BANGALORE URBAN DISTRICT, NO.8, 7^TH FLOOR, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052         

C.C.No.1055/2012

DATED THIS THE 3^rd FEBRUARY 2014

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.JANARDHANA, MEMBER

Complainant: -   

                                                Kannan.K.C,

                                                1208, Mantri Tranquil,

                                                Off Kanakapura Road,

                                                Subramanyapura P.O.

                                                Gubbalala, Bangalore-61                  

V/s

Opposite parties:-        

1.   M/s. Propcare Real Estate Management Pvt. Ltd, Commerce @ Mantri, N.S. Palya, Bannerghatta Main Road, Bangalore-76

2.   M/s. Mantri Developers Pvt. Ltd, Regd. Office #41, Vittal Mallya Road, Bangalore01

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OPs, praying to pass an order, directing that the demand for water and diesel charges by the OP is absolutely illegal and untenable and direct the OP to provide water and Diesel for use within the complainant’s apartment without any additional cost and refund the IFRMD at the end of the contract and produce evidence of having employed and currently skilled labour and to pay compensation of Rs.75,000=00 together with cost.

2. The brief facts of the complaint can be stated as under.

The complainant had purchased an apartment from M/s. Mantri Developers Pvt. Ltd in the month of May 2006 in their project Mantri Tranquil in Gubbalala under Uttarahalli hobli, Bangalore south taluk. The super built up area of the apartment is 1285 Sq. ft and the unit is identified as C-1208. They gave the possession to the complainant on 16-6-2010 and they claimed that, they received the occupation certificate in the month of Jan.2010 but failed to provide a copy or even show a copy of the same even after repeated requests. After undertaking interior works in the apartment the complainant moved into the apartment on 7-10-2010 and since then the complainant is staying in the said apartment. There was a condition of sale in the sale agreement with M/s. Mantri Developers that forced the complainant to enter into a maintenance agreement with their 100% subsidiary company M/s. Propcare Real Estate Management Pvt. Ltd by paying an interest free refundable maintenance deposit (IFRMD) for maintenance services for three years . The maintenance clock started on 1-1-2010 much earlier than his actual possession date. The reason given by them is that they started the maintenance clock from the date of occupation certificate i.e. 1-1-2010. M/s. Propcare Real Estate Management Pvt. Ltd has sent an email on 8-5-2012 demanding water and diesel charges for the period April 2010 to March 2012. In the email, they have mentioned as per the main agreement it is beyond Prop care’s scope to supply water and diesel within the flat. Hence this is an amount being incurred by Propcare and need to be paid by the flat owners. Whereas during the purchase of the apartment as well as while signing the maintenance agreement, the complainant was given to understand that the cost of water and diesel that is used in side the flat are included in the interest free refundable maintenance deposit (IFRMD), when the complainant booked the apartment the IFRMD for maintenance was calculated @ Rs.150=00 per sq. ft and calculated according to the super built up area for each flat, where as they later increased the same to Rs.175=00 per sq. ft citing various reasons. Please find attached a letter dated 29-7-2006 and another letter dated 20-3-2009 and in this letter the complainant’s maintenance deposit is mentioned as Rs.2,24,875=00 and also in this letter they have mentioned that, the power failure is costing them further amounts and transportation of water from source outside the project costs of Rs.10, 38,000=00 per month. This clearly proves that, the cost of water and diesel for genset that is used inside the flats are included in the maintenance deposit and it is part of the maintenance agreement. Moreover there has been no communication from the OP during the last two years regarding the charges for water and diesel, how can they charge for these with retrospective effect.  Moreover as per clause 7 and 7 (c) of the Maintenance Agreement, the OP is bound to provide certain common amenities including procuring water from other than borewell and BWSSB lines. Clause 8 of the agreement talks explicitly about the payments to be made by the owner in addition to the IFRMD and these charges are not covered there as well. There is no provision to measure the water consumed in an apartment since there is no water meter provided for each apartment. Regarding diesel for the common DG set for providing backup power within an apartment, again there is no provision to measure the quality of diesel used by an apartment or units consumed in back up power by an apartment. The complainant attached the invoice issued by the OP to him there is no invoice number and there is no company seal, and there is no tax charged. When the complainant demanded for a company seal, the OP’s Manager Mr.Dev Dutt refused to affix the seal and told the complainant that the invoice is signed by Mr.S.Gururaj, General Manager, but when asked to mention the same in the invoice, Mr.Dev Dutt refused to do so. The quality of services provided by the OP is not satisfactory; they do not have skilled workers in their rolls to provide maintenance services. Hence the complainant has come up with the present complaint.

