Present: 1. Sri.P.K.Sasi, President.
2. Sri.M.P.Chandrakumar, Member
22nd day of December 2018
CC.544/13 filed on 8/11/2013
Complainant : Sivaji.K.V., S/o.K.K.Vasu, 37/210, Palm View Villas,
Kattungachira, Irinjalakuda North.P.O.
(By Adv.A.D.Benny, Thrissur)
Opposite Parties: 1. M/s.John B Properties, Palm View Villas,
Kattungachira, Irinjalakuda, rep. by Managing
Partner Francis John.
2. Francis John, S/o.K.P.John, Kandamkulathy House,
Managing Partner, M/s.John B Properties, Palm
View Villas, Kattungachira, Irinjalakuda.
(By Adv.C.D.Pradeep, Thrissur)
3. Palm View Villas Owners Association,
Kattungachira, Irinjalakuda North, rep. by President
Viju Anto.
4. Viju Anto, President, Palm View Villas Owners
Association, S/o.K.L.Anto, Kandamkulathy House,
Palm View Villas, Kattungachira, Irinjalakuda
North.
5. Bose.P.R., Secretary, Palm View Villas Owners
Association, S/o.Raphel, Parappully House, Palm
View Villas, Kattungachira, Irinjalakuda North.
(By Adv.T.K.Anilkumar, Thrissur)
O R D E R
By Sri.P.K.Sasi, President
The complainant purchased a plot in the PALM VIEW VILLA project , consisting of 85 villas, commercial places, club house, play ground, swimming pool etc , from OP1 on 26-07-2007. The case of the complainant is that at the time of purchasing the plot, the 1st opposite party had assured that the 5 phases of the project will be completed in 3 years. The completion of the club house, consisting of swimming pool, health club, kiddies pool, steam bath, shuttle court, table tennis club, party area, land scaped garden with a gazebo and children’s park etc will be completed in the 2nd phase. However, the amenities offered were not completed, even by the time the complainant started to live there in the year 2008. Even though the basic facilities like tarred road, water supply, street light, and security were provided by the 1st opposite party, the tarred road was a completely broken one and the night security was not up to the level. Even now, the project is not completed. From the very beginning, the 1st opposite party had collected Rs.500/-from every occupant towards the common expense. This increased to Rs.700/-, then to Rs.800/- and the present amount is Rs.1000/.The complainant , who was abroad, was against this system, since he was of the view that the builder cannot collect common charges without completing the entire project. After the formation of OP3,the villa owners association in 2009,the complainant being a member, the 2nd opposite party , for and behalf of the 1st opposite party, stared to collect Rs.1000/- stating as common charges, for and on behalf of the 1st opposite party. According to the complainant, OP1 has no right to hand over an uncompleted project to the 3rd opposite party association, which is even now an un-registered one, without even proper accounts and hence common accounts should be met by OP1.The complainant had purchased the plot and constructed a house there costing more than one crore, considering the fact that the club house and swimming pool are close to his plot, as per the plan given to him. But now, the 1st opposite party is constructing the swimming pool, violating the approved plan. The complainant is of opinion that the 1st opposite party cannot make any changes in the plan and sketch, convinced to the complainant. Considering the above circumstances; the complainant informed the opposite parties that he will not pay any amount towards common expenses without clearing the above mentioned disputes. Since the complainant was challenging the illegal activities of the opposite parties, they are not in good terms .On 6-11-13, the opposite parties, without any notice, disconnected the water connection of the complainant and also disconnected the street light in front of the complainant’s house. When the complainant requested to reconnect the same, the opposite parties demanded to pay the arrears. The complainant is ready for the same, provided the opposite parties convince proper accounts and rectify the problem of inefficient night security. According to the complainant, the acts of the 1st opposite party, in not completing the project in time and in not providing the facilities offered and the act of OP3 to OP5 under the instigation of OP1 & OP2 are arbitrary, violation of natural justice and deficiency of service and caused mental pain, agony and insult to the complainant. Hence the complaint filed with prayers to direct the 1st opposite party to complete the villa project within specific period; to direct the 1st opposite party to pay the complainant 4 lakhs as damages for not providing the facilities offered at the time of purchasing the plot; to direct the opposite party to reconnect the water supply and street light; to direct the opposite parties not to deprive any common facilities without any proper notice and also to pay compensation and costs.
