Date of filing:20.01.2019

                                                      Date of Disposal:13.11.2024

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 13^th DAY OF NOVEMBER 2024

PRESENT

Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER

Mrs.M.DIVYASHREE : LADY MEMBER

CONSUMER COMPLAINT NO. 47/2019

ORDER

BY Mr. K. B. SANGANNANAVAR: PRL. DIST. & SESSION JUDGE (R)- JUDICIAL MEMBER

1. This is a complaint filed by complainant to give directions against OP to complete the pending works in the common area, to allot car parking slot to the complainant as per the sanctioned plan, to handover Occupancy Certificate and to pay damages of Rs.5,00,000/- for mental agony and inconvenience suffered as a result of non-compliance of allotment of car parking slot and non handing over of Occupancy Certificate and not completing pending works.

2. The OP has contested the complaint, has denied the allegations made in the complaint against him and submits complaint is not maintainable.  OP submits, the entire ground floor is parking area and six purchasers had no cars at the time of purchase of flats and all the purchasers individually agreed with the OP that they are mutually deciding the car slots and no documents required in this regard.  Hence car parking slots not mentioned.  He submits complainant has purchased one of the apartment from OP and had received possession of schedule property and denied the allegations that work is not completed in the common areas.  The complaint is barred by time.
3. In view of rival contentions of the respective parties, Commission held an enquiry by receiving affidavit evidence and documents  from both parties and after closure of enquiry having heard learned counsels, the point that arise for consideration of the Commission would be:

Whether complainant had proved the alleged deficiency of service on the part of OP and if so? for what reliefs is he entitle for?

REASONS

4. It is an undisputed fact that the Agreement of Sale was entered into between parties to the complaint on 27.05.2013 and it is also an undisputed fact that on 27.05.2013 Construction Agreement was also entered between parties.  Further a Sale Deed came to be executed on 05.06.2014, wherein could see on page-10 para-02 – “AND WHEREAS, by virtue of the sharing agreement dated 21.03.2013, entered into between the LANDLORD and the Developer/Confirming Party, Apartment bearing No.FF-101, First Floor, measuring a super built up area of 1230 Sq.ft. together with 299 Sq.ft. undivided, share, right, title and interest in Schedule-A property.”  We could also find on this page the particulars of respective apartments and description of Schedule-C in common with the other apartment owners/occupiers, the purchaser shall have the following rights in respect of Schedule-A property. They are:

1. Full right and liberty for the purchaser and all persons authorized or permitted by the purchaser (in common with all other persons entitled, permitted or authorized to the like right), at all times by day or by night, to go, pass and bypass the staircase and the passage inside and outside the said building, constructed on the Schedule-A property and the property described in the Schedule-B hereto.

2. Full right and liberty to persons referred to in clause-1 supra, in common with all other persons with or without motorcars or other permitted vehicles, at all times, day and night, to go pass and bypass over the car park to the parking areas and other common open areas of the said building, or the entrance area of the building, constructed on the Schedule-A property without the right to erect any structures thereon.

3. The right to subjacent and lateral support, shelter and protection from the other passage of the said building and from the sides and roof thereof.

4. The right to free uninterrupted passage of running water, soil, gas and electricity from and to the said building and to the Schedule-B, through the sewers, drains and water courses, cables, pipes and wires which now are or may at anytime hereafter be in, under or passing through the said building or any part thereof.

5. Right of pass for the purchaser and the purchaser’s agents or workmen to the other parts of the said building and also the water tanks, for cleaning, repairing or maintaining the same at all reasonable times, after taking consent from the person appointed by the majority of owners of other apartments for this purpose.

6. Right to lay cables or wires through common walls or passages for radio, television, telephone and such other installations, however, having due regard to the similar rights of the other owners of apartment. The above work shall be executed, without causing any inconvenience to the other apartment owners.

7. Subject to payment for common facilities and services, the right to enjoy the common services and facilities provided in the said building.

8. The purchaser shall become and remain a member of society association/condominium (hereinafter referred to as the Organization) to be formed by and consisting of all the apartment owners in the Schedule-A property for the purpose of attending to maintenance and safety of the Schedule-A property and the apartment building constructed thereon, and all matters of common interest and shall observe and perform the terms, conditions, bye-laws, rules and regulations of such organization.

9. The Association has a right to collect the water usage charges and water related maintenance used by the vendors and the vendors has right to draw the water for the residential purpose only.

And in Schedule-D mentioned about Restriction on the Rights of the Purchaser.

5. Thus from the aforesaid recitals from the admitted document, when OP has sold Schedule-B property in favour of complainant a super built up area of 1230sq.ft., together with 299sq.ft. undivided, rights, title and interest in Schedule-A property and a Car parking space bearing No.FF-101 in the basement floor now cannot contend that the entire ground floor is parking area and six purchasers had no cars at the time of purchase of flats and they are mutually deciding the car slots, but facts remain found from enquiry that OP placed nothing on record to show that purchaser had agreed with him that all these purchasers were mutually deciding the car slots themselves.  In such circumstances, learned counsel for complainant is right in contending that OP has obliged to allot car parking slot to the complainant as shown in the sanctioned plan and is agreed not only an Agreement of Sale but also in the Sale Deed, since shown car parking space bearing No.FF-101 and also recited that such car parking is a covered car parking and now he cannot wash his hands and leave  the said issue to the six purchasers on the ground that at the time of purchase of the apartment complainant had no car and he has to decide with the other apartment owners in the said building.

6.  In so far as handing over of Occupancy Certificate, Commission at the most can give direction to OP to make his efforts to obtain Occupancy Certificate and he is also liable to complete the pending works in the common areas as agreed and if he could not able to obtain OC is liable to compensate the complainant suitably.

7. OP has obtained Possession Certificate dated 01.10.2014,  Assessment and Allotment of Sub-numbers at Property No.14 issued by BBMP dated 23.07.2015, Khata Certificate standing in the name of Mr.Sundaresan Natarajan dated 30.09.2015 and Khata Extract as per Ex.R1 to R4.  Thus, considering these documents we are of the considered view that complainant is entitle for some reliefs in this complaint.

8. Learned counsel for complainant submits that initially complaint was raised before the District Commission in CC/2910/2017 which came to be returned in exercising the power contemplated under Order 7 Rule 10(a) of CPC by an order dated 12.12.2018 since District Commission,   relying on the decision of Hon'ble NCDRC in RP/3496/2017 in Gurumuch Singh v. Greater Mohali Area Development Authority and others and held “It is the value of the goods or service, as the case may be, and not the value of the cost of removing the deficiency in service which is to be considered for the purpose of determining the pecuniary jurisdiction.”  Accordingly, complainant presented the complaint before this Commission on 24.01.2019 and in view of the specific recitals found in Agreement of Sale, Construction Agreement and Sale Deed complaint filed could not be said barred either U/s 24A of CPA, 1986 or Sec.69 of CPA, 2019 as the case may be.  In such conclusion, we proceed to allow the complaint in part and directed OP to complete the pending works in the common areas and allot car parking slot to the complainant as per Sanctioned plan and as per Sale Deed recitals dated 05.06.2014 and directed OP to make genuine efforts to obtain Occupancy Certificate from the concerned authority and do pay Rs.50,000/- as compensation for mental agony and inconvenience suffered as a result of non-compliance and pay Rs.25,000/- as cost of litigation within 60 days failing which the amount so awarded shall carry interest @ 06% p.a. from the date of complaint till realization.

9. Furnish copy of this order to parties to the complaint for information.

        Lady Member                                  Judicial Member             

*GGH*