3. After service of the notice, the Ops no.1 and 2 have appeared through their counsel and filed version, contending interalia as under:

The complaint of the complainant is not maintainable and it is liable to be dismissed. Except for several bald unsubstantiated statements in the entire complaint, there is not even a single hint of any particular act or deficiency of service or negligence on the part of the Ops. Admittedly the complainant had purchased an apartment in the month of May 2006 in Mantri Tranquil in Gubbalala, Uttarahalli hobli, Bangalore south taluk. The occupancy certificate was received in the month of Jan.2010 and it was displayed on the notice board at Tranquil Apartment premises and same is in the custody of the association even as on date. The complainant can approach the association and collect the occupancy certificate issued towards his flat. The complainant being a major and a literate cannot make averments to the effect that he was forced into executing an agreement. If at all, the complainant was forced to execute a particular agreement, he might have as well walked out of such an agreement at his will. The fact that the complainant did not do only goes to prove that he has signed the maintenance agreement at his will, and not under any coercion and compulsion. Clause 7 of the agreement clearly says that, the OP no.1 shall provide maintenance services only for the common areas of the complex and certain common amenities. Sub-clause a to h under clause 7 state facilities given under clause 7 which are considered as common to all flat owners. There is no agreement for supply of water or electricity for individual usage. As per the agreement the 1^st OP is only liable to render service to the extent of common areas in the flat, and there is no such agreement for rendering any service or immunity to the individuals free of cost. It is an accepted norm in the industry that estate managers are appointed to maintain the common areas of apartment complex and such maintenance commences from the date when possession is ready to be handed over to the apartment purchasers. In this instance, the 1^st OP the estate manager has started the maintenance of the project after the receipt of the occupancy certificate in 1-1-2010 and the apartment being ready for occupation. Accordingly the maintenance agreement was on the concurrence of all the flat owners, agreed to be executed with effect from 1-1-2010. Admittedly the 1^st OP had sent an email demanding the charges towards the water and diesel consumed. It is an important to note that, demand for payment is only for the internal use of electricity and water within the flat. Allegations made by complainant against the Ops are made with malafide intention. It is clearly stated in the mail that, the OP no.1 had sought for payment of diesel charge and water charges towards internal service provided to the complainant by them. Allegation made by the complainant are hereby denied as false as there is no such assurance given that the cost of water and diesel that is used inside the flat is included in the interest free refundable maintenance deposit (IFRMD). The demand made towards water charges, it may be noted that, according to clause 7 (c ) of the maintenance agreement, the 1^st OP has agreed to provide maintenance services for systems (common sewage and water pipelines and system) with respect to the common areas only. In order to ease the life of the residents at Tranquil the 1^st OP being a facility management agency has walked the extra mile to facilitate the flat owners needs and comfort and water has been procured for not just the common areas but also for the individual use however, this does not obligate the 1^st OP to foot the entire bill. During power cuts by BESCOM the 1^st OP has been running the diesel generator sets and has ensured power supply to the individual residential apartments. According to the terms of the maintenance agreement, the 1^st OP is liable to maintain only the common areas at Mantri Tranquil. All consumables needed for general maintenance and running of equipment including but not limited to diesel for running the diesel generator sets does not fall within the scope of maintenance services. As per norms of the industry while it may be the responsibility of the estate manager to provide certain facilities at the apartment complex, the expense relating to the consumables in relation thereto has to be apportioned amongst the flat occupiers. Accordingly the estate manager has raised invoice for expenses incurred towards purchase of fuel and not supply of power. The 1^st OP has raised invoices only after deducting 40% of the total cost of diesel and that the entire cost has not been levied on the apartment owners. Further, the remaining 60% of the total cost of the diesel has been claimed from the flat owners on a pro-rata basis. The IFRMD shall be/is being used for the maintenances of common areas at Mantri Tranquil and not the interiors of residential apartments. As regards the increase in the deposit amounts the same has been increased from Rs.150=00 per sq. ft. to Rs.175=00 per sq. ft. due to the increase in the deposit charges by the BWSSB and BESCOM which is absolutely in consensus with clause 2 of the maintenance agreement. As per the requirement of the statutes, adding a sewage treatment plant at an apartment complex has been made mandatory. As all the flat owners/occupiers are aware a sewage treatment plant was added on to the premises at Mantri Tranquil and the charges/expenses for the same have to be borne by the flat owners proportionately. Accordingly the 1^st OP has made use of such treated water as per the norms provided by the pollution control board. The OP no.1 has been rigorously following up with the association for payment of amounts towards diesel and water charges for more than a year, since the association has failed to finalize the issue; the 1^st OP was forced to directly communicate with the individual flat owners claiming payment of expenses towards diesel and water charges, during May 2012. The 1^st OP emphatically denies all the allegations made in the complaint as false, frivolous and vexatious. Hence, it is prayed to dismiss the complaint with compensatory cost.  

