CC No.1004.2014

Filed on 09.06.2014

Disposed on 15.12.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 15^th DAY OF DECEMBER 2016

CONSUMER COMPLAINT NO.1004/2014                                                                                                                                                                                                                                                   

PRESENT:

     Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

            PRESIDENT

                  Smt.L.MAMATHA, B.A., (Law), LL.B.

                        MEMBER

                  Sri.  BALAKRISHNA V.MASALI B.A., LL.B

        MEMBER

                                     V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 09.06.2014 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay compensation of Rs.20,00,000/- and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Opposite Party being the Promoter/Builder & Developer had entered into Sale Agreement with the Members of the Association assuring them that he would provide certain basic amenities namely Intercom facility from Security enclosure and Standard make of Lifts with Generator Back-up.  Based on the assurance and promises given by the Opposite Party, the Members, who are owners of the Flat purchased from the Opposite Party formed themselves into an Association, Registered as No.DRO/SJN/SOR/446, 2013-14 with the Registrar of Societies, Bangalore.  Though the residential Flat was not fully functional, having paid the full sale consideration towards the flat, Members occupied the Flat, in order to cut down on their rental, which in turn facilitates them to honour the EMI’s in time for the housing loan availed by them from Banks, besides the Opposite Party has also executed absolute Sale Deed in favour of the Members.   Though the Opposite Party had executed Absolute Sale Deed in favour of the Members of the Association and collected full sale consideration in respect of the Flat, the following facilities which were promised to be provided to the Members have not been provided despite the Members taking possession of the flat two long years ago:

1. Generator back-up for two lifts
2. Earmarking of Covered Car Park facility in the Stilt Floor
3. Intercom facility from the security enclosure
4. Club House with Gym
5. Mini Park
6. Play Ground for Children
7. Table Tennis Hall
8. Areas meant for common use namely Staircase leading to upper floors, and Corridors, incomplete work on the ceiling covering the entire corridors of the flats etc.
9. Lighting for the common area with Generator back-up
10. Safety Grills over the Terrace
11. Deposit Receipt for having paid BWSSB Deposits for providing Cauvery Water
12. Security Services to guard main entrance and rear entrance.

3. In many cases, as against the actual consideration paid for purchase of the flat, only a marginal amount had been shown in the Absolute Sale Deed for the purposes of Registration and the excess money collected from the Members of the Association towards Service Tax is yet to be refunded.  In few cases, the Opposite Party has not handed over the 2^nd set of keys in respect of the flat, despite repeated requests.  The Opposite Party has been undertaking additional construction over the existing building without securing plan sanction.  The Opposite Party has also illegally put up additional floor over the existing structure, without even ascertaining the structural stability or load bearing capacity.   The Opposite Party had assured the Members of the Association that he would arrange to provide Occupancy Certificate for the Flat Owners, besides to help them in securing Katha Certificate, thus depriving the members from availing additional loan.  The Opposite Party in the name of completing certain impending works on certain flats which has not been sold, has been causing disturbance to the aged persons, who seldom can relax at the fag end of their life.   The Opposite Party has let out few portions of the flat for commercial purposes as against the established norms of exclusively using the Apartment Complex for Residential purposes. The Opposite Party has not been coming forward to hand over the original title deeds and other documents of title to the Complainant, despite keeping informed of the formation of Association by the Flat Owners.  The Complainant issued Legal Notice through their Counsel.  The Opposite Party, despite receipt of the Legal Notice has been remaining silent, without carrying out any work.   Hence this complaint.

