Karnataka

Bangalore 4th Additional

CC/15/1346

Dr. USHA MOHAN, - Complainant(s)

Versus

M/s. Brigade Enterprises Ltd, - Opp.Party(s)

Sri. S. Nagaraja

21 Mar 2018

ORDER

Complaint filed on: 21.07.2015

                                                      Disposed on: 21.03.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1346/2015

DATED THIS THE 21^st MARCH OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Dr.Usha Mohan,

W/o Dr.A.Mohan,

Aged 68 years

R/at E-503, Jacaranda

Block, Brigade Millennium, J.P.Nagar, 7^th Phase,

Bengaluru-78.

 

By Adv.Sri.S.Nagaraja     

 

V/s

Opposite party/s

Respondent/s:-

 

1. M/s.Brigade Enterprises ltd.,

29^th and 30^th floors,

World Wide Centre,

Brigade Gateway Campus,

26/1, Dr.Rajkumar Road, Malleshwaram, Rajajinagar, Bengaluru-55.

Rep. by its Managing Director

 

By Advocates M/s.Indus Law

 

 

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to refund Rs.39,944/- the so called fund illegally retained by Complainant along with interest at 18% p.a. from 16.09.13 till the realization and interest 18% p.a. for the amount of Rs.89,400/- from 27.08.05 to 16.09.13. Further direct them to pay compensation of Rs.50,000/- towards mental agony cost of Rs.3,000/- and to pass such other orders deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, under the sale deed dtd.27.08.05 purchased an Apartment no.E503 in Jacaranda Block, Brigade Millennium from Op. As a part of purchasing the said apartment, Complainant got rights over the common areas and facilities which has been detailed in the said sale deed. The Complainant further submits that, on a special request from Op, in the year 2006, he paid Rs.89,400/- separately towards park and open spaces in Brigade Millennium Campus (hereinafter referred as the said campus). The Complainant further submits that, the entire land of 22 acres and 19 guntas of the said campus was divided in to Public, Semi Public and Private properties as per Govt., order. In that the park and open spaces forms schedule B public property and covers an area of 127963.12 sq.mtrs. This was then in accordance with the Tripartite agreement with Op, but Op has relinquished the right over the same through a relinquishment deed dtd.30.04.02. This admittedly established that the ownership and title over this land rests with the Govt., BDA and not with the Op. The Complainant further submits that, Op has indulged in discrimination and misrepresentations in collecting such funds in so far as a large number of similar flat owners in Mayflower Block and houses in Oak Tree place all forming part of the said campus are left out. The Complainant further submits that, Op is well aware of the fact that collecting money for the property which was in the name of the Govt., owned property is unlawful and a cognizable offence. After repeated demands by the Complainant with others, Op refunded an amount of Rs.49,956/- to the Complainant. The Complainant further submits that, Millennium park situated in the said campus is a public property owned by BDA. The Op had voluntarily undertakes to develop and maintain it as per BDA norms for the benefit of the inmates of the campus. As builders and developers of the said complex, Op flouted the terms & conditions and illegally annexed huge tracts of the parkland for setting up children’s playground of the Op Brigade school including football ground and a basketball court. The school was legally required to have its own playgrounds that it did not have and illegally encroached upon the parkland. The Op also encroached and annexed considerable portions of the parkland for setting up and commercially running a tennis court of the Woodrose club, another commercial entity of Op and also for the residence of Op personal driver. The Complainant further submits that, recently Op again encroached and annexed a portion of the parkland for setting up a new STP in the parkland after dismantling the earlier STP and appropriating the land where it had existed. In this manner more than 50% of the parkland entrusted to the Op by BDA for developing and maintaining the park for public use of the residents of the complex had been encroached upon and annexed by Op for use of Op’s commercial entities. Hence, retaining and misusing money illegally and wrongfully collected from residents under the pretext of park maintenance is wholly misconceived, illegal and untenable. Hence prays to allow the complaint

 

3. On receipt of the notice, Op did appear and filed version denying the allegations made in the complaint. The sum and substance of the version of the Op are that, this complaint is filed to make an attempt to unjust to escape from the obligations binding on the Complainant as per sale deed dtd.27.08.05. It is contended that, 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 of service on the part of Op. Corpus fund of Rs.89,400/- was collected to upkeep and maintenance of the entire project. It is strictly in accordance with the terms & conditions of the sale deed dtd.27.08.05. Op further 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 Op and the public forcibly using the different parts of the area.  On account of earlier existing pathway for the main road i.e. Puttenahalli main road was closed down due to reasons. Hence, on account of political pressure, the general public is using the pathway of B-schedule property. On account of using pathway by the public, the area has been reduced in the B-schedule property and thereon Op has refunded the amount of Rs.49,456/- out of Rs.89,400/- and remaining amount is being used for the maintenance of common areas. Hence, Op contended that there is no deficiency of service on their part and prays for dismissal of the complaint.  

          4. The Complainant to substantiate her case filed affidavit evidence and got marked the documents as Ex-A1 to A10. The Authorized Signatory of Op filed affidavit evidence and got marked the documents as Ex-B1 to B7. Complainant filed the written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether is there any deficiency of service on the part of Op, if so, whether the Complainant entitled for the relief sought for ?  
2. Whether the complaint filed by the Complainant is barred by time ?  
3. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative.  

