m/s Crescent Constructions V/S B.Purushotham shetty - Consumer Court Case

Karnataka

Bangalore Urban

CC/1445/08

B.Purushotham shetty - Complainant(s)

Versus

m/s Crescent Constructions - Opp.Party(s)

S.R. Hegde

20 Sep 2008

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/1445/08

B.Purushotham shetty						...........Appellant(s)
Vs.
m/s Crescent Constructions J.M Mehta Mr. Akamaluddin Sheriff Sumangal Enterprises						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED: 30.06.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 20th SEPTEMBER 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER COMPLAINT Nos. 1445, 1446, 1447, 1448, 1449, 1450, 1451, 1452, 1453, 1454, 1455/2008 COMPLAINT NO. 1445/08 Mr. B. Purushotham Shetty, COMPLAINANT S/o. B.D. Shetty, Aged about 46 years, Occupation Service, Residing at SF-10, Cresent Magna Apartment, Sultan Palya, RT Nagar, Bangalore 560 032. COMPLAINT NO. 1446/08 COMPLAINANT COMPLAINT NO. 1447/08 COMPLAINANT COMPLAINT NO. 1448/08 COMPLAINANT COMPLAINT NO. 1449/08 COMPLAINANT COMPLAINT NO. 1450/08 COMPLAINANT COMPLAINT NO. 1451/08 COMPLAINANT COMPLAINT NO. 1452/08 COMPLAINANT COMPLAINT NO. 1453/08 COMPLAINANT COMPLAINT NO. 1454/08 COMPLAINANT COMPLAINT NO. 1455/08 COMPLAINANT Mr. C. Balasubramanian, S/o. Mr. S. Chidambarathanu Pillai, Aged about 37 years, Occuptation Pvt. Service, Residing at TF-14, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. M.M. Chengappa, S/o. Mr. M.C. Mandanna, Aged about 39 years, Residing at SF-11, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Parag Karia, S/o. Late Sri. B. P. Karia, Aged about 44 years, Residing at TF-11, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Binukumar, S/o. K.M. Mudappa, Aged about 43 years, Residing at TF-12, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Ramprasad G.L., S/o. Mr. Narasimha Rao, Aged about 36 years, Residing at S-4, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Ramesh Babu, S/o. Late. G.S. Varadharajan, Aged about 33 years, Residing at SF-3, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Anil Agarwal, S/o. Mr. Binod Agarwal, Aged about 41 years, Residing at FF-11, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Piyush Bageriya, S/o. Mr. Babu Lal Bageriya, Aged about 34 years, Residing at FF-10, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Biju James Mathew, S/o. Mr. Mathew Jacob, Aged about 38 years, Residing at TF - 8, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Sashi Raj, S/o. M. Govindarajan, Aged about 34 years, Residing at TF - 4, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Advocate (S.R. Hegde) V/s. OPPOSITE PARTIES 1. M/s. Crescent Constructions, A partnership firm, Represented by its Managing Partner, Mr. Akmaluddin Sheriff, No. 94/3, Infentry Road, Bangalore 560 001. 2. Mr. Akmaluddin Sheriff, Managing Partner, M/s. Crescent Constructions, No. 94/3, Infentry Road, Bangalore 560 001. 3. M/s. Sumangal Enterprise, A partnership firm, Represented by its Managing Partner, Shri. J.M. Mehta, 69/1, Sahil, Cunningham Road, Bangalore 560 052. 4. Mr. J. M. Mehta, Partner, M/s. Sumangal Enterprise, 69/1, Sahil, Cunningham Road, Bangalore 560 052. Advocate (B.N. Muthanna) O R D E R These are the eleven complaints filed by the respective complainants U/s. 12 of the Consumer Protection Act of 1986, against the Opposite Party (herein after called as O.P) seeking direction to complete and register the deed of declaration and pay a compensation of Rs.12,00,000/- and odd and for such other reliefs on an allegations of deficiency in service. 2. As the opposite parties are common, the question involved and relief claimed being the same, in order to avoid the repetition of facts and multiciplity of reasoning in the interest of justice all these cases stand disposed of by this common order. 3. The brief averments, as could be seen from the contents of the complaints, are as under: Each one of these complainants being lured away with the advertisement and propaganda and the brochure issued by the M/s. Crescent Constructions, who claims to be the promoters, developers and builders of multistoryed flats, thought of purchasing the flats in the project floated by the OP in the name and style Cresent Magna. OP agreed to sell the flat for a total cost and then entered into agreement to sell, construction agreement. After the completion of the structure executed the sale deed and these complainants took possession of the respective flats, though the construction was not completed on various reasons. The details of the flat number, agreement to sell, construction agreement, sale deed, alleged date of possession, issuance of NOC, causing of legal notice, receipt of certain documents is noted in the below mentioned chart for convenience. Complaint No Flat No. Agreement to sale Construction Agreement Sale Deed Date of Possession NOC Legal Notice Vide letter 26.12.05 complainant received documents 1445/08 S 10 20.3.04 20.3.04 05.05.05 26.03.05 02.01.06 29.03.07 11.06.07 09.09.06 1446/08 T 14 09.11.03 09.11.03 05.05.05 26.12.05 26.12.05 29.03.07 11.06.07 21.02.06 1447/08 S11 15.04.04 15.04.04 24.08.05 22.03.06 22.03.06 29.03.07 11.06.07 22.03.06 1448/08 T11 09.10.03 09.10.03 31.08.05 20.07.06 20.07.06 29.03.07 11.06.07 1449/08 T12 03.04.04 03.04.04 24.08.05 26.12.05 26.12.05 29.03.07 11.06.07 29.04.06 1450/08 S4 10.10.03 10.10.03 13.06.05 27.06.05 26.12.05 29.03.07 11.06.07 26.12.05 1451/08 S3 09.11.03 09.11.03 05.05.05 09.05.05 26.12.05 29.03.07 11.06.07 31.03.06 1452/08 F11 02.06.04 02.06.04 15.06.05 09.05.05 26.12.05 29.03.07 11.06.07 31.01.06 1453/08 F10 04.04.04 08.04.04 13.06.05 21.05.05 26.12.05 29.03.07 11.06.07 22.02.06 1454/08 T8 17.11.04 