Tamil Nadu

North Chennai

103/2015

R.Satyanarayana Murthy - Complainant(s)

Versus

TVH Lumbini Square Owners Association - Opp.Party(s)

Party in Persion

12 Nov 2018

ORDER

 

                                                            Complaint presented on: 16.06.2015

                                                                Order pronounced on: 12.11.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.SC., B.L., DTL.,DCL, DL & AL - PRESIDENT

THIRU.D. BABU VARADHARAJAN B.Sc., B.L., :   MEMBER – I

 

MONDAY THE 12^th  DAY OF NOVEMBER 2018

 

C.C.NO.103/2015

 

R.Satyanarayana Murthy,

S/o Venkateswararao,

Hindu, aged 66 years,

Residing at Flat No:1031,

TVH Lumbini Square,

127 A Brick Kiln Road,

Purasaiwalkam,  Chennai – 600 007.

                                                                                    ….. Complainant

..Vs..

TVH Lumbini Square Owners Association,

Represented by its President,

Office at Ground Floor,

2^nd Block TVH Lumbini Square,

127 A Brick Kiln Road,

Purasaiwalkam,

Chennai – 600 007.

 

.....Opposite Party

Date of complaint                                        : 08.07.2015

Counsel for Complainant                            : Party in Person

Counsel for opposite party                        : N.V.S. &  Associates

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.SC., B.L., DTL.,DCL, DL & AL 

                This complaint is filed by the complainant to direct the opposite party to refund of 50% towards maintenance charges and 50% amount claimed works out to Rs.14,009/- and also to pay a sum of Rs.2,00,000/- unfair practice and harassing  with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant purchased one apartment No.:1031 located on the 3^rd floor of the 1^st Block and got undivided share of land registered a complex consisting of 435 residential Apartments and one office building was developed by True Value Homes India Private Limited on the land located at 127 A Brick Kiln Road, Purasaiwalkam, Chennai – 600 007 and name as TVH Lumbini  Square. After obtaining completion certificate from Chennai Metropolitan Development Authority for 3 blocks the Developer started handing over the apartments to its owners from April/May 2009. The complainant’s apartment was handed over on 28.05.2009. As per the terms of construction agreement Builder had to maintain the common areas including water, electricity lifts etc for a period of 10 years that was subsequently reduced to 2 years in supplemental agreement, after expiry of such period, the maintenance be handed over to the opposite party residents association simultaneously transfer all maintenance & corpus deposits. Before the completion of the maintenance period by the TVH, apartment owners have formed into an Association and got it Registered as Lumbini Square Owners Association under Tamil Nadu Societies Registration Act 1975 on 21^st Day September 2011 with Registration Number 204/2011 from Registrar of Societies, Chennai Central and subsequently got the name changed to  TVH Lumbini Square Owners Association and obtained revised certificate. The opposite party vide their communication dated 19^th Dec 2013, advised the residents that TVH is likely to adjust the maintenance deposit amount  and advised the members to deposit the amount with the Association a fresh  and then intimated the members that they have agreed to take over the maintenance of the complex with effect from 1^st Feb 2014 in a phased manner. In another communication dated 8^th January 2014, sought the support and co-operation of the members. These communications clearly establish the opposite party is entitled to collect charges from members with effect from February 2014 only. The complainant taken up the matter with TVH vide letter dated 07.01.2014 that in terms of the agreements entered into  association (opposite party ) can only receive the deposits and cannot authorize TVH to adjust towards dues it any. Another letter was sent to TVH on 11.01.2014 that as per the terms of agreement they have to handover all common properties. A copy of this letter was sent to the opposite party making it abundantly clear that the support sought from the members dilutes the very spirit of the terms and conditions of the agreement that were entered into by individual buyers and if any loss is suffered by the apartment owners in this regard, office bearers will be accountable together with the builder company. The opposite party raised their first invoice  dated 05.02.2014 for payment of maintenance charges of Rs.10,188/- for the quarter commencing from 01.01.2014. The charges  were subsequently increased to Rs.12,226/- per quarter commencing form July 2014  and again to Rs.14,009/- per quarter commencing October 2014. All the demands were paid by me promptly including the latest demand of Rs.14,009/-for the quarter commencing from April 2015 to June 2015. The complainant conveyed objections to TVH, having not satisfied with their replies, raised a dispute before this  Hon’ble Consumer Disputes Redressal Forum.  The dispute was registered as 405/2014 and the proceedings are in progress. The opposite party  vide their communication dated 19^th January 2015 to the residents conveyed that they were authorized by the Builder TVH to collect maintenance charges (Advance Maintenance Charges) from July 2013 to December 2013 and advised the residents to pay immediately. For delay or nonpayment a late fee of Rs.100/- per day will be collected w.e.f. 10.11.2014 besides suspending collection of garbage, stoppage of DG power etc. One invoice dated 29.01.2015 for Rs.22,894/- was also raised with these details. The  opposite party terms its claim as Advance Maintenance Deposit, sometimes maintenance charges for the period of July 2013 to December 2013 and demands for payment. The opposite party’s reminders were regularly replied. When the complainant   had received their latest reminder dated 04.06.2015, reply was sent  by the complainant vide letter dated 10.06.2015 expressing that the demand is for the period prior to their take over. Therefore, unauthorized and illegal. Though complainant had paid maintenance charges regularly, opposite party office staff directed the cleansing staff not to pick up garbage from the complainant  residence. Stopped supply of Generator (back up) power during the break down of TNEB supply Etc. The complainant has been have taken up the same with opposite party several times orally and also in writing (vide letter dated 09.03.2015)  to opposite party neither replied to the complainant  letters nor restored the normal position. The opposite party is entitled to collect maintenance charges and the residents are bound to pay the same. But, claiming the charges for the period for which opposite party did not maintain the premises can termed as unlawful demand and  on the pretest of nonpayment of such unauthorized demand depriving the member with the services for which one is legally entitled is deficiency in service and unfair practice. The opposite party is a co-operative society, registered under TN Societies Registration Act 1975, to hold the common areas/properties as custodian and maintain them with the funds collected from the members/users as maintenance charges. Therefore, the opposite party can be termed as service provider and fall within the scope of Consumer Protection Act. The complainant is to be allowed.