4. So from the averments of the complaint of complainant and version of the OPs, the following points arise for our consideration.

1.                  Whether the complainant proves that, the OPs are negligent and there is deficiency of service on the part of the OPs, in not providing water and diesel to his apartment free of cost as per the agreement?

2.                  If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                  What order?

5. Our findings on the above points are;

          Point no.1:  In the Negative

Point no.2:  In view of the negative findings on the

point no.1, the complainant is not entitled 

to any relief as prayed in the complaint

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced six copies of documents alongwith complaint and also produced copies of annexure-A1, construction agreement alongwith break up details of total cost of the apartment, one letter of OPs and invoice. On the other hand, one Gururaj, who being the authorized signatory of the OPs has filed his affidavit on behalf of the 1^st OP and produced one letter dated 16-5-2013 issued by the OPs. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.

7. One Kannan.K, who being the complainant has stated in his affidavit that, he had purchased an apartment from M/s. Mantri Developers Pvt. Ltd in the month of May 2006 in their project Mantri Tranquil in Gubbalala under Uttarahalli hobli, Bangalore south taluk. The super built up area of the apartment is 1285 Sq. ft and the unit is identified as C-1208. They gave the possession on 16-6-2010 after registering the flat on 14-6-2010. They claimed that, they received the occupation certificate in the month of Jan.2010 but failed to give him a copy of the same, and he moved into the apartment on 7-10-2010 after undertaking interior works and since then he is residing in the said apartment. There was a condition of sale in the sale agreement with the 2ns OP that forced him to enter into a maintenance agreement with the 1^st OP  by paying an interest free refundable maintenance deposit (IFRMD) for maintenance services for three years. The maintenance clock started on 1-1-2010 much earlier than his actual possession date of 16-6-2010.  The reason given by them is that they started the maintenance clock from the date of occupation certificate i.e. 1-1-2010. The 2^nd OP has sent an email on 8-5-2012 demanding water and diesel charges for the period April 2010 to March 2012. Whereas during the purchase of the apartment as well as while signing the maintenance agreement, he was given to understand that the cost of water that is used inside the apartment and Diesel that is used in the DG set for back up power within the apartment are included in the interest free refundable maintenance deposit (IFRMD), when he booked the apartment, the IFRMD for maintenance was calculated @ Rs.150=00 per sq. ft and calculated the amount to the super built up area for each flat, where as they later increased the same to Rs.175=00 per sq. ft in the month of March 2009 citing various reasons. In a letter from the 2^nd OP dated 29-7-2006 they had mentioned that the maintenance deposit is Rs.1,92,750=00 and another letter dated 20-3-2009 they have mentioned that the BESCOM/BWSSB and Maintenance Deposit charges have been increased due to the increase in the rates. In this letter the maintenance deposit is mentioned as Rs.2,24,875=00 and the power failure is costing them further amounts and transportation of water from source outside the project costs them Rs.10,38,000=00 per month. This clearly proves that, the cost of water and diesel for genset that is used inside the apartments are included in the maintenance deposit and it is part of the maintenance agreement. There has been no communication to him from the OP during the last two and half years regarding the charges for water and diesel, and how can they charge for these with retrospective effect.  As per clause 7 and 7 (c) of the Maintenance Agreement, the OP is bound to provide certain common amenities including procuring water in addition other than borewell and BWSSB lines. Clause 8 of the agreement talks about the payments to be made by the owner in addition to the IFRMD and these charges (water and diesel) are not mentioned there as well. There is no provision to measure the water consumed in an apartment since there is no water meter provided for each apartment. So also there is no provision to measure the quality of diesel used by an apartment and there is no mention made in the maintenance agreement that cost increased by the 1^st OP towards water and diesel shall be reimbursed by the flat owners. The 1^st OP has no business whatsoever to discuss regarding these water and diesel charges or any other charges with the owners association since the owners association is not a party to the maintenance agreement. The 1^st OP had offered 10% discount if the said invoice is paid before end of May 2012. Subsequently they have offered 40% discount on the invoice in a letter to the owners association on 18-8-2012 and this goes to prove that the 1^st OP is trying to extort as much money from him. He would like to know under which clause of the maintenance agreement they are charging him for water and diesel with retrospective effect. So the claim of the Ops no.1 and 2 be dismissed and they have come up with the present complaint, so he prayed to allow the complaint and pass an order as prayed for.