Point no.2: In the Affirmative.

Point no.3: As per the final order for the following

 

REASONS

 

          7. Point no.1:  It is not in dispute that, the Complainant herein under the sale deed dtd.27.08.05 purchased an Apartment no.E503 in Jacaranda Block, Brigade Millennium from Sri.K.Radhakrishna and M/s.Brigade Enterprises Pvt. ltd., represented by its Managing Director Sri.M.R.Jaishankar.

 

          8. As per the say of the Complainant, entire land of 22 acres and 19 guntas of the said Brigade Millennium Campus was divided in to Public, Semi Public and Private properties as per Govt., order. In that, the park and open spaces forms schedule B public property and covers an area of 127963.12 sq.mtrs. and bounded shown as East by area ear marked 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. It is relevant to state here that, on perusal of the sale deed dtd.27.08.05, it clearly disclose that, road in B schedule shown in the sale deed is being used by the general public. Hence, relinquishment deed executed by the Op in favour of BDA. It is also noticed that, BDA gave the other areas such as park and common areas to Op to upkeep and maintain the same. The letter dtd.17.02.03 marked as Ex-B6 produced by Op disclose that, as per the resolution of the BDA, Op is directed to handover the land, after that, to develop the park and maintain the same. The said letter also evident that, Op also executed the relinquishment deed in favour of the BDA.  Further, the BDA has given authority to Op to develop and upkeep the parks inspite of relinquishment deed. Inspite of it, Op has refunded an amount of Rs.49,456/- wide DD.no.306625 dtd.16.09.13 to the Complainant, even though there is no privity of contract between the parties to the lis.  Further it is not in dispute that, there is no other common area available to maintain. In this backdrops, claiming refund of whole amount paid towards maintenance i.e. an amount of Rs.89,400/-  cannot be acceptable by any prudent man.  Further on perusing B schedule of the sale deed, it clearly disclose that two side of the road is situated i.e. towards northern and southern sides. Further it is evident that, general public at large are using the said road and rest of the area, obviously Op to maintain & upkeep the same. When such being the fact, the Complainant failed to establish deficiency of service on the part of Op. Accordingly we answered the point no.1 in the negative.

 

        9. Point no.2: It is relevant to note that, Complainant purchased the said property from Op under registered sale deed dtd.27.08.05 and she paid the maintenance amount in question during the year 2006 i.e. the amount of Rs.89,400/-. Whereas on perusal of the letter dtd.17.02.03 marked as Ex-B6, general public are making use of the road in B schedule of the common area since 2007. In our considered view, cause of action arise to the Complainant from 17.02.03 and on the date when the Op executed the relinquishment deed and the time runs from 17.02.03 as well as  the date of execution of relinquishment deed dtd.30.04.02. Though the parties of the proceedings were exchanged the legal notice, it cannot be extended the limitation or the date of refund of amount will not give raise to cause of action. In this context, we come to the conclusion that, complaint filed by the Complainant is beyond the period of 2 years, hence complaint is barred by limitation. Accordingly we answered the point no.2 in the affirmative.

 

          10. During the course of argument, learned counsel for the Op draw our attention to the pending application dtd.08.05.17 filed u/s 13(4) of the CP Act R/w Sec.151 of CPC to dismiss the present complaint in terms of Order dtd.07.09.16 passed by First Addl., DCDRF, Bengaluru in CC.no.427-43/2015 and CC.no.491/2015. We place reliance on the contents of the said judgment, wherein the Complainant therein have sought for similar relief herein as against the present Op.  The facts of the said complaints are similar to that of facts of the present complaint on hand. Further, learned counsel for the Op submits that, no appeal has been prepared as against the said order in dismissing the complaint. Hence, order passed in the said complaints are reached finality. In this context, there is no any reply by the Complainant. Hence, we come to the conclusion that, this case is also covered by the judgment rendered by First Addl., DCDRF, Bengaluru in CC.no.427-43/2015 and CC.no.491/2015. In view of recording our findings on point no.1 & 2, this application does not survive for consideration. Hence, complaint filed by the Complainant is deserves to be dismissed.

 

11. Point no.3: In view of our findings on point no.1 & 2, complaint filed by the Complainant is liable to be dismissed. Hence, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is hereby dismissed.  

 

          2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

         

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 21^st March 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Smt.Dr.Usha Mohan, who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Sale deed dtd.27.08.05
Ex-A2	Payment schedule
Ex-A3	Letter dtd.12.12.05
Ex-A4	Tax invoice dtd.01.12.05
Ex-A5	Letter dtd.18.02.06
Ex-A6	Statement of account as on 02.02.06
Ex-A7	Statement of account
Ex-A8	DD dtd.16.09.13 Rs.49,456/-
Ex-A9	Legal notice dtd.29.04.15
Ex-A10	Postal acknowledgement

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Udayakumar.A, who being the Authorized Signatory of Op was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1	Meeting dtd.31.12.1997
Ex-B2	Tripartite agreement dtd.22.03.1999
Ex-B3	Relinquishment deed dtd.30.04.02
Ex-B4	Layout plan
Ex-B5	Brochure and plans
Ex-B6	BDA letter dtd.17.02.03
Ex-B7	MOM dtd.21.04.13

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT