BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 15^th JUNE 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                  : HON’BLE MEMBER

ORDERS IN

C.C.No.339/2012

(Admitted on 20.11.2012)

1. Asheesh Apartment Owners Association,

    Constituted under the provisions of

    Apartment Ownership Act, 1972,

    Having its office at I cross Road,

    Kodialguthu East,

    Mangalore, represented by its

    President & Treasurer.

(a)  Sri. Chandrkanth Pai,

       S/o Late Ananth Pai,

       Aged about 47 years,

       Residing at Flat No.103, Asheesh Apartments,

       1^st Cross road, Kodialguthu (E),

       Mangalore  575 003.

 (b)  Mr. Ganesh Bhat,

       S/o Subramanya Bhat,

       Aged about 48 years,

       Residing at Flat No.201, Asheesh Apartments,

       1^st Cross road, Kodialguthu (E),

       Mangalore  575 003.

2. Sri. Chandrkanth Pai,

    S/o Late Ananth Pai,

    Aged about 47 years,

    Residing at Flat No.103, Asheesh Apartments,

    1^st Cross Road, Kodialguthu (West),

    Mangalore 575 003.

3. Mr. Ganesh Bhat,

   S/o Subramanya Bhat,

   Aged about 48 years,

   Residing at Flat No.201, Asheesh Apartments,

   1^st Cross Road, Kodialguthu (West),

   Mangalore  575 003.

                                                         ….......COMPLAINANTS

 (Advocate for the Complainants: 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 DRK)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

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

The brief facts of the case are as under:

The complainant No.1 is an association constituted under the provisions of Karnataka Apartment Ownership Act 1972 (for short Act of 1972) opposite party being a promoter and builder by profession and is engaged in promoting and building residential and non residential building in Mangalore.  Among other residential apartments constructed ASHEESH APARTMENTS at Kodialbail Village.  The members of complainant No.1 as No.2 and No.3 are the purchasers of the apartments situated at the said Asheesh Apartments along with car park undivided rights in the land and also common areas and facilities.   At the time of purchasing of undivided interest in the aforesaid properties by the complainants and member of the complainant No.1 the opposite party has shown building licence for the proposed building and floor plan approved by licence No. E4:BA 95:2000.01/KANIPAA 644:2000.01 dated 11.12.2000 issued by Mangalore City Corporation and opposite party has made many assurance and promise  before the sale in favour of the complainantNo.1. Believing on the words the members of complainant No.1 have purchased the undivided interest of the property in the land under separate sale deeds executed by opposite party and complainant No.1 had executed GPA in favour of opposite party.  Opposite party obtained GPA stating that he would get submit land and the proposed building to the provisions of the Act by registering the Deed of Declaration and got the same registered under the Act of 1972.  The entire Asheesh Apartment building constructed by opposite party and each owner were allotted separate apartments as per the terms of the agreements entered.  After construction of the building condominium opposite party has allotted the respective apartment to each undivided interest holders in the year 2001-02.   The complainant’s members took possession of their respective apartments and are in actual possession and enjoyment thereof.   Opposite party No.1 retained the 1 shop measuring 300 sqft with him and also retained 2.42% undivided right in the land and common areas and facilities.  All the apartments in the Asheesh Apartment Building were sold to the complainant’s members and all of them are in actual possession and enjoyment of respective apartment sold their favour.   He further states that even despite demands opposite party has not handed over the document and the licence of the construction in the association.  The complainants obtained approved building plan and licence etc. in June 2012 from Mangalore City Corporation. On verification it was found there were violations in the construction from the original approved plan.  It was also reveals that opposite party obtained altered approved plan.  Complainant’s also tabulated the violation from the old documents. As such complainant’s request opposite party despite demand filed complaint seeking remedies as mentioned in the complaint.

2.      Opposite party filed version and states he obtained completion certificate of the apartment on 21.02.2002 and handed over the Apartment to the respective apartment owners in 2001.02 as admitted by the complainants in the complaint at para 3.  Immediately after possession of the apartment the formation of the Association made by complainants and the complainants is barred by limitation.  Asheesh Apartment was constructed by opposite party in land R.S.No.385.7A, T.S. No.218/7A measuring 13.25 cents is admitted.   But he is not the owner and one Mr. K. Sampath Shetty is owner.  Opposite party admits members of the complainant‘s Association are purchasers of Apartment situated in Asheesh Apartment along with car park undivided rights in the land and has only purchased 3 car parks and remaining car parks are situated in the common area.  Construction of Asheesh Apartment by opposite party and allotted of respective flats to every undivided interest holder in 2001.02 and ever since complainant’s members took possession at their respective flats and are in actual possession and enjoyment of the same. The member of the complainants never brought to the knowledge of opposite party any alleged defects to rectify the same immediately after occupying the apartment.  Opposite party never denied handing over of the original title deeds of the apartment building to the opposite party after the formation of the association but the complaints were not ready to take the custody of the original title deed by giving necessary endorsement to opposite party.  Alleging unfair trade practice by opposite party is false.   Opposite party purchase only shop measuring 300 sq.ft along with 2.42% of undivided right in the property at the time of deed of declaration. Opposite party then purchased another shop measuring 360 sq.ft along with 2.90% undivided right in all only 5.32% undivided right in the common area and facilities.  He has not extend illegally any portion of his shop.  The allegation that the total extend in the deed of declaration and title deed extend to 13.25 cents and undivided rights were the actual area in the documents shows 13.25 cents land but as per the enjoyment of the property it show only 12 cents of the land which is also reflected in the documents executed by the owner of the land in favour of the undivided interest holder.   Hence seeks dismissal of the complaint.

3.     In support of the above complaint Mr. Ganesh Bhat filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C10 and Court Document No.1 as detailed in the annexure here below.  On behalf of the opposite party Mr. Ganesh Shetty K (RW1) Builder, also filed affidavit evidence and answered to the interrogatories served on him and produced documents got marked at Ex.R1 to R8 as detailed in the annexure here below.

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 the 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 file 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):      The complainants claim they are complainant No.1 is an association formed under the Karnataka Apartment Ownership Act, 1972 which is not disputed by opposite party.  Even according to complainants the land was purchased jointly by the complainants and opposite party developer with proportionate rights in the land and the apartment allotted to each of the member of the complainants No.1 association these aspects are not in dispute.  Hence there is relationship of consumer in respect of the construction of the apartment building between complainants and opposite party the developer. 

6.      As far as the dispute is concerned the complainants raised numerous shortfalls including that the construction done was not by approved plan and construction to the original approved plan from the Mangalore City Corporation (MCC) an altered plan was got approved on date of issue of the occupancy certificate. This was not brought to the knowledge and information of complainants’ members by opposite party No.1 they came to known about it only in 2012 when the copies were obtained under RTI from MCC.  The allegations these construction by complainant is disputed by opposite party.   Hence there is a live 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.

7. POINT NO. (ii) & (iii):    It is surprising to know though complainants claim as buyers of flats constructed by opposite party in the land jointly purchased by complainants No.1 member and opposite party from the previous owner K. Sudhakar Shetty.  In the respect of the construction work by opposite party No.1 and what is the nature of construction what are the understandings between complainant No. 1 members and opposite party the developer there is no documents and much less written agreement.  There is also no document even according to the learned counsel for complainants as to what was the original approved plan by MCC obtained by opposite party No.1.  The claim of complainants is that they came to know about the original plan approved and altered approved plan only in 2012 when they obtained copies under RTI Act from MCC.