4. In response to the notice, the Opposite Party No.1 & 2 put their appearance through their counsel and filed their Common version.  In the version pleaded that the Complainant claims to be an Association represented by its General Secretary.  The person representing the Complainant stated to be an Association has not produced any document to indicate that he is lawfully authorized to represent the Complainant.   The details of the office bearers of the Association and document indicating that the person representing the Complainant is duly elected Secretary of the Association are not placed before this Forum.  The Complainant Association is not formed by consensus of majority of flat owners in the “Swarna Silicon Castle”.  Only few persons without intimating all the flat owners appear to have registered the Complainant Association.  The very formation of the Complainant Association is illegal and the procedure followed in the process of registration before the Registration of Societies is not in accordance with law.   Hence the Complainant is not entitled to present and prosecute the present complaint and denied that the Opposite Party has promised to provide all the facilities as mentioned in Paragraph-5(a) to (l) pleaded that the Complainant has added additional facilities which were never promised by Opposite Party and which do not find place in the registered sale deeds executed by Opposite Party.   The Opposite Party has provided 100 KV power for generator back up as some of the flat owners requested the Opposite Party for provision of generator back up for lighting purpose to their flats on consideration.   The installation of generator is already completed except extending the wiring to the distribution board.   The Opposite Party is also providing generator back up for lighting purpose to the flat owner.   The Opposite Party has provided one car parking facility for each individual owner of the flat as agreed in the Sale Deed and the marking will be done before handing over the building maintenance to the Flat Owners Association which is being formed with the consent of the majority of the owners.  Intercom facility from the Security enclosure is at the installation stage and will be completed in a short period.  Club House with Gym the said facility is not promised or agreed by the Opposite Party.   This is not finding place in any of the sale deed executed by the Opposite Party.   However the Opposite Party has provided party hall and yoga room facility.  Playground for children, the said facility is provided though not indicated or agreed in the sale deed.  Lighting for common area with Generator back up is already installed except extension of the wiring to the distribution board.   Safety grills over the terrace, there is parapet wall in the terrace and hence there is no need for safety grills.  The said facility is not agreed in the sale deed.  Deposit receipts for BWSSB to provide Cauvery Water, so far there is no water connection from BWSSB and the said facility is not agreed in the sale deed.    Borewell water is being provided to all the flats.   Security services to guard main entrance and rear entrance, the said facility is already provided and will be handed over to the Flat Owners Association which is being formed with the consent of the majority of the owners.  There is no privity of contract between the Complainant and the Opposite Party.  However, the allegation that the Opposite Party has shown only a marginal amount in the sale deed and has not indicated the actual consideration paid for the purchased of flat is denied as false and also denied that the Opposite Party has not handed over two sets of keys in respect of few flats and further denied that the Opposite Party is undertaking additional construction without sanctioned plan and the additional floor has been constructed without ascertaining structural stability or load bearing capacity.  The Opposite Party has started executing registered sale deeds only after completion of entire super structure construction.  The Opposite Party has never assured any of the flat owner that he would arrange to provide Occupancy Certificate and help them in securing Katha Certificate.  Presently the apartment complex has come within the administrative jurisdiction of BBMP.  The individual flat owners have to pay the property tax and obtain Katha Certificate.  Some of the flat owners have paid the property tax and obtained Katha Certificate. The Opposite Party has not let out any part of the flat for commercial purpose.  The Opposite Party has completed the pending works.  Only few of the works relating to back up generator is pending and the same is in progress and scheduled to be completed within a short period.  The allegation that there has been gross negligence and deficiency of service on the part of the Opposite Party is denied as false.   Hence prays to dismiss the complaint.

 5.    On behalf of the Complainant, the affidavit of one Sri.K.Jagan Mohan, working as General Secretary has been filed and closed his side.  The Opposite Party, Sri.Rambabu Vaka, has filed his affidavit by way of evidence.   Heard the arguments of both parties.  

6.     The points that arise for consideration are:-

1. Whether the Complainant is competent person to file this complaint ?
2. Whether the Complainant has proves the alleged deficiency in service by the Opposite Party ?
3. If so, to what relief the Complainant is entitled?

7.     Our findings on the above points are:-

                POINT (1):- Negative

               POINT (2):- Negative

                POINT (3):- As per the final Order

REASONS

8.   POINT NO.1:- The learned Counsel for the Opposite Party argued that the Complainant claims to be an Association represented by its General Secretary.  The Complainant stated to be an Association has not produced any document to indicate that he is lawfully authorized to represent the Complainant.   The details of the office bearers of the Association and document indicating that the person representing the Complainant is duly elected Secretary of the Association are not placed before this Forum.  The Complainant Association is not formed by consensus of majority of flat owners.  Only few persons without intimating all the flat owners appear to have registered the Complainant Association.  The very formation of the Complainant Association is illegal and the procedure followed in the process of registration before the Registration of Societies is not in accordance with law.   Hence the Complainant is not entitled to present and prosecute the present complaint. 

9. On the other hand, the learned Counsel for the Complainant argued that this complaint is filed by the “Swarna Silicon Castle Flat Owners Welfare Association” represented by its General Secretary.  All the flat owners were purchased from the Opposite Party formed themselves into an Association and the registered in accordance with the Registrar of Societies, Bangalore under Registration No.DRO/SJN/SOR/446, 2013-14 and the Complainant is a legal entity represented by its General Secretary, who is elected from the members of the Association, thereby, the Complainant is entitled to present and prosecute the present complaint. 