17.11.04 30.03.05 26.03.05 26.12.05 29.03.07 11.06.07 28.01.06 1455/08 T4 12.01.05 12.01.05 18.05.05 30.05.05 26.12.05 29.03.07 11.06.07 25.03.06 Though OP collected all the charges, but failed to complete the construction as promised. There are so many defects in the said construction. The repeated requests and demands made by the complainants, went in futile. They even caused the legal notice, there was no proper response. The reply given by the OP is untenable. OP is bound by the certain rules and regulations including that of the Apartment Owners Act provisions, Municipal Corporations Act provisions, but failed to comply the same. Thus each one of these complainants noticed about 21 deficiencies against the OP, which include non-execution of deed of declaration, non-furnishing of the material documents, user manual for the lift, pump set, illegal construction over the terrace and the basement and improper flooring, electrical wiring, drainage pipes are of poor quality so also aluminum sliding doors, non-functioning of the bore well, not providing the children play area, failure to construct the boundary wall, failure to issue the completion certificate, installation of poor quality lifts, etc. When their requests went to the deaf ears of the OP each one of these complainants felt the deficiency in service and unfair trade practice on the part of the OP. Though they invested their hard earned money they are unable to reap the fruits of their investment because of the inaction and hostile attitude of the OP. Under the circumstances they are advised to file these complaints and sought for the relief accordingly. 4. On appearance, OP filed the version the defence set out in all these cases is similar denying all the allegations made by the complainant in toto. According to OP once they handedover the possession of the flat it is for the flat owners to form the association, they failed to do so. If the association is formed then the builder is liable to hand over all the original documents to the association. The fault lies with the complainants only. Complainants enjoyed the apartment being satisfied with the construction in terms of the agreement entered into, that too in the year 2005 and 2006. At no point to time they have complained of any defects in the construction of the said building. But strangely after lapse of 3 years or so they have come up with these false and frivolous allegations. The complaints are barred by time. After the execution of the sale deed, khatha has been changed in the name of these flat owners and they went on paying the tax also. So there is no force in the allegation of the complainants that completion certificate is not given. OP is bound to hand over the so called documents pertaining to the lift as well as floor plan, designs, drawings, electrical design, etc., to the association. As per the agreement OP is bound to maintain the said flats only for 12 months from the date of execution of the sale deed and handing over of the possession. In those 12 months whatever the minor deficiencies pointed out by the complainants were attended. Thereafter they never raised any voice with regard to deficiency in service. The so called first notice issued by the complainants dated 29.03.2007 is very bald, it does not refers to either of the complainants in these complaints. The contention of the complainants that OP violated the Corporation Act as well as Apartment Owners Act and Rules is false and baseless. If there is any illegal construction against the approved plan it is for the BBMP and other statutory authority to initiate the action. OP have got the undivided share in the land where this project is floated. They have got every right to use the land fallen to their share according to their own will and wish. Complainants cannot claim the exclusive right either on the terrace or on the basement. Whatever the amenities promised and sold under the agreement and sale deed is provided to the complainants. Complainants cannot rely much on the brochure. The pleadings in the complaints and that of the averment made in the earlier so called legal notice are self-contradictory. The approach of the complainants is not fair and honest. There is no deficiency in service of any kind on the part of the OP. The complaints are devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint. 5. In order to substantiate the complaint averments, the each one of these complainants filed the respective affidavit evidence and produced some documents. OPs have also filed the affidavit evidence and produced the documents. Then the arguments were heard. 6. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainants are entitled for the reliefs now claimed? Point No. 3 :- To what Order? 7. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Negative Point No.2:- Negative Point No.3:- As per final Order. R E A S O N S 8. At the outset it is not at dispute that each one of these complainants being lured away with the advertisement given by the OP, who claims to be the builders and developers of multistoryed flats in and around Bangalore, thought of purchasing the flat of their choice in the project floated by the OP in the name and style Cresent Magna. The fact that each one of these complainants paid the flat value and other respective miscellaneous expenses is also not at dispute. As noted in the chart referred to above, there is an execution of agreement to sell, construction agreement and the sale deed. The copies of the said documents are produced. Of course now there is a dispute with regard to taking up of the possession as well as issuance of NOC. It is contended by the complainants that thought the construction