Karnataka

Bangalore 4th Additional

CC/1041/2017

Shanders Springdale Apartment Owners Association - Complainant(s)

Versus

M/s.Bagadia Properties pvt. ltd., - Opp.Party(s)

Sri.S.K.Rajendra

14 May 2019

ORDER

 Complaint filed on: 15.05.2017

Disposed on: 14.05.2019

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027

 

 

CC.No.1041/2017

DATED THIS THE 14^th May OF 2019

 

 

PRESENT

 

 

 

 

SMT.PRATHIBHA. R.K., BAL, LLM, PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

 

 

Complainant/s: -                           

Shanders Springdale

Apartment Owners Association, Sy.No.88/1 & 88/2,

New Sy.No.88/9,

Pattanduru Agrahara, K.R.Puram Hobli,

Bengaluru East Tq,

Bengaluru Urban District, Bengaluru-66

Rep.by its Vice-President

Sri.Banish Tanan,

Age 39 Years

 

By Adv.Sri.S.K.Rajendra

 

V/s

Opposite party/s:-    

 

M/s.Bagadia Properties Pvt. ltd., No.1097(old), 58(new),

18^th B Main Road,

V Block, Rajajinagar,

Bengaluru-10.

Rep. by its Director

 

By Advocates

M/s.Jaypee Associates

 

 

ORDER

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

            This complaint is filed by the Complainant/“Shanders Springdale Apartment Owners Association” against the Opposite party (herein after called as OP), under section 12 of the Consumer Protection Act, 1986. The Complainant prays to direct the OP:

- to provide amenities and common facilities as mentioned in the Brochure and Ready Reckoner such as Gymnasium and Indoor games area, Children’s play area, Jogging track, Landscaped Garden, Well equipped gym.

- to complete the Rain Water Harvesting work and provide the drawing after completion of the same and to complete the plastering work of the building which is incomplete.

- to complete covered car parking work

- to provide documents and drawings pertaining to BWSSB, BESCOM, Lifts, STP

- to provide all property documents and other papers of the apartment

- to pay compensation of Rs.18,000/- each of the 96 apartment owners of A, B and C blocks (Rs.17,28,000/-)

- to pay cost and to grant such other reliefs deem fit for which the Complainant is entitled to. 

 

2. The brief facts of the complaint is as under:

The Complainant submits that, OP has built and constructed 96 apartments in the name and style of “Shanders Springdale Apartments” situated at Sy.No.88/1 & 88/2, New Sy.No.88/9, Pattanduru Agrahara, K.R.Puram Hobli, Bengaluru East Tq, Bengaluru Urban District, Bengaluru-66. Further OP built and constructed the said apartments of A, B and C Block with each block consisting of 32 units and further all the apartments in the said blocks were duly handed over to the possession of the respective apartment owners by executing registered sale deeds to their names and were actually put to physical possession of the same by OP. Further apartment owners have formed the association known as ‘Shanders Springdale Apartment Owners Association” which got registered on 03.02.16.

 

2a. The Complainant further submits that, the role of Vice-President is stated in Chapter V- Officer bearers in para 60 of the Bye Laws, which reads as “in the absence of President, Vice-President to preside over the meetings and to give advice over policy matters and has the power to defend or pursue all legal actions on behalf of the association, to enter in to contracts, to institute legal proceedings and sign all papers and documents relating there to.” As such the Complainant is authorized to institute legal proceedings against the OP.

 

2b. The Complainant further submits that, before purchase of the apartment, OP has furnished brochure, layout plan of the said apartment which shows the various dimensions of each BHK and also shows the amenities to be provided such as Gymnasium and Indoor games area, Children’s play area, Rain water harvesting, STP, Lift, Generator will be provided for all common services and partial back up for the flats. Out of the said amenities, OP has not provided Gymnasium and Indoor games area, Children’s play area till date and Rain water harvesting work is incomplete.  Further, before purchase of the apartment, OP has also furnished the Ready Reckoner pertaining to other project “Spring Dale Project-Whitefiled-ITPL” to the prospective purchasers wherein it also shows the amenities to be provided by OP, such as Jogging Track, Land scaped garden, Children’s play area, Well equipped gym, Rain water harvesting and STP. Out of the said amenities OP has not provided Jogging Track, Land scaped garden, Children’s play area, Well equipped gym till date and Rain water which is incomplete.

