Date of Filing:04/03/2015
Date of Order:07/09/2016
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed Under Section 12 of the Consumer Protection Act, 1986 against the opposite party (hereinafter referred in short as O.P) alleging deficiency in service and unfair trade practice on the part of the O.P and prays for direction to the O.P to refund the amount of Rs.39,944/- along with interest @ 18% per annum on the amount of Rs.89,400/- from 02.01.2006 to 02.09.2013 and interest at the rate of 18% per annum on the amount of Rs.39,944/- from 03.09.2013 till the date of payment to the complainant and seeking compensation of Rs.50,000/- towards mental agony and to pay cost of the proceedings.
2. The brief facts of the complaint is that, the vendor of the complainant by name M/s Grand Slam Investment Pvt. Ltd purchased the apartment bearing No. E-601 from the O.P through a registered sale deed dated 02.01.2006. In turn the complainant purchased the said apartment from M/s Grand Slam Investment Pvt. Ltd., dated 16.04.2016. In pursuance of the registered sale deed that the complainant got rights over the common areas and facilities which has been detailed in the sale deed. It is submitted that, on request of O.P the vendor of the complainant in the year 2006 paid a sum of Rs.89,000/- towards the maintenance of the park and open spaces in the O.P campus. The property in question situated in a land of 22 acres and 19 guntas of O.P campus and the same is divided in to public, semi public and private properties as per Government order. The park and open spaces forms schedule-B public property. The complainant alleges that, though O.P knowing well collected the amount in the name of Government owned property as unlawful. The O.P also indulged in discrimination and misrepresentation in collecting such funds and it is alleged to the unfair trade practice. Further complainant states that, on repeated demands O.P finally refunded Rs.49,456/- on 2.9.2013 acknowledged by the complainant under protest. Hence the complainant alleges that the O.P are legally bound and required to refund the entire balance amount of Rs.39,944/- and therefore the complainant got issued the legal notice calling upon the O.P to refund the balance amount, but, the O.P given the untenable reply. Hence this complaint.
3. Upon issuance of notice, O.P appeared through its counsel and filed a detailed version. In the version it is contended that, complaint is not maintainable either in the eye-of-law or on facts and the same is filed with a mala-fide intention. The complaint is filed to make an attempt to unjust to escape from the obligations binding the complainant as per sale deed dated 2.1.2006. It is contended that, the vendor of the complainant also agreed to pay the proportional charges for upkeep and maintenance of the common area in Brigade Millennium Project. The complainant also not alleges any deficiency in service on the part of the O.P the corpus found on Rs.89,400/- was collected to upkeep and maintenance of the entire Brigade Millennium Project. It is strictly in accordance with the terms and conditions of the sale deed dated 02.01.2006. It is contended that, during the year 2007 the general public started using the path way comes within the premises within the schedule B property belongs to O.P. and the public forcibly using different parts of the area. On account of earlier existing path way for the main i.e. Puttenahalli main Road was closed down due to reasons. Hence, on account of political pressure the general public is using the path way of B-Schedule property. On account of using path way by the public area reduce in the B-Schedule property and thereon O.P. has refunded the amount of Rs.49,456/- out of Rs.89,400/- and remaining amount is using for the maintenance of common areas. Hence O.P. contended that there is no deficiency in service on their part and ultimately prays for dismissal of the complaint.
4. To substantiate the above case, both parties have filed the affidavit evidence along with documents. We have heard the arguments.
5. On the basis of pleadings of the parties, the following points will arise for our considerations are:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.P?
(B) Whether the complainant is entitled to the
relief prayed for in the complaint?
(C) Whether the complaint is barred by
limitation?
(D) What order?
6. Our answers to the above points are:-
POINT (A) & (B) : In the negative.
POINT (C): In the affirmative.
POINT (D): As per the final order
for the following:
REASONS
POINT No. (A) & (B):-
7. At the outset it is not in dispute that the vendor of the complainant purchased the apartment from the O.P and in turn complainant purchased the same through registered sale deed. On perusing the copy of the sale deed dated 2.1.2006 it reveals that, the vendor of the complainant by name Sri K. Radhakrishna purchased the apartment from the O.P. by paying the sale consideration. On perusal of the B schedule of the property in question it consists of 12793.15 Sq. Mts and bounded shown as East by Area earmarked for school, West by Club house area in Schedule B property, North by road in Brigade Millennium and South by road known as Brigade Avenue.
8. Also on perusal of sale deed dated 16.4.2010 it discloses that, complainant purchased the property from the one M/s. Grand Slam Investment Pvt. Ltd., represented by its Mr. C. Subramanyam for sale consideration of Rs.13,00,640/-. It is worth to note that, on perusal of the above both the sale deed it clearly discloses that complainant is not purchased the property in question directly from the O.P. Hence it is clear that there is no privity of contract is existing between the complainant and the present O.P. Above all it is not in dispute that the road in the B schedule shown in the sale deed is used by the general public and hence the relinquish deed executed by the O.P in favour of the BDA and the same is mentioned in the earlier sale deed. Further during the course of arguments it has been brought to the notice of the Forum that the BDA gave back the other areas such as park and common areas to upkeep and maintain the same. On perusal of the letter dated 17.2.2003 it also discloses that, as per the resolution of the BDA O.P are directed to hand over the land and after that to develop the park and maintain the same. The above said letter is also evident that, the O.P also executed relinquish deed in favour of the BDA. Furthermore the BDA has given authority to the O.P to develop and upkeep the parks inspite of the relinquish deed. Inspite of it, that, the O.P refunded the amount of Rs.49,456/- to the complainant, though there is no privity of contract exists between the parties. It is not in dispute there is no other common area available to maintain. In these back drop of facts claiming refund of the whole amount paid towards the maintenance i.e. of Rs.89,400/- cannot be acceptable by any prudent man. Also on perusing of the B Schedule of the sale deeds it clearly discloses that, two sides of road is situated i.e. towards Northern and Southern sides. It is evident that, the general publics are using the road and rest of the areas obviously O.P has to maintain to upkeep the same. Viewing from any angle complainant failed to establish deficiency in service on the part of the O.P and therefore the complainant is not entitled for any relief as sought in the complaint. Accordingly we answered the Point No.(A) and (B) in the negative.
POINT NO.(C):
It is pertinent to note that, the complainant purchased the property from the O.P. through registered sale deed 31.12.2006 and the complainant paid the maintenance amount in question during year 2006 itself. Whereas on perusal of the letter dated 17.2.2003 and the general public are making use of the road in the B schedule of the common area since 2007. The actual cause of action accrued to the complainant from 17.2.2003 and on the date when the complainant executed the relinquish deed and the time runs from 17.2.2003 as well as the date of execution of the relinquish deed dated 30.4.2002. Though parties to the proceedings were exchanged the legal notices and it cannot extend the limitation nor refunding of the amount will not give raise to cause of action. On this score also complaint is hit by limitation. Accordingly we answered point No.(C) in the affirmative.
POINT (D):
10. On the basis of the findings given on the points No.(A) to (C) and in the result, we proceed to pass the following:-
ORDER
01. The complaint is dismissed. No order as to cost.
02. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 7th Day of September 2016)
MEMBER MEMBER PRESIDENT
*Rak