10. With this argument, on perusal of record in support of the case of the Complainant, the Complainant produced the Registration Certificate of “Swarna Silicon Castle Flat Owners Welfare Association” it is registered before the Registrar of Societies, Shivajinagar, under Registration No.DRO/SJN/SOR/446/2013-14 and also produced the Memorandum as well as terms and conditions of the Association.  As looking into the Memorandum, the Secretary of Association has been authorized to submit this Memorandum and Registration to carry out the transaction with the Registrar of Societies and further in this Memorandum Mr.K.V.S.N.Murthy is mentioned as President, Mr.Prasanna Kumar as Secretary.   In the Executive Committee List also discloses that one Mr.K.V.S.N.Murthy is the President of the Association, Mr.Prasanna Kumar is the Secretary, but the present complaint is filed by the General Secretary Mr.K.Jagan Mohan.  As looking into the Executive Committee List and also Memorandum, name of one Mr.K.Jagan Mohan does not found place, thereby Mr.K.Jagan Mohan is not duly elected as General Secretary of Complainant Association, as per the document furnished by the Complainant themselves.  Therefore, it is proper to accept the argument put forth by the learned Counsel for the Opposite Party that the Complainant is not entitled to present and prosecute the present complaint.  Hence, we answer this point is held in the negative.

11. POINT NO.2:- In the complaint, the Complainant alleges that the Opposite Party had executed Absolute Sale Deed in favour of the Members of the Association and collected full sale consideration in respect of the Flat, the following facilities which were promised to be provided to the Members have not been provided despite the Members taking possession of the flat two long years ago:

1. Generator back-up for two lifts
2. Earmarking of Covered Car Park facility in the Stilt Floor
3. Intercom facility from the security enclosure
4. Club House with Gym
5. Mini Park
6. Play Ground for Children
7. Table Tennis Hall
8. Areas meant for common use namely Staircase leading to upper floors, and Corridors, incomplete work on the ceiling covering the entire corridors of the flats etc.
9. Lighting for the common area with Generator back-up
10. Safety Grills over the Terrace
11. Deposit Receipt for having paid BWSSB Deposits for providing Cauvery Water
12. Security Services to guard main entrance and rear entrance.

12. In order to substantiate this, Sri.K.Jagan Mohan alleged to be the General Secretary of the Complainant filed his affidavit and reiterated the same. Except his interested version of Sri.K.Jagan Mohan, in support of this, he had produced the original brochure.  By looking into this Brochure, the Opposite Party had assured intending the flat owners to provide two lifts with Generator back-up and two staircases, intercom facility from security enclosure to each flat, reserved covered car parking in stilt floor, Club house with Gymnasium, Mini Park, Play Ground for Children, Table Tennis hall, but it has not mentioned in the complaint.  Further the Complainant also produced the photographs.  By looking into this photographs, the Opposite Party had provided club house, mini park and also car parking and playground for children.  Absolutely, there is no evidence to believe in the contention of the Complainant that as promised by the Opposite Party.   The Opposite Party had not provided two lifts with Generator back-up and two staircases, intercom facility from security enclosure to each flat, reserved covered car parking in stilt floor, Club house with Gymnasium, Mini Park, Play Ground for Children, Table Tennis hall, apart from that the evidence given on behalf of the Complainant is one Mr.K.Jagan Mohan alleged to be General Secretary of the Complainant Association, but he is not the General Secretary of the Complainant Association.   Thereby he is not competent person to give evidence on behalf of the Complainant in the present case.  Thereby, the Complainant fails to prove the alleged deficiency of service on the part of the Opposite Party. 

13. Further, as the defence taken by the Opposite Party.  The Opposite Party has provided all the promises as assured in their brochure by providing mini park playground for children, intercom facility from security enclosure, car parking as well as Generator back-up for two lifts.  Thereby, the Complainant fails to prove the alleged deficiency of service on the part of the Opposite Party.  Hence, this point is held in the negative.  

14. POINT NO.3:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is dismissed.  N cost.

Supply free copy of this order to both the party. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 15^th day of December 2016)

   MEMBER                    MEMBER             PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.K.Jagan Mohan, on behalf of Complainant by way of affidavit.

 List of documents filed by the Complainant:

1. Photo copy of the Registration Certificate
2. Photo copy of the Sale Agreement dt.09.12.2010
3. Photo Copy of the Absolute Sale Deed dt.02.07.2011
4. Photo Copy of the Legal Notice caused by a Member of the Association dt.15.11.2013.
5. Photographs showing the incomplete works yet to be undertaken by the Opposite Party.
6. Original Brochure Circulated amongst the flat purchasers by the Opposite Party
7. Phot copy of the Sale Agreement dt.09.06.2010
8. Photo Copy of the Registration Certificate
9. Resolution of the Association authorizing the General Secretary to file the complaint, Tender Evidence, mark documents, make statements, representation etc.
10. Photo copy of Bank Statement showing payments made towards BESCOM & BWSSB Deposits and email correspondences. 

Witness examined on behalf of the Opposite Parties:

1. Sri.Rambabu Vaka, who being the Opposite Party has filed his affidavit.

  List of documents filed by the Opposite Party:

                        NIL     

      MEMBER                 MEMBER         PRESIDENT