BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

25^TH DAY OF JANUARY 2016

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 seeking direction against Opposite Party (herein after referred as OP) to:

1. complete all the pending works which had been assured at the time of execution of sale agreement, Construction agreement and the sale deed and also complete the common amenities assured at the cost of OP.
2. repair the cracks and leakages in the flat and redo the paint work wherever necessary at the cost of the OP.
3. do all that is necessary for the Khatha of the flat to be transferred to the names of complainants by the BBMP.
4. Pay damages of Rs.7,000/- per month along with interest at 12% per annum from the date of purchase till the date of completion of all above mentioned works and such other reliefs deemed  fit under the facts and circumstances of the case on the allegation of deficiency in service.

2.  The brief averments made in the complaint are as follows:

 The complainants submits that Sri.S.Kannaiah along with his eight family members are absolute owners of property bearing khatha No.2 situated at 60 feet Road, Tank Bund Road, N.S.Palya, and Bangalore measuring 22, 836 square feet. The owners entered into Joint Development Agreement with OP who is a registered partnership firm.   As per the terms of agreement OP agreed to develop the property and construct residential apartments, as per the specifications of the intending purchasers.  The project namely ‘Shesha’s Bhanu Residency-II’.  The OP released a profile of the Company projecting a conceptual presentation of the project which was termed as “Reality integrated with Imagination” to attract the prospective buyers. The complainants entered into an agreement of sale dated 25. 01.2010 for purchase of 455 square feet undivided share, right, interest and title for a price of Rs.5,00,000/- together with a right to construct a residential flat through OP as per the specifications listed in the schedule III of the sale agreement.  Complainants also entered into an agreement of construction dated 25.01.2010 with OP.  As per the terms of which a consideration of Rs.46,00,000/- paid by the complainants to OP.  OP would build a residential apartment as described in schedule II of the construction agreement. As per the terms of the consideration agreement flat bearing No.110, Ground Floor building called the “Shesha’s Bhanu Residency-II measuring super build area of 1675 square feet containing three bed rooms with RCC roofing, vitrified flooring and saw-wood doors and windows along with one covered parking space with proportionate share in common area such as passages lobbies, staircase and lift constructed on the property.  Further OP had agreed for development of common area as well as swimming pool, life and proper maintenance of the facilities.  OP in the capacity of acting on behalf of the owners as GPA holder and as the confirming party/promoter executed a sale deed in respect of the flat No.110 in favour of the complainant vide Document No.BNH-1-01323-2010-11 stored in the CD No.BMHT 418 dated 22.05.2010.  After purchase of the flat OP failed to make promised common facilities and maintenance of the lift and other commitments made at the time of sale agreement as well as the construction agreement.  Even after occupying the flat there were several unfinished works pertaining to the entire building as well as the flat belonging to the complainants and the common area like carpentry work to the main door, visible cracks in the balcony and bed room, unfinished bath room, leakage in bath rooms and the balconies and paint work amongst others.  The said problems were brought to the notice of OP on several occasions through representation by the aggrieved flat owners vide their letter dated 15.01.2012.  OP committed to resolve the problems on or before 10.04.2012 by its letter dated 28.02.2012.  But once again failed to attend to the deficiencies.  Adding to their woes, the OP demanded the maintenance charges even though basic facilities are not provided.  On two occasions OP disconnected the water supply to flat on flimsy grounds.  On complaining about the same OP threatened with dire consequences in the event of their insistence.  Complainants had to seek the help of the jurisdictional police to get the water supply.  Though the flat was purchased by them during the year 2010 OP had not made any efforts to get the khatha of the flat transferred in the name of the purchasers BBMP officials refused to issue the khatha certificate in the name of the complainants, since OP has failed to furnish completion certificate, occupation certificate and up to date tax paid receipt as required by the BBMP.  The appeals made to the OP went in vain.  As per the clause 4 of the construction agreement in case of delay in completion of the flat not beyond 12 months.  OP is liable to pay a sum of Rs.7,000/- per month to the complainants.  Though 4 years and 2 months have elapsed since the date of the sale deed.  OP has neither completed the pending work nor paid the compensation as agreed.  The uncompleted work has put the complainant to great inconvenience and great financial constraints. The deliberate negligence faulty and low quality work of OP in contravention of its own contractual liability amounts to deficiency in service.  On 21.01.2013 flat owners gave a representation to OP, seeking completion of the pending work and amenities and to furnish required documents to BBMP.  Inspite of repeated request and representations OP failed to comply the same.  Hence, complainants felt deficiency in service against OP.  Under the circumstances, they are advised to file this complaint against OPs for appropriate relief.

