DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 22nd day of February, 2023
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member Date of filing: 24/08/2021
CC/131/2021
Puzhayoram Gardens Apartments Owners Association
(Under Registration)
Nhangattiri P.O
Thrithala Panchayath,Pattambi Taluk
Palakkad Dist.
Kerala – 679 303
Represented by
1. President
Krishnakumar V.K
S/o Krishnankutty, Vadakkeppat
Krishna Bhavan, Pattambi
2. Secretary
Nish K.M, W/o Murali manoharan
Mahalakshmi Sadanam
Kudallur, P.O
Kumbidi - 679 554
3. Treasurer
Sivadas M, S/o Late Sri. Govindan Nair
Puzhayoram Gardens Apartments
Guruvayur Road, Pattambi - Complainant
(By Adv. P. Sreeprakash)
Vs
M/s. Dev Builders &Developers India Pvt. Ltd.
1C, Amarsangamam
Panampallinagar, Kochi, Ernakulam
Kerala – 682 020
Represented by Directors
1. Manikandan, S/o Kodali Narayanan
Vidya Nagar, Kadavanthra
Ernakulam
2. Priya Manikandan
D/o Damodaran,C
Moorkanad, Kulathur
Malappuram - Opposite party
(Ex-parte)
O R D E R
By Sri.Krishnankutty N.K., Member
1. Pleadings of the Complainant.
The complaint pleadings, in short, are regarding the deficiencies in providing various facilities by the opposite party in the apartment complex as per the sale agreement executed between members of the complainant association and the opposite party. The complainant is an Association consisting of 25 apartment owners who had executed said agreement with the opposite party. The individual buyers of the apartments and the opposite party had entered into separate agreements. On physical completion of the buildings, the opposite party registered the apartments in the name of individual buyers after receiving the full consideration. Some of the buyers were given possession of the flats before completing the various common facilities/facilities. The opposite party has not provided the occupancy certificate or completion report as required by the Kerala Panchayath Building Rules. The Panchayath however provided apartment door numbers for the purpose of collection of local taxes and enumeration. The opposite party didn't provide various amenities as per the sale agreement, inspite of verbal requests and follow up done by individual flat owners with them. After the formation of the association, a draft agreement detailing all the deficiencies and their time frame for completion was presented to the first opposite party on 05/01/20, but he refused to sign. Instead, he provided his own version list of deficiencies on 09/01/2020 and agreed to complete them within 6 months. The opposite party didn't take any steps to complete the works as promised. Aggrieved by this, the complainant approached this Commission seeking order to direct the opposite party to rectify the deficiencies within a specified time frame or to pay Rs. 44,90,000/- in case of failure to do so along with a compensation of Rs. 4,00,000/- towards financial loss & mental agony caused to the members apart from cost. The split up of the amount sought for rectifying the deficiencies are as follows.
SL. No. | Description of Deficiencies in brief | Status as per complaint | Approximate cost to rectify the deficiency | Compensation sought |
1 | Domestic waste disposal system. No proper system for disposal. Now dumped in open area. | A small incinerator provided. Stopped working many years ago. Never repaired | Rs. 1,50,000/- | Rs. 1,00,000/- |
2 | 24 hours standby generator for elevators, common area and power supply covering essential areas of each apartment. | Not provided | Rs. 10,00,000/- | Rs. 2,00,000/- |
3 | Modern Automatic elevators with generator back-up | One lift of local make installed few years ago, worked only for few months. Not repaired. Second one not ready. | Rs. 22,00,000/- | Rs. 1,00,000/- |
4 | Terrace/Roof leakage from terrace to top floor and stair case, etc. | No water proof done. Leakage continues. | Rs. 1,00,000/- | - |
5 | Raising and tiling of covered area of terrace not done. | Not done yet. | Rs. 3,00,000/- | Nil |
6 | Air conditioning of Health club, recreation area, club house, etc. not done. | Some exercise equipments are stored in the room. | Rs. 3,00,000/- | Nil |
7 | Intercom facility not provided. | Not provided. | Rs. 25,000/- | - |
8 | Fire & safety NOC not provided. | Not provided. | Rs. 50,000/- | - |
9 | Concrete slabs for sewage and drainage canals, gutter and other open areas. | Not done | Rs. 10,000/- | - |
10 | Lily pond damaged completely. | Not repaired | Rs. 5,000/- | - |
11 | Documents and drawings legal documents, building permission, NOC’s etc. | Not provided | - | - |
12 | Sewerage treatment | Only safety tank – no treatment. | Rs. 1,00,000/- | |
| | Total | Rs. 44,90,000/- | Rs. 4,00,000/- |
2. Notice was issued to the opposite party. They didn't enter appearance and hence were set Ex-parte.
3. Since the opposite parties did not contest the matter, the sole issue that this case has to consider is whether the complainant has proved a prima facie case.