 8.     The main ground for complainants is that originally the land purchased is 13.25 cents from the original owner but now opposite party No.1 claims it is only 12 cents relevant allegation in para 16 of the complaint read thus:

16. Since the opposite party is using the shop premises allotted only for (Nere horeya angadi) for full fledged office premises which causes intolerable neusense for the complainants and its member.  As he was unauthorizely blocked common area and lot of customers vehicle are parked in front of the said office premises by his customer’s in the common area reserved for complainants members.  Thereby the members of the complainants No.1 and complainant No.2 and 3 are forced to keep their vehicle in congested areas. 

9.     One of the relief claimed by complainants is that the original documents were not handed over by opposite party to complainant No.1 association formed under Karnataka Apartment Ownership Act, 1972. 

10.     As we can find from the document produced by complainants Ex.C3 is the deed of declaration signed by K Sampath Shetty as GPA holder of his brother K Maniraj Shetty the original owner of the land purchased by the members of the complainant No.1 association. In fact as seen from this document complainants the members of Complainant No.1 association and the opposite party are described as grantor 3-9 and they are represented by their power of attorney is none other than opposite party of this case. The document mention the power of attorney is executed on 3.01.2001 by 4 of the members and 3 others by on 4.1.2001.  This document contains the signatures as executors only of K M Shetty and Ganesh Shetty K.  This document mentions the total extent of the land as 13.25 cents.  This complainants are not signatories to this documents the sketch attached to this deed of declaration also mentions the extent of survey no. R.S.No. 385/7A T.S No.218/7A extent 13.25 cents.  It has plan attached to this with signature of opposite party as opposite party with certification certified that it is the true copy of the approved plan.   Ex.C3 is dated 8.1.2001.  Ex.C5 is true copy dated 16^th June 2004 of the sale deed executed by K Sampath Shetty in favour of Ganesh Bhat Angraje who is complainant No.1B of the case.  It describes the schedule of the total extent of the R.S. No: 385/7A, T.S No:218/7A area extent as 13.25 cents.  Ex.C6 is certify copy of the sale deed executed by K Sampath Shetty in favour of P Chandrakantha Pai who is complainant No.1A.  Ex.R1 and R2 are also copies of sale deeds Ex.R1 executed by K Sampath Shetty in favour of opposite party No.1 and another Ex.R2 executed by Shivakumar K and Avaneesh Bhat sons of Seetharam Bhat and Subrahmanya Bhat in favour of opposite party No.1.  In respect of Ex.R3 is another copy of sale deed by K Sampath Shetty in favour of opposite party No.1 and complainant No.1A and other members of the association.  In all these sale deeds which are all of subsequent to January 2001 describes the total extent of the land as 13.25 cents.  These sale deeds were executed by K Sampath Shetty through his General Power of Attorney holder K Maniraj Shetty.  Thus there is misrepresentation as to the extent of land from the beginning by both opposite party and owner of land K Sampath Shetty his GPA holder K Maniraj Shetty.

11.     The opposite party during the proceedings produced documents which were the reliefs sought by the complainant in this case the documents are of interest in as much as the General Power of Attorney executed by K Sampath Shetty the original owner of this R.S. No: 385/7A, T.S No:218/7A 13.25 cents was executed by him in favour of his brother K Maniraj Shetty under Ex.R1 K Sampath Shetty sold his undivided interest in favour of Ganesh Shetty under Ex.R3 K Sampath Shetty through his represented by GPA Manirai Shetty executed the sale deed.  Ex.R1 is dated October 30, 2000. Ex.R3 is dated 6^th January 2001.  Ex.C5 is executed by K Sampath Shetty himself under dated 16^th June 2004 under which apartment with undivided rights and interest sold to Ganesh Bhat Angraje and Shoba C Kamath.

