BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 15^thJUNE 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

SMT.LAVANYA M. RAI                 : HON’BLE MEMBER

ORDERS IN

C.C.No.169/2011

(Admitted on 04.05.2011)

Advaith Apartments Owners Association,

Constituted under the provisions of

Apartment Ownership Act, 1972,

Having its office at Kodialguthu West,

Mangalore, represented by its Vice President

Mr. Poovappa V,

S/o late Rama Gowda,

Aged about 53 years,

Residing at Flat No.102, Advaith Apartments,

Bhagavathi Nagar, Kodialguthu (West),

Mangalore  575 003.

                                                                                  ….. COMPLAINANT 

(Advocate for the Complainant: Smt. MNA)

VERSUS

Mr. Ganesh Shetty K,

S/o Late Krishna Shetty,

Aged about 41 years,

Proprietor of M/s Apoorva Associates,

Asheesh Apartments, Kodialbail,

Mangalore  575 003.

                                                                  ….............OPPOSITE PARTY

(Advocate for the Opposite Party: Sri KDR)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

     The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

The complainant claims is an association constituted under the provisions of Karnataka Apartment Ownership Act, 1972 (for short Act).  The opposite party is a promoter and builder by profession and engaged in promoting and building residential and non-residential buildings in Mangalore and constructed Advaith Apartment at Kodialbail village of Mangalore Taluk in R.S. No.469.2C1, T.S No.308/2C1measuring 4.75cents and R.S.No.469.2C1, T.S. No.308/2C1 measuring 15 cents totally measuring 19.75 cents.  The members of the complainant association are the purchasers of apartments under car park and undivided rights in the land and common areas and facilities. They executed believing assurance of opposite party who purchased the undivided interest in the above land as per separate sale deeds executed by opposite party executed GPA in favour of opposite party on the assurance that he would get the land and proposed building to the provision of the Act by registering deed of declaration.  The complainantassociation has beenfunctioning as per the Rules and Regulations attached to the Deed of Declaration dated 20.12.2004 submittedunder the provisions of the Act.   Opposite party has allotted the respective flats to every undivided interest holders in the year 2004.05 and since complainants members took possession of their respective flats and are in actual possession and enjoyment of the same. Immediately on taking possession the members of the complainant association noted defects in the construction andincomplete work done and defects for lack of documents.  The opposite party in spite of contacting him did not set right the things.  Ultimately the complainantapproachMangalore City Corporation and obtained the approved building plan and licence under R.T.I Act in September 2010. They tabulated the defects namely the location of generator room not in as per the plan, as per approvedplan the extent of land in DOD only 15 cents is mentioned by leaving 4.75 cents left out on the North eastern sides.  Only 2 nos. flat in the 6^th floor as per approvedplanbut opposite party constructed 4 flats in the 6^th floor.  The transformer is shown in the South Eastern side in the approvedplan but only one number provided for both Advaith Apartment and also Amrith Apartment of the same builder though separate transformer is required. Parking Nos. 14, 15, 16, 17, 18 is shown inthe land in the northeastern side of the plot is excluded from Advaith Apartment premises by illegally constructinga wall separating this 4.75 cents by opposite party and now the wall was removed by Corporation after compliant.  Alleging deficiency in service and also inconvenience caused to the complainant seeks the relief including damages against opposite party.

2.    Opposite party in the version contend he obtained completion certificate of the Apartment on 31^st May 2006 and handed over possession to the respective owners long back.  Hence the complaint filed is barred by time.  Opposite party admitted he is a promoter and builder by profession and he engaged in promoting and building residential and non residential building in Mangalore under the trade name Apoorva Associates.  Allegation that Apoorva Associates at Kodialbail Village of Mangalore Taluk was constructed in R.S.No.469.2C1, T.S No.308/2C1 measuring 4.75 cents but admitted construed the apartment inR.S.No.469.2C1, T.S No.308/2C1 measuring 15 cents of land.  Opposite party has not sold any undivided right to complainants or its members in the aforesaid 4.75 cents of land.  Opposite party admits at the time of purchasing undivided interest in the properties by the member ofcomplainant he has shown building license of the proposed building and floor plan but denied it was disclosing the extent of the land required by the proposed building.  Complainants member have purchased their respective apartment and undivided interest in the land after obtaining necessary legal opinion and verifying records from their respective advocates.  Immediate notice of certain defect by the members of the complainant is disputed.  Opposite party is not owning any flat in the apartment till December 2010.  Complainants have never invited any meeting to opposite party was staying for about 5 years in the said building.  At the time of purchase of apartment the respective purchasers of the apartment member have obtained copies of approved building plan license and other documents from opposite party.   Hence the allegation that they obtained copies from City Corporation under R T. Act inSeptember 2010 is denied.   Allegation of spending for defects painting, drainage etc. by complainants is denied.  Hence seeks dismissal of the complaint.

3.     In support of the above complaint Mr. Poovappa Vfiled affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C8 and Court Document No.1 as detailed in the annexure here below.  On behalf of the opposite partyMr. Ganesh Shetty K (RW1) Builder, also filed affidavit evidence and answered to the interrogatories served on him and produced documents not marked.

4.      In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. Whether complaint is barred by time?
3. If so, whether the Complainant is entitled for any of the reliefs claimed?
4. What order?

The learned counsels for both sides filed notes of arguments.  We have considered entire case filed on record including evidence tendered by parties.   Our findings on the points are as under follows:

              Point No. (i): Affirmative

               Point No. (ii) :Affirmative i.e. Barred by time

               Point No.(iii) : Negative

               Point No.(iii): As per the final order.

REASONS

5.     POINTS No. (i):That the complainants’ members of the associationpurchasedflat in theAdvaith Apartmentconstructed by opposite party and there by the relationship of consumer and service provider between the parties is undisputed. The allegation of complainantsof deficiency in service of not providing car parkingslot and infact reducing the extent of the area of the land from 19.75 cents to 15 cents which in effect amounts to misrepresentation as well as unfair trade practice according to the complainant on the part of opposite party. However these weredenied by opposite party on the count he mentioned only 15 cents under the said deed of declarationto the respective flat owners and in the deed of declaration only 15 cents for construction of the AdvaithApartments is mentioned. Hence there is serious dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.  Hence we answer point No.1 in the affirmative.

6.POINT NO. (ii):Opposite party is raising pertinent question of complaint is barredby limitation in as much as the completion of construction work ofAdvaith Apartments in 2005.06 and immediatelythereafter the constructed building flats were delivered to the members of the complainantsassociation.  Hence the complaint filed in 2011 is hopelessly barred by time.

7.     Reference was made on this count to various decided cases on behalf of opposite party National Consumer Disputes Redressal Commission, New Delhi inV K Chaturvedi vs U P AwasEvamVikasParishad (Assistant Commissioner) &Anrreported in III (2006) CPJ 369 (NC) referred to section 24A of C P Act it is held that in respect of housing when the possession given in 1995 the complaint alleging deficiency in service was filed in 2001 held not maintainable as time barred.

8.     Similarly the view expressed by the National Commission in Pushpa Builders Flat Buyers Assn vs Pushpa Builders Ltd II (2002)CPJ 83 (NC) wherein when the possession of flat was delivered to the complainants in 1995.1996 and the complaint field in 2000 it was held that the complaint is barred by time. 

9.     In State Bank of India vs M/s B.S. Agricultural Industries (I) 2009 (4)KCCRSN 250 the judgment by the Apex Court inthis reported case it is held that even when no period limitation was raised it was the duty ofthe Forum under section 24.A of C P Act to be effect to it and the Forum would be committing an illegality still if it proceeds with the merits of the case.