was incomplete for various reasons, they are forced to take the possession of the said flat. On the other hand these allegations are in toto denied by the OP. Though complainants made much puss about the non-issuance of NOC, there is a document speak to the said fact produced by the OP. 9. It is contended by the complainants that OP failed to deliver them the necessary documents pertaining of their own individual flat in the project. On the other hand the letter produced by the OP clearly goes to show the issuance of the possession certificate, car parking, allotment letter, property tax paid receipt, endorsement letter, khatha extract, khatha certificate, property tax assessment order, NOC and NOC from BESCOM and those documents are received by the complainant by signing the said letter. They have not disputed their signature on the said letter. Under such circumstances the complainants are estopped from contenting that OP failed to return them the necessary documents as contemplated. The other documents produced by the OP clearly goes to show that as and when some repairs were sought by the complainants they noted it under the work to be done/work order and they attended to the same. After the completion of the work the complainants concerned endorsed, being satisfied as OK and signed that document also. The said document is also produced. 10. Though complainants alleged about the possession and acknowledgement, but the document produced by the OP clearly reads that when OP informed each one of these complainants with regard to ready of the project in all respect they acknowledged and took the possession. There is a mention Being fully satisfied with regard to the specifications pertaining to the structure, quality of construction, materials used and all other related matters which are as per the agreed specifications has this day signed this Certificate as a token of Acknowledgement. It is duly signed by the purchaser and the builder. So this one letter cuts at the root of the complainants allegations. When the signature on the said letter is not at dispute so also the contents then the otherwise objections raised by the complainants appears to be rather an after thought one. They are estopped from speaking against their own documents. It is always said he who seeks equity must do equity and must come with clean hands. But in these complaints it appears complainants have not approached the Forum with a clean hands. 11. It is contended by the OP that the complaints filed by each one of these complainants are barred by limitation. We do not find force in the said contention because the sale deed were executed in the year 2005, possession handed over in the year 2005 and 2006 so also NOC and there is some demand made by the complainants with regard to attending to the repairs subsequently they made certain correspondence in the year 2007 and 2008. So having considered all these facts into consideration as already observed by us while passing the orders of I.A.s with regard to the limitation point as the cause of action includes good number of events, it is bunches of events and those cannot be bifurcated or separated. The sum and substance is to be taken into consideration. When we peruse the pleadings and documents produced by the complainants, we are of the view that the complaints filed are in time. We do not find force in the contention of the OP that complaints are barred by time. 12. Complainants got issued the legal notice for the first time on 29.03.2007. We have gone through the said notice. It does not contain name of either of these complainants. It simply reads as per the information received from various clients. Who are those clients is not specifically mentioned. In addition to that Cresent Magna project consist of 52 flats. All those flats are sold they are occupied and now when complainant received the reply from the OP, it appears there is a rejoinder issued to the first notice, subsequently wherein the names of 36 aggrieved flat owners are mentioned. But now the present complaints are filed by only 11 flat owners. What had happened to other 25 flat owners is not known. They have not supported the complainants by filing affidavits corroborating the allegations of these complainants. So out of 52 only 11 complainants are alleging the deficiency in service against the OP rest of the 41 other flat owners have not raised their voice. It appears they are not serious about the deficiencies alleged by their colleagues. 13. If the complainants fell that the construction made by the OP is against to the approved sanction plan issued by the statutory authority, the best course kept open to them is to file a complaint to the said authority and initiate the proceedings. But they have not done so. The fact that OP being the owner of the said project had an interest in the said land to certain extent as an undivided share. Naturally OP has got a right to enjoy whatever the share they have got in the said project according to their convenience. The allegation that the terrace is not kept open and the pent house is built has nothing to do with deficiency in service. If that pent house is a illegal construction complainant can seek for demolition of the same and if the OP have illegally constructed certain rooms in the basement may be well within the share of portion of land which they have the right, even those rooms can also be got demolished through the appropriate authority. But again no such steps are taken. 