<br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 25th MARCH 2009<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.287/2008 & 288/2008<br /> <br /> <br /> COMPLAINT NO.287/2008COMPLAINANTCOMPLAINT NO.288/2008COMPLAINANT Smt.Jyothi Shand,W/o Ajay Shand,Aged about 32 years,Residing at No.50, 7th Cross, Wilson Garden,Bangalore – 560 027.Smt.Surekha Shand,W/o Sanjay Shand,Aged about 32 years,Residing at No.50, 7th Cross, Wilson Garden,Bangalore – 560 027.Advocate – Sri.Paras JainV/s.<br /> OPPOSITE PARTY M/s. Jai Tulsi Developers,A registered Partnership Firm,Having its office at# 12, K.H Road,Sree Tulsi Chambers,Shanthinagar,Bangalore – 560 027.Rep. by its partners.Advocate – Sri.A.R.Holla<br /> <br /> <br /> O R D E R<br /> <br /> <br /> These are the two complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the complainants to direct the Opposite Party (herein after called as O.P) to complete the entire building in “Sree Tulsi Chambers” in all respects and pay a compensation of Rs.25,000/- and for such other relief’s on an allegations of deficiency in service. <br /> <br /> As the opposite parties are common, the question involved, relief claimed being same, in the interest of justice, in order to avoid repetition of facts, multiciplity of reasoning, these two cases stand disposed of by this common order.<br /> <br /> The brief averments, as could be seen from the contents of the complaints, are as under:<br /> <br /> Complainant in complaint No.287/2008 purchased office premises built by the OP in “Tulsi Chambers” of an area of 776 square feet under the sale deed dated 23.06.2004 for a valid consideration and the complainant in complaint No.288/2008 purchased the office premises of an area of 344 square feet on the same day for a valid consideration. At the time of the purchase of the said office premises OP promised to provide the lift facility and proper electricity. Though complainants waited patiently for all these three years or so OP failed to keep up its promise. It is not properly white washed, basic amenities like electricity, water and sanitary is not provided. The repeated requests and demands made by the complainants to complete the said building went in futile. For want of such basic necessities neither complainants are in a position to occupy to said office unit to promote their business nor they are in a position to rent it out to the tenants. Due to hostile attitude of the OP for no fault of these complainants they are forced to face both mental agony and financial loss. Thus complainants felt the unfair trade practice as well as deficiency in service on the part of the OP. Under the circumstances they are advised to file these complaints and sought for the reliefs accordingly.<br /> <br /> 2. On admission and registration of the complaint, notices were sent to the admitted address of the OP, but the notice returned as left. Then complainant took the substitute service by way of paper publication. The notice was published in the paper, thereafter also OP failed to appear before the Forum. The service of the notice through paper publication is held sufficient. The absence of the OP does not appears to be as bona fide and reasonable. Hence OP is placed Ex-parte.<br /> <br /> 3. In order to substantiate the complaint averments, each one of these complainants filed their affidavit evidence and produced some documents. OP didn’t participate in the proceedings. Then the arguments were heard. Complaint came to be allowed vide order-dated 28.03.2008.<br /> <br /> 4. Being aggrieved by the said impugned order OP preferred an Appeal before the Hon’ble Karnataka State Consumer Disputes Redressal Commission, Bangalore at Appeal No.1857/2008. The said Appeal came to be allowed vide order dated 26.11.2008 and the matter is remitted back to this Forum to dispose of afresh after due notice to both the parties. In pursuance of the said kind orders notices were sent to the litigating parties. Both appeared.<br /> <br /> 5. On appearance OP filed the version. The defence set out by the OP in both the complaints is similar and identical. The brief averments, as could be seen from the contents of the version are as under:<br /> <br /> OP has challenged the validity of the sale deed dated 23.06.2004 alleged to have been executed in favour of the complainant before the City Civil Court by filing O.S No.17786/2005. In the said suit present complainants filed their written statement. The relief now claimed in this complaint and the above suit are similar and identical. When the very title to the schedule property is at stake and challenged, complainant can’t allege the deficiency in service on the part of the OP. Though complainants are aware of filing of the said suit they failed to mention the same in their complaint. So the approach of the complainants does not appears to be as bonafide and reasonable. Entire complaint is devoid of merits. There is no deficiency in service on the part of OP. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 6. In order to substantiate the complaint averments, the complainants filed their affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 7. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainants have Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainants are <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 8. 