BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

                    15^TH DAY OF SEPTEMBER 2015

O R D E R

SRI.P.V.SINGRI, PRESIDENT

The complainant No.1 on his behalf and on behalf of 59 complainants has filed this complaint under Section 12 of Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) for allowing the complaint in terms of prayer made in the complaint together with compensation and cost of this proceedings.  

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

  The Complainant No.1 and the remaining complainants purchased respective apartments mentioned against their names from the OPs by paying huge consideration, ranging from Rs.15,00,000/- to Rs.20,00,000/-.  Since, the OPs violated several provisions of law, practiced fraud, breach of trust, dangerously affecting the purchasers of all apartments in the same manner and there is no validly constituted representative body and hence all the said purchasers of apartments are forced to formally lodge this complaint so as to avoid multiplicity of proceedings.

2.  Pleadings being common in respect of the common problems of the said purchasers of apartments, humble request that, they may kindly be treated as the joint complainants for the benefits of all and if not as separate ones.  As there are numerous consumers, being the same interest on behalf of all having so interested have decided to make their complaints jointly and severally through complainant No.1 herein with the permission of the forum for which a separate interim application as filed under Section 12 (1) (c) of the C.P.Act 1986.

3. Being impressed by the attractive representations, promises by way of pamphlets, invitations, printed colourful brochures, advertisements titled as, “SLS SAROVAR – MUSIC FOR THE SOUL – HOMES FOR LIFE”, newspaper advertisements, publications, containing the features and amenities, specifications etc., promised to be provided in the project made by the OPs, the complainants and the 40 others were lured to acquire an apartment each, in the said project.  The complainant and the remaining 40 purchasers booked apartment with the OPs and entered into agreement to purchase their respective apartments by raising funds from bank and other financial institutions.  In addition, the OPs also collected from each of the purchasers further sum of money of Rs.75,000/- towards BWSSB deposit, Rs.75,000/- towards Electric meters deposit, Rs.1,10,000/- towards additional amenities and Rs.2,00,000/- towards closed car parking slot.

4. The OPs are bound to comply with several statutory provisions including the Karnataka Ownership Flats (Regulation of Promotion, Sale, Management and Transfer) Act, 1972 and the rules framed there under and also the BBMP Building Municipal bye laws.  In addition the OPs are also bound to strictly comply with the requirement of various terms and conditions contained under building license, approval of building plan, issued by various authorities and also other terms and condition as required by the local authorities from time to time and all promises and representations, terms and conditions contained in the respective agreement to sell. 

5. As the complainants and the remaining 40 were badly in need of their accommodation, on the promises of the OPs that, they would hand over proper “Occupation Certificate” within a few days and complete the remaining items of incomplete work shortly, the consumers, informally took possession of their respective apartments, in or around July-August-2012 pending completion, obtaining Occupation certificate and execution/registration of “Deed of Declaration” as required/promised.  Hence, the apartments are not yet informally, legally, handed over by the OPs to the consumers, as agreed, till now and complainant and others are not permissive possession of their respective apartments. 

6. After taking possession of the apartments, the complainants noticed that several items of construction were not yet completed and also many of the items of construction were defective and improper.  Inspite of repeated requests and remainders made by the consumers, ending with their letter dated 06.05.2012 the said incomplete and defective items of construction having not been completed/rectified/corrected by the OPs till now. 

7. In the meanwhile, due to the pressure from housing loan lending institutions and also positive promises and assurances made by the OPs the complainants by paying heavy stamp duty and registration charges got the sale deeds of their respective apartments along with divided share right, title and interest in the common areas/facilities and amenities.  Inspite of repeated request and remainders, the OPs failed to bring the apartment project under the purview of Karnataka Apartment Ownership Act 1972 by executing /registering the “Deed of Declaration: as contemplated there under to make the purchasers of all apartment as exclusively and independent owners of their respective apartments and also failed to constitute consequent lawful association of apartment owners to own/manage its common areas and facilities.  In view of the above the complainants have got the following serious grievances about the defects and deficiency of services against the OPs:

1. After receiving the entire amount of consideration from the complainants and forcing them to occupy their respective apartments, the OPs virtually disappeared abruptly in the month of August, 2012 from the project, without making any arrangement for security and maintenance and keeping all the pending works unattended. 