14. Under the Consumer Protection Act Consumer Forum is dealing with the summary trial. The relief now sought by the complainant with regard to the demolition of the illegal structures, non-issuance of the deed of declaration, violation of Municipal Corporation Act and Apartment Owners Act does not come under the purview of summary jurisdiction of the Forum. The relief now sought by the complainants is like that of declaratory relief. If complainants are so advised, they can file a comprehensive Civil Suit against the OP and redress their grievance with regard to the said allegations if any. Considering the complex question of law, it entails with respect to relief under the Apartment Owners Act, violation of Municipal Corporation Act provisions it would require volumeness evidence for the disposal of the said allegations, which is not possible for this Forum in its summary jurisdiction. 15. If the complainant really felt that the said deficiencies occurred well within a span of a year or two. What made them to wait for all these days to agitate their rights is not known. The fact that OP is obliged to attend to the said defects in the construction for 12 months is not at dispute. The documents produced by the OP clearly goes to show formation of the association lies with the complainants namely the flat owners, it is not a bounden duty of the OP to form the association. If the complainants have not formed the association as contemplated they cannot blame the OP in not handing over of the so called documents as alleged by them. OP is obliged to hand over the said document only to apartment owners association. 16. When we go through the first notice dated 29.03.2007 there is an allegation on only 3 points not 21 points now as raised. As rightly pointed out by the OP there is a variance in between the pleadings, averments made in the legal notice and the evidence that is lead, there appears to be lot of improvement to suite their convenience. The other claims of the complainants appears to be extraneous not found any either in the documents like agreement to sell, construction agreement or sale deed. Complainants cannot rely much on the brochure. What is that is agreed to be sold to them is most important. No where OP have denied their responsibility and handing over the original documents. Under such circumstances the allegations of the complainants in that regard rather does not hold much force. 17. It may amount to repetition if we say that each one of the deficiencies alleged by the complainants in para.8 of their complaints, OP have given the suitable reply, answer and the reason, which in our view is acceptable one. There is a fairness on the part of the OP so also there is a transparency. Of course in any building which is used for occupation for more than 3 years, there appears to be some cracks, leakages, shading of the paint, etc., it all depends upon how you maintain the building. When OP is not obliged to maintain the building after 12 months warranty, it is for the complainants to form their own association and maintain the building. OP fairly admitted that due to the constant use of the said flats, there are some minor ware and tare and those minor ware and tare does not amount to defect in the construction. 18. Some minor ware and tare are bound to occur. As and when complainants made certain reference to the defect, they are attended to evenafter the execution of the sale deed and handing over of the possession. The document produced by OP speaks to that effect. The allegations of use of low quality electrical wire, improper flooring, bad quality terrace, bad quality basement are all rather baseless allegations. Complainants took the possession of the said flats being satisfied with the quality of construction in all respect including use of quality material as noted in the document referred to above. Now they are estopped from alleging that the construction is bad and poor. Whatever that is promised under the sale deed and agreements it is provided by the OP. 19. If one of the bore well fails, may be due to drying up of the underground water a natural resource, for that OP cannot be blamed. Another bore well is working, the pumps are working regularly, they are pumping the water to the overhead tanks and none other flat owners have made any allegations in that regard. So whatever the allegations made by these complainants in these complaints, those deficiencies does not find place in the first notice that is issued on 29.03.2007. So all these allegations appears to be an after thought one. If there is some defect in the lift it has to be got rectified by the flat owners. OP is not bound to get it rectified because their warranty of maintenance is over. So viewed from any angle, the complaints appears to be devoid of merits. 20. As already observed by us, if the complainants are serious about the violation of Municipal Corporation Act and Apartment Owners Act by the OP, the remedy is still open for them to file a comprehensive Civil Suit and get redress their grievance if any. They cannot seek for the declaratory relief through these complaints filed under the provisions of Consumer Protection Act. Hence for these observations we find the complainants have utterly failed to prove the deficiency in service as well as unfair trade practice. The allegations are baseless, the complaints are devoid of merits. Under such circumstances they are not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: O R D E R The complaint Nos. 1445, 1446, 1447, 1448, 1449, 1450, 1451, 1452, 1453, 1454, 1455/2008 are dismissed. In view of the nature of dispute no order as to costs. The original order shall be kept in the file of complaint No. 1445/2008 and a copy of it shall be placed in other respective files. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 20th day of September 2008.) MEMBER PRESIDENT p.n.g.