2.WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          The complainant is one of the member of the above said Association. The Opposite Party  Association acts as per the Memorandum and By-laws of TVH Lumbini Square Owners Association.  The present dispute raised by the complainant does not fall within the jurisdiction of this Hon’ble Forum, as the complainant is not a Consumer as defined under Sec 2(1)(d) of the  Consumer Protection Act. 1986. The complainant in case of any dispute with the opposite party , ought to have approached before the Arbitrator first and incase of non-resolution of the same, the matter shall be referred to the “Competent Authority” as defined under Sec 3 (k) (3) (b) of the Tamil Nadu Apartment Ownership Act. 1994. This Hon’ble  Forum has not jurisdiction to entertain and adjudicate upon this  dispute involved in the complaint in as much, as it is not a Consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act, 1986, which  is exclusively triable before the Registrar under the Tamil Nadu Apartment Ownership Act 1994. The Complainant is not ‘consumer’ allegations contained in the complaint do not fall within the purview of the ‘Defect’ and ‘Deficiency’ as defined under section 2(f) and 2 (g)  of the Consumer Protection Act. 1986. Hence, this unfair practice pleaded by the complainant does not fall within 2 (r) of the Consumer Protection Act. 1986 . Hence this Hon’ble Forum may be pleased to dismiss the complaint.

3. ADDITIONALWRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

The opposite party  has not violated any of the provisions  of the Bylaws of the society. The minutes dated 03.01.2014, recorded in connection with the meeting held on the said date between the builder and the Association would reveal that the TVH  Pvt .Ltd., has not transferred the maintenance of  Lumbini square to the opposite party. Pre condition of takeover of the maintenance has been recorded in the minutes of the meeting and TVH Pvt. Ltd agreed to transfer the corpus fund in a phased manner as indicated. The opposite party has communicated   that no transfer of maintenance to the association and it remained with true value homes only. It was agreed that from January 2014 onwards the residents were required to meet the maintenance charges. Till transfer of corpus fund as well as total maintenance to the opposite party, the promoter was incharge of the maintenance. All of a sudden promoter stopped the security service and terminated and the association was forced to take up the issue. To meet certain exigency, maintenance charges were collected. The complainant admits about the meeting that took place 29.09.2013 and the opposite party has informed that until the corpus money is transferred to the society, the maintenance should be done by the promoter. The opposite party denies as they are the service providers and the complainant is not a consumer and prays for the dismissal of the complaint.

4. POINTS FOR CONSIDERATION:

          1. Whether the complainant is a Consumer?

          2. Whether there is deficiency in service on the part of the opposite party?

          3. Whether the complainant is entitled to any relief? If so to what extent?

 

5. POINT NO :1 

          The complainant  is  a resident of Flat  No.1031, TVH Lumbini square and the opposite party  is an association formed by all owners of  TVH Lumbini square,  a residential complex with 435 apartments and one office complex. As per the terms of Construction agreement, Builder had to maintain the Common areas including water, electricity, lifts etc for a period of 10 years and it was then reduced to 2 years in supplemental agreement, after expiry of such period, the maintenance be handed over to the opposite party’s residents association with all maintenance and corpus deposits for which Ex.A1 and A2 are filed. TVH Lumbini Square Owner’s Association is a registered one Under Tamil Nadu Societies Registration Act, 1975 having the Registration No.204/11. As per the Objects stated in Memorandum and By-Laws, the society has to, (a) act as an Association of all owners of the complex, (b) act as sole custodian of and administer all common areas and amenities, (c) provide, maintain and repair of common areas, amenities, facilities and services at the expense of the members etc.,  as per Ex.A3. Communications in Ex.A5 establishes that the opposite party  is entitled to Collect Charges from Feb 2014 as requested by TVH. Therefore as per By-laws the opposite party  is bound to provide services to the Complainant and the opposite party  had also agreed to provide service to the residents after taking over the charges and the Complainant is also entitled for service from the opposite party. Just because the Association is collecting charges without any profit motive, it can never be said as Non-Provider of service. Association consisting of office-bearers is providing service to the residents/complainant. Therefore, the contention of the  opposite party   that the complainant is one of the member of the Association and the complainant is not a consumer and hence the present Complaint does not fall under the jurisdiction of this forum is not sustainable hence it is held that Complainant is a Consumer and accordingly, point 1 is answered.

06. POINT NO:2

          The allegation of the Complainant against the opposite party  is that the opposite party  had taken charge to maintain the complex from 1.02.2014 and copy of the intimation was also circulated vide Ex.A5. while so, the opposite party  has raised the demand for payment of maintenance  charges of Rs.10,188/- for the 1^st quarter of 2014.Subsequently, the maintenance charges have been increased to Rs.12,226/- and Rs.14,009/- to the subsequent quarters is not denied. This Complaint was filed on 18.07.2015 and the complainant was regularly paying the maintenance amount from January 2014 to August 2017 i.e. till date of filing this complaint as per Ex.A14. Ex.A7 to Ex.A9 are the correspondence  between the complainant and the Chairman TVH, and the Association regarding payment of Maintenance Deposit  equivalent  to 6 months charges and the details. Ex.A10 is the Notice indicating the maintenance for July to Dec 2013 and Ex.A11 is the invoice posted against the flat of the complainant .Detailed letter with objection for the unauthorized collection prior to the date of taking over the maintenance was sent by the complainant to the Secretary, TVH Lumbini Square Owners Association in  Ex.A12.