2. Since the OPs failed to hand over necessary  “Occupation Certificate” from the concerned authorities and failed to pay the deviation penalty demanded by BBMP for the deviation in the construction of apartments committed by the OPs the complainant No.1, along with a few other purchasers of apartments, were forced to pay, on behalf of the OPs a large  sum of Rs.7,36,000/- (seven lakhs thirty six thousand) to the BBMP, to obtain “Conditional Occupation Certificate” dated 17.11.2012, by spending huge amount. Repeated requests and demands, including the written demand, dated 7^th January, 2013, made by the complainants went in vain and the OPs did not reimburse the said amount, till today.

3. The BWSSB, by its letter dated 08.07.2012, made a demand on the OPs regarding unauthorized sewage connection made by OPs to the project and required them to do the needful forthwith and regularise the same.  This is not yet complied with by the OPs till today and consequently, the BWSSB officials are now seriously threatening to disconnect the sewage connection, any day.

4. The Bangalore Electric Supply Company, by its three letters, all dated 01.05.2013, demanded to deposit a total sum of Rs.51,420/- in respect of the common meters, installed in the buildings, threatening to disconnect for not depositing the said amount within 30 days.  Since, the OPs failed to pay the same; the BESCOM officials are frequently threatening the complainants of disconnecting the current supply, putting the complaint No.1 and other complainants to misery and hardships, for the fault committed by the OPs. 

5. The water storage tank provided by the OPs is discovered to be much smaller than the prescribed capacity and the OPs are legally/contractually bound, to replace the same with proper one. 

6. The promised water treatment plant, though physically lying in the premises, is not commissioned at all, till today.

7. The OPs promised, vide their own brochure, to provide, inter-alias, Jogging Track, Multi-purpose Hall, Land-scaped Area, Water Softener, Covered Car Parking, in the project, for the benefit of the purchasers of apartments, but not provided them so far.  The car-parking slots have no access/drive –way.

8. The OPs are, under law, required to hand over all the original documents of title to the land, approved building plan, electrical/water/sanitary designs and drawings, approvals given by various authorities for building construction, Guarantees, licenses, warrantees for lifts, Generators, water lifting pumps and all the gadgets and installations in the apartment/buildings to the Association, as required under law, so as to enable the applicants and others to avail those services.  But, nothing is arranged by the OPs, subjecting the complainants to untold misery, inconvenience and hardships.

9. Several items of construction are not yet completed and many of the defective, sub-standard and improper items of construction, have not been rectified, inspite of repeated requests/reminders made by the complaint No.1 amongst other complainants, ending with their letter, dated 06.05.2012 duly acknowledged by the OPs. 

8. Due to chaotic situation created by the OPs in the said project there is no management of the common areas and facilities, as a result, the security threat is looming large. The property is deteriorating for non-maintenance and all the purchaser are continuously undergoing avoidable agony and suffering for the fault of the OPs.  The above stated malafide acts and legal omissions defaults and failures, defects and breach of trust committed by the OPs clearly amounts to deficiency of service and unfair trade practice  as contemplated under the C.P. Act 1986.  Being aggrieved by the conduct of the OPs, the complainants got issued common legal notice dated 20.09.2013 to the OPs through their advocate.  The OPs did not even care to respond to the said notice.   Repeated personal request and demands made by the complainants in this regard went in vain.

