BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 21^st DAY OF JANUARY 2021

CONSUMER COMPLAINT NO.1223/2016

PRESENT:                                                          

Sri.K.S.Bilagi, B.com, M.A., LL.M.….   PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.….   MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.      ….        MEMBER

Sai Sri Pride Apartment Owners Welfare Association,

Flower Garden Main Road,

Babusapalya Kalyan Nagar,

Bengaluru-560043,

Represented by its President

Sri.Karthikeyan P

S/o Paramasivan C.

Aged about 38 Years.

(Rep by Sri.Janardhana G, Adv)

V/s

OPPOSITE PARTIES:

1. M/s Sai Sri Developers

A Partnership firm having its Office at Flat No.004,

at No.86, Sai Sri Fortunes,

Mallappa Layout,

Babusapalya,

Bengaluru-560043,

By its Partners.

2. Mr.Y.Amarnath Reddy,

S/o Y.Bhaskar Reddy,

Aged about 48 Years,

No.39, 1^st Cross,

Vivekananda Nagar,

BSK III Stage,

3. Mr.C.Pavan,

S/o G.Chandrashekar Reddy,

Aged about 28 Years,

No.14, 7^th Main, Subbanna Palya,

4. Mrs.B.Suneela

W/o B.Raghurami Reddy,

Aged bout 45 Years,

No.837, 2^nd B Cross,

(Rep by Sri.G.M.Jagadeesha, Adv)

5. Sri.G.Jayarama Reddy,

S/o Gopalakrishna Reddy,

Aged about 58 Years,

6. Sri.J.Naveen Reddy

S/o B.G.Jayaram Reddy,

Aged about 26 Years.

7. Ms.J.Manasa Reddy,

D/o B.G.Jayaram Reddy,

Aged about 24 Years.

Nos.2 to 4 are residing at No.374/A,

Ashirwad Colony,

Hormau Main Road,

Bengaluru-560043.

(Opposite Party No.5 to 7 placed Ex-parte)

WRITTEN BY SRI K.S.BILAGI., PRESIDENT

******

//ORDERS ON MERIT//

1. This complaint has been filed by the Complainant Sai Sri. Pride Apartment Owners Welfare Association under Section-12 of the Consumer Protection Act, 1986 against the Opposite Parties to direct the Opposite Party No.1 to get the necessary Occupancy Certificate in respect of the apartments purchased by the members of the Complainant as per the list enclosed and also to get the Katha registered in their names for their respective apartments.  The relief is also sought to direct the Opposite Parties to pay Rs.5,00,000/- to the Complainant as damages.   

2. The case of the Complainant in brief is as under:

The Complainant is registered under the Societies Registration Act with Registrar of Societies on 29.09.2015 in No.325/2014-15.The Opposite Party No.2 to 4 being the owners of the residential converted land bearing Survey No.46, measuring 28.12 guntas, have entered into Joint Development Agreement with Opposite Party No.1 and constructed a building having stilt + four floors building consisting of number of residential apartments.

3. It is further case of the Complainant that the Opposite Party No.1 to 5 sold the apartment to the members of the Complainant under registered sale deed dt.16.03.2013 and other dates and they have also collected Rs.50,000/- from members of the Complainant for the purpose of registering the Katha and to get Occupancy Certificate for the said building.    The Complainant also contends that the Opposite Party No.1 being a Builder was supposed to rectify some of the defects namely cover the Terrace by concrete correctly to avoid leakage, Electrical Ducts on all floors need to be covered.  To address the water leakage issues in the GYM and Swimming Pool and water leakage inside the houses during rainy season.  Sliding doors in balcony and window needs to be serviced.  Despite approaching the Opposite Parties on legal notice dt.30.01.2016, the Opposite Parties failed to do needful.  Hence this complaint as there is deficiency of service on the part of the Opposite Parties.

4. In response to the notice, the Opposite Party No.1 to 4 only appeared. The Opposite Party No.5 to 7 failed to appear before this Forum and they have been placed ex-parte.
5. Opposite Party No.1 to 3 have filed Joint version which has been adopted by the Opposite Party No.4 by filing the memo.  Opposite Party No. 1 to 4 contend that the complaint is not maintainable either in law or on facts.  They admit registration of Complainant Association with the Registrar of Societies on 29.09.2015.  They also admit the Joint Venture Agreement between Opposite Parties No.1 to 4 and execution of the sale deeds.   Opposite Parties No.1 to 4 deny that they have collected Rs.50,000/- from the members of the Complainant for the purpose of registering the Khatha and also to get Occupancy Certificate.

6. The Opposite Parties 1 to 4 have denied all the allegations made against them in respect of alleged deficiency of service including repairs and their duty to get the occupancy certificate and change of Khatha.  They contend that there is no deficiency of service.  Therefore, the Opposite Parties request this Commission to dismiss the complaint with exemplary cost.  As this complaint has been filed after lapse of more than 4 years and complaint is frivolous.

7. The Secretary of the Complainant Association Sri.Nagabhushan Bhardwaj has filed affidavit evidence and relied on 10 documents.  On behalf of Opposite Party No.4 Sri.Y.Amaranatha Reddy got himself examined by filing his affidavit.

8. Heard the arguments of Advocate for the Complainant and perused the written arguments of the Complainant and argument of Opposite Party No.1 to 4 is taken as ‘Nil’. No argument is advanced on behalf of Opposite Party No.1 to 4 and relied on 5 documents.  We perused the records.

9.  The points that arise for our consideration are;

1. Whether the Complainant proves deficiency of service on the part of the Opposite Parties ?

2. Whether the complainant is entitle to reliefs claimed in the complaint ?

3. What order? 

10. Our findings on the above points are as under:-

1. POINT NO.1 & 2 : Negative
2. POINT NO.3       : As per the final order for

                            the following;

:REASONS:

11. POINT NO.1 & 2:- At the first instance, we would like to refer the admitted facts.  It is admitted fact that the Opposite Party No.1 being the developer entered into Joint Venture Agreement with Opposite Party No.2 to 4, who are the owners of the property bearing Sy.No.46 of BBMP Khatha No.02 measuring 28.12 guntas.    It is also not in dispute about construction a building having stilt + four residential apartment and sale of apartments to the different persons under different registered sale deeds by the Opposite Party No.1 to 4.

12. This complaint has been filed by the President of the Complainant Welfare Association.  Sri.Nagabhushan Bhardwaj claiming as a Secretary of the Complainant Association has filed affidavit evidence reiterating the facts pleaded in the complaint.  It means the sale deeds have been executed in respect of different flats by the Developer and Opposite Parties on 16.03.2013 and on other dates.  The Complainant has produced 10 documents in support of its case.

13. We carefully perused these documents.  Document No.1 indicates that the Complainant’s Society “Sai Sri Pride Apartment Owners Welfare Association” has been registered under registration No.325/2014-15 dt.29.09.2015.  This fact is not in dispute.  The list annexed to this document indicates flat numbers and who are owners.  Even though this list disclose names of 109 persons, it discloses 105 flats.  The Complainant has produced different sale deeds of different members under document No.3 to 9.  The execution of these sale deeds between 16.03.2013 till 10.02.2014 is not in dispute.  Document No.10 is the copy of legal notice.  The Complainant has issued legal notice to Opposite Party No.1 to 4, but the Complainant has not issued any legal notice to Opposite Party No.5 to 7.  It is relevant to note that this notice neither bear’s signature of an Advocate nor the Complainant has produced either postal receipt or postal acknowledgement for having served legal notice or any one of the Opposite Parties.

14. The affidavit evidence of Opposite Party No.2 has been filed reiterating the facts pleaded in the version.  The Opposite Parties have produced 5 documents.  We carefully perused these documents.  Document No.1 consists of different sale deeds which are not in dispute. Under document No.2 certain photos of the apartment with document No.3 CD has been produced.  Under document No.4 & 5 Bescom Electrical Bill and BBMP tax paid receipts have been produced which are not in dispute. 

15. In order to appreciate the contention of either parties, it is relevant to refer the recital of any one of the sale deed.

16. The sale deed produced by both parties indicate that the Opposite Party No.1 to 7 have executed sale deed infavour of different persons for construction mentioned in the sale deed. They disclose the restriction right on the purchaser under Schedule-E and rights included in the transfer to the purchaser under Schedule-E and purchaser have accepted the terms mentioned in Schedule-F & G.  These terms are binding on both parties. 

17. We carefully perused the terms mentioned in Schedule E, F & G.  These conditions nowhere whispered that it was the duty of the vendors of the property to get Khatha in favour of the purchaser and occupancy certificate.  These sale deeds do not help the Complainant to prove that the Opposite Parties agreed to get necessary occupancy certificate in respect of the apartments and to get the Khatha registered in their names.