COMPLAINT FILED: 30.06.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 20th SEPTEMBER 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER COMPLAINT Nos. 1445, 1446, 1447, 1448, 1449, 1450, 1451, 1452, 1453, 1454, 1455/2008 COMPLAINT NO. 1445/08 Mr. B. Purushotham Shetty, COMPLAINANT S/o. B.D. Shetty, Aged about 46 years, Occupation Service, Residing at SF-10, Cresent Magna Apartment, Sultan Palya, RT Nagar, Bangalore 560 032. COMPLAINT NO. 1446/08 COMPLAINANT COMPLAINT NO. 1447/08 COMPLAINANT COMPLAINT NO. 1448/08 COMPLAINANT COMPLAINT NO. 1449/08 COMPLAINANT COMPLAINT NO. 1450/08 COMPLAINANT COMPLAINT NO. 1451/08 COMPLAINANT COMPLAINT NO. 1452/08 COMPLAINANT COMPLAINT NO. 1453/08 COMPLAINANT COMPLAINT NO. 1454/08 COMPLAINANT COMPLAINT NO. 1455/08 COMPLAINANT Mr. C. Balasubramanian, S/o. Mr. S. Chidambarathanu Pillai, Aged about 37 years, Occuptation Pvt. Service, Residing at TF-14, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. M.M. Chengappa, S/o. Mr. M.C. Mandanna, Aged about 39 years, Residing at SF-11, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Parag Karia, S/o. Late Sri. B. P. Karia, Aged about 44 years, Residing at TF-11, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Binukumar, S/o. K.M. Mudappa, Aged about 43 years, Residing at TF-12, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Ramprasad G.L., S/o. Mr. Narasimha Rao, Aged about 36 years, Residing at S-4, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Ramesh Babu, S/o. Late. G.S. Varadharajan, Aged about 33 years, Residing at SF-3, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Anil Agarwal, S/o. Mr. Binod Agarwal, Aged about 41 years, Residing at FF-11, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Piyush Bageriya, S/o. Mr. Babu Lal Bageriya, Aged about 34 years, Residing at FF-10, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Biju James Mathew, S/o. Mr. Mathew Jacob, Aged about 38 years, Residing at TF - 8, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Mr. Sashi Raj, S/o. M. Govindarajan, Aged about 34 years, Residing at TF - 4, Cresent Magna Apartment, No. 32, Atmanand Colony, Sultan Palya, RT Nagar, Bangalore 560 032. Advocate (S.R. Hegde) V/s. OPPOSITE PARTIES 1. M/s. Crescent Constructions, A partnership firm, Represented by its Managing Partner, Mr. Akmaluddin Sheriff, No. 94/3, Infentry Road, Bangalore 560 001. 2. Mr. Akmaluddin Sheriff, Managing Partner, M/s. Crescent Constructions, No. 94/3, Infentry Road, Bangalore 560 001. 3. M/s. Sumangal Enterprise, A partnership firm, Represented by its Managing Partner, Shri. J.M. Mehta, 69/1, Sahil, Cunningham Road, Bangalore 560 052. 4. Mr. J. M. Mehta, Partner, M/s. Sumangal Enterprise, 69/1, Sahil, Cunningham Road, Bangalore 560 052. Advocate (B.N. Muthanna) O R D E R These are the eleven complaints filed by the respective complainants U/s. 12 of the Consumer Protection Act of 1986, against the Opposite Party (herein after called as O.P) seeking direction to complete and register the deed of declaration and pay a compensation of Rs.12,00,000/- and odd and for such other reliefs on an allegations of deficiency in service. 2. As the opposite parties are common, the question involved and relief claimed being the same, in order to avoid the repetition of facts and multiciplity of reasoning in the interest of justice all these cases stand disposed of by this common order. 3. The brief averments, as could be seen from the contents of the complaints, are as under: Each one of these complainants being lured away with the advertisement and propaganda and the brochure issued by the M/s. Crescent Constructions, who claims to be the promoters, developers and builders of multistoryed flats, thought of purchasing the flats in the project floated by the OP in the name and style Cresent Magna. OP agreed to sell the flat for a total cost and then entered into agreement to sell, construction agreement. After the completion of the structure executed the sale deed and these complainants took possession of the respective flats, though the construction was not completed on various reasons. The details of the flat number, agreement to sell, construction agreement, sale deed, alleged date of possession, issuance of NOC, causing of legal notice, receipt of certain documents is noted in the below mentioned chart for convenience. Complaint No Flat No. Agreement to sale Construction Agreement Sale Deed Date of Possession NOC Legal Notice Vide letter 26.12.05 complainant received documents 1445/08 S 10 20.3.04 20.3.04 05.05.05 26.03.05 02.01.06 29.03.07 11.06.07 09.09.06 1446/08 T 14 09.11.03 09.11.03 05.05.05 26.12.05 26.12.05 29.03.07 11.06.07 21.02.06 1447/08 S11 15.04.04 15.04.04 24.08.05 22.03.06 22.03.06 29.03.07 11.06.07 22.03.06 1448/08 T11 09.10.03 09.10.03 31.08.05 20.07.06 20.07.06 29.03.07 11.06.07 1449/08 T12 03.04.04 03.04.04 24.08.05 26.12.05 26.12.05 29.03.07 11.06.07 29.04.06 1450/08 S4 10.10.03 10.10.03 13.06.05 27.06.05 26.12.05 29.03.07 11.06.07 26.12.05 1451/08 S3 09.11.03 09.11.03 05.05.05 09.05.05 26.12.05 29.03.07 11.06.07 31.03.06 1452/08 F11 02.06.04 02.06.04 15.06.05 09.05.05 26.12.05 29.03.07 11.06.07 31.01.06 1453/08 F10 04.04.04 08.04.04 13.06.05 21.05.05 26.12.05 29.03.07 11.06.07 22.02.06 1454/08 T8 17.11.04 17.11.04 30.03.05 26.03.05 26.12.05 29.03.07 11.06.07 28.01.06 1455/08 T4 12.01.05 12.01.05 18.05.05 30.05.05 26.12.05 29.03.07 11.06.07 25.03.06 Though OP collected all the charges, but failed to complete the construction as promised. There are so many defects in the said construction. The repeated requests and demands