ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
01. The complainant has filed this complaint against the Opposite party (hereinafter referred in short as Op) alleging deficiency in service on the part of the Op and praying for direction to the Op to pay Rs.1,50,000/- towards illegal collection of car parking charges, Rs.25,000/- towards illegal collection of club house charges, Rs.5,00,000/- towards compensation for loss of common space and pathways and unauthorized maintenance deposit, Rs.2,00,000/- towards liquidated damages for mental agony and sufferings, i.e., in all Rs.8,75,000/- along with costs of the proceedings.
02. The brief facts of the complaint is that, the complainant attracted by the advertisement and offers given by the OP had booked an apartment. On 30.01.2010 the complainant had entered into an agreement to sell with the OP in respect of the apartment bearing No.SA-302, D type, in the property bearing No.SU-006, consisting of two bed rooms in 3rd floor having super built up area of 987 square feet in south block in a residential complex known as Shriram Surabhi apartment Complex constructed on the lands bearing Sy. No.24 and 25 measuring 07 acres and 06 guntas duly converted for non-agricultural residential purposes vide order of the special Deputy Commissioner, Bangalore District, bearing No. B.DIS.ALN.SR.(S)117/2004-05, dated: 26.06.2004, and B.DIS.ALN.SR.(s) 268/2003-04, dated: 17.11.2003 situated at Mallasandra Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, along with undivided share of 472 square feet in the entire land including one covered car parking in the basement. In the said agreement to sell the total sale consideration towards the price of undivided share of land and development cost was agreed for Rs.6,66,225/-. The complainant paid Rs.1,33,245/- towards the advance and balance is payable on every stage of construction and the last installment was payable during handing over the possession and as per the schedule mentioned in the agreement to sell. The complainant entered in to an agreement to build on 30.01.2010 and accordingly, the total cost of construction was fixed at Rs.12,83,100/- and Rs.1,50,000/- was fixed towards the allotment of one top open car parking space. Complainant paid Rs.1,16,755/- towards advance for construction and the balance was to be paid as per the Agreement to build. The complainant had promptly paid the balance amount to the OP as per the schedule of agreement to build. On 19.01.2012 OP executed a Deed of Apartment on 19.01.2012 in favour of the complainant. The OP also executed the Deed of Declaration in Form-A dated: 12.12.2013 registered in the office of the Sub-registrar, Bangalore. Despite these payments the OP illegally collected charges towards one top covered car parking space and club house without justifiable cause. As per Agreement to Build dated: 30.01.2010 the OP had already collected Rs.12,83,100/- towards cost of construction of super built up area of 987Sq. ft. The OP has violated the sanctioned building plan and created extra car parking to the extent of 564 instead of 258 covered car parking and 55 open car parking. The OP has miserably failed in provide proper service and it committed deficiency in service by encroaching the common spaces and pathways for car parking area and created difficulty to move the vehicles. The OP also deviated the sanctioned building plan by constructing extra floors in Block-NL to NS by converting 6th & 7th floors as Duplex houses and digging the surface land in to lower ground level thereby caused inconvenience to other apartment owners. The OP has collected Rs.17,766/- towards maintenance charges illegally though it specifically stated in para 14(a) of page 7 of Agreement to build dated: 30.01.2010 that, the OP will maintain the building until the completion of that project. The OP failed to obtain the completion certificate from the designated authority because of the deviation in construction which clearly amounts to deficiency in service. The complainant sent several communication letters to the OP regarding the problems, but OP never bothered to give reply. Hence on 05.02.2014 complainant issued legal notice to the OP, but OP did not choose to reply. Hence this complaint.