 12.     Amongst the original document produced by complainants there is a GPA executed by K Sampath Shetty in favour of his brother K Maniraj Shetty to administer and even the power to execute the sale deed of declaration on behalf of this original K Sampath Shetty was given to K Maniraj Shetty.   It was in respect of the very 13.25 cent of land in R.S. No: 385/7A, T.S No:218/7A it is dated 7^th October 2000. The RTC extract of this land produced shows for entry 2000.2001 as mentioned is 13 .25 cents but the GPA mentions the extent as 13.25 cents but made a note as (now are measurement found to be 12 cents).  Thus it is clear the original vender K Sampath Shetty was aware on 7^th October 2000 itself that though mentioned 13.25 cent in fact actual extent as only 12 cent but in subsequent documents executed by himself and also through GPA holder of sale deed his brother K Maniraj Shetty make mention of the extent of the land as 13.25 cents and not as 12 cents.  This original GPA is produced by opposite party.  Hence knowledge of original extent as 12 cents was to the knowledge from the very beginning is to be inferred to opposite party No.1 original owner K. Sampath Shetty and his GPA K. Maniraj Shetty.

13.     This only goes to show there was misrepresentation made by K Sampath Shetty as well as his brother power of attorney holder K Maniraj Shetty. But they are not parties to this proceedings as to the knowledge of such variance to the complainants cannot be attributed. Only thing that can be mentioned is there is no document to show that representation was made to complainants that the actual extent was 12 cents only but not 13.25 cents.   Ex.C5 mention of a car parking slot in ground floor to the buyer who is complainant No.1 (a).  But Ex.C6 sale deed of complainant No.1 (b) does not mention of any car park provided to the buyer. 

14.     Ex.C3 at page 12 note mention car parking slots provided in open ground with shed numbered 1 to 7 in the sketch No.II.  Admittedly possession of the flats to these members were given way back in 2001.  If no parking facility was provided since 2001 there is no explanation by these complainants why no complaint/action was initiated against opposite party for not providing car parking facility as per Ex.C3 with sketch II attached to Ex.C3.  It is not the case of complainants that they are deprived of car parking facility.  Further opposite party as GPA holder of complainants seems to have executed Ex.C3 and all other documents on behalf of complainants.  Hence we are of the view complainants cannot be heard to say of misrepresentation by opposite party at any stage.  As opposite party himself produced the original GPA executed by owner of the land K. Sampath Shetty in favour of his brother K. Maniraj Shetty executed on 7^th October 2000 mentioning extent as now 12 cents in place of 13.25 cents, it is subsequent to this deed of declaration was executed on 6^th January 2001.

15.     In Revision Petition Nos. 850-851 of 1996 National Consumer Disputes Redressal Commission, New Delhi in the order dated 5^th August 1999 held when there is delay in filing the case due to assurance of dealer (developer on facts) cannot raise the question of limitation.  However on facts opposite party is not just a developer but also General Power of Attorney holder of these complainants.  As to what are the terms and conditions of these GPAs, complainants have not produced GPA or at least copies of GPA before us.  Hence the claim of complainants they were not aware of the variation in extent from 13.25 cents to 12 cents cannot be accepted.

16.     Nextly as to the compensation claimed by complainants on inconvenience as to car parking areas and common area, they enjoyed it from 2001 till 2012 when filed this complaint without demur.  Hence they cannot be heard to say of non-existent rights. Hence question of awarding compensation does not arise.

17.     The allegation of complainants that they came to know about the deviations by opposite party in the construction work and in respect of the car parking area as well as a construction of two shops in the ground floor only when they obtained certified copies from the RTI in 2012 is not justification to make allegation against opposite party.  Hence we are of the view in respect of relief no. 21 (h), (I), (j), (k) (l) the claim of complainants is liable to be rejected.

18.     In respect of the non-delivery of original documents title deed opposite party has produced the original title deed before this Forum and also produced the forms for transfer of the common electricity meter to the complainant No.1 A and B is concerned it is now in the hands of the complainants to collect it from the Forum produced by opposite party.

19.       In respect of the prayer for vacating excess illegally occupied area by constructing shops is concerned as seen from the case file opposite party had two properties on the ground floor one as per original plan and another purchased as seen from the Commissioner’s Report the two shops in the ground floors as per the original plan measure 29.48 sq. metre and as per revised plan in this 36.95 sq. metre this comes to 397.7298 sq. ft. (1 sq. metre =10.764 sq. ft.).