made by the complainants, went in futile. They even caused the legal notice, there was no proper response. The reply given by the OP is untenable. OP is bound by the certain rules and regulations including that of the Apartment Owners Act provisions, Municipal Corporations Act provisions, but failed to comply the same. Thus each one of these complainants noticed about 21 deficiencies against the OP, which include non-execution of deed of declaration, non-furnishing of the material documents, user manual for the lift, pump set, illegal construction over the terrace and the basement and improper flooring, electrical wiring, drainage pipes are of poor quality so also aluminum sliding doors, non-functioning of the bore well, not providing the children play area, failure to construct the boundary wall, failure to issue the completion certificate, installation of poor quality lifts, etc. When their requests went to the deaf ears of the OP each one of these complainants felt the deficiency in service and unfair trade practice on the part of the OP. Though they invested their hard earned money they are unable to reap the fruits of their investment because of the inaction and hostile attitude of the OP. Under the circumstances they are advised to file these complaints and sought for the relief accordingly. 4. On appearance, OP filed the version the defence set out in all these cases is similar denying all the allegations made by the complainant in toto. According to OP once they handedover the possession of the flat it is for the flat owners to form the association, they failed to do so. If the association is formed then the builder is liable to hand over all the original documents to the association. The fault lies with the complainants only. Complainants enjoyed the apartment being satisfied with the construction in terms of the agreement entered into, that too in the year 2005 and 2006. At no point to time they have complained of any defects in the construction of the said building. But strangely after lapse of 3 years or so they have come up with these false and frivolous allegations. The complaints are barred by time. After the execution of the sale deed, khatha has been changed in the name of these flat owners and they went on paying the tax also. So there is no force in the allegation of the complainants that completion certificate is not given. OP is bound to hand over the so called documents pertaining to the lift as well as floor plan, designs, drawings, electrical design, etc., to the association. As per the agreement OP is bound to maintain the said flats only for 12 months from the date of execution of the sale deed and handing over of the possession. In those 12 months whatever the minor deficiencies pointed out by the complainants were attended. Thereafter they never raised any voice with regard to deficiency in service. The so called first notice issued by the complainants dated 29.03.2007 is very bald, it does not refers to either of the complainants in these complaints. The contention of the complainants that OP violated the Corporation Act as well as Apartment Owners Act and Rules is false and baseless. If there is any illegal construction against the approved plan it is for the BBMP and other statutory authority to initiate the action. OP have got the undivided share in the land where this project is floated. They have got every right to use the land fallen to their share according to their own will and wish. Complainants cannot claim the exclusive right either on the terrace or on the basement. Whatever the amenities promised and sold under the agreement and sale deed is provided to the complainants. Complainants cannot rely much on the brochure. The pleadings in the complaints and that of the averment made in the earlier so called legal notice are self-contradictory. The approach of the complainants is not fair and honest. There is no deficiency in service of any kind on the part of the OP. The complaints are devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint. 5. In order to substantiate the complaint averments, the each one of these complainants filed the respective affidavit evidence and produced some documents. OPs have also filed the affidavit evidence and produced the documents. Then the arguments were heard. 6. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainants are entitled for the reliefs now claimed? Point No. 3 :- To what Order? 7. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Negative Point No.2:- Negative Point No.3:- As per final Order. R E A S O N S 8. At the outset it is not at dispute that each one of these complainants being lured away with the advertisement given by the OP, who claims to be the builders and developers of multistoryed flats in and around Bangalore, thought of purchasing the flat of their choice in the project floated by the OP in the name and style Cresent Magna. The fact that each one of these complainants paid the flat value and other respective miscellaneous expenses is also not at dispute. As noted in the chart referred to above, there is an execution of agreement to sell, construction agreement and the sale deed. The copies of the said documents are produced. Of course now there is a dispute with regard to taking up of the possession as well as issuance of NOC. It is contended by the complainants that thought the construction was incomplete for various reasons, they are forced to take the possession of the said flat. On the other hand these allegations are in toto denied by the OP. Though complainants made much puss about the non-issuance