9. After registration of the legal notice the OPs approached some of the complainants through one of their representative Sri.Benjon who had informally agreed to comply with the requirements and also supplied required materials to prepare the draft “Deed of Declaration” as required under the Karnataka Apartment Ownership Act 1972.  Accordingly, the final draft of Deed of Declaration also has been got prepared and ready for execution.  When the OPs were called upon through the same executive the OPs failed and flatly refused to execute and register the same unless the complainants give up all other claims thereby, blackmailing the complainants. 

10. All the complainants are commonly suffering undergoing and facing the acute and unbearable problems, issues, difficulties and dangerous situation in common.  It would be very difficult to assess the individual share of such melancholy.  Therefore, the complainant have claimed the relief in common only in the case of default by the OPs in compliance with the specific direction in respect of such item of relief.  If any sum is granted in this process the recovery of such amount would be notionally divided amongst the complainants equally and the same shall be pooled and utilized to get the required work attended, wherever applicable, except the personal compensation/ damages awarded. 

11. For the aforesaid reasons the complainants prays for an order directing OPs jointly and severally

1. Directing to execute and register the Deed of Declaration, as contemplated under Section 2 of the Karnataka Apartment Ownership Act, 1972 and to hand-over all the properties, assets and documents to the Association, in default, the OPs to pay damages to the tune of Rs.5,000/- to each of the complainants, so as to enable the complainants to obtain the same. 

2. Direct the OPs to obtain and hand over the final “Occupation Certificate” to the complainants, in default, the OPs to pay Rs.25,000/- to each of the complainants, so as to enable the complainants to obtain the same.

3. Directing the OPs to reimburse the deviation penalty, at the rate of RS.7,360/- to each of the complainants as the complainants were forced to pay, on behalf of the OPs a sum of Rs.7,36,000/- (Seven lakhs thirty six thousand) to the BBMP and obtain ‘Conditional Occupation Certificate’.

4. Direct the OPs to get the proper/valid sewage connection to the apartment project, as required by the BBMP, in default, the OPs to pay Rs.50,000/- to each of the complainants, so as to enable the complainants jointly to get the said work validly done. 

5. Direct to make payment of RS.514/- to each of the complainants towards the dues of Rs.51,420/- claimed by the Bangalore Electric Supply Company, as demanded by its three letters, all dated 01.05.2012, in respect of the common meters, installed in the buildings so as to enable the complainants to do the needful in that regard. 

6. Direct to substitute the water storage tank by proper and prescribed size/capacity, in default the OPs, to pay Rs.5,000/- to each of the complainants, so as to enable the complainants to get the work done.

7. Direct the OPs to install and operationalize the Water Treatment Plant, in default, the OPs to pay Rs.4,000/- to each of the complainants, so as to enable them to get the work done.

8. Direct to provide, Jogging Park, Multipurpose Hall, Land-Scaped Area, Water Softener, as per the promises and assured in the brochure in the Project, for the benefit of the complainants, in default, the OPs to pay Rs.20,000/- to the complainants, so as to enable them to get the needful done.  

1. Direct to hand over all the original documents of          title-deeds to the land, approved building plan,  electrical/water/sanitary designs and drawings, approvals given by various authorities for building construction, Guarantees, licenses, warrantees for lifts, Generators, water lifting pumps and all the gadgets and installations in the apartment/buildings to the complainants or the Association to be formed, so as to enable the complainants and others to avail those services, in default, the OPs to pay Rs.15,000/- to each of the complainants, to get the duplicates or true copies of all of them, from the concerned authorities.

10. Directed to rectify-redo all the incomplete/ substandard/ improper and defective items of work, as communicated by the complainants in their letter, dated 06.05.2012 (copy Enclosed) in default, the OPs to pay Rs.30,000/- to each of the complainants, so as to enable them to get such work properly attended. 

11. Award by directing to pay the personal compensation of Rs.2,00,000/- by way of liquidated damages to each of the complainants for all the inconvenience, sufferings and mental agony suffered by the complainants, due to the recalcitrant attitude of the OPs.

• Directing to pay Rs.5,000/- way of reimbursement to each of the complainants, towards costs/legal and other charges, expenses incurred, by the complainants in respect of the above. 

12. After registration of the case, registered notice were issued to each of the OPs and despite service of notice none of the OPs cared to appear to contest the complaint filed by the complainants. 

13. Thereafter the complainants filed the affidavit evidence of complainant No.1 to substantiate the allegation made in the complaint and written arguments were also filed.  Heard the oral arguments advanced by the learned advocate appearing for the complainants. 

14. The present complaint initially came to be filed by 100 persons who are purchasers of the 100 apartments in the apartment project undertaken by OPs titled as “SLS SAROVAR- MUSIC FOR THE SOUL – HOMES FOR LIFE”.  Along with the complaint an interim application under Section 12(i)(c) of the C.P.Act 1986 was also filed.  59 out of 100 complainants submitted the copies of GPA appointing Complainant No.1 as their constituted attorney in the above said matter and they are complainants No.2 to 5, 7 to 9, 12 to 16, 18 to 21, 23, 24, 26, 27, 29, 30, 40, 46 to 48, 50, 51, 54, 58 to 67, 70 to 75, 77, 81, 82, 85, 86, 88 to 90, 92, 93, 95, 96, and 99.  It is submitted that due to want of time, due to personal inconvenience the 40 other complainants i.e., complainants No.6, 11, 17, 22, 24, 25, 28, 31 to 39, 41 to 49, 52, 53, 55 to 57, 68, 69, 76, 78 to 80, 83, 84, 87, 91, 94, 97, 98 and 100 were unable to execute such GPA. 

15. After  hearing the learned advocate for the complainants and after perusal of the application filed under section 12 (i) ( c) of the C.P.Act 1986, the said interim application came to be allowed in apart, permitting complainants No. 1 to 5, 7 to 9, 12 to 16, 18 to 21, 23, 24, 26, 27, 29, 30, 40, 46 to 48, 50, 51, 54, 58 to 67, 70 to 75, 77, 81, 82, 85, 86, 88 to 90, 92, 93, 95, 96, and 99 to file complaints through complainant No.1 and complainant No.1 was directed to put signature on the complaint in the capacity of GPA holder of said complainants who have given consent in writing by executing GPA in his favour.  Since, the remaining complainants failed to execute GPA in favour of complainant No.1 as done by the remaining complainants, the complaint filed by them i.e., complaint No.6, 10, 11, 17, 22, 25, 28, 31 to 39, 41 to 45, 49, 52, 53, 55 to 67, 68, 69, 76, 78 to 80, 83, 84, 87, 91, 94, 97, 98 and 100 came to be dismissed by order dated 05.12.2014.

16. The complainant No.1 filed his affidavit by way of evidence reiterating the allegations made in the complaint.  We do not have any reasons to disbelieve the sworn testimony of complainant No.1, since, the OPs have not contested the complaint and the sworn testimony of complainant No.1 stands unchallenged. 

17. The complainants along with the complaint have produced the copy of the brochure of “SLS SAROVAR- MUSIC FOR THE SOUL – HOMES FOR LIFE” published by the OPs, true copies of the agreement of sale executed by the OPs in favour of complainants Sri.Prabhu Swamy.B.S. and  Sri.Bopanna I.M. being specimen, copy of the cost breakup letter indicating the payments towards Electrical meters/deposit, by Sri.Prabhuswamy and Sri.Amit Anupam, copies of the sale-deeds, executed by the OPs in favour of Sri.Prabhuswami.B.S and  Sri.Bopanna I.M., being specimen, copy of the letter given to the OPs, copies of the notice issued by BWSSB, Bangalore contending that the water supply and sewerage was unauthorized, copy of the receipt issued by the BBMMP, Bangalore towards improvement charges, copies of conditional occupation certificate, copies of two DD’s taken in the names of Sri.B.S.Prabhuswamy and Sri.SLN Swamy totalling to Rs.7,36,668/-, copy of the receipt issued by the BBMP, Bangalore towards compounding fees for issuance of occupation certificate, copies of the letters issued by the BESCOM, Bangalore towards the additional deposits, bearing RR Nos.MSYEH 55955, MSYEH 559584 AND MSYEH 56013, copy of the notice issued by BWSSB, Bangalore demanding to pay additional payment towards unapproved connection of water supply and sewerage facility, office copy of the legal notice dated 20.09.2013 and the copy of the police complaint dated 28.10.2013.

18. Carefully perused the affidavit evidence of complainant No.1 as well as the documents produced along with complaint. Also perused the citation relied upon by the complainants.  The learned advocate for the complainants vehemently argued that the complainants are gullible, unorganized and uninformed home seekers, suffering along with their innocent family members, virtually being left at the mercy of the OPs.  Inspite of service of notices from this Forum the OPs did not care to appear.  The OP No.3 Mr.P.Shekar Reddy, the Proprietor of OP No.2 is a sitting MLA of the Telangana State Assembly and OPs are very influential people and who are with the help of their men, money and muscle power coercing, threatening the gullible, unorganised and helpless complainants with dire consequences for initiating legal proceedings against them.  The learned advocate for the complainants referring to each para of the complaint brought to our notice the manner in which the OPs have betrayed the trust reposed in them by all the 100 purchasers of the apartments in the said housing project.  He argued that the complainants who were in need of accommodation on the promises made by the OPs that they would handover proper occupation certificate within a few days and complete the remaining items of incomplete work shortly, forced informally to take possession of their respective apartments in and around July-August-2011, pending completion/obtaining occupation certificate and execution of “Deed of Declaration” as promised.  Therefore, he argued that apartments are not yet formally legally handed over by the OPs to the complainants as agreed.

19. It appears from the material placed on record, that the OPs who were duty bound to complete the construction work of the said apartments in terms of the agreement of sale and the registered sale deed suddenly vanished from the scene, in the month of           August-2012 without making any arrangements for completion of remaining work in certain apartment and common areas and also without completion the legal requirements under the various Acts applicable to such housing project.  OPs have also failed to bring the said project under the purview of Karnataka Apartment Ownership Act 1972 by registering the “Deed of Declaration” as contemplated therein and made each of the complainants as the exclusive and independent owners of their respective apartments and have also failed to constitute law full association of apartment owners to manage the common areas and facilities as contemplated under the Karnataka Apartment Ownership Act 1972.  The complainants have listed their serious grievances about the defects and deficiency in services on the part of the OPs in the complaint.  The complainant No.1 in his affidavit evidence also sworn to the serious defects noticed in the said housing complex as well as the deficiency in services on the part of the OPs.  The OPs neither appeared in the complaint nor filed their version.  Absolutely we have no reasons to disbelieve the allegation regarding the serious defects in the said housing complex as listed in the complaint as well as in the sworn testimony of the complainant. Certainly, the complainants have to shell out huge amount to rectify the said defects and also to get the necessary conditional occupation certificate etc., as alleged in the complaint.  The OPs shall have to be directed to attend the defects noted in the complaint and in the event of default the OPs shall have to be directed to pay the money as demanded by the complainants. 

20. In view of the discussion made above, we are of the opinion that the complaint filed by the complainants deserves to be allowed and OPs shall have to be directed to complete the incompleted work in common areas, rectify the serious defects as mentioned in the complaint and also comply all the legal requirements as required under law.  Due to the callous attitude of the OPs the complainants must have been put to great hardship, inconvenience and mental agony all these days for which the OPs shall have to be directed to pay compensation of Rs.50,000/- to each of the complainants apart from cost of the proceedings of Rs.3,000/- to the complainants.