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:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 9. It is the contention of these complainants that they under the fond hope that OP will complete the construction of entire building “Sree Tulsi Chambers” in time purchased office units for a lump sum cost. At the time of purchase there was no electricity and no lift. OP assured the complainants that they will be provided immediately. Though complainants purchased the said property on 23.06.2004 so far so good OP is unable to keep up its promise. OP has not completed the construction of the said building as contemplated. It is not provided with the electricity so also the lift. It is further contended that OP failed to provide the basic amenities like water connection, sanitary etc.<br /> <br /> 10. Of course we have gone through the copies of the sale deed produced by the complainants no where it is seen that OP promised to provide the lift as contended. If the said blocks happens to be the office units or chambers we failed to understand how the purchasers of other units have tolerated the inconveniences in non supplying the electricity for all these years. The other occupants of the said “Tulsi Chambers” have not filed the affidavit to support the allegations of these complainants that till today there is no electricity supply. Admittedly the said “Tulsi Chambers” is situated in Shanthinagar, K.H Road, Bangalore a prime locality which is in the heart of the city. In the ordinary course of time we don’t think that the occupants of the said “Tulsi Chambers” will tolerate the hostile attitude of the OP in not supplying the electricity.<br /> <br /> 11. What made the complainants to keep mum for all these years without agitating their rights to enjoy the basic amenities like water, sanitary, electricity etc. is not known. Though complainants have contended that they have made repeated requests and demands and written letters demanding the OP to provide basic necessities, copies of the said correspondence and letters are not produced. Of course we have gone through the photographs produced by the complainants with respect to the said building. The building appears to be shabby photographs indicate the existence of the lift pit. But as already observed by us none of these sale deeds refers to providing of a lift by the developer OP.<br /> <br /> 12. As against this it is specifically contended by the OP that the sale deed on the basis of which complainants are claiming their title and possession to the disputed schedule property is challenged by them before the competent Civil Court by filing O.S No.17786/2005. On appearance the present complainants filed their written statement. Copy of the written statement is produced. We have gone through the relief claimed by the OP under a counter claim Under Order VIII Rule 6A of CPC. As could be seen from the present complaint and that of the written statement of the complainant’s relief is one and the same. Though complainants are aware of filing of suits and they having set up the counter claim that fact is not pleaded and mentioned in their complaint. So there is a suppression of material facts which is well within their knowledge. For this simple reason the approach of the complainants does not appears to be fair and honest.<br /> <br /> 13. It is said he who seeks equity must do equity must come with clean hands. But here the approach of the complainant is other wise. It is specifically contended by the OP that the complainants can’t claim legal right and title over the schedule disputed property because they failed to make payment of the consideration of the property alleged to have been purchased by them. When the validity of the title deed itself is challenged by the OP before the competent civil court of law, we don’t think the complainants have a right to allege the deficiency in service. When such an equally efficacious relief is readily available to the complainant before civil court they can’t agitate the same relief by filing this complaint under the C.P Act.<br /> <br /> 14. No such prejudice or hardship will be caused to the complainants if these complaints are dismissed. Because they have got the other remedy available at Civil Court. Bearing in mind the facts and circumstances of the case and considering the complex question of law, it entailed it would require voloume-ness evidence for its disposal which is not possible for this Forum to go into all the details in its summary jurisdiction. As the matter is already rested with the competent civil court no such parallel proceedings or relief can be claimed before the ‘Consumer’ Forum. Complaint appears to be devoid of merits. There is no proof of deficiency in service. Hence complainants are not entitled for the relief claimed. Accordingly we answer point Nos.1 & 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> Complaint No.287/2008 and complaint No.288/2008 are dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> This original order shall be kept in the file of the complaint No.287/2008 and a copy of it shall be placed in other respective file.<br /> <br /> <br /> (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 25th day of March 2009.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> Vln* <br /> <br /> <br /> <br /> <br />