of NOC, there is a document speak to the said fact produced by the OP. 9. It is contended by the complainants that OP failed to deliver them the necessary documents pertaining of their own individual flat in the project. On the other hand the letter produced by the OP clearly goes to show the issuance of the possession certificate, car parking, allotment letter, property tax paid receipt, endorsement letter, khatha extract, khatha certificate, property tax assessment order, NOC and NOC from BESCOM and those documents are received by the complainant by signing the said letter. They have not disputed their signature on the said letter. Under such circumstances the complainants are estopped from contenting that OP failed to return them the necessary documents as contemplated. The other documents produced by the OP clearly goes to show that as and when some repairs were sought by the complainants they noted it under the work to be done/work order and they attended to the same. After the completion of the work the complainants concerned endorsed, being satisfied as OK and signed that document also. The said document is also produced. 10. Though complainants alleged about the possession and acknowledgement, but the document produced by the OP clearly reads that when OP informed each one of these complainants with regard to ready of the project in all respect they acknowledged and took the possession. There is a mention Being fully satisfied with regard to the specifications pertaining to the structure, quality of construction, materials used and all other related matters which are as per the agreed specifications has this day signed this Certificate as a token of Acknowledgement. It is duly signed by the purchaser and the builder. So this one letter cuts at the root of the complainants allegations. When the signature on the said letter is not at dispute so also the contents then the otherwise objections raised by the complainants appears to be rather an after thought one. They are estopped from speaking against their own documents. It is always said he who seeks equity must do equity and must come with clean hands. But in these complaints it appears complainants have not approached the Forum with a clean hands. 11. It is contended by the OP that the complaints filed by each one of these complainants are barred by limitation. We do not find force in the said contention because the sale deed were executed in the year 2005, possession handed over in the year 2005 and 2006 so also NOC and there is some demand made by the complainants with regard to attending to the repairs subsequently they made certain correspondence in the year 2007 and 2008. So having considered all these facts into consideration as already observed by us while passing the orders of I.A.s with regard to the limitation point as the cause of action includes good number of events, it is bunches of events and those cannot be bifurcated or separated. The sum and substance is to be taken into consideration. When we peruse the pleadings and documents produced by the complainants, we are of the view that the complaints filed are in time. We do not find force in the contention of the OP that complaints are barred by time. 12. Complainants got issued the legal notice for the first time on 29.03.2007. We have gone through the said notice. It does not contain name of either of these complainants. It simply reads as per the information received from various clients. Who are those clients is not specifically mentioned. In addition to that Cresent Magna project consist of 52 flats. All those flats are sold they are occupied and now when complainant received the reply from the OP, it appears there is a rejoinder issued to the first notice, subsequently wherein the names of 36 aggrieved flat owners are mentioned. But now the present complaints are filed by only 11 flat owners. What had happened to other 25 flat owners is not known. They have not supported the complainants by filing affidavits corroborating the allegations of these complainants. So out of 52 only 11 complainants are alleging the deficiency in service against the OP rest of the 41 other flat owners have not raised their voice. It appears they are not serious about the deficiencies alleged by their colleagues. 13. If the complainants fell that the construction made by the OP is against to the approved sanction plan issued by the statutory authority, the best course kept open to them is to file a complaint to the said authority and initiate the proceedings. But they have not done so. The fact that OP being the owner of the said project had an interest in the said land to certain extent as an undivided share. Naturally OP has got a right to enjoy whatever the share they have got in the said project according to their convenience. The allegation that the terrace is not kept open and the pent house is built has nothing to do with deficiency in service. If that pent house is a illegal construction complainant can seek for demolition of the same and if the OP have illegally constructed certain rooms in the basement may be well within the share of portion of land which they have the right, even those rooms can also be got demolished through the appropriate authority. But again no such steps are taken. 