2. In the version filed, OP1 & OP2 states that they have neither given any assurance that five phases of the project will be completed in three years nor given any assurance as regards the facilities to be completed within three years or the commitment to provide club houses, swimming pool, health club, kids pool, steam bath shuttle court, table tennis club, party area, landscaped garden with gazebo, children’s park etc. The scope of the development work of OP1 M/S JOHN.B.PROPERTIES was limited to making road, drainage ,lighting the road, providing intercom system, duct to take electric cables, KWA water lines and telephone lines, building security room, gate etc. This had been made clear to the complainant and put in writing in the sales agreement and sale deed, which has been signed by the complainant. Most of the amenities intended to be provided, has been provided. Broad tar roads, 24 hour manned security, intercom facility, street lighting, water supply, transformer etc have already been provided. Now, the same is managed by the association whose aim is to provide and arrange the required common amenities to the members of the association and in turn the members of the association pay the charges to the association The complainant is also a member of the association. Now OP1& OP2 has no involvement in the running of the association, election, accounts, vouchers security arrangements etc. Even recently, when the roads were inspected 8 years after construction, the same was found to be in very good condition. Except for normal wear and tear. The construction of other facilities like club house and swimming pool etc are going on. In addition to the KWA water connection, OP1 has also provided a standby water supply system from a well. As per the sale deed executed in favor of the complainant, 13.750 cents of land and the easement right to use the roads alone is assigned to the complainant. The club house, swimming pool, health club etc are only additional facilities provided to the association members. The maintenance charges and management charges of these facilities are to be jointly met by the members. The plot of land was assigned to the complainant only upon this stipulation and there was no undertaking or assurance from the opposite parties that all facilities will be completed within a fixed time frame .The facilities and easement rights stipulated in the sale deed has already been provided to him by this opposite party and it is enjoyed by the plot owners without any complaint. The argument of the complainant that the association should not have taken over the running of the facilities without completing the entire project is totally unsustainable because the charges levied are for the facilities already provided and being enjoyed by the present occupants. As per clause 16 of the sales agreement, agreed by the complainant also , it is stated as follows’’ Notwithstanding anything contained herein above, purchaser do hereby agree that common area, common amenities and facilities if any proposed or to be proposed ,shall be handed over . as and when completed to the majority of owners acting through a common body after 3 months of handing over of possession of the 1st unit in the project.’’ .The opposite party further states that when the project was formulated, Kerala building rules was not applicable in the area. Later, Kerala building rules was made applicable to the panchayat. Consequently, there was change in the rules related to development of property, construction of building etc. This necessitated certain changes, especially in the case of swimming pool. The complainant has not been adversely affected by the present location of the swimming pool and club house. It is false to allege that the land proposed for the project is kept idle without development, since, as per the sale deed, the land is not with the opposite parties but with the land owners. When the land owners sell the land, the opposite parties are allowed to collect only the development charges. Thus, it can be seen that there is no deficiency of service on the part of the opposite parties. Hence the complaint may be dismissed with costs.
3.In the version filed, OP3, OP4& OP5 states that by the end of 2011, OP1& OP2 had provided most of the common amenities promised and had been pressing the owners to start the owners association as per the terms of the sales agreement and that they will not run the common amenities indefinitely . Considering the primary aim of taking care of the common facilities and services for the betterment of the residents, the palm view villa owners association was formed on 24-08-11 . The complainant is one of the ten residents who took the initiative to form the association and is the 9th signatory on the memorandum of association. Each member including the complainant joined the association by paying Rs.30,000/-.The association took over the running of the common amenities and services of the villas around June 2012. Now, after 2 years of the forming of the association, the complainant has been taking the position that the association should not have been formed till the whole project is finished. According to the opposite parties, the complainant cannot now take the position, having agreed to clause 16 of the sale agreement. The association provides the common facilities like street lighting, security service, water supply, EPABX and intercom facility etc. The expenses incurred for the purpose is met by the association and the members are liable to pay the amounts due to be paid. Even though the complainant, who is also a member of the association, enjoys all the facilities provided, he is reluctant to pay the due amounts. The argument of the complainant that money cannot be collected for these facilities without completing the entire project is totally unsustainable because the charges levied are for the facilities already provided and enjoyed by the complainant also. None of the plot owners other than the complainant has raised any objection against this. It is absolutely false to allege that the association has taken over the housing project of the 1st opposite party. There is no MOU between OP1 & OP3 to take over the housing project. The accounts were produced before the general body and approved. The complainant has also signed the acknowledging receipt of accounts. The opposite parties are also not aware of the deviation from the approved plan of the swimming pool. The complainant has not produced the approved plan of the swimming pool to prove its deviation. For about 2 years, the complainant has not been paying the monthly charges and the present outstanding in this account is Rs.22200/-. As such, the association has no option but to withdraw the facilities including the withdrawal of connection to well water and street light in front of the complainant’s house. This has been reconnected as per the interim orders of the Forum. The complainant has his own KSEB Connection and KWA water supply. The association has not touched or disconnected this. Considering all the above , the allegations are false and baseless and hence the complaint may be dismissed with costs.
