COMPLAINT FILED: 27.11.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 27th JULY 2009<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> COMPLAINT Nos. 2577 & 2578/2008<br /> <br /> <br /> COMPLAINT NO. 2577/08<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO. 2578/08<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Mr. Chethan L Shetty,<br /> S/o Mr. L.J.Shetty,<br /> Aged about 28 years,<br /> R/at No.318, <br /> 4th Block, 7th Main, <br /> Koramangala,<br /> Bangalore – 560 034.<br /> <br /> 1. Mr. Nitin Jain,<br /> S/o Mr. Naresh Chand Jain,<br /> Aged about 35 years.<br /> <br /> 2. Mrs. Vandana Jain,<br /> W/o Mr. Nitin Jain,<br /> Aged about 31 years.<br /> <br /> Both are R/at No.79/5B<br /> Sunny Brooks,<br /> Doddakanahalli,<br /> Sarjapura Road,<br /> Bangalore – 560 035.<br /> <br /> Advocate (B.Keshava Murthy)<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTY M/s Sunny Brooks,<br /> No.99/100, Sunny Brooks,<br /> Doddakenahalli, <br /> Sarjapura Road,<br /> Bangalore – 560 035.<br /> <br /> Rep: by its Partner,<br /> Mr. Naved M Hassan.<br /> <br /> Advocate (B.S.Satyanarayan)<br /> <br /> O R D E R<br /> <br /> These are the two complaints filed by the respective complainants U/s. 12 of the Consumer Protection Act of 1986, directing the Opposite Party to provide the facilities as per the terms of the agreement and pay a compensation of Rs.3,00,000/- and for such other reliefs on an allegations of deficiency in service.<br /> <br /> 2. As the opposite party (herein after called as OP) is common in the both complaints, the question involved and relief claimed being the same, in the interest of justice in order to avoid the repetition of facts and multiciplity of reasoning, these cases stand disposed of by this common order.<br /> <br /> 3. The brief averments, as could be seen from the contents of each complaint, are as under:<br /> <br /> 4. The complainant in complaint No.2577/2008 being carried away with facility in the lay out to be formed by OP in the name and style ‘Sunny Brooks’ purchased site bearing No.79/11F for total cost of Rs.15,12,000/-. An agreement of sale came to be executed on 16.08.2003 and on 12.11.2003 sale deed was executed. As per the terms of the agreement. OP promised to provide facility as incorporated in the complaint that too with regard to club house, swimming pool, land scaped park, kiddies park, health club, indoor games, 24 hours water supply, compound wall, storm water drains etc., But inspite of collecting the entire cost of the plot, OP failed to keep up its promise, hence Complainant is forced to file a complaint for deficiency in service on the part of the OP. <br /> <br /> 5. In complaint No.2578/2008 complainants purchased the plot bearing No.79/5B for total cost of Rs.7,70,000/-. An agreement of sale came to be executed on 07.04.2002 and the sale deed on 06.05.2002. According to them OP failed to provide the basic facilities and amenities as per the terms of the agreement, inspite of their repeated requests and demands. For no fault of them, they are made to suffer both mental agony and financial loss. Hence, they felt deficiency in service on the part of the OP. Under the circumstances they are advised to file the respective complaints against the OP and sought for the relief accordingly. <br /> <br /> 6. On appearance, OP filed the version denying all the allegations made by the complainants in toto. According to the OP complainants have not availed the services as contemplated under the Act and these complaints are highly barred by time. The defence set out by the OP in both the complaints is identical and similar. It is further contended by the OP that they have developed the said project and provided all amenities and facilities as promised. The complainants have taken possession of the respective properties without any objection. The owners of the plots in the said layouts have formed their own Association in the name and style of Sunny Brooks Residents Association. The association has to take care of its members. The complainants have not made the said Association as party in this complaint. Hence the complaint is bad for non-joinder of necessary parties. There is no deficiency in service on the part of the OP. The complaints are devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint. <br /> 7. In order to substantiate the complaint averments, respective complainants filed their respective affidavit evidence and produced some documents. OP has also filed the affidavit evidence. Then at the request of the complainant Court Commissioner was appointed to make local inspection of the disputed layout and the Commissioner has submitted his report. Then the arguments were heard.<br /> <br /> 8. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No.1 :- Whether the complainants have proved the <br /> deficiency in service on the part of the OP?<br /> <br /> Point No.2 :- If so, whether the complainants are <br /> entitled for the relief now claimed?<br /> <br /> Point No.3 :- To what Order?<br /> <br /> 9. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative. <br /> Point No.2:- Affirmative in part. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 10. At the outset it is not at dispute that each one of these complainants have entered into an agreement with the OP, who claims to be the promoter, builder and the developer of residential plots. The fact that OP allotted the site as noted in the respective complaints and collected site value and entered into an agreement of sale and executed the registered sale deed as noted in the complaint is not in dispute. Now the grievance of the complainants is that even after the lapse of so many years from the date of execution of the sale deed OP failed to provide the basic facilities and amenities as noted in the agreement. <br /> <br /> 11. The evidence of the complainants appears to be very much natural, cogent and consistent. There is nothing to discard their sworn testimony. The defence set out by the OP discloses that they have not completed the construction of the club house, swimming pool, land scaped park etc., The reasons assigned are that there is some civil litigation. When OP collected the entire site value and failed to provide the said facilities and amenities, well within reasonable time in our view it amounts to deficiency in service. We have gone through the Commissioner report, it appears except the club house, the other facilities namely compound wall, main roads and street lighting etc are provided. <br /> <br /> 12. The Commissioner report also speaks about the storm water drains, street lighting, water connection EPABX, Telephone all most all the grievances raised by the complainants are attended to by OP except club house with swimming pool, gym merely because some Civil Suit is pending the OP cannot wash of its lands. The hostile attitude of the OP must have caused both mental agony and financial loss to the complainants that too for no fault of their. What is the steps OP has taken to expedite the disposal of Civil Suit is not known. <br /> <br /> 13. OP has contended that the complaints are barred by time. OP collected entire site value long back but failed to provide the said facilities corporated in the agreement. In our view complainants will get the recurring cause of action till it provide the said facilities. The other contention of OP that complainants have not availed their service as contemplated under the Act also does not hold force. Of course the claim of the complainants that OP be directed to pay interest on the consideration amount appears to be arbitrary. The facts that each one of the complainants are in possession of the respective flats is not at dispute. We also don’t find force in the contention of the OP that the complaints are bad for non joinder of the necessary parties like Association. It is not the duty of the Association to provide the facilities, amenities noted in the agreement. The Association at the most will maintain the common areas and other connected property of the members of the Association. Hence the contention of the OP that complaint is bad for non-joinder of necessary party appears to be devoid of merits.<br /> <br /> 14. Having gone through the pleadings documents and the evidence and circumstances of the case also bearing in mind the relief sought in our view justice will be met by directing the OP to complete the construction of the club house as per the terms of agreement and provide the other basic amenities and facilities as per the agreement within 3 months from the date of communication of this order. As regards mental agony we feel it necessary to direct OP to pay a token compensation of Rs.15,000/- to each one of this complainants along with litigation cost with these reasons we answer point 1 and 2 accordingly and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaints 2577/08, 2578/08 are allowed in part. <br /> <br /> OP is directed to provide the facilities amenities as promised in the respective agreement entered into between each of the complainants within 3 months from the date of communication of this order and also pay Rs.15,000/- as compensation to each one of these complainant along with a litigation cost of Rs.1,000/- to each of them. This order is to be complied within 3 months from the date of its communication. <br /> <br /> The original order shall be kept in the file of complaint No. 2577/2008 and a copy of it shall be placed in complaint No.2578/08.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 27th day of July 2009.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br />