4. As per the request of the complainant, an Advocate Commissioner was appointed along with an expert commissioner to assist him for submitting a status report of the common amenities provided vis a vis the provisions in the sale agreement. The commission reports were taken on record on 07/07/2022.
5. The complainant filed proof affidavit and marked documents Ext. A1 to A7 as evidence. The Commission reports were marked as Ext. C1 &C2.
In between an interim injunction order was passed against alienation of properties in the name of the opposite parties.
6. Ext.A7, the agreement executed by the opposite party with the flat owners clearly show the various facilities/amenities that should have been provided by the opposite party as per the agreement entered. A combined reading of the Ext.C1 and C2 gives us a clear picture of various works not carried out satisfactorily by the opposite party. The work yet to be completed and the approximate expenditure required for completing each item of work are submitted below:
1. | Domestic waste disposal system | Rs. 1,25,000/- |
2. | 24 hours stand by generator for elevators | Rs. 10,00,000/- |
3. | Modern automatic elevators with generator backup | Rs. 20,00,000/- |
4. | Terrace/Roof | Rs. 1,30,000/- |
5. | Covered area raising and tiling work | Rs. 2,50,000/- |
6. | Health club, recreation area, etc. | Rs. 40,000/- |
7. | Intercom facility | Rs. 30,000/- |
8. | Painting of external walls | Rs. 3,50,000/- |
9. | Fire and safety NOC | Rs. 75,000/- |
10. | Sewerage and drainage canals and covering the same | Rs. 25,000/- |
11. | Lilly pond | Rs. 25,000/- |
12. | Sewerage treatment | Rs. 1,00,000/- |
| Total | Rs. 45,10,000/- |
Thus we hold, in the absence of any contra evidence, that the complaints have proved a prima facie case.
7. In the result, the complaint is allowed ordering the following reliefs.
- Direct to pay Rs. 45,10,000/- to the complainant association. This amount shall carry interest @ 10% from 24/08/2021 till date of payment.
- The opposite party is also directed to hand over all the documents, clearances, NOCs etc. to the complainant for completing all the formalities as per the Kerala Panchayath Rules. The opposite party has to provide necessary assistance to complete this process.
- The opposite party is liable to pay Rs. 5,00,000/- as compensation for deficiency in service and sufferings of the members of the complainant Association and
- Rs. 25,000/- towards cost is to be paid by opposite party to complainant.
The opposite parties shall comply with the directions in this order within 45 days of receipt of this order, failing which opposite party shall pay to the complainant Rs. 250/- per month or part thereof until the date of payment in full and final settlement of this order.
Pronounced in open court on this the 22nd day of February, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Vidya A
Member
Sd/-
Krishnankutty N.K.
Member
Appendix
Documents marked from the side of the complainant:
Ext.A1 - Minutes of the meeting of the complainant association held as on 24/01/2021.
Ext.A2 – Sale deed executed by Praveen in favour of Sivadas.M and Geetha.M (No.4379/2014).
Ext.A3 – Memorandum of Association and by laws of Puzhayoram Gardens Apartments Association.
Ext.A4 – Agreement between land owner and builder dated 05/05/2013.
Ext.A5 – Builders proposal to complete the penalty work dated 09/01/2020.
Ext.A6 – Memorandum of Association of Dev Builders and Developers India Pvt. Ltd.
Ext.A7 – Draft agreement between opposite party and complainant (not signed).
Ext.C1 – Commission report submitted by Adv. Kiran.G Raj dated 23/05/2022.
Ext.C2 – Expert commissioner’s report dated 05/06/2022.
Documents marked from the side of opposite party: Nil
Witness examined- Nil
Cost- Rs. 25,000/-
NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