10.     However the learned counsel for complainant referred to reported case in West Bengal Agro Industries Corporation vs Shri Bijoy Kumar Toy &Anrin Revision PetitionNos. 850.851 of 1996 of NC dated 5^th August 1999 in this case itwasdelay in filing the case and the decision given on the delay point of limitation cannot be raised.

11.     Inanother case ChandrakantMahadev Kadam vs Asstt. Engineer, MSEB, Atpadi&Orsthe National Commission in order dated 29.9.2003 in Revision PetitionNo.604 of 2003 it was held that while assessing damages the Consumer Forum show cooperation of them due in the position of the complainantas how he suffered.

12.     In the case on hand there is nothing on record to show from 2005.06, as the existence dates on which the member of the complainants association took possession of the flats from opposite party is not specifically stated, assuming that the members of complainant association completed taking possession of the flat from opposite party in 2006 the complaint field in 2011 in our considered view it is barred by time in view of the section of 24.A of the C P Act.

13.    It is to be noted allegation made by the complainants against opposite party of not providing car parking facilitywhich were earlier marked in 4.75 cents of land of the total extend of 19.75 cents which is wherein parking 15 to 18 were providedin the open space of the 4.75 cents of land.  We fail to understand why the owners of these flats who purchased from opposite party did not raise their little finger, when even as per Commissioner Report the car parking area marked are in congested area cannot be parked and in the common passage car parking was shown but no such complaint were made by the members of the complainants to opposite party and no steps were taken.   Hence we are of the view it is late in the day for complainant and its members of complainant to make an issue of it.  Hence we are of the view this complaint is hopelessly barred by time.  Hence point No.2 answered in the affirmative.

14.POINT NO. (iii):Even otherwise on coming to the facts on merits Ex.C4 is the deed of declaration dated 20.12.2004 a registered document wherein opposite party also as GPA holder of the member of the complainants association which was signed on behalf of the member by opposite party himself as power of attorney holder of these members of complainant and it was signed registered on 20.12.04.  This document mentions the extent of land on which the approved building is to be built as 15 cents only.  Extent of R.S No.469.2C1 T.S.No.308.2C1 4.75 cents and R.S 469.2C1 T.S 308.2C1 10.25 cents totalling 15 cents.   However the copy of the sketchcomplainantsobtained and producedat Ex.C1 the constructionlicence issued by MCCon 12.5.03 to opposite party the attached approved plan shows the total extent under the extent of site as 799.2 sqmt or 19.75 cents it also mentions 5 car parking spaces i.e. car parking spaces No 14 to 18 on the North Eastern side of the entire site.  In sheet no.2 in the sites plan in ground plan also i.e.  sheet no.1 only parking slot 1 to 12 is shown.  It also shows at sheet No 2 mentions the electrical transformers on the South Eastern side and generator room in the construction portion at North Eastern corner of the apartment building. Ex.C2 is ground floor plan of the building.  It shows only 12 parking slots. 

15.     Ex.C3 is the copy of the sale deed executed by opposite party in favour of Mr. Poovappa V the Secretary of Advaith Apartments and Smt. AshaK Nhis wife under which they purchased undivided interest of 4.40% of land in T.S.No.308.2C1 R.S.No. 469.2C1 converted measuring an extent of 15 cents which is shown as South Eastern out of 49 cents. Even at Ex.C4 the deed of declaration also opposite party mentioned the total extent of land as 15 cents in the two surveynumbers as mentioned at Ex.C3.   At Ex.C4 the sketch attached show the car parking are marked from 1 to 14 in the ground floor.  There is no mention of car parking space from 15 to 18 in sketch attached to Ex.C1 the construction licence dated 12.5.03.

16.     However as seen from Ex.C4 at page 16 wherein the table detailing the apartment number and car parking slots, the super built up area in sqft name of the owner to whom it is also allotted and the percentage of right are mentioned. We are concerned with thedetail of flat Nos and car parking slot number.  They tabulated here below:

17.     Ongoingthrough the abovetable it is clear there is no car parking mentioned in respect of flats Nos. 104, 201, 204,304,402,404, 502, 503, 504, and 604.  Hence in the circumstances even though at Ex.C1 in the approved plan 18 car parking slots were shown, Ex.C4 the DOD does not contain any car parking promised by opposite party.   Hence the claimof the complaint made on behalf of its members that sufficient car parking is not provided on this count cannot be accepted. 

18.     Now we have to consider as to the content of the Commissioners Report. Infact in this case one Mr. M S Nataraja, Selection Grade Lecturer, Karnataka (Govt.) Polytechnic, Mangalore has filed his inspection reports along with photographs as to deficiency in the construction work.  Referring to the commissioner sreport he has tabulated his observations on the points referred to him as requisitioned by the complainants counsel. We may rather refer to the tabulated report of the commissioner.  To better understand the scanned copies are as follows:

19.     In fact as seen from the above the total extent available at spot is 19.75 cents. It is also seen from commissioner’s report instead of a separate transformer single provided to two apartment buildings as claimed in the complaint.   He also notes that in 6^th floor construction of 2 flats in the approved sketch there are only mention of 2 they constructed 4 flats in the 6^th floor. He also mentions in both Advaith Apartment and to Amrith Apartment single transformer is provided.  He also mentionedviolation of the licence of building plan as insufficient car parking space and insufficient car parking slots.  He also mentions that area provided for car parking in the spot is less than the area defined by the MCC.  It is notnecessary to consider in detail for these variations.  Suffice to mention as far as car parking slot is concerned as seen from Ex.C4 the DOD car parking is not provided to all the flats.  As referred earlier in respect of 11 flats in Advaith Apartments building opposite party has not made any promises of flat Nos. 104, 201, 204, 304, 402, 404, 502, 503, 504, and 604.  Hence the members of the complainants association especially the owners of the flats mentionedabove cannot complaint of no car parking provided by opposite party. Wherein no flats promised by opposite party at Ex.C4 can comply against not providing car parking facility.

20.     Another aspect to be noted is in the violation of the Municipal Licence granted for construction to opposite party as per Ex.C1 and the attached sketch approved plan therein there are mention of  car parking and also the area of 15 cents mentioned at Ex.C4 though in the approved plan it is mentions as 19.75 cent.   Hence even on this count we are of the view complainants cannot make any issues of not sparing 4.75 cents to the complainants.  If at all complainants still feel aggrieved on this count their remedy inour considered view could be elsewhere.

21.   In respect of other objections also, we are of the view complainants having slept over these aspects all these years and thereby accepted the situation as it existed now cannot complain after the expiring of the period of limitation of 2 years mentioned in section 24.A of C P Act.  Under the circumstances we answer point No.3 in the negative.

22.POINTS No. (iii):Wherefore the following

ORDER

The complaint is dismissed.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 15directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the15^thJune 2017)

             MEMBER                                                  PRESIDENT

      (LAVANYA M. RAI)                         (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                   D.K. District Consumer Forum

                 Mangalore                                                 Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1 Mr. Poovappa V

Documents marked on behalf of the Complainants:

Ex.C1: Certified copy of the licence

Ex.C2: Ground floor plan

Ex.C3:Notarised copy of the sale deed executed by the opposite party in respect of the apartment

Ex.C4:Deed of declaration registered as document No.4929/2004.05 Dated 20.12.2014

Ex.C5:Office copy of the legal notice dated 04.10.2010

Ex.C6: Postal Acknowledgment

Ex.C7:Copy of letter issued by City Corporation dated 28.01.2011

Ex.C8:  Copy of the letter dated 30.03.2017 of Advaith Apartment Owners Association

Court Document No.1: Commissioners Report

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. Ganesh Shetty K,Builder

Documents marked on behalf of the Opposite Party:

 Nil 

Dated: 15.06.2017                    PRESIDENT