03. On issuance of notice, counsel for OP appeared and files its version contending that, the OP is a well reputed national level organization in real estate development and construction of quality buildings/apartments for about 20 years and has completed over 15 apartment projects to the utmost satisfaction of its customers. The complainant has suppressed the material facts. The complainant has taken possession of his apartment on 08.02.2012, by inspecting and acknowledging that, “he is fully satisfied in all respect” and after over one and half years, started grumbling like this unreasonably. The complainant entered in to agreements dated: 30.01.2010 with the OP to purchase the apartment No.SA-302 from the OP. A Deed of Declaration as prescribed by the Act ibid, has been executed and duly registered on 12.12.2013. Even the Provisional Managing committee of the association, as prescribed under Bye-law No. 19(1) of the Shriram Surabhi Association, the registered Bye-law, forming part of the registered DOD, has been duly constituted. Even the General Body meeting of the Association is also stated to have taken place and elected body of Managing Committee is installed. Now legally, the said association is fully and exclusively in control. Once the association is established, any matter relating to the common areas can be dealt with only by the association and no individual purchaser can validly pursue any such issue. The claim of the complainant is not pertaining to the individual right but in relation to other larger aspects. Hence the complainant has no locus-standi to maintain the complaint. The allegation of the complainant that, despite payment of cost of land and towards construction of the apartment, the OP has illegally collected charges towards the top covered car parking space without justifiable cause is totally misleading one. The total consideration of the apartment consists of several items like cost of construction of the limited common areas and facilities (consisting of the specific apartment and the car parking slot) and the specified percentage of undivided share and interest in the common areas and facilities as specifically defined in the Karnataka Apartment Ownership Act, 1972 and KEB deposit, BWSSB deposit, corpus fund, etc. and not the cost of the share of land as wrongly contended by the complainant. The cost towards the car park as limited common area and facilities and towards the club house as common areas and facilities are merely indicative of the tentative/proportionate costs of such items, indicated only for the sake of information and knowledge enabling the purchasers of apartments to know specific ingredients or constituents/inclusive-items of the total consideration or the total amount payable by the purchaser. If there is any deviation from the approved plan, it is to be decided by the concerned local authority and the complainant is not entitled to agitate the same. Since the number of car parking space mentioned in the earlier sanctioned plan was not sufficient more number of car parking slots are sanctioned in the modified plan which is approved by the authority. The extra floors in Block-NL to NS were also duly constructed in accordance with the approval of the plan by not changing the total number of apartments, sanctioned in the earlier approved plan.
04. To substantiate their respective cases, both the parties have filed their respective affidavit evidence along with documents. We have heard the arguments.
05. On the basis of pleadings and evidence placed before us, the following points will arisen for our consideration are:-
(A) Whether the complainant has proved deficiency
in service on the part of the OPs?
(B) Whether the complainant is entitled to the relief
prayed for in the complaint?
(C) What order?
06. Our answers to the above points are:-
POINT (A) & (B): In the Affirmative
POINT (C): As per the final order
for the following:
REASONS
POINT (A) & (B):-
07. On perusing the pleadings of both the parties and the materials placed before us, it is an undisputed fact that, the complainant was offered a director post in M/s. Chiguru Cancer Care Private Limited, Bangalore, only if he gives a surety to the loan amount of Rs.3,35,00,000/- and his post would be confirmed upon completion of 48 months from the date of his signature. At the residence of the complainant he gave collateral for the said loan to the OP-2 and the same was approved by OP-1 in the year 2010. At the time of taking signature from the complainant as mortgager, OP told that, the pledged documents would be returned upon complete repayment of the said loan amount with interest. The said loan amount was completely cleared along with interest on 14.08.2013. The crux of the matter is to consider that, after the clearance of the loan whether the complainant is entitled to the documents pleadged with the OP and non-returning the same leads to deficiency in service. Per contra, OP admitted in its reply legal notice dated: 09.01.2014 at Para-4 and stated that, after availing the loan in question by M/s. Chiguru Cancer Care Private Limited represented by its Directors had failed to clear the outstanding in respect of the loan account in spite of repeated requests, reminders, and demands. However their client was contemplating to initiate action against the borrower company Mr. Yathish Kumar, in the capacity of Director of the Company, came and paid the entire dues of opposite party and further instructed the OP not to release the title documents mortgaged as there was dispute amongst the director of the company. Whenever the loan is taken, unless and until the discharge of the said loan the bank has lien over the above said documents. On perusing the pleadings the complainant stood as a surety to the company which obtained the loan in order to purchase the medical equipment. Once loan is cleared it is the bounden duty of the OP to return the documents to the concerned surety who pleadged their documents. On saying of other directors not to release the documents in favour of the complainant and the bank acted contrary to the norms of the bank and hence the bank made the complainant to wander from pillar to post and the act of the bank non-returning the documents in question amounts to deficiency in service. Furthermore when the loan was cleared on 14.08.2013 the bank ought to have issued the documents to the concerned surety and hence in the absence of documents the complainant might have suffered some agony. Though complainant prays for Rs.20,000,00/- compensation for non returning of the documents the complainant did not produce any cogent evidence to establish that what was the sufferings of the complainant in absence of such documents to grant huge compensation. Under these circumstances we deem it proper to award compensation of Rs.10,000/- to the complainant. Also direct the OP to return all the documents to the complainant along with the costs of the proceedings. Accordingly, we hold point (A) in the affirmative and Point (B) Partly Affirmative.
POINT (C):-
08. On the basis of the reasons assigned above, while answering the point (A) & (B) accordingly, we proceed to pass the following:-
ORDER
01. The complaint is Allowed-in-part with costs.
02. The Ops are directed to return all the documents to the complainant which were pleadged towards security by the complainant.
03. The OPs are directed to pay Rs.10,000/- to the complainant towards compensation.
04. The Ops are directed to pay Rs.2,000/- towards costs of the proceedings.
05. The OPs are directed to comply the above order within 30 days from the date of receipt of this order.
06. Send a copy of this order to both parties free of costs.
