BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 20th DAY OF SEPTEMBER 2021
PRESENT
SRI RAVI SHANKAR – JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI – LADY MEMBER
COMPLAINT NO. 94/2015
SMC Enclave Owners Welfare Association
SMC Enclave, No.1705/A,
6th B Cross, Prakashnagar,
Rajajinagar, 3rd Stage, Bangalore.
Represented by its President
Dr.S.Nagendrappa,
S/o R.Shivaram, A/a 69 years,
R/o Flat. No.001, SMC Enclave,
No.1705/A, 6th B Cross,
Prakashnagar, Rajajinagar, 3rd Stage,
Bangalore – 560 021.
……….Complainant
(By Sri. Shanmukhappa, Adv.,)
V/s
Sri. K.Gopinath S/o K.Kannan
Aged about 40 years,
SMC Enterprises, No.768,
3rd Main, 4th Block, Rajajingar,
Bangalore – 560 010.
(by Sri. R.S.C, Advocate)
……….Opposite Parties
:ORDERS:
BY SMT. SUNITA C. BAGEWADI – LADY MEMBER
The complaint is filed by the complainant alleging deficiency in service on the part of Opposite Party and prays direction against the Opposite Party to complete the incomplete works as per agreement along with providing of NOC for transfer of electricity and water connections and entire car parking area together with Rs.50,00,000/- towards mental agony and also with other reliefs.
The brief facts of the complaint are as under:-
2. The complainant is an Association of the owners/purchasers of apartments bearing Nos.001, 002, 003, 101, 102, 103, 201, 202 and 203 in the apartment building ‘SMC Enclave’ constructed by the Opposite Party in property bearing No.1705/A, 6th B Cross, Prakashnagar, Rajajinagar, 3rd Stage, Bangalore. It is submitted that the building plan for the purpose of construction of the apartment complex was approved only for stilt, ground, first and second floors by the authorities. However, contrary to the same the Opposite Party has put up construction of 3 additional floors consisting of 7 apartments bearing Nos. 301 to 303, 401 to 403 and 501 which is illegal and un-authorized and has leased the said apartments to tenants.
2(a) The complainant further submitted that apart from putting up illegal constructions, the Opposite Party has also allocated car parking area to the occupants of the said unauthorized apartments when the approved car parking area as per the applicable rules was only for 9 parking slots thus reducing the parking area of the approved slots leadings to constant tensions and fights among the occupants of the apartment complex in the parking area thus disturbing the harmony of the apartment premises. It is further submitted that pursuant to purchase of apartments of members of the complainant herein took over the maintenance of the apartment complex from the Opposite Party on 01.12.2008 and the complainant association was formed for the maintenance of the apartment building and the same was registered on 16.12.2009 and ever since the complainant has been taking care of the maintenance of the apartment building by collecting maintenance charges from all the occupants including the occupants of apartments bearing Nos. 301 to 303, 401 to 403 and 501. However, though the maintenance charges are usually paid by the tenants, as and when the said apartments fall vacant, it is the duty of the Opposite Party to pay the maintenance charges for the said apartments. However, despite repeated requests and demands the Opposite Party has failed to pay the maintenance charges for the past 1 year amounting to Rs.19,830/-.
2(b) The complainant further submitted that as per the applicable laws, once the apartment owners’ association is formed it is the duty of the developer/builder to hand over the original title deeds of the property to the said association. However, though it has been well over 4 years since the complainant Association has come into existence, the Opposite Party has retained the original documents with himself and has failed to hand over the original documents of title pertaining to the property on which the apartment building is constructed despite repeated requests and demands made by the members of the complainant. The said act of the Opposite Party also amounts to deficiency of service. It is further submitted that not only has the Opposite Party violated the building plan and conditions imposed while approving the building plan, the Opposite Party has also failed to provide No Objection Certificate for transfer of electricity and water connections to the building in the name of the complainant.
2(c) The complainant further submitted that despite repeated requests and demands and various letters issued by the members of the complainant, the Opposite Party has failed to comply with the same and rectify the violations committed by him. Thus, the complainant was constrained to issue legal notice dated:23.12.2014 calling upon the Opposite Party to hand over the original documents of title to the complainant, take immediate action to put up rain water harvesting system and fire safety equipments, pay the dues towards maintenance charges, rectify the unauthorized constructions put up by him, regularize the deviations made by him in the approved plans and pay the necessary charges for the same to the concerned authorities and also called upon him to instruct the tenants inducted by him in the illegal construcdtions put up by him not to make use of the car parking area as the same exclusively belongs to the members of the complainant. The said notice has been duly served on the Opposite Party on 26.12.2014. However, despite the service of the notice the Opposite Party has neither replied to the same nor has he complied with the demands made there under and hence the complainant is constrained to file this complaint.
3. In spite of service of notice the Opposite Party appeared and filed the version denying the averments made in the complaint and contended that the complainants have filed the above complaint against the Opposite Party is false and based on the concocted theory and only to harass the Opposite Party and the allegations made by the complainant only to harass the Opposite Party and more over the Opposite Party always ready and willing to cooperate with the complainants but the complainants never approached the Opposite Party in a proper way. Hence, submits there is no deficiency in service on their part and prays to dismiss the complaint.
4. Complainant filed the affidavit evidence and marked the documents as Ex.C1 to C14. Opposite Party not filed his affidavit evidence and hence the affidavit evidence of Opposite Party is taken as not filed on 28.09.2018.
5. We have heard the arguments from both sides.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complaint deserves to be allowed?
(2) What Order?
7. The findings to the above points are;
(1) Affirmative.
(2) As per final Order
:R E A S O N S:
Point Nos. (1) & (2):-
8. Perused the contents of the complaint, affidavit filed by the complainant and materials on record, we noticed that the complainant has requested the Opposite Party many times to provide the facilities as per the sanctioned plan. But the Opposite Party has not adhered to the requests of the complainant.
9. The complainant has contended that he has issued various letters to the Opposite Party, but the Opposite Party failed to comply with the same and failed to rectify the violations committed by him and thus the complainant was constrained to issue legal notice calling upon the Opposite Party to hand over the original documents of title to the complainant, take immediate action to put up rain water harvesting system and fire safety equipments, pay the dues towards maintenance charges, rectify the unauthorized constrictors put up by him, regularize the deviations made by him in the approved plans and pay the necessary charges for the same to the concerned authorities and also called upon the Opposite Party to instruct the tenants inducted by him in the illegal constructions put up by him not to make use of the car parking area as the same exclusively belongs to the members of the complainant. The Opposite Party in spite of receipt of legal notice, neither replied to the legal notice nor complied the demands made there-under.
10. Of-course the Opposite Party has filed his version denying the averments made by the complainant without producing any documents. The Opposite Party has not filed his affidavit evidence. Without affidavit evidence and documents, there is no weightage to the version filed by the Opposite Party. The Opposite Party has to disprove the allegations made by the complainant by filing supporting documents. But the Opposite Party even not filed his affidavit evidence to support the version filed by him. Mere denying the allegations made by the complainant without any documents and affidavit evidence is not acceptable. The Opposite Party even not replied to the legal notice issued by the complainant and not taken any action to set-right the things as alleged by the complainant. The Opposite Party failed to disprove the allegations made by the complainant without producing any documents and thereby made the complainant to suffer mental agony.
11. In view of the discussion made and in view of the observation made by us, we are of the opinion that the complainant has proved deficiency of service against the Opposite Party. Hence, the complaint is liable to be allowed. Accordingly, we proceed to pass the following:-
:ORDER:
The complaint is allowed with cost of Rs.25,000/-
The Opposite Party is directed to hand over the original documents of title of the property to the complainant and to provide NOC for transfer of the electricity and water connections to the apartment in the name of complainant’s Association and also directed to pay an amount of Rs.19,830/- with respect to the amount due towards maintenance charges.
The Opposite Party is also directed to provide all other amenities as per sanctioned plan within 60 days from the date of this order.
The Opposite Party is further directed to pay Rs.2,00,000/- to the complainant towards compensation for mental agony. Failing which, 9% interest shall be payable on Rs.2,00,000/- form the date of this complaint till realization.
Send a copy of this order to both parties.
Lady Member. Judicial Member.
