COMPLAINT FILED: 27.08.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 12th MARCH 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 1890/2008 COMPLAINANTS 1. Sri. Arun Kumar D.K., S/o. Sri. Kalasappa Hegde, Ground Floor. 2. Sri. Balakrishna Murthy K. S/o. K. Duggappaiah & Smt. H.K. Shashikala, No. F-1. 3. Smt. Mythili Kamath W/o. Santhosh Kumar, No. F-2. 4. Sri. R.R. Anil, S/o. R.N. Rama Rao, No. F-3. 5. Sri. Hanumaiah Gowda & Smt. Radhamma H. Gowda, No. S-1, reptd. by its authorized person Prof. Ambalike Hiriyanna. 6. Sri. K.R. Sathyanarayana, S/o. K. Ramakrishnappa, No. S-2. 7. Sri. R.S. Sudhir, S/o. R. Srinivasa Rao, No. S-3. 8. Smt. G. Umadevi and Sri. G. Sandeep, No. T-1. 9. Prof. Ambalike Hiriyanna, S/o. Sri. Giddaiah Gowda, No. T-2. 10. Sri. B.S. Shaji, S/o. Sri. Bhasi N, No. T-3. All are residing at No. 10, Balaji Paradise, KEB Layout, Kathriguppa Main Road, BSK III Stage, Bangalore 560 085. 11. Balaji Paradise Apartment Owneres Association, No. 10, Balaji Paradise, KEB Layout, Kathriguppa Main Road, BSK III Stage, Bangalore 560 085. Represented by its Secretary. Advocate (L.T. Gopal) V/s. OPPOSITE PARTIES 1. Sri. Suresh Kumar Jain, S/o. Sri. Hirachand Jain. 2. Sri. Nirmal Kumar Jain, S/o. Sri. Hirachand Jain. 3. Sri. Lalith Kumar Jain. 4. Sri. Bharath Kumar Jain. 5. Smt. Susheela Devi Jain, W/o. Sri. Suresh Kumar Jain. 6. Smt. Kanchana Devi Jain, W/o. Sri. Nirmal Kumar Jain. 7. Smt. Rukmini Devi Jain, W/o. Sri. Lalith Kumar Jain. All are residing at: No. 53, Tilok, Khadi Commission, H.B.C.S. Kathriguppa Main Road, Vivekananda Nagar, Bangalore 85. Advocate (M.S. Manjunath) O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to deliver all the original documents of title with respect to the schedule property and rectify all the deficiencies in the apartment including that of electrical and BWSSB connections and pay a compensation of Rs.10,00,000/- and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainants purchased the flats in the project floated by the OP for a valid consideration. According to each one of these complainants there is a violation with regard to the construction of the apartment, the said constructions are undertaken against to the approved sanction plan issued by the BBMP. After taking over of the possession of the schedule property by the respective complainants they have formed an association. OP is obliged to handover all the relevant documents and title deeds with respect to Balaji Paradise Apartment. In spite of the repeated requests and demands made by the complainant, OP failed to furnish the said documents. They even got issued the legal notice, there was no response. OP has raised unwarranted objections with regard to the use of the terrace as well as the existence of the office room, pent house, etc. There is no such office premises as alleged nor there is any fourth floor. Though complainants have paid all the necessary charges with regard to KEB and BWSSB, OP failed to extend the service as promised, it has failed to install the generator, required transformer, etc. Though complainants invested their hard earned money, they are unable to reap the fruits of their investment because of the hostile attitude of the OPs. When their demand went in futile, they felt the deficiency in service. Under the circumstances they are advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainants in toto. According to OP each one of these complainants have taken possession of their respective flats in the year 2005 itself. Without the knowledge of the OP who has got the interest in the undivided share of the schedule property they have formed the association. As per the terms of the sale deed OP has retained the fourth floor terrace and office room in the ground floor. The generator was running since 2005. Though complainants enjoyed all the benefits and facilities provided, now they are making false and frivolous allegations to get themselves illegally enriched. When complainant No.1 to 10 formed their own association complainant No. 11, it is for the complainant No.11 to take care of the maintenance. The complaint is barred by time. The other allegations regarding the deficiency in service are vague and baseless. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint. During the course of the trial at the request of the litigating parties a Court Commissioner was appointed, he has given the report. 3. In order to substantiate the complaint averments, the complainants filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced some documents. Then the arguments were heard. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainants are entitled for the reliefs now claimed? Point No. 3 :- To what Order? 5. 