3.  After registration of the complaint, notice was issued to             OPs.  Inspite of service of notice OPs remained absent without sufficient reason or cause.  Hence OPs are placed exparte and posted the case for filing affidavit of the complainant.

4. So as to prove their case, Mr.Paresh K.Vora, who being the complainant No.1 filed his affidavit evidence on his behalf and also on behalf of his wife who authorized to swear this affidavit by her behalf also in support of the complaint reiterating the complaint averments and also filed written arguments. 

5. The above said assertions of the complainant have remained unchallenged. OP neither filed version nor denied the sworn testimony of the complainants.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainants.

6.  Let us have a cursory glance at the documents produced by the complainant. Document No.1 is copy of the Company profile of OP.  Document No.2 is copy of the agreement of sale dated 25.01.2010.  Document No.3 is copy of the construction agreement dated 25.01.2010 Document No.4 is copy of the sale deed dated 22.05.2010.  Document No.5 is copy of the letter of the flat owners dated 15.01.2012.  Document No.6 is reply letter of OP to the flat owners dated 28.02.2012 stating OP will solve all the listed problems on or before 10.04.2012.  Document No.7 & 8 are copies of the letters  and notice of the flat owners to OP dated 21.01.2013 and 26.01.2013 calling upon OP to furnish the documents required by BBMP to get the Khatha transferred and to complete the pending works within 7 days.  The said notice have been received and acknowledged by OP.

7. On perusal of oral and documentary evidence of the complainants, it is made crystal clear that the owners of the land bearing khatha No.2 situated at 60 feet Road, Tank bund Road, N.S.Palya, Bangalore measuring 22, 836 square feet entered into joint development agreement with M/s.Prashanth Sai Builders, i.e., the OP firm to construct residential apartment in the project namely “Shesha Bhanu Residency-II” as per Document No.1. The complainants entered into an agreement of sale dated 25.01.2010 for purchase of 455 square feet undivided share, right, interest in the above said property for a sum of Rs.5,00,000/- together with a right to construct a residential flat through OP as per specifications listed in the schedule III of sale agreement as per Document No.2.  The complainants also entered into agreement of construction dated 25.01.2010 with OP to build a residential apartment as per            schedule II of construction agreement for a total consideration of Rs.46,00,000/- as per Document No.3.  As per the terms of the construction agreement OP constructed flat No.110 in the ground floor of the building called “Shesha’s Bhanu Residency-II” in a super build up area of 1675 square feet containing three bed rooms with RCC sheet roofing, vitrified flooring, saw wood doors and windows along with one covered parking space with proportionate share in common area and agreed to develop the common areas such as passages lobbies, stair case lift, swimming pool, proper maintenance of the facilities etc., OP as per Document No.4 has excuted the registered sale deed dated 22.05.2010 in favour of complainants 1 & 2 in respect of flat no.110, but has failed to provide common facilities like lift etc and left several works unfinished, pertaining to the entire building as well the flat belongs to the complainants and in the common areas such as carpentry work to the main door, cracks visible in the balcony, bed room, unfinished and leakage in bath room, paint works etc.  The said problem were brought to the notice of OP by all aggrieved flat owners vide Document No.5 dated 15.01.2012 along with list of problems and again on 21.01.2013 as per Document No.7. OP vide its letter dated 28.02.2012 has promised to resolve the issues as per Document No.6, but failed to attend the same.  Hence, this complaint.