          07. It is an admitted fact that the True Value Homes Pvt. Ltd had not transferred the corpus fund and it only agreed to transfer the corpus fund and will have to provide service so long as they were responsible for maintenance, till the service was totally transferred to the Association. By Exchange of letters in Ex.B1 series  from Jan 2014 onwards  the residents were required to meet the maintenance charges  and till the transfer of corpus fund as well as the total maintenance to the residents ,TVH alone is responsible as stated by the complainant and  there is no permission of  such transfer column in the Bye-Laws to transfer to the Association. It was also protested by the complainant in his letter in Ex.A12, Ex.B4 and Ex.B5 communication and Invoice posted  is from the Lumbini Association , not from the TVH and there is no proof for authenticated transfer as alleged by the opposite party. Further, the opposite party  had also not established that the complainant is liable to pay the  maintenance charges from July 2013 to Dec 2013 to the Association , when it has taken charge  only subsequent to that date.

         08.  Later to that i.e. from Jan 2014 to Aug 2017 in Ex.A14, the maintenance charges were paid ,  inspite of that, maintenance staff had not collected  the garbage from the complainant’s apartment, the complainant suffered without power and electrical and plumbing  problem staffs. They did not respond as per the complainant’s allegation. Complaint with respect to this is not responded by the opposite party and there is no proof also filed by the opposite party  for their response. This itself  proves that the opposite party  had committed deficiency in service and it is unfair practice also. Hence, point No.2 is answered accordingly.

09. POINT NO : 3

 The complainant prayed to refund 50% of maintenance charges collected on quarterly basis from  January 2015 i.e.  when the services were denied and it  works out to Rs.14,009/- on the date of complainant  and for damages and costs. The opposite party  had  collected maintenance but neglected to provide the proper services, to the complainant  while so, it would only be appropriate to order compensation for the sufferings and hardship caused to the complainant, instead ordering for refund of 50% of maintenance charges already paid. As per the discussions held,  the opposite party  can be directed to pay Rs.50,000/- towards compensation for deficiency in service and to pay Rs.5,000/- for legal expenses.

          In the result, the complaint is partly allowed. The opposite party  is ordered to pay a sum of Rs. 50,000/-(Rupees fifty thousand only) towards deficiency in service, and mental agony, besides  a sum of Rs.5,000/- towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of the payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 12^th  day of November 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 26.03.2007                   Copy of Unregistered Construction Agreement

Ex.A2 dated 29.05.2009                   Copy of Unregistered Supplemental Agreement

Ex.A3 dated NIL                     Memorandum and By-Laws of Association

Ex.A4 dated 19.12.2013                   Copy of Association Communication

Ex.A5 dated 06.01.2014                   Copy of Association Communication

Ex.A6 dated 08.01.2014                   Copy of Association Communication

Ex.A7 dated 07.01.2014                   My letter to the Builder TVH with copy to

                                                    opposite party

 

Ex.A8 dated         11.01.2014                   My letter to the Builder TVH with copy to

                                                    opposite party

 

Ex.A9 dated 05.02.2014                   Copy of Association Communication

Ex.A10 dated 19.01.2015                 Copy of Association Communication

Ex.A11 dated 29.01.2015                 Invoice

Ex.A12 dated 10.06.2015                 My letter to opposite party

Ex.A13 dated 09.03.2015                 My letter to opposite party

Ex.A14 dated 21.08.2017                 Statement of Account Maintenance charges

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:   Ex.B1 dated 19.12.2013        E-mail to the Residents regarding payment of aintenance                                                  maintenance charges   Ex.B2 dated 03.01.2014        Minutes of the meeting between true value                                                 Homes Pvt. Ltd & TVH Lumbini Sqare                                                 Owners Association    Ex.B3 dated 08.01.2014        E-mail to the Residents regarding transfer                                                  Of maintenance to TVH Lumbini Square                                                  Owners’ Association   Ex.B4 dated 19.01.2014         E-mail to the residents regarding payment of aintenance                                                           maintenance charges   Ex.B5 dated 29.01.2014         Copy of Invoice posted against
Complainant’s Flat with regard                                                   to payment of maintenance charges
MEMBER – I                                                               PRESIDENT