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: Point No.1:- In Negative Point No.2:- Negative Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that these complainants No.1 to 10 have purchased the respective flats in the project floated by the OP in the name and style Balaji Paradise Apartment. It is also not at dispute that complainant No.1 to 10 have formed their own apartment association like complainant No.11. The grievance of the complainants is that the construction of the said building is against to the approved sanctioned plan issued by the BBMP. If that were to be the fact it is for the BBMP to initiate the action. If the complainants felt that the construction of the 3rd or 4th floor is against to the sanction plan, what made them to purchase the said flats in the said floor is not known. It is always said buyer beware. Here the approach of the complainant is not diligent, they have taken the risk, for that OP cannot be blamed. 7. The fact that each one of these complainants got registered sale deed in their favour in the year 2005 and took possession, then the khatha was bifurcated, separate numbers were given to each flat, the electrical connection and separate meters were allotted is also not at dispute. When the complainants have formed their own association, it is for them to take care of the maintenance of the said apartments. The other allegations made by the complainants with regard to installation of generator KEB service and BWSSB service appears to be baseless and vague. 8. Complainants have raised certain deficiencies including that of OP has no right over the terrace on the fourth floor. In order to wash the clothes the association has made provisions by putting stones slabes in a form of a platform. According to complainants OP has forcibly destroyed them. If that is so, a criminal complaint would have been filed. It is stated by the complainants that the said terrace is a common area meant for a use of all the flat owners. But unfortunately the sale deed produced by the complainants goes to show in one of the clause Not to use the terrace at all. The terrace right exclusively vests with a vendors. Complainants are estopped from raising their voice against to the terms and conditions of their own sale deed. The said sale deed further discloses that the purchasers have no objection if the vendor intends to construct the further construction and even to use the common passage space along with the apartment owners. So all these terms and conditions rather speaks in support of the OP than that of the complainants. When that is so, the approach of the complainants does not appears to be fair and honest. 9. Of course we have gone through the Commissioners Report, in our view it is not favourable to the complainants. In the complaint the allegations are regarding deficiency in service with respect to providing of certain facilities and the existence and non-existence of the pent house, office room, etc. The Commissioners report goes to show that the flat consists of 4 floors, on the terrace floor, there is overhead tank, there is no such pent house, a small structure to rest on OHT and in the ground floor a watchman room and one apartment unit. Probably OP may be stating that the said watchman room is a office room. The said report further shows the existence of only first, second and third floor and terrace is above the third floor. The Commissioners report will not come to the aid of the complainants to redress their grievance. 10. When the complainants have taken possession of the said flats after completion of the construction in all the ways in the year 2005 and enjoyed the possession for more than 3 years or so, now what made them to knock the doors of Forum making some allegations is not known. Complainants wants a relief of declaration to cause publication that OP has no right whatsoever on the schedule property. Such relief cannot be granted by this Forum. There is no proof of deficiency in service. Hence the question of claiming compensation for mental agony also does not arise. 11. During the course of the arguments OP has produced all the original documents with respect to the said project namely Balaji Paradise Apartment which consists of 10 flats purchased by each one of these complainants. In our view the purpose of filing of this complaint is served. OP never objected to produce the said documents before the association. OP grievance is that behind their back the association is formed overlooking their interest in the undivided share of the property. OP has to seek redressal before some other competent court of law if at all they were to establish their undivided interest in the said property. With these reasons we find the complaint appears to be devoid of merits. Hence the complainants are not entitled for the relief claimed. 12. Considering the complex question of law, it entailed it would require volumeness evidence for its disposal, which is not possible for this Forum to go into all those declaratory reliefs in its summary jurisdiction. If the complainants are so advised, they can file a comprehensive Civil Suit to redress their grievance. With these observations we answer point nos.1 and 2 accordingly and proceed to pass the following: O R D E R The complaint is dismissed. In view of the nature of dispute no order as to costs. (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 12th day of March 2009.) MEMBER MEMBER PRESIDENT p.n.g.
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