COMPLAINT FILED ON: 09.02.2010
DISPOSED ON: 28.01.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 28TH JANUARY 2011
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT No.272/2010
Complainant OPPOSITE PARTY | M/s Lake Enclave Owners Welfare Association (Regd.), #24, Lake Enclave Lake City Layout, T.C. Palaya, K.R. Puram, Bangalore – 560 036. Rep: by its President Brigd.(retd), T. Jayaraman. Advocate: Sri. C.S. Kumar & Others V/s. M/s. Manjunatha Land Developers and Constructions PVT. Ltd., Having its registered office at #849, 1st Floor, 12th Cross, 4th Main, Indiranagar 1st Stage, Bangalore – 560 038. Rep: by its Managing Director, Mr. G.A. Muniraju. Advocate: Sri. G.R. Ravichandra Reddy |
O R D E R
SRI. B.S. REDDY, PRESIDENT
This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant Lake Enclave Owners Welfare Association seeking direction against the Opposite Party (herein after called as O.P):
1.
a) To provide permanent electricity connections with individual meter to each of consumer.
b) The said apartment should be provided with lift and have to be installed for usage.
c) The Generator has to be provided to the apartment.
d) The common area of the apartment should be painted.
e) The completion certificate is to be issued to the flat owners to fully occupy the same.
f) The occupation certificate is to be issued by the authority to the flat owners.
g) The windows, doors used and the painting work are sub-standard as such before occupation of the flats, the said windows, doors have deteriorated and the paint on the walls are peeling off.
h) To restrain the OP from using the bore well to his personal needs.
2. To construct and complete the entire apartment building in full and final conditions as per the agreed terms and conditions with all amenities and infrastructures within the time bound period.
3. To pay compensation due to the deficiency in service and to award litigation costs on the allegations of deficiency in service on the part of the OP.
2. In the complaint it is stated that the complainant is a registered Lake Enclave Owners Welfare Association consists of 13 members, who are the purchasers of the flats in the Lake Enclave apartments constructed by the OP. The members of the complainant association purchased the flats by paying huge amount. The said cost of the flat purchased includes the other needs like for the electricity, generator, lift and car parking etc., OP promised the members of the association that the flats would be ready for occupation in the month of September – 2007. OP only assured the members that the entire work would be completed and was postponing the work and has dodged the members till date. Even after September – 2007 the President and Secretary of complainant approached OP and requested to finish the apartment and furnish all the legal papers from the concerned authority, but till date OP ignored the request and has put the members to very great difficulty. The members of the complainant have to pay huge interest to the banks and also their office without enjoying the fruits of the flats even to this day. Thus the members have been put to very great hardship and they are facing serious problems due to negligent service of OP. Ever since 22.09.2009 there was number of correspondences between the complainant and OP through e-mails, OP never bothered to give any reply or has completed the work in the apartments. OP has not completed the work as agreed upon and the following works are still pending for completion such as:
a) Providing of permanent electricity connections with individual meter to each of the consumer.
b) The said apartment should be provided with lift and have to be installed.
c) The Generator and the transformer has to be provided to the apartment.
d) The common area of the apartment should be painted.
e) The completion certificate is not issued to the flat owners to fully occupy the same.
f) The occupation certificate is not issued by the authority.
g) The windows, doors and painting works done used are sub-standard as such before occupation of the flats the said windows and doors have deteriorated and the painting on the walls are peeling off.
The bore well which was installed in the Enclave for the specific usage of the flat owners and not for use of the outsiders, but OP has started another construction work near this Enclave, another water line to use the water from this bore well for the construction works is started OP has not taken any permission from the complainant to use the bore well water for his personnel needs. The defects were brought to the notice of OP, but there was any fruitful response till date. Legal notice was issued to the OP both through RPAD as well as through UCP. The notice sent through UCP has been delivered to the address. Inspite of the legal notice OP has not bothered to complete the work, OP have placed the generator and transformer and the materials of the lift, but not installed for usage in the premises. OP is delaying the works for the reasons best known to him; the members of the complainant have been put to untold sufferings due to deficiency of service by OP, though he has received the entire amount for his commitments. On completion of the apartment to each owners, the said owners seek the liberty to file individual complaint due to inefficient work and use of sub-standard material for their flats. Now the complainant have approached this Forum in an collective manner through their association to get the apartment completed and hand over the documents, so that flat owners can occupy their flat and live in a peaceful manner. Hence the complaint.
3. On appearance, OP filed version stating that the Lake Enclave apartment consists of 12 flats and a pent house; the same is handed over to individual customers and is occupied by them. Some of the flat owners have not paid the full amount which is causing delay to complete the project and to provide the amenities to the apartment owners. The individual owners occupied the apartment voluntarily after registration of apartments in their name. OP starting from 27.02.2008 to till this day has been providing free water and free electricity and also free maintenance to the apartment like house keeping, repairs, etc., from time to time. OP has not neglected the flat customers and not causing any hardship to them. Due to urgency in business schedule OP have not attended meetings and e-mails of the complainant. The possession was given to the individual customers; OP has not received the full amounts from customer of flats to complete the small works such as generator, providing lifts to the apartments, KEB power connection, some delay is causing due to the non-payment of the customers. OP undertake to keep the bore well in good condition and look after wear and tear of the pump and has not causing any hardship or inconvenience to apartment owners. The BESCOM has sanctioned the power supply to the apartments through letter dated 17.04.2010 and order to deposit the amount to 13 individual connections. Hence the complainant has to co-operate with the OP to get the permanent power connection to the individual apartment. As per the Annexure, the complainant has to pay huge amount to OP to complete the amenities to the apartment. OP as responsible builder shall provide all pending amenities complete as early as possible. Hence it is prayed to dismiss the complaint.
5. In order to substantiate the complaint averments, the President of complainant Association filed affidavit evidence. The Managing Director of OP filed affidavit evidence in support of the defence version. On the basis of the IA filed by the complainant Commissioner was appointed to visit the spot and submit report. The complainant filed memo of instructions; the Commissioner visited the spot and submitted the report. As per the report of the Commissioner:
1. Entire flats have not been provided with permanent electricity connections and also with individual meter to the respective flat owners. There is only temporary electricity supply, the electricity connection is unfinished.
2. The lift has not been installed for functioning only lift rooms doors are fixed. The lift is not yet ready to use. There is no electricity connection to the lift.
3. Only generator set is kept in a corner without any connections / commissioning. The transformer is also placed in a corner without commissioning and erecting in a position, thus the two items are idle without functioning.
4. The paintings and floorings in the common area are not finished and painting in the wall are already peeling pot and dampness in the walls are been seen. The floorings in common area is of granite and the flooring in the 4th floor and basement are yet to be completed.
5. The Secretary and Treasurer of the complainant informed that they have not been issued completion certificate either collectively or individually and no authority has given the completion certificate. The Secretary informed that only some flat owners have been given occupation letter by OP.
6. The windows, doors painting works of the occupied flats are not up to the standard specifications, the painting inside the flats are seen dampness with bubbles and electric switch boards inside the rooms in the flat are not properly fixed, there are no corridors ceiling fixtures for staircase lights.
The Secretary of complainant informed that OP has not provided car parking bay for all the flat owners, on the observation with the panel board, generator set and the transformer kept in the basement floor the flat owners cannot park their cars and no bay for parking is provided. The compound wall in the eastern portion of the apartment is already developed cracks.
The Commissioner also produced photographs.
6. Arguments of the complainant side heard, OP filed written arguments. Points for consideration are:
Point No.1:- Whether the complainant has proved
the deficiency in service on the part of
the OP?
Point No.2:- If so, whether the complainant is
entitled for the relief’s now claimed?
Point No.3:- To what Order?