14. Under the Consumer Protection Act Consumer Forum is dealing with the summary trial. The relief now sought by the complainant with regard to the demolition of the illegal structures, non-issuance of the deed of declaration, violation of Municipal Corporation Act and Apartment Owners Act does not come under the purview of summary jurisdiction of the Forum. The relief now sought by the complainants is like that of declaratory relief. If complainants are so advised, they can file a comprehensive Civil Suit against the OP and redress their grievance with regard to the said allegations if any. Considering the complex question of law, it entails with respect to relief under the Apartment Owners Act, violation of Municipal Corporation Act provisions it would require volumeness evidence for the disposal of the said allegations, which is not possible for this Forum in its summary jurisdiction. 15. If the complainant really felt that the said deficiencies occurred well within a span of a year or two. What made them to wait for all these days to agitate their rights is not known. The fact that OP is obliged to attend to the said defects in the construction for 12 months is not at dispute. The documents produced by the OP clearly goes to show formation of the association lies with the complainants namely the flat owners, it is not a bounden duty of the OP to form the association. If the complainants have not formed the association as contemplated they cannot blame the OP in not handing over of the so called documents as alleged by them. OP is obliged to hand over the said document only to apartment owners association. 16. When we go through the first notice dated 29.03.2007 there is an allegation on only 3 points not 21 points now as raised. As rightly pointed out by the OP there is a variance in between the pleadings, averments made in the legal notice and the evidence that is lead, there appears to be lot of improvement to suite their convenience. The other claims of the complainants appears to be extraneous not found any either in the documents like agreement to sell, construction agreement or sale deed. Complainants cannot rely much on the brochure. What is that is agreed to be sold to them is most important. No where OP have denied their responsibility and handing over the original documents. Under such circumstances the allegations of the complainants in that regard rather does not hold much force. 17. It may amount to repetition if we say that each one of the deficiencies alleged by the complainants in para.8 of their complaints, OP have given the suitable reply, answer and the reason, which in our view is acceptable one. There is a fairness on the part of the OP so also there is a transparency. Of course in any building which is used for occupation for more than 3 years, there appears to be some cracks, leakages, shading of the paint, etc., it all depends upon how you maintain the building. When OP is not obliged to maintain the building after 12 months warranty, it is for the complainants to form their own association and maintain the building. OP fairly admitted that due to the constant use of the said flats, there are some minor ware and tare and those minor ware and tare does not amount to defect in the construction. 18. Some minor ware and tare are bound to occur. As and when complainants made certain reference to the defect, they are attended to evenafter the execution of the sale deed and handing over of the possession. The document produced by OP speaks to that effect. The allegations of use of low quality electrical wire, improper flooring, bad quality terrace, bad quality basement are all rather baseless allegations. Complainants took the possession of the said flats being satisfied with the quality of construction in all respect including use of quality material as noted in the document referred to above. Now they are estopped from alleging that the construction is bad and poor. Whatever that is promised under the sale deed and agreements it is provided by the OP. 19. If one of the bore well fails, may be due to drying up of the underground water a natural resource, for that OP cannot be blamed. Another bore well is working, the pumps are working regularly, they are pumping the water to the overhead tanks and none other flat owners have made any allegations in that regard. So whatever the allegations made by these complainants in these complaints, those deficiencies does not find place in the first notice that is issued on 29.03.2007. So all these allegations appears to be an after thought one. If there is some defect in the lift it has to be got rectified by the flat owners. OP is not bound to get it rectified because their warranty of maintenance is over. So viewed from any angle, the complaints appears to be devoid of merits. 20. As already observed by us, if the complainants are serious about the violation of Municipal Corporation Act and Apartment Owners Act by the OP, the remedy is still open for them to file a comprehensive Civil Suit and get redress their grievance if any. They cannot seek for the declaratory relief through these complaints filed under the provisions of Consumer Protection Act. Hence for these observations we find the complainants have utterly failed to prove the deficiency in service as well as unfair trade practice. The allegations are baseless, the complaints are devoid of merits. Under such circumstances they are not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: O R D E R The complaint Nos. 1445, 1446, 1447, 1448, 1449, 1450, 1451, 1452, 1453, 1454, 1455/2008 are dismissed. In view of the nature of dispute no order as to costs. The original order shall be kept in the file of complaint No. 1445/2008 and a copy of it shall be placed in other respective files. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 20th day of September 2008.) MEMBER PRESIDENT p.n.g.