8. From the available material on record it is clear that OP has sold flat No.110, situated at ground floor, Sesha’s Bhanu Residency-II”BBMP No.2 60 feet Road, Tank Bund Road, N.S.Palya, Bangalore and has agreed to provide the amenities, to the complainants under the sale agreement and construction agreements dated 25.01.2010 as per schedule II and has failed to provide the same inspite of repeated requests and correspondences even after taking possession of the flat.  Hence complainants along with other apartment owners got issued notice dated 26.01.2013 as per document No.5 demanding OP to complete the pending work and to provide the promised amenities like swimming pool/gym/children’s play area along with occupancy certificate issued by BBMP, possession certificate and car parking allotment letter within seven days.  The said notice has been signed, received and acknowledged by OP.  OP vide its reply letter dated has agreed to solve the list of the problems before 10.04.2012 as per Document No.6  Inspite of its assurance and promise OP has failed to provide the amenities promised and complete the incomplete works.  This act of OP amounts to deficiency in service on the part of OP.  We are satisfied that the complainants proved deficiency in service against OP.  Under the circumstances OP is liable to complete all the pending works within three (3) months from the date of receipt of this order and to make all required arrangements for transfer of khatha in the name of the complainants by BBMP and also to pay compensation of Rs.7,000/- per month as per clause 4 of construction agreement from the date of receipt of last notice dated 26.10.2013 till the date of providing all the amenities to the complainants along with litigation cost of Rs.3,000/.  Accordingly, we proceed to pass the following:

                                  O R D E R

1. The complaint filed by complainants is allowed in part. 

2. OP shall complete all the pending works and provide all the amenities as agreed under schedule II of the construction agreement to the complainants within a period of three months from the date of receipt of this order.

3. OP to make necessary arrangements for transfer of khatha in the name of the complainants by BBMP, within three months.

4. Further OP to pay compensation of Rs.7,000/- per month from 26.01.2013 till the date of completion along with litigation cost of Rs.3,000/- to the complainants.

5. Supply free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 25^th day of January 2016)

 MEMBER                           MEMBER                        PRESIDENT

NRS* 

C.C.No.1728/2014

Witnesses examined on behalf of the complainant dated 23.09.2015

1. Sri.Paresh K.Vora,

OP – Absent

MEMBER                           MEMBER                        PRESIDENT

NRS*                            

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

25^TH DAY OF JANUARY 2016

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 seeking direction against Opposite Party (herein after referred as OP) to:

1. complete all the pending works which had been assured at the time of execution of sale agreement, Construction agreement and the sale deed and also complete the common amenities assured at the cost of OP.
2. repair the cracks and leakages in the flat and redo the paint work wherever necessary at the cost of the OP.
3. do all that is necessary for the Khatha of the flat to be transferred to the names of complainants by the BBMP.
4. Pay damages of Rs.7,000/- per month along with interest at 12% per annum from the date of purchase till the date of completion of all above mentioned works and such other reliefs deemed  fit under the facts and circumstances of the case on the allegation of deficiency in service.