7. We record our findings on the above points:
Point No.1:- Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
8. In the affidavit evidence of the Managing Director of OP, it is stated that the complainant M/s Lake Enclave Owners Welfare Association consists of 12 members, who are purchasers of the flats in the said apartment. The apartments are occupied by the members since 27.02.2008. OP is providing free water and free electricity and also free maintenance of the apartments like house keeping, repairs, etc., from time to time. The members of complainant even after obtaining the possession of apartment have not paid the full amount to the OP. Annexure – A is the statement of balance payment due from complainant members. OP approached several times demanding to pay the balance amount to complete the pending works such as providing generator and installation of lift to the apartment. On 25.05.2010 a request letter was sent to clear the outstanding payment; till this day the apartment owners have not paid the payment of Rs.11,27,922/-. OP has obtained permission from K.E.B. to provide permanent power supply to the individual apartment. OP is unable to deposit the amount to the meter connections and other fee Rs.66,300/-, the copy of the letter issued by BESCOM is produced and marked as Annexure – B. The generator, lift is kept ready at the premises due to shortage of funds; OP is not able to install the same in the apartment. If the complainant pays the balance amount, the OP shall complete all the works within a month. OP undertakes to provide good water supply to apartment through existing bore wells and also maintain the wear and tear of the pump. OP undertakes to complete the entire apartment building as per the agreed terms and conditions with all amenities and infrastructure. OP is not liable to pay any damages to the complainant.
9. On the basis of the affidavit evidence of the OP it becomes clear that OP is prepared to complete all pending works within a month of paying the balance amount due by the members of the complainant. As per Annexure – A the total amount due by members of the complainant is Rs.11,27,922/-. The main defence of OP is, because of the shortage of funds; it is unable to complete the work, the required materials like lift and generator are already kept ready at the premises.
10. The learned counsel for the complainant submitted that though the members of the complainant are liable to pay the balance of Rs.11,27,922/- as per Annexure – A, but OP cannot insist for payment of the said amount for completion of the pending work, as it was his duty to complete the works, then to take the balance amount. It is contended that some of the members of complainant have paid the entire amount, they cannot be made to suffer without proper amenities like lift, generator and KEB permanent connection. In our view as per Annexure – A out of 13 members of the complainant, 4 members have paid the entire amount, the remaining 9 members are yet to pay the balance amount. The total balance due from all these 9 members is Rs.11,27,922/-. Some of the flat owners have purchased directly after OP completed construction of the apartment by paying the entire sale consideration and obtained registered sale deeds. The 4 members shown in Annexure – A have paid the entire amount as they are the direct purchasers. They cannot become the ‘consumers’ as they have not engaged the services of the OP for construction of the apartment by entering into an agreement. Thus the said 4 members cannot approach the Forum seeking any reliefs for the reason that they are not ‘consumers’ so as to invoke the jurisdiction of this Forum. So for as other 9 members who are liable to pay the balance amount are not entitled to seek any relief by becoming members of the complainant without discharging their liability by paying the balance amount due. There is no any justification on the part of the complainant to claim the relief without making its members to pay the balance amount due to the OP. There is no any guarantee that after OP completes the entire work, these members pays the balance amount due to the OP. Therefore we are unable to accept the contention that OP has to complete the pending work and then demand for the balance amount due from the members of the complainant.
11. The copies of the two sale deeds dated 28.11.2007 and 16.08.2007 executed by OP in respect of flat No.S-01 and flat No.T-02 are silent regarding pending works for completion of the apartment. The earlier agreement deeds stipulating the terms and conditions are not produced by the complainant. Under these circumstances we are of the view that OP is to be directed to complete the following pending works:
1. To provide permanent electricity connection with individual meter to each of the flats.
2. Lift and generator are to be provided to the apartment.
3. The common area of the apartment should be painted.
4. The completion certificate is to be issued to the flat owners.
5. The occupation certificate is to be obtained from the competent authority and provide the same to the complainant.
These pending works are to be completed within two months of depositing the balance amount due by the members of the complainant in this Forum. After completion of the work the amount deposited in the Forum is to be paid. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is allowed in part. OP is directed to complete the pending works as shown in para-11 of this order; within two months of depositing the balance amount of Rs.11,27,922/- due by the members of the complainant in this Forum. After completion of the work, the amount deposited is to be paid to the OP. Under the circumstances the parties bear their own costs.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 28th day of January – 2011.)
PRESIDENT
MEMBER MEMBER
Snm:
