Date of Filing:18.02.2010
Date of Order: 10.03.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20
Dated: 10TH DAY OF MARCH 2011
PRESENT
Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.
Smt. D. LEELAVATHI, M.A.LL.B, Member.
Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.
COMPLAINT NO: 335 OF 2010
Mr. Praveen Kumar Soni
S/o Ram Gopal Soni,
Apartment No.B-204,
9/2, Ambalipura, Bellandur Gate,
Sarjapur Road,
Bangalore-560102. Complainant
COMPLAINT NO: 336 OF 2010
Mr. Soumik Bhattacharya,
S/o Tarun Bhattacharya,
Apt. No.C-202,
9/2, Ambalipura, Bellandur Gate,
Sarjapur Road,
Bangalore-560102. Complainant
COMPLAINT NO: 337 OF 2010
Mr. Saurabha Majumdar,
S/o late Sukmar Majumdar,
Apartment No.D-301,
9/2, Ambalipura, Bellandur Gate,
Sarjapur Road,
Bangalore-560102. Complainant
COMPLAINT NO: 338 OF 2010
1.Mr. Bhaskar Debiswas
S/o Bhalendra Debiswas
2.Smt. Papia Debiswas
W’o Mr.Bhaskar Debiswas
Both are R/at Apartment No.D-102,
9/2, Ambalipura, Bellandur Gate,
Sarjapur Road,
Bangalore-560102. Complainants
COMPLAINT NO: 340 OF 2010
Mr. Vijay Tijare
S/o Mr.Wasudeorao Tijare
Apartment No.C-104,
9/2, Ambalipura, Bellandur Gate,
Sarjapur Road,
Bangalore-560102. Complainant
COMPLAINT NO: 341 OF 2010
Mr. Paresh G.Karopady
S/o Gurudatt
Apartment No.E-102,
9/2, Ambalipura, Bellandur Gate,
Sarjapur Road,
Bangalore-560102. Complainant
V/S
1.M/s. V.R.Eco Properties Pvt., Ltd.,
Regd off at No.32, Grape Garden,
17th H Main Road, 6th Block,
Koramangala,
Bangalore-95.
Rep. by its Director Mr.Vijay Kumar
2.Mr.K.C.Vijay Kumar
No.32,Grape Garden,
17th H Main, 6th block,
Koramangala,
Bangalore-95. Opposite parties
ORDER
By the President Sri. S.S. Nagarale
These Six complaints are clubbed together for passing common order since, the opposite parties in all the cases are one and the same and question of facts and law involved is also one and the same. Therefore, these six cases can be conveniently disposed off by passing common order.
1. The respective complainants have filed complaints under section 12 of the Consumer Protection Act.
2. The brief facts of the case of the complainants are as follows. The opposite party is a company engaged in a Real Estate Development being impressed by the broachers and catalogues. The complainants negotiated terms with the opposite party entered into an agreement on 9-11-2003 for purchase of flats. Cost of the apartment along with various amenities / facilities have been paid. The opposite party induced to the complainant to obtain sale deed. The opposite party failed to provide basic amenities, regular electricity supply through BESCOM, failed to obtain water supply and drainage facility from BWSSB. The complainant repeatedly requested the opposite party to comply the sought falls, but the opposite party delayed the same. The provision of amenities remained only on paper. To avoid disputes and without prejudice sale deed was obtained from the complainant in the year 2006. The op failed to complete the works as promised. The opposite party is guilty of unfair trade practice and deficiency of service. The same has caused mental agony and hardship to the complainants. Hence, the complainants prayed the opposite party be directed to provide amenities as per construction agreement dated 9-11-2003 and to pay damages for mental agony.
3. The opposite party has filed common defense version, stating that the opposite party provide all basic amenities such as electricity, water, drainage and lift etc., contractual obligation provided in the agreement are alone. The opposite party already constructed the club house, execution of agreement dated 31-10-2003 are admitted. Sale deeds were obtained under threat is denied as absolutely false. It is submitted that sale deed came to be executed under pressure from the complainants. Even though, the amenities were yet to be completed. The complainants were aware of the unavoidable problems faced by the opposite party. They had approached the police with same grievances. There is no unfair trade practice in deficiency of service. Therefore, the opposite party prayed to dismiss the complaint.
4. The respective parties have filed affidavit evidence and documents. Arguments are heard.
5. In the light of the arguments advanced by the learned Advocates for the respective parties, the following points arise for consideration:-
1. Whether the complainants have proved deficiency of service on the part of the opposite party?
2. Whether the complaints are maintainable?
3. Whether the complaints are time barred?
4. Whether the complainants are entitled for relief sought?
REASONS
6. Admittedly as per the case of the complainants agreement to sell and construction agreement entered into between the parties in the year 2003. It is also admitted fact that the complainants have taken sale deed of the respective flats in the year 2006 from the opposite party. They have also taken the possession of the flat and living in the respective flats. If at all the opposite party has not provided facilities / amenities as per the construction agreement. They should have been mentioned to that effect in the sale deeds. In the sale deeds nothing has been mentioned about the non completion of amenities and facilities. The construction agreement merged with the sale deed. The complainants have taken title deeds from the opposite party in the year 2006 itself. The complainants could have filed the complaints within 2 years from the date of taking sale deeds. But, the complainants have their respective complaints in the year 2010 after more than 2 years of taking of sale deed. Under section 24A of C.P. Act, the District Forum can not entertain the complaint after lapse of 2 years from the date of cause of action. In this case the cause of action arose to the complainants on the date of execution of sale deed itself. Because they were aware of available facilities and amenities and which were the facilities not provided. Therefore, the complaint should have been filed within 2 years from the date of taking sale deeds. Therefore, the complaints filed in the year 2010 are clearly barred by time. On this point itself the complaints are liable to be dismissed. Secondly, when they have taken the title deeds and sale deeds have been executed in the year 2006 by the opposite party after the execution sale deed the Forum can not direct the opposite party to provide facilities and amenities. It is for the complainants to approach to civil court for getting relief. The Hon’ble Karnataka State Commission in cc No.34/2009 decided on 16-4-2009 b/w Jagadish vs Ittina Properties has been held that opposite party having executed sale deed, question of issuing direction to opposite party does not arise and if at all the opposite party had not completed the construction pursuant to the agreement the remedy for complainant is to approach civil court for damages. Therefore, the complaint filed by the complainant Jagadish was dismissed by the Hon’ble State Commission. So in view of the above authorities and on the facts of the case it is clear that the present complaint is not maintainable. In view of the judgments rendered in the similarly situated facts it is unnecessary for me to discuss in detail the present matter in question. Therefore, when there are judgments of Hon’ble State Commission on the relevant point, we are bound by those judgments and no further discussion is necessary and called for. The complainants herein having taken sale deed in the year 2006 itself, the sale deed is without any conditions, there are no terms or conditions in the sale deed in respect of amenities. The agreement merged with the sale deed. Under these circumstances, the remedy available now to them is to file civil suit against the opposite party for getting appropriate relief / reliefs. The time spent for prosecuting the present proceeding is liable to be given deduction for purpose of limitation, if the complainants are chooses to file civil suit against the opposite party. With this observation the complaints deserves to be dismissed. In the result, I proceed to pass the following:-
ORDER
7. The complaints are dismissed, giving liberty to the complainants to approach Civil Court for getting the appropriate relief / reliefs.
8. Send the copy of this Order to both the parties free of costs immediately.
9. Keep the copy of the order in connected case files.
10. Pronounced in the Open Forum on this 10TH DAY OF MARCH 2011.
Order accordingly,
PRESIDENT
We concur the above findings
MEMBER MEMBER