8. Let us a have look at the relevant documents of the complainant. Document no.1 of the complainant is the copy of sale agreement of M/s. Mantri Developers Pvt. Ltd in the name of complainant dated 7-6-2006 in respect of apartment bearing no.1208 in the 12^th floor in Mantri Tranquil alongwith open car parking area. Document no.2 is the copy of construction agreement between the complainant and the 2^nd OP dated 7-6-2006. Document no.3 is the copy of maintenance agreement between the complainant and Estate Manager of Mantri Estate Management Pvt. Ltd dated 1-1-2010 and in the said maintenance agreement, the Estate Manager has agreed to provide the maintenance service of common area of residential complex. Clause no.1 of the agreement and clause 7 of the maintenance agreement makes it clear that, the estate manager can provide maintenance service only for common area of the complex and certain amenity. The said maintenance agreement between complainant and estate manager for the maintenance of the entire building wherein it is not stated specifically that, the 1^st OP is entitled to supply water and diesel within apartment of complainant, but the said agreement makes it abundantly clear that, the 1^st OP is entitled to supply water and electricity to common area of complainant and not within the apartment of complainant. So also from clause 9 of the agreement, it is disclosed that, the estate manager on termination of agreement shall refund the amount in deposit collected towards IFRMD, after deducting any dues towards maintenance to the flat owners. The said maintenance agreement discloses that, after expiry of the agreement, the estate manager is bound to refund IFRMD to the flat owner deducting all dues from the flat owners. Document no.4 is the copy of letter of OP dated 29-7-2006 addressed to the complainant stating that, the OP is pleased to allot flat no.1208 at Mantri Tranquil for total sum of Rs.40,10,097.22. Document no.5 is the copy of letter of OP dated 20-3-2009 addressed to the complainant stating that, they are committed to deliver a residential complex which will be amongst the best in the city and would like to solicit their support towards the same. Generally water and electricity consumes 60% of the outgo. The maintenance deposit, BESCOM/BWSSB charges and legal charges are uniform, the stamp duty and registration fee is fixed on the guidance value which is subject to change from time to time. Document no.6 is the copy of letter of the 1^st OP dated 8-5-2012 addressed to the complainant stating that, as per the agreement it is beyond the 1^st OP to supply water and diesel within the flat so this amount being incurred by the 1^st OP and needs to be paid by the flat owners and they will be issuing bills for water and diesel consumed on a monthly basis from April 2010 towards.

