency, at the direction of the Vendor.  Any delayed payment of advance maintenance charges/the per month maintenance charges/any increment thereon will attract interest payable at the rate of 24% per annum by the Purchaser from the due date till the date of payment.

11. The complainant does not dispute the provisions contained in clause-8(d) of agreement to sell.  According to complainant in pursuance of the said clause, he has paid advance maintenance charges for the necessary period of 36 months from the date of purchase amounting to Rs.1,10,300/- inclusive of service tax.  Though the complainant claims that, he is not liable to pay any increase in the advance maintenance charges as per the said clause but the provisions contained in the said clause makes it mandatory on the part of the complainant to pay any increase in the advance maintenance charges.  The complainant is bound by the terms and conditions of the said agreement.  Therefore, he is liable to pay the increased advance maintenance charges in accordance with the provisions contained in clause-8(d) extracted above.  It is provided in the said clause that, the vendor/OP shall have to intimate the proportionate increase in the advance maintenance charges in the event there is any increase in the common area maintenance and the purchaser shall have to pay the same to the vendor/OP within time period intimated by the vendor/OP.  In the instant case on hand the OP issued a letter dated 16^th October 2013 intimating the complainant regarding the increase in the monthly maintenance charges with effect from 1^st quarter of 2014.  The copy of the said intimation letter dated 16^th October 2013 is produced by OP.  The careful perusal of the said letter/intimation discloses that the OP has explained in detail the necessity of increasing the maintenance charges in view of the increase in water, electricity tariffs, increased price of diesel required for the DG sets and also increase in labour cost per month.  By explaining the various increases in the prices, the OP has intimated that the current monthly maintenance fee of Rs.2.50 per sq. ft has been enhanced to Rs.3.00 per square feet per month + services taxes.  Further the OP has mentioned in the said intimation/letter as to the maintenance charges levied by various other residential complex in and around Bangalore.  The complainant has not denied the receipt of said intimation/letter from the OP.  On the basis of the said intimation issued to all the owners/occupants of the said residential complex.  The OP has issued invoice in favour of the complainant demanding a total sum of Rs.77,322/- as on 30^th September 2014.  The OP has produced the original invoice sent to complainant demanding a sum of Rs.40,181/- which is under challenge in this complaint.

12. In view of the provisions contained in clause.8(d) of the Agreement to Sell the OP has every right to demand the difference in the maintenance charges of common areas as and when there is increase in the maintenance charges.  The demand made by the OP is in ‘consonance with the terms of Agreement to Sell.  Therefore, the complainant has no right to refuse to pay the increase in the maintenance charges.  In the statement of accounts, copy of which is produced by the OP there is a mention of Rs.1,10,295/- paid by the complainant on September 2011.  At the time of purchasing the said flat, the OP has given the details of the maintenance charges month wise in the statement of accounts.  We don’t find anything wrong on the part of OP in demanding the increase in the monthly charges.  The demand for increased maintenance charges is certainly in terms of clause-8(d) of the Agreement to sell entered between OP and original owner Sanjiv Sachar and Sita Sachar.  In view of the discussions made above and in view of the provisions contained in agreement, the complainant is liable to pay the increase in the maintenance charges as demanded by OP in the invoice.  Since he has failed to pay the said amount on time he is liable to pay interest as mentioned in the clause-8(d) of the agreement apart from the service tax.

13. The complainant has sought a direction from this Forum to the OP to constitute Association of Apartment Owners in terms of Karnataka Apartment owners Association Act 1972.  In this regard, the OP brought to our notice a suit in O.S No.8192/2011 pending on the file of Additional City Civil Judge at Bangalore.  The copy of the plaint has been produced by the OP.  The cause title of the suit discloses that certain apartment owners of M/s.Elita Promenade represented by one Narayan Swamy, Mr.Srinivasa and Mr.T.G Kangeyan have filed a suit against the OP regarding formation of an Association.  Since the matter has been ceased by Civil Court we don’t wish to deal with the said matter.

14. In view of the finding given by us on point No.1 the complainant is not at all entitled to any compensation as he has miserably failed to prove any deficiency on the part of OP.  Further more in terms of clause-8(d) of the agreement OP has right to either maintain the said residential complex itself or hand over the maintenance of residential complex to any maintenance agency at its sole discretion and each purchaser is required to pay the advance maintenance charges and thereafter maintenance per month including any increase there on.  In view of the power vested in them under the said clause the OP has appointed the above mentioned M/s.CB Richard Ellis (CBRE)/Assets Services – Bangalore as caretaker / maintaining agency of the said residential complex.  Therefore, it cannot be said that the appointment of the said CB Richard Ellis as maintenance agent was either illegal or improper.  Thus looking from any angle, the complaint is not maintainable and the same is liable to be dismissed.

15. The order could not be passed within the stipulated time due to heavy pendency. 

16. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  The parties to bear their own costs.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 07^th day of June 2016)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 06.03.2015.

1. Sri.K.K Nanjappa.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 25.9.2014.

1. Sri.A. Gladys.  

Documents produced by the Opposite party:

MEMBER                            MEMBER                    PRESIDENT

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