BEFORE:

        HON’BLE MR SUBHASH CHANDRA                    PRESIDING MEMBER

For the Appellant                 Mr K Maruti Rao, Advocate (VC)

For the Respondent              Mr S Srinivasan – IN PERSON

ORDER

1.          This First Appeal under Section 58 (1) of the Consumer Protection Act, 2019 (in short, ‘the Act’) challenges the order of the Karnataka State Consumer Disputes Redressal Commission, Bengaluru (in short, ‘the State Commission’) in Consumer Complaint no.1, 880 of 2008 dated 30.07.2021. It is seen that FA nos.881 and 882 of 2021 also emanate from the same order. Hence, all the three FAs are proposed to be disposed of through a common order, in view of the fact that the facts of the First Appeals are similar and also the fact that they agitate common grievances. For reasons of convenience, the facts of the case are taken from FA no.880 of 2021.

2.     For the reasons stated in the application for condonation of delay along with the First Appeal filed, the delay of 6 days in filing this appeal is condoned.

3.     We have heard the learned counsel for both the parties and have carefully perused the material on record.

4.     The relevant facts of this case are that the respondent had booked a flat being constructed by the appellant who is a builder. A flat was booked in the project of Elegant Builders and an Agreement of Sale dated 21.03.2007 was executed.  The building plan was sanctioned on 28.06.2006 by the Bruhat Bangalore Municipal Palika Corporation (BBMP) to construct 9 flats on the plot in question. Water supply connection was sanctioned by the BWSSB on 21.04.2007 and the Electricity Department issued an inspection report on 30.08.2008. On 14.08.2008, after taking the possession of the flat in question, the respondent issued a legal notice to the appellant seeking details of the accounts, completion certificate and raised various other grievances primarily in respect of the lift installed, parking slots and the collection of excess amount charged from them. Thereafter, Consumer Complaint no. 88 of 2008 was filed on 20.08.2008 before the State Commission praying for several reliefs. The main contention was that the opposite party/ appellant herein had collected an excess amount of Rs.18.69 lakhs and prayed for the return of the same with interest @ 15% per annum. On 31.01.2008, the State Commission dismissed the complaint and directed the respondent to approach the appropriate Civil Court for the recovery of the money. However, in FA no. 526 of 2008, this Commission remanded the matter to the State Commission to decide the matter afresh. Vide order dated 20.10.2010, the State Commission allowed the complaint and directed the appellant to refund Rs.18.69 lakhs to the complainant/ respondent in CC no. 88 of 2008. It also directed that in case demolition of the unauthorised construction/ violation of sanctioned plan of the flats by the BBMP, the appellant would rebuild the same as per the approved plan at its cost.

5.     Both the parties approached this Commission by way of an appeal and cross appeal nos. FA 402 of 2010 and 439 of 2010 respectively. FA no.439 of 2010 was allowed by this Commission vide order dated 28.07.2016 and FA no. 402 of 2010 was ordered to be infructuous on 28.07.2016. The State Commission’s order dated 20.10.2010 was set aside and the matter was remanded back to the State Commission. Miscellaneous Application no. 874 of 2011 was filed on 04.11.2011 seeking restoration of the appeal in FA No. 402 of 2010 which was dismissed by this Commission. The impugned order in CC no.88 of 2008 has now been appealed against by the builder challenging the order of the State Commission dated 30.07.2021 whereby the contention of the respondent had been upheld and various relief including the refund of the excess amount collected (Rs.18.69 lakh) had been ordered.

6.     Essentially, this matter which had a fairly chequered journey in terms of appeals, relates to whether appellant had charged the respondent an additional and unjustified amount for construction of the flat in question. The contention of the appellant is that while there was a Sale Agreement executed between the parties, there was also a Construction Agreement between them which related to construction of the flat in question and that it had demanded various instalments from the respondent with regard to the construction cost of the flat in question which had been duly paid by the respondent. The respondent, on the other hand, contended that the parties had only entered into a Sale Agreement and that they had been over charged by the appellant towards the flat in question. Hence, they prayed for the refund of the same, while also raising issues of various deficiencies in the construction of the flat notably violations of the building  plan permission with regard to construction in the basement of a two bedroom unit whereas the basement was intended only for the purpose of car parking, lack of certificate with regard to rain water harvesting, building plan violation to the extent of 171% of the built up area that was allowed and the lack of an occupation certificate from the concerned Municipal Corporation.

7.     According to the appellant, the construction of the flat was covered under the Construction Agreement which was in addition to the Sale Agreement and the respondent had made the payment as demanded under the same. It is contended that it was at the request of the respondent that the Sale Agreement and the Construction Agreement were made separate documents since they desired to pay the stamp duty for the purpose of registration only on the lesser amount which was indicated in the Sale Agreement. It was contended that the possession of the flat had been taken over by the respondent and that the issues of pricing and other violations had been raised subsequently in order to pressurise the builder which was unjustified.

8.     Per contra, the respondent contended that the appellant received the entire sale consideration including stamp duty and registration charges and miscellaneous expenses but failed to obtain the occupancy certificate and did not return the mother deed with respect to the property in question. It was contended that there was deficiency in service on the part of the appellant with regard to maintenance of lift, common area use, use of stair case etc. It was also contended that the appellant failed to obtain rain water harvesting certificate and there  were violations with regard to certain electricity connection and sewerage line connections. For want of occupation certificate the appellant was unable to get a Khata Certificate from the BBMP. The detailed construction account had also not been supplied.

9.     The State Commission in the impugned order has held that as per the Sale Agreement dated 30.072007 and the Construction Agreement of the same date, the agreed price with regard to the flat was Rs.23.