2.  The brief averments made in the complaint are as follows:

 The complainants submits that Sri.S.Kannaiah along with his eight family members are absolute owners of property bearing khatha No.2 situated at 60 feet Road, Tank Bund Road, N.S.Palya, and Bangalore measuring 22, 836 square feet. The owners entered into Joint Development Agreement with OP who is a registered partnership firm.   As per the terms of agreement OP agreed to develop the property and construct residential apartments, as per the specifications of the intending purchasers.  The project namely ‘Shesha’s Bhanu Residency-II’.  The OP released a profile of the Company projecting a conceptual presentation of the project which was termed as “Reality integrated with Imagination” to attract the prospective buyers. The complainants entered into an agreement of sale dated 25. 01.2010 for purchase of 455 square feet undivided share, right, interest and title for a price of Rs.5,00,000/- together with a right to construct a residential flat through OP as per the specifications listed in the schedule III of the sale agreement.  Complainants also entered into an agreement of construction dated 25.01.2010 with OP.  As per the terms of which a consideration of Rs.46,00,000/- paid by the complainants to OP.  OP would build a residential apartment as described in schedule II of the construction agreement. As per the terms of the consideration agreement flat bearing No.110, Ground Floor building called the “Shesha’s Bhanu Residency-II measuring super build area of 1675 square feet containing three bed rooms with RCC roofing, vitrified flooring and saw-wood doors and windows along with one covered parking space with proportionate share in common area such as passages lobbies, staircase and lift constructed on the property.  Further OP had agreed for development of common area as well as swimming pool, life and proper maintenance of the facilities.  OP in the capacity of acting on behalf of the owners as GPA holder and as the confirming party/promoter executed a sale deed in respect of the flat No.110 in favour of the complainant vide Document No.BNH-1-01323-2010-11 stored in the CD No.BMHT 418 dated 22.05.2010.  After purchase of the flat OP failed to make promised common facilities and maintenance of the lift and other commitments made at the time of sale agreement as well as the construction agreement.  Even after occupying the flat there were several unfinished works pertaining to the entire building as well as the flat belonging to the complainants and the common area like carpentry work to the main door, visible cracks in the balcony and bed room, unfinished bath room, leakage in bath rooms and the balconies and paint work amongst others.  The said problems were brought to the notice of OP on several occasions through representation by the aggrieved flat owners vide their letter dated 15.01.2012.  OP committed to resolve the problems on or before 10.04.2012 by its letter dated 28.02.2012.  But once again failed to attend to the deficiencies.  Adding to their woes, the OP demanded the maintenance charges even though basic facilities are not provided.  On two occasions OP disconnected the water supply to flat on flimsy grounds.  On complaining about the same OP threatened with dire consequences in the event of their insistence.  Complainants had to seek the help of the jurisdictional police to get the water supply.  Though the flat was purchased by them during the year 2010 OP had not made any efforts to get the khatha of the flat transferred in the name of the purchasers BBMP officials refused to issue the khatha certificate in the name of the complainants, since OP has failed to furnish completion certificate, occupation certificate and up to date tax paid receipt as required by the BBMP.  The appeals made to the OP went in vain.  As per the clause 4 of the construction agreement in case of delay in completion of the flat not beyond 12 months.  OP is liable to pay a sum of Rs.7,000/- per month to the complainants.  Though 4 years and 2 months have elapsed since the date of the sale deed.  OP has neither completed the pending work nor paid the compensation as agreed.  The uncompleted work has put the complainant to great inconvenience and great financial constraints. The deliberate negligence faulty and low quality work of OP in contravention of its own contractual liability amounts to deficiency in service.  On 21.01.2013 flat owners gave a representation to OP, seeking completion of the pending work and amenities and to furnish required documents to BBMP.  Inspite of repeated request and representations OP failed to comply the same.  Hence, complainants felt deficiency in service against OP.  Under the circumstances, they are advised to file this complaint against OPs for appropriate relief.

3.  After registration of the complaint, notice was issued to             OPs.  Inspite of service of notice OPs remained absent without sufficient reason or cause.  Hence OPs are placed exparte and posted the case for filing affidavit of the complainant.

4. So as to prove their case, Mr.Paresh K.Vora, who being the complainant No.1 filed his affidavit evidence on his behalf and also on behalf of his wife who authorized to swear this affidavit by her behalf also in support of the complaint reiterating the complaint averments and also filed written arguments. 

5. The above said assertions of the complainant have remained unchallenged. OP neither filed version nor denied the sworn testimony of the complainants.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainants.

6.  Let us have a cursory glance at the documents produced by the complainant. Document No.1 is copy of the Company profile of OP.  Document No.2 is copy of the agreement of sale dated 25.01.2010.  Document No.3 is copy of the construction agreement dated 25.01.2010 Document No.4 is copy of the sale deed dated 22.05.2010.  Document No.5 is copy of the letter of the flat owners dated 15.01.2012.  Document No.6 is reply letter of OP to the flat owners dated 28.02.2012 stating OP will solve all the listed problems on or before 10.04.2012.  Document No.7 & 8 are copies of the letters  and notice of the flat owners to OP dated 21.01.2013 and 26.01.2013 calling upon OP to furnish the documents required by BBMP to get the Khatha transferred and to complete the pending works within 7 days.  The said notice have been received and acknowledged by OP.