20.     As seen from Ex.C3 the deed of declaration opposite party K Ganesh Shetty has 2.42 % undivided interest in the land.  As seen from page 8 of Ex.C3 opposite party was also granted shop No.3 at page 10 of Ex.C3 shop No.3 is shown as 300 sq ft of super built up area of guarantor 2.  Ex.R1 is the copy of the sale deed executed by K. Sampath Shetty in favour of opposite party under which undivided 2.42 % share in this property was sold and transferred to opposite party document is dated 30^th October 2000.  Ex.R2 is copy of another sale deed executed by Shivakumar K and Avaneesh Bhat under which they sold their undivided 2.90% share in the land to opposite party together with right to complete the construction of shop room No.004 on the ground floor of the super built up area of 360 sq ft.   Ex.C3 also mentions at page 10 shop No.4 measuring 360 sq ft with 2.90% of right allotted to Mr. Shivakumar K and Avaneesh Bhat who are guarantor No.9 in the document. Thus these guarantor No.9 under Ex.R2 dated 10^th May 2001 sold this shop No.4 to opposite party with this the total extent of ground floor two shop No. 3 and No.4 came to 660 sq ft i.e. 61.31 sq metre. 

21.     Thus under the two documents in respect of shop No. 3 and 4 the Commissioners Report mentions the extent of these two shops on the ground floor of Asheesh Apartment as per commissioners report as per the revised approved plan was 36.95 sq metre but as found out by commissioner in the ground floor of the Asheesh Apartment the shop occupied by M/s Apoorva Associates i.e. of opposite party that is an extent of 58.5 sq metre.

22.     Learned Commissioner has also mentioned the measurement of a plot on the ground floor is 72.17 sq ft but he also mentions another plot measurement of the car parking area shown in the original sketch is 65.95 sq ft.   He also mentions in the ground floor of Asheesh Apartment for parking 5 cars totally 72.08 sq ft space is shown.  He also mentions even parking 3 vehicles in this space is difficult.  He also mention in the open space mentioned in the sketch with deed of declaration is not correct and refers to page 9, 10 11 and sl.no.7 of deed of declaration. 

23.     Learned Commissioner also mentions in the ground floor of Asheesh Apartment the compound wall situated in front of the neighbouring two shop situated in the ground floor the compound wall was demolished and the work of the compound wall was done to suite the convenience of the Apoorva Associates.  He further mentions in the ground floor of Asheesh Apartment in the south western and western portion i.e. to the right side of the two neighbouring shop of M/s Apoorva Associates entry to access members of the Asheesh Apartment is restricted.  He also mention on the ground floor of Asheesh Apartment there were of one gate to the western side and 3 gates to the northern side.  He further mentions in front of M/s Apoorva Associates by demolition of the compound wall entry is made. 

24.    On considering these irregularity mentioned by the commissioner, there are another  3 to 4 inconsistency showed by the commissioner report, only highlights that even though facilities promised and shown in DOD as per Ex.C3 was not provided all these years from 2001 till 2012 these complainants kept quiet.  Hence even now it is not the case of complainants that they lack facilities promised what they alleged is that they came to know that the facility mentioned in the approved plan of 2001 was subsequently altered and modified plan was approved on the date of occupancy certificate issued by the Mangalore City Corporation.

25.     Thus it is clear that when there is no complaint made all these years now these complainants cannot raise their objection on these counts.  In any case these aspects involved complicated question of facts and evidence to be tendered.   Hence we cannot venture into giving a finding on these aspects as it may require a decision as to conclusion to be arrived at a full dressed trial not in a summary trial as now before us.  If so advised the complainants can approach Appropriate Authority for the redressal of their grievance.

26.     As far as relief No. 21 (c) as to dues/maintenance charges there is no allegation in respect of maintenance since 2001 or at least all these days who is making payment.  Hence the question of giving direction to opposite party as claimed in the relief No. 21 (c) does not arise.

27.     As far as Relief No.21 (d) of allegation to set right the car parking to Complainant No.2 and No.3 it is not the responsibility of this Forum to allot car parking and it is not case of complainants since getting possession of the flats, they never enjoyed car parking facility.  If really any one of the members of complainant association was denied car parking facility promised by opposite party, the complainant would have rushed to Forum much earlier.   Hence this prayer is rejected. In respect of these complainants No.2 and No.3 purchasers and the owner of the sale deed executed the question of this Forum allotting car parking does not arise.  Hence the relief No.21 (d) cannot be granted by this Forum.

28.     In respect of 21 (f) to provide separate electricity individual meter to all the flats owners is concerned opposite party has already produced before this Forum required form signed by him and it is up to the complainant to collect them from the Forum and move to the appropriate Authority.   Hence this relief does not survive for the consideration.  In case any further assistance of opposite party on this count is needed opposite party shall have to oblige the complainants on this count.

29.     As far as relief No. 21 (g) (h) and (i) (j) (k) and (l) is concerned this Forum cannot set right these things it is for the parties to approach the appropriate Authority/Forums.  In fact the relief claimed as per 21 (l) of effecting correction in deed of declaration is beyond scope of this Forum.  The relief claimed at 21 (k) for demolition of a compound wall & to give direction as per approved plan also cannot be considered by this Forum as it would amount to granting relief of mandatory injunction.

30.     In respect of relief 21 (e) and (n) damage we are of the view the question of the complainant having slept over the matter all these years even this relief cannot be considered hence refused.  Hence firstly the complaint is barred by time and none of the reliefs can be granted by this Forum.    Hence we answered point No.2 in affirmative and point No.3 in the negative.

31.       POINTS No. (iv):     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 19 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 15^th June 2017)

             MEMBER                                                PRESIDENT

     (T.C. RAJASHEKAR)                         (VISHWESHWARA BHAT D)

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

 Additional Bench, Mangalore                     Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1  Mr. Ganesh Bhat

Documents marked on behalf of the Complainants:

Ex.C1:11.12.2000: Certified copy of Licence issued by Mangalore  City Corporation

Ex.C2:21.02.2002: Certified copy of revised Licence issued by  Mangalore City Corporation

Ex.C3: 06.01.2001: Certified copy of Deed of Declaration

Ex.C4: 07.06.2012: Endorsement given by R.T.I Offices

Ex.C5: 16.06.2004: Notarised copy of Sale deed executed in favour of complainant No.3

Ex.C6: 30.10.2000: Certified copy of Sale deed executed in  Favour of complainant No.2

Ex.C7:                 : Electricity bill

Ex.C8:                 : Water bill

Ex.C9: 09.06.2012: Copy of letter issued by complainant

Ex.C10:17.07.2012: Copy of reply issued by complainant

Court Document No.1: Commissioner’s Report

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. Ganesh Shetty K, Builder

Documents marked on behalf of the Opposite Party:

Ex.R1: Xerox copy of the Sale Deed Doc. No.2256/2000.01 Dated 23.10.2000

Ex.R2: Xerox copy of the Deed of Sale Doc. No.437/2000.01 Dated 30.10.2000 

Ex.R3: Notaries copy of the Deed of Declaration Doc. No. 126/2000.01 dated 8.2.1.2001

Ex.R4: Xerox copy of the Completion Certificate issued by Mangalore Corporation dated 21.02.2002

Ex.R5: Notarised copy of the Building licence issued by Mangalore Corporation dated 11.12.2000

Ex.R6: Notarised copy of the Building licence issued by Mangalore Corporation dated 21.02.2002

Ex.R7: Trade Licence of Ganesh Shetty issued by Mangalore Corporation dated 04.04.2013

Ex.R8: Passport of Ganesh Shetty.

Dated: 15.06.2017:                                    PRESIDENT