4.The points for consideration are
1. Is there any deficiency of service on the part of the opposite parties?
2. If so, compensation and costs.
5.Evidence consists of proof affidavit and additional proof affidavit filed by the complainant and OP2 & OP4 has filed counter proof affidavit on behalf of opposite parties 1 to 4. The complainant has produced evidences marked as Exts. P1 to P10, whereas the opposite parties have produced documents marked as Exts. R1 to R5. Ext. P1 is the receipt for Rs.30,000/-dated 2-10-12 by the palm view villa owners association from the complainant; Ext. P2 is the brochure; Ext. P3 is the copy of the petition dated 24-01-14 by the complainant before the S.I of police, Kattungachira; Ext. P4 is the receipt of the police station dated 26-01-14, as regards receiving of the petition; Ext. P5 is the copy of the sale deed dated 26-07-17; Ext. P6 is the copy of the lawyer notice dated 20-01-14 to the M.D, SOUTHPAW SECURITY AND MANTECH SERVICES LTD,ERNAKULAM; Ext. P7 is the reply to the lawyer notice dated 10-02-14; Ext. P8 is the certified copy of the proof affidavit dated 17-11-16, filed in Munsiff court, Iringalakuda in OS 461/14; Ext. P9 is the copy of the cross examination conducted in OS-461/14; Ext. P10 is the certified copy of the affidavit dated 29-11-16 before Munisiff court , Iringalakuda, Ext. R1is the sale deed dated 26-7-2007; Ext. R2 series are the copies of photographs , marked subject to proof; Ext. R3 is the copy of the site lay out; Ext. R4 is the copy of the memorandum of association dated 24-08-17; Ext. R5 is the acknowledgement signed by the owners including the complainant on receipt of the accounts. The report of the expert commr has been marked as Ext. C1.
6.It is seen that the main allegation of the complainant is that ‘’ There is deficiency of service on the part of the 1st opposite party in not completing the project in time and not providing the facilities offered by the firm.’’. The opposite parties deny this stating even in the affidavit filed on 27-01-17 that ‘’it is absolutely false to allege that on 26-07-2007, at the time of purchase of the plot, the complainant was assured by the opposite parties that 5 phases of the project will be completed within 3 years. It is impossible to give such an assurance. Further, these opposite parties have not given any assurance to the complainant with regard to the facilities to be completed in 3 years.’’ ‘’The complainant has not cited a single condition in either the sale deed or sales agreement that has been violated by the company or its promoters. ‘’
7.We have gone through all records relating to the case. We are of the opinion that in the circumstances of the arguments by the 1st and the 2nd opposite party, it was for the complainant to prove with evidences, the offers made by the opposite parties and the time limit fixed for its completion. However, we are of opinion that the complainant has failed to point out either any clause of the sales agreement or brochure or any document, assuring the completion of the offers within a time limit .The complainant has also not produced any evidences to prove the matter. We are also bound to believe the detailed proof affidavit by the 1st and 2nd opposite parties on each and every allegation of the complainant in the absence of contra evidence on the part of the complainant. As such, we believe that no prayers of the complainant need consideration.
8.Considering all the above, the complaint stands dismissed.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 22nd day of December 2018.
Sd/- Sd/-
M.P.Chandrakumar P.K.Sasi,
Member President.
Appendix
Complainant’s Exhibits
Ext. P1 Receipt for Rs.30,000/-dated 2-10-12
Ext. P2 Brochure;
Ext. P3 copy of the petition dated 24-01-14
Ext. P4 Receipt of the police station dated 26-01-14,
Ext. P5 copy of the sale deed dated 26-07-17;
Ext. P6 copy of the lawyer notice dated 20-01-14
Ext. P7 is the reply to the lawyer notice dated 10-02-14;
Ext. P8 certified copy of the proof affidavit dated 17-11-16,
Ext. P9 copy of the cross examination conducted in OS-461/14;
Ext. P10 certified copy of the affidavit dated 29-11-16
Opposite Parties Exhibits
Ext. R1 sale deed dated 26-7-2007;
Ext. R2 series - copies of photographs , marked subject to proof;
Ext. R3 copy of the site lay out;
Ext. R4 copy of the memorandum of association dated 24-08-17;
Ext.R5 Acknowledgement
Ext. C1-Commission report
Id/-
President