 

2c. The Complainant further submits that, after going through the said Brochure and Ready Reckoner, the apartment owners of the association are induced by the amenities mentioned therein and thereby they have purchased the apartments from the OP after entering into sale agreements and sale deeds which were duly registered and the apartment owners of the association were put to actual physical possession of the flats by the OP. The Complainant further submits that, after formation and registration of the association, the same was informed to the OP and requested many a times to hand over the related and connected documents of the building and also to finish the pending works and also to provide amenities as mentioned in the brochures of the OP. But OP has failed to provide the same till date and the same has fallen to deaf ears of the OP for the reasons bests known to him. In this regard letter dtd.18.02.16 was also written to OP, but OP failed to attend the same. Since it is more than one year that they have formed association, but till date OP has failed to provide the common amenities and facilities as mentioned in the brochure and also failed to handover the documents of the building to the association till today for the reasons best known to them.

 

2d. The Complainant further submits that, the drawings, the documents and the approvals issued by statutory authorities pertaining to BWSSB, BESOM, Lifts, STP etc., are still in the custody of OP. In the absence of the said documents, the Complainant is unable to carry out necessary repair maintenance works and put to lot of difficulties and hardship. Further as per the sale agreement and sale deed, apartment owners have made the payment of Rs.2 lakhs per unit for car parking. But OP failed to finish the covered car parking work in the said apartment, thereby more than 50% of the apartment owners are not provided with the covered car parking. Being aggrieved by the act of the OP, the Complainant issued legal notice dtd.26.12.16 for which counsel for the OP sent interim reply on 02.01.17 stating that, “OP do not admit the correctness of the statements made in the notice under reply. OP has been processing a detailed reply to be issued to the legal notice dtd.26.12.16”. But till today no reply from the OP. Hence, this complaint.

 

3. The OP appeared before this forum and filed objections. In the objection, the OP submits that, the complaint is not maintainable either in law or on facts, filed on false grounds. The Op further submits that, association registered by the occupants of the apartments is under the Societies Registration Act and is not a legal entity as contemplated under the Karnataka Apartment Ownership Act of 1972. The competent authority to form the association under the said Act is the Registrar of Co-operative society.  Hence, this forum has no jurisdiction to entertain the complaint of the association.

 

3a. The Op further submits that, the residential complex was constructed by the OP under an Integrated Scheme of Development as a Joint venture Project with the owners and the brochure that was presented at the time of launching of the project had suggested certain amenities and facilities and it was also mentioned that it was only a conceptual presentation and not a legal offering and the OP had the prerogative to change or alter the amenities and facilities and that after the construction was completed. The sale deeds have been executed and the various prospective purchasers have obtained the execution of the sale deeds during the year 2013 and the constructed portion of the owner’s share was also delivered and the building was completed in all respects and after examining the specification which was finally confirmed and accepted by the prospective purchasers, the sale deeds were executed and possession was delivered to the respective purchasers and the owners and that all the occupants are in settled possession and have accepted the offering and therefore, the prospective purchasers and the owners are barred under the Principles of Acquiesance and that the owners have with a malafide intention have constituted the alleged association in the name of the Complainant and have filed the complaint and there is no deficiency in service as alleged and OP has fulfilled all the obligations. Though there was no assurance or undertaking by OP to provide Cauvery water connection, the same has been provided to the complex without any extra cost.

 

3b. The OP further submits that, the complex/apartment has been provided with Rain Water Harvesting provision, STP, Lift for every block, generator back up and all basic needs, amenities and facilities and the occupants are required to maintain the equipment and renew the Annual Maintenance Contract for the said facilities. The OP further submits that, they have completed the construction in all respects, the Planning authority having inspected the complex, has issued the occupancy certificate and therefore the claim of the Complainant about deficiency in service or facility does not arise at all and that there was no legal offering and if there was any objection on the part of the prospective purchaser, the prospective purchaser should not have opted for the registration of the sale deed and delivery of possession. As per sharing agreement between the owners and OP, the OP has still a few apartments unsold and further the owners have not settled and reconciled the accounts of the OP and the OP has to receive approximately more than Rs.2 crore and that the owners have been delaying the settlement and reconciliation of the account and in order to dictate the terms, have instigated some of the apartment owners to form the Complainant association.