21. The order could not be passed within the stipulated time due to heavy pendency.  In the result we proceed to pass the following:-

ORDER

1. The complaint filed by the complainant No. 1 to 5, 7 to 9, 12 to 16, 18 to 21, 23, 24, 26, 27, 29, 30, 40, 46 to 48, 50, 51, 54, 58 to 67, 70 to 75, 77, 81, 82, 85, 86, 88 to 90, 92, 93, 95, 96, and 99 are allowed in part.

2. OPs are jointly and severally:-

1.  Directed to execute and register the “Deed of Declaration”, as contemplated under Section 2 of the Karnataka Apartment Ownership Act, 1972 and to hand-over all the properties, assets and documents to the Association within 3 months from today, in default, the OPs shall pay damages to the tune of Rs.5,000/-to each of the complainants, so as to enable them, jointly to do the need full, in that regard.
2. Further directed to obtain and handover the final “Occupation Certificate” to the complainants within 3 months from today, in default, the OPs shall pay Rs.25,000/- to each of the complainants, so as to enable the complainants to obtain the same.

3. Further directed to reimburse the deviation penalty, at the rate of Rs.7,360/- to each of the complainants within 3 months from today as they were forced to pay, on behalf of the OPs, a sum of Rs.7,36,000/-(Seven lakhs thirty six thousand) to the BBMP and obtain “Conditional Occupation Certificate”.

4. Further directed to get the proper/valid sewage connection to the apartment project, as required by the BBMC, within 3 months from today, in default, the OPs shall pay Rs.50,000/- to each of the complainants, so as to enable the complainants jointly to get the said work validly done.

5. Further directed to make payment of Rs.514/- within 3 months from today to each of the complainants towards the dues of Rs.51,420/- claimed by Bangalore Electric Supply Company, as demanded by its three letters, all dated 01.05.2013, in respect of the common meters, installed in the buildings so as to enable the complainants to do the needful in that regard.

6. Further directed to substitute the water storage tank by proper and prescribed size/capacity within 3 months from today, in default the OPs shall pay Rs.5,000/- to each of the complainants, so as to enable the complainants to get the work done.
7. Further directed to install and operationalize the Water Treatment Plant within 3 months from today, in default, the OPs shall pay Rs.4,000/- to each of the complainants, so as to enable them to get the work done.

8. Further directed to provide, Jogging Park, Multipurpose Hall, Land-Scaped Area, Water Softener, as per the promises and assured in the brochure of the Project, for the benefit of the complainants within 3 months from today, in default, the OPs shall pay Rs.20,000/- to each of the complainants, so as to enable them to get the needful done.   

1. Further directed to hand over all the original documents of title-deeds to the land, approved building plan,  electrical/water/sanitary designs and drawings, approvals given by various authorities for building construction, Guarantees, licenses, warrantees for lifts, Generators, water lifting pumps and all the gadgets and installations in the apartment/buildings to the complainants or the Association to be formed, within 3 months from today, so as to enable the complainants and others to avail those services, in default, the OPs shall pay Rs.15,000/- to each of the complainants, to get the duplicates or true copies of all of them, from the concerned authorities.

10. Further directed to rectify/redo all the incomplete/substandard/ improper and defective items of work, as communicated by the complainants in their letter, dated 06.05.2012 within 3 months from today, in default, the OPs shall pay Rs.30,000/- to each of the complainants, so as to enable them to get such work properly attended. 

3.  Further directed to pay compensation of Rs.50,000/- to each of the complainants for all the inconvenience, sufferings and mental agony suffered by them due to their recalcitrant attitude together with cost of Rs.3,000/- to each of the complainants towards cost of this litigation.

4. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 15^th day of September 2015)

MEMBER                               MEMBER                              PRESIDENT

NRS*

C.C.No.1119/2014

Witness examined on behalf of the complainants Sri.Prabhuswami.B.S.

OPs Nil

MEMBER                               MEMBER                              PRESIDENT