18. It is one of the contention of the Complainant in Para-1 and in the affidavit evidence that the Opposite Parties have collected Rs.50,000/- from the members of the Complainant for the purpose of registering khatha and also to get occupancy certificate for the said building which also includes registration charges.  This fact has been categorically denied by the Opposite Party No.1 to 4 and also in the affidavit evidence of Opposite Party No.2.  Under such circumstances, the initial burden lies on the Complainant to prove that its members have paid Rs.50,000/- to the Opposite Parties for the purpose of registering the khatha and also to get occupancy certificate.  The Complainant has not produced any documentary evidence to show that the Opposite Parties have collected Rs.50,000/- from the members of the Complainant Association for the purpose of registering the khatha and also to get occupancy certificate.  Eventhough the copies of sale deed indicates about payment of stamp duty and registration charges.  But none of the sale deed indicates that it was the duty of the Opposite Parties registering the khatha and getting of occupancy certificate.  When the Complainant has failed to prove this material fact through the evidence. The Association members or its members through the Complainant cannot prove that the Opposite Parties having collected Rs.50,000/-for each of the member for the purpose of registering the khatha and also to get occupancy certificate.  It is also relevant to note that the entire complaint and affidavit evidence on behalf of the Complainant do not indicate on what date the members of the Complainant Association paid Rs.50,000/- to the Opposite Parties made and mode of payment.  The Complainant has not produced any Bank Statement or receipt for having paid Rs.50,000/- by each of the members to the Opposite Parties for the purpose of registering of khatha and to get occupancy certificate of the said building including apartments.

19. The grievance of the Complainant is in 3 fold, firstly they contend that Opposite Parties have collected Rs.50,000/- from each of the member, secondly the Opposite Parties have collected this amount for the purpose of registering the khatha and getting occupancy certificate, thirdly deficiency of service.  The Complainant has not established two conditions about payment of Rs.50,000/- by each of the member to the Opposite Parties towards registration the khatha and to get occupancy certificate.  Therefore, the deficiency of service on the part of the Opposite Parties.  When deficiency of service has not established, the Complainant association is not entitled to any of the reliefs.  It is pertinent to note that the Opposite Parties have produced tax paid receipts of certain owners of the flat namely Sankar Hariappan owner of top floor flat No.407, Jaby Kurian Jacob and Suni Jaby Jacob, first floor, flat No.203, Senthil Kumar B, first floor, Flat No.209, C.V.Murlidhara, Ground Floor, flat No.110 and Vinod George, Second floor, Flat No.311.  Even after considering the Written Argument of the Complainant, the Complainant has utterly failed to prove the alleged deficiency on the part of the Opposite Parties and thereby the Complainant is not entitled to any of the reliefs.   

20. POINT NO.3:- Having regard to the discussion made and after assessing the records and evidence, we are of the opinion that the Complainant is not entitled to any of the reliefs and complaint requires to be dismissed.  We proceed to pass the following:

-:ORDER:-

         The complaint is dismissed no cost. 

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 21^st day of JANUARY-2021)     

• M.B. SEENA )      (L.MAMATHA)         (K.S.BILAGI)    
•   

//ANNEXURE//

Witness examined for the complainants side:

Sri.Nagabhushan Bhardwaj, who being the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Copy of the registration Certificate dt.29.09.2015 issued by the district registrar Societies Shivajinagar Bengaluru.
2. Copy of the Sai Sri Pride Flat Owners details.
3. Copy of the sale deed dt.16.03.2013 executed by Sai Sri Developers.
4. Copy of the sale deed dt.16.03.2013 executed by Sai Sri Developers’ partners.
5. Copy of the sale deed dt.26.10.2013 executed by Sai Sri Developers’ partners.
6. Copy of the sale deed dt.29.06.2013 executed by Sai Sri Developers’ partners.
7. Copy of the sale deed dt.21.03.2013 executed by Sai Sri Developers’ partners.
8. Copy of the sale deed dt.21.03.2013 executed by Sai Sri Developers’ partners.
9. Copy of the sale deed dt.10.02.2014 executed by Sai Sri Developers’ partners.
10. Office copy of the legal notice.

Witness examined for the opposite party side:                  

Sri.Y.Amaranatha Reddy, Partner in the 1^st Opposite Party has filed his affidavit.

Documents marked for the opposite parties side:

1. Sale Deed copies.
2. Photos.
3. CD.
4. Besom Electrical bill.
5. BBMP tax paid receipts.

• M.B. SEENA )        (L.MAMATHA)             (K.S.BILAGI)    
•