 

3c. The OP further submits that, in terms of the agreement with the prospective owners, the sale deeds have been executed and OP has not committed any breach of the obligations and all statutory permissions, sanctions, NOC, occupancy certificate have been obtained and the complex is in accordance with the sanction plan and all working plan with regarding to the amenities and facilities have already been delivered to the owners. The car parking slots have been allotted to the respective unit owners and they have been parking respective parks in the stilt floor and all the common facilities and amenities are being enjoyed by the occupants. The relief regarding Gymnasium, Jogging track are not part of any legal offering and therefore the Complainant who has no locus standi cannot question the same. Hence, in the light of the above said facts, there is no deficiency in service, since the sale deeds were executed in 2013 and possession was delivered. Hence, prays this forum to dismiss the complaint with exemplary cost.  

 

4. In the course of enquiry into the complaint, the Complainant filed his affidavit reproducing what he has stated in his respective complaint. Both have filed written arguments. Both parties have produced documents. Complainant’s documents have been marked as exhibits. We have heard the arguments and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.  

 

5. Based on the above materials, the following points arise for our consideration;  

 

1. Whether the Complainant has proved that there is deficiency in service on the part of the OP, if so, whether he entitled for the relief sought for ?

2.  What order?

 

6. Our findings on the above points are as under:

Point No.1:  In the Affirmative

Point No.2:  As per the order below

 

REASONS

 

7. Point No.1: It is an undisputed facts that, the Complainant/flat owner’s association was formed by the owners of the flats sold by the OP. The contention of the Complainant is that, OP has assured to provide amenities and facilities as per the brochure/Ex-A7 and covered car parking to each flat. Though OP has collected Rs.2 lakhs per unit, failed to provide covered car parking for more than 50% of the flats. The Complainant further alleged that, OP has not handed over the drawings pertaining to BWSSB, BESCOM, Lift and STP and approvals issued by statuary authorities pertaining to BWSSB, BESCOM and STP etc., and also not handed over the required property documents.

 

8. Per contra, OP submits that, the said residential project is joint venture project with the owners and the brochure that was presented at the time of launching of the project had suggested certain amenities and facilities and it was also mentioned that it was only a conceptual presentation and not a legal offering by the OP. The sale deeds have been executed to the prospective purchasers during the year 2013 and the constructed portion of the owner’s share was also delivered and the building was completed in all respects and after examining the specification which was finally confirmed and accepted by the prospective purchasers. The sale deeds were executed and possession was delivered to the respective purchasers and the owners of the flats. Flat owners accepted the offer made by the OP and executed the sale deeds. Hence, there is no deficiency in service on the part of OP. OP further submits that, at the time of execution of sale deed, NOC certificate, occupancy certificate and all working plan with regard to amenities and facilities have already been delivered to the flat owners and car parking slots were also been alloted to the respective unit owners. Further with regard to the relief of Gymnasium, Jogging track are not part of any legal offering and therefore the Complainant who has no locus standi and cannot question the same.

 

9. On perusal of sale agreements/Ex-A12, A13 & A14 dtd.22.04.11, 11.04.11, 18.02.11, it is seen that, OP has not assured to provide amenities and facilities mentioned in the brochure. Moreover, the Complainant has not challenged the agreement of sale before this forum seeking to provide said amenities as mentioned in the brochure. The Complainant/flat owners have agreed the sale agreement and executed the sale deed as per Ex-A15, A16 & A17. The Complainant is estopped from taking such contention that, the OP has assured that they will provide amenities as per the brochure/Ex-A7. Hence, the claim of the Complainant cannot be considered with regard to the amenities not provided as per the brochure.

 

10. Further with regard to non-providing of the covered car parking to more than 50% of the flat owners. On perusal of the expert report/Ex-A27 given by the Chartered Engineer Sri.S.K.Tantri, B.E., FIE., FIV, it is clearly mentioned as under:

 

7. The following parking lots have not been covered from the top for Flat no.s

106, 206, 112, 310, 211, 311, 313, 413, 419, 319, 122, 411, 423, 424, 324, 218, 118, 417, 406, 309, 216, 116, 107, 108, 307, 102, 119 & 415 – 28 nos. in all.

Since the above lots are open to the top, any materials residents drop, knowingly or unknowingly, will fall on the vehicle. Further, after collecting such a huge amount, the parking lots need a covered area.

 

The expert opinion/report has not been disputed by the OP.  Hence, it is clear that, OP has not provided covered car parking to the said 28 flats. On perusal of the sale agreements/Ex-A12, A13 & A14 dtd.22.04.11, 11.04.11, 18.02.11, it is seen that, OP has collected Rs.2 lakh per unit for covered car parking. Once, OP has accepted the money from the Complainant to provide covered car parking lots, it is the duty of the OP to provide the same. Not done so, which amounts to unfair trade practice and deficiency in service on the part of OP. Hence, we deem it proper to direct the OP to provide covered car parking lots to the said 28 flats.

 

11. Further, OP is silent with regard to furnish of the drawings, documents and approvals issued by statuary authorities pertaining to BWSSB, BESCOM, STP etc., and also required property documents. OP has not produced any document to prove that, he had already handed over the said documents to the flat owners or association. Hence, we deem that, they have not handed over the said documents neither to the association nor to the respective flat owners. Hence, it is just and proper to direct the OP to hand over the said original documents to the Complainant. Accordingly, we answered the point no.1 in the affirmative.  

 

12. Point no.2: In the result, for the foregoing reasons, we proceed to pass the following order.

 

 

ORDER

 

          The complaint filed by the Complainant is allowed in part.

 

2. The OP is directed to provide covered car parking lots to the following 28 flats of “Shanders Springdale Apartment”: Flat No.106, 206, 112, 310, 211, 311, 313, 413, 419, 319, 122, 411, 423, 424, 324, 218, 118, 417, 406, 309, 216, 116, 107, 108, 307, 102, 119 & 415.

 

3. Further, the OP is also directed to handover original drawings, documents and approvals issued by statuary authorities pertaining to BWSSB, BESCOM, STP to the Complainant along with required property documents. 

 

4. Further, the OP is also directed to pay compensation of Rs.2,00,000/- and cost of litigation of Rs.20,000/- to the Complainant.

 

5. This order is to be complied by the OP within 45 days from the date of receipt of this order.

 

          Supply free copy of this order to both the parties.

 

(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by us in the Open Forum on this, the 14^th May of 2019)

 

 

 

(ROOPA.N.R)     MEMBER

(PRATHIBHA.R.K)  PRESIDENT

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Banish Tanan, who being the Vice-President of the association/Complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Registration certificate of association
Ex-A2	Covering letter dtd.27.01.16 of the association
Ex-A3	Minutes of meeting of association
Ex-A4	Memorandum of association
Ex-A5	Bye-Laws of association
Ex-A6	List of committee members of the association
Ex-A7	Brochure of OP showing amenities
Ex-A8	Brochure showing the views of the apartment
Ex-A9	Other ongoing projects of OP
Ex-A10	Agreement Ready Reckoner of op
Ex-A11	Letter of Complainant dtd.18.02.16 to OP
Ex-A12 to A14	Sale agreements dtd.22.04.11, 11.04.11, 18.02.11
Ex-A15 to A17	Sale deeds dtd.28.12.13, 17.12.13, 29.01.14
Ex-A18	Legal notice dtd.26.12.16
Ex-A19	Postal receipts
Ex-A20 & A21	Details of delivery speed post to OP on 27.12.16
Ex-A22	Reply of OP dtd.02.01.17
Ex-A23 to A26	Photos showing incomplete works
Ex-A27	Original Observation report dtd.21.06.18 by Registered Chartered Engineer Sri.S.K.Tantri, B.E., FIE., FIV
Ex-A28	CD showing current available common amenities and facilities in the apartment

 

1. Witness examined on behalf of the OP/s by way of affidavit:

 

• NIL - 

 

 

Copies of Documents produced on behalf of OP/s:

 

Doc.no.1

Occupancy certificate dtd.10.10.13

 

 

 

(ROOPA.N.R)     MEMBER

(PRATHIBHA.R.K)  PRESIDENT