7. On perusal of oral and documentary evidence of the complainants, it is made crystal clear that the owners of the land bearing khatha No.2 situated at 60 feet Road, Tank bund Road, N.S.Palya, Bangalore measuring 22, 836 square feet entered into joint development agreement with M/s.Prashanth Sai Builders, i.e., the OP firm to construct residential apartment in the project namely “Shesha Bhanu Residency-II” as per Document No.1. The complainants entered into an agreement of sale dated 25.01.2010 for purchase of 455 square feet undivided share, right, interest in the above said property for a sum of Rs.5,00,000/- together with a right to construct a residential flat through OP as per specifications listed in the schedule III of sale agreement as per Document No.2.  The complainants also entered into agreement of construction dated 25.01.2010 with OP to build a residential apartment as per            schedule II of construction agreement for a total consideration of Rs.46,00,000/- as per Document No.3.  As per the terms of the construction agreement OP constructed flat No.110 in the ground floor of the building called “Shesha’s Bhanu Residency-II” in a super build up area of 1675 square feet containing three bed rooms with RCC sheet roofing, vitrified flooring, saw wood doors and windows along with one covered parking space with proportionate share in common area and agreed to develop the common areas such as passages lobbies, stair case lift, swimming pool, proper maintenance of the facilities etc., OP as per Document No.4 has excuted the registered sale deed dated 22.05.2010 in favour of complainants 1 & 2 in respect of flat no.110, but has failed to provide common facilities like lift etc and left several works unfinished, pertaining to the entire building as well the flat belongs to the complainants and in the common areas such as carpentry work to the main door, cracks visible in the balcony, bed room, unfinished and leakage in bath room, paint works etc.  The said problem were brought to the notice of OP by all aggrieved flat owners vide Document No.5 dated 15.01.2012 along with list of problems and again on 21.01.2013 as per Document No.7. OP vide its letter dated 28.02.2012 has promised to resolve the issues as per Document No.6, but failed to attend the same.  Hence, this complaint.

8. From the available material on record it is clear that OP has sold flat No.110, situated at ground floor, Sesha’s Bhanu Residency-II”BBMP No.2 60 feet Road, Tank Bund Road, N.S.Palya, Bangalore and has agreed to provide the amenities, to the complainants under the sale agreement and construction agreements dated 25.01.2010 as per schedule II and has failed to provide the same inspite of repeated requests and correspondences even after taking possession of the flat.  Hence complainants along with other apartment owners got issued notice dated 26.01.2013 as per document No.5 demanding OP to complete the pending work and to provide the promised amenities like swimming pool/gym/children’s play area along with occupancy certificate issued by BBMP, possession certificate and car parking allotment letter within seven days.  The said notice has been signed, received and acknowledged by OP.  OP vide its reply letter dated has agreed to solve the list of the problems before 10.04.2012 as per Document No.6  Inspite of its assurance and promise OP has failed to provide the amenities promised and complete the incomplete works.  This act of OP amounts to deficiency in service on the part of OP.  We are satisfied that the complainants proved deficiency in service against OP.  Under the circumstances OP is liable to complete all the pending works within three (3) months from the date of receipt of this order and to make all required arrangements for transfer of khatha in the name of the complainants by BBMP and also to pay compensation of Rs.7,000/- per month as per clause 4 of construction agreement from the date of receipt of last notice dated 26.10.2013 till the date of providing all the amenities to the complainants along with litigation cost of Rs.3,000/.  Accordingly, we proceed to pass the following:

                                  O R D E R

1. The complaint filed by complainants is allowed in part. 

2. OP shall complete all the pending works and provide all the amenities as agreed under schedule II of the construction agreement to the complainants within a period of three months from the date of receipt of this order.

3. OP to make necessary arrangements for transfer of khatha in the name of the complainants by BBMP, within three months.

4. Further OP to pay compensation of Rs.7,000/- per month from 26.01.2013 till the date of completion along with litigation cost of Rs.3,000/- to the complainants.

5. Supply free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 25^th day of January 2016)

 MEMBER                           MEMBER                        PRESIDENT

NRS* 

C.C.No.1728/2014

Witnesses examined on behalf of the complainant dated 23.09.2015

1. Sri.Paresh K.Vora,

OP – Absent

MEMBER                           MEMBER                        PRESIDENT

NRS*