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

DATED 22^ND DAY OF MAY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. To direct the OP to pay damages of Rs.5,00,000/- to the complainant.
2. Direct the OP to finish the pending work of amenities at the earliest which are complete the second elevator, complete the swimming pool, complete the co-workspace with the table and chair, to provide 24/7 electricity backup, complete the basket court with proper safety for the children, complete the walking/jogging path in very good condition without any broken tiles.
3. Pass any other order that this Hon’ble Commission deems fit.

2. The case set up by the complainant in brief is as under:-

The complainant has purchased flat No.702, 7^th floor in Tower 2, in Block D constructed in multi storied building known as Elegant Whispering Winds by the OP company. The complainant also entered into construction agreement with the OP on 22.08.2019. As per the construction agreement there was a deficiency in the specifications amenities and the possession was not completed and handed over to the complainant on time which was on or before September 2019

3. Inspite of repeated demands by the complainant the OP and his company have not fulfilled the terms of the agreement relating to specification and amenities.
4. The OP has not completed the second elevator and not constructed the swimming pool and co-work space with table and chairs were not provided and there is no 24X7 electricity backup and quality of basket court is very poor and there is no safety for the children and the walking and jogging path is in very poor condition and the other inmates of the apartments have also sustained injury while using the path for walking due to broken tiles which was still not rectified by the OP.  The complainant has suffered due to the deficiency in service on the part of the OP. When the OP have not completed the amenities as promised by him and failed to perform his obligation and only gave false and empty promises for completing the unfinished work, the complainant got issued legal notice on 11.04.2023. Inspite of service, the OP has not issued any reply. Hence the complainant has filed this complaint.
5. In response to the notice, OP appears and files version stating that the complainant has purchased the flat on 30.12.2019 after full inspection of the flat and satisfaction relating to amenities in the project. The complainant has declared in the sale deed that the amenities and all other facilities stood completed as on the date of the purchase of the flat.  The complainant after obtain the sale deed on 30.12.2019 has filed this complaint after lapse of three year six months and the complaint is barred by time as per sec 69 of the C.P.Act.  
6. It is further case of the OP that the builder has already provided one elevator and further agreed to provide additional elevator. The flat owners were doing interior work for their flats and they requested to fix the second elevator of the completion of the interior work of their flat. Now the flat owners have requested to install the second elevator and the same is already installed.

7. It is further case of the OP that he has not agreed to provide the co-work space with table and chair.  Even though there was no promise to provide the co-work space amenity in the brochure or sale deed the OP has set up a co-work space in the indoor stadium.
8. It is further case of the OP that he has completed the swimming pool and accessible to the residents, working diesel generators already installed and is currently providing 24X7 electricity back up and also provided jagging and walking path.
9. It is further case of the OP that the complainant has not raised any issue in so far as his flat is concerned. He has only raised issue with regard to common amenities.  The builder has completed all the amenities claimed by the complainant and no other flat owners have raised any objection regarding amenities except the complainant.
10. It is further case of the OP that the complainant is due an amount of Rs.1,24,000/- to the builder towards additional work done by the builder for his flat and even today he has not paid the amount. When the builder has demanded the said amount, the complainant has filed this false complaint only for illegal gain and to avoid the payment.
11. It is further contention taken by the OP that the complainant and his wife have purchased the flat by way of sale deed from M/s Elegant Builders and Developers but has filed this complaint only against the individual person OP who is one of the partner of the firm rather than filing against the firm. Hence the complaint is bad for non-joinder and mis-joindr of parties.

12. It is further case of the OP that it is clear from the sale deed dated 30.12.2019 the complainant got sanctioned the loan on 30.12.2019 immediately on the same day the builder executed the sale deed and delivered the possession of the flat on the same day. An amount of Rs.7,00,000/- was paid initially by way of cheque and Rs.50,00,000/- was sanctioned by way of house loan on 30.12.2019 to the complainant. Therefore there is no delay on the part of the OP in delivering possession of the flat. The OP could not have delivered possession of the flat without executing the sale deed.
13. This OP have provided all the amenities as agreed and the claim of the complainant is nothing but false. The complainant has filed this complaint to extract money from the OP and also to avoid payment to the OP. there was no deficiency of service. Hence prays for dismissal of the complaint with a direction to the complainant to pay Rs.5,00,000/- as compensation to the OP.
14. The complainant has filed his affidavit evidence and relies on 04 documents.  Affidavit evidence of official of OP has been filed and OP relies on 07 documents.
15. Heard the arguments of both parties. Perused the written arguments filed by both the parties.
16. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

17. Our answers to the above points are as under:

Point No.1:  In the Negative

Point No.2: In the Negative

Point No.3: As per final orders

REASONS

18. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence, written arguments and documents.
19. In support of his contention complainant has filed his affidavit evidence and relied on four documents. Ex.P1 is the Copy of Occupancy certificate, Ex.P2 is the Copy of construction agreement, Ex.P3 is the copy of the sale agreement, Ex.P4 is the Copy of khata certificate.
20. On the other hand OP filed his affidavit evidence and relied on seven documents, as Ex.R1 is the Copy of sale deed dated 30.12.2019, Ex.R2 is the Copy of brochure, Ex.R3 is the copy of invoices with regard to first and second elevators, Ex.R4 is the copy of invoices with regard to power back generators, Ex.R5 is the Copies of whatsapp chat and Ex.R6 is the Photographs.
21. It is clear from the evidence and documents produced by both the parties that the complainant has purchased the flat from M/s Elegant builders and developers as per Ex.R1 on 30.12.2019. On perusal of Ex.R1 it is clear that the OP is one of the partner of the firm. The complainant has filed this complaint only against the OP who is a partner in the M/s Elegant builders and developers without making the firm and the other partners as party in this complaint.
22. The main grievance of the complainant is not relating to his flat and it is only relating to the common area. The grievance of the complainant is that the OP has not completed the amenities like second elevator, swimming pool, co-work space with table and chair and 24X7 electricity back up and basket ball court and walking and jogging path.  The complainant has not even produced the sale deed executed by the OP and M/s Elegant builders and developers in their favour for the best reasons known to him.  He has produced only the tax paid receipt and occupancy certificate and construction plan and sale agreement.
23. It is pertinent to note here that the complainant has taken possession of the flat on 30.12.2019 immediately after execution of the sale deed and he was put in possession of flat on the same day. He has also clearly admitted in his sale deed that the OPs have completed all the amenities and all other facilities on the date of purchase of the flat. The complainant has not filed this complaint immediately after taking possession of the flat he has filed this complaint after lapse of three years six months after execution of the sale deed.  When the complainant has clearly stated in the registered sale deed about the completion of all the facilities and the amenities provided by the OP now he has filed this complaint by producing only the sale agreement without even producing the registered sale deed executed by M/s Elegant builders and developers. In addition to this the complainant has made only one of the partner as a OP in this case.  The documents produced by the OP as per Ex.R2 to R6 clearly discloses that the OP has provided all amenities as demanded by the complainant.  The second elevator was not fixed as per the request of other inmates of the apartment as they were all doing interior works. They have further requested for fixing of the second elevator only after completion of their interior works.
24. Under these circumstances it is clear that the complainant has failed to establish the deficiency of service and unfair trade practice and negligence on the part of the OP. Hence the complainant is not entitled for relief.  Hence we answer point No.1 in and point No.2 in the Negative.
25. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is Dismissed. No costs.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 22^ND day of MAY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;