9. The evidence of complainant that, the 1^st OP is bound to supply the water and diesel within his apartment as per maintenance agreement is not corroborated by the terms and conditions of the maintenance agreement between the complainant and the 1^st OP

10. Let us have a cursory glance at the material evidence of the 1^st OP. One Gururaj, authorized signatory of the 1^st OP has stated in his affidavit that, the present complaint is not maintainable either in law or on facts. All allegations made in the complaint are made with the ulterior motive. There is no deficiency of service on the part of the Ops. The complainant has purchased an apartment in the month of May 2006 and the occupancy certificate was received in the month of Jan.2010 and copy of occupancy certificate was handed over to the Tranquil Apartment owner’s association and the complainant can approach the association and collect the occupancy certificate issued towards his flat. The complainant being a major and a literate cannot make averments to the effect that he was forced into executing an agreement. On the other hand, the complainant has executed the agreement after satisfying himself with the contents thereof. As per the clause 7 of the agreement it is clear that, the OP no.1 shall provide maintenance services only for the common areas of the complex and there is no agreement for free supply of water or electricity for individual usage. The 1^st OP is only liable to render free service to the extent of common areas in the flat. Demand for payment is only for the internal use of electricity and water within the flat, so also the 1^st OP has sought for payment of diesel charges and water bills towards internal service provided to the complainant by them. There is no assurance given that the cost of water and diesel that is used for consumption inside the flat is included in the interest free refundable maintenance deposit (IFRMD). According to clause 7 (c) of the maintenance agreement, the 1^st OP has agreed to provide maintenance services for systems with respect to the common areas only.  As regards the increase in the deposit amounts is absolutely in consensus with clause 2 of the maintenance agreement. All the flat owners are aware a sewage treatment plant was added on to the premises at Mantri Tranquil and the charges for the same have to be borne by the flat owners. There is no deficiency of service on the part of the Ops, so the complaint of the complainant be dismissed with cost.

11. The OP has produced one letter dated 16-5-2013 issued by the 1^st OP to residents of complex informing that, the process of refunding of IFRMD would commence from the 27-5-2013 those who are not able to collect the cheques on the dates indicated may collect the same between 3^rd June to 8^th June 2013, if any clarification please contact via email.

12. Taking the oral and documentary evidence of both parties on the back ground of relevant clause of the maintenance agreement between complainant and 1^st OP, it is vivid and clear that, the complainant has failed to prove with clear cogent and consistent material evidence that, the 1^st OP is liable to supply the water and diesel to his apartment free of cost, as per the terms and conditions of maintenance agreement. Whatever the complainant stated during the course of evidence with regard to supply of water and diesel to his apartment is totally based on conjecture and surmises. The material evidence placed by the complainant in this regard is lacking in its credibility, for the reasons best known to the complainant. On the other hand, the 1^st OP has reiterated both in the version and during the course of evidence that, the 1^st OP has acted as per the terms and conditions of maintenance agreement and whatever the complainant stated with regards to the supply of water and diesel within the apartment is outside the scope of maintenance agreement. The 1^st OP has issued a letter to the flat owner’s association to come and collect the cheque in respect of IFRMD. The oral evidence of the authorized signatory of the 1^st OP that there is no deficiency of service on the part of the Ops as they acted in accordance with the maintenance agreement and they are ready to refund IFRMD to the complainant also stands corroborated by relevant clause of maintenance agreement and letter of the Ops dated 16-5-2013 and as such, we are of the view that, the oral and documentary evidence of the Ops placed before the forum are more believable trustworthy and acted upon than the material evidence of complainant. So viewing the case of complainant on the back ground of material evidence placed by both parties, we are of the considered opinion that, the complainant who comes to the forum seeking relief has utterly failed to prove this point with clear and tangible evidence that Ops are negligent and there is deficiency of service on the part of the Ops, in not providing water and diesel to his apartment free of cost as per agreement, and accordingly, we answer this point in a negative.

13. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is hereby dismissed. No cost.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 3^rd day of February 2014).

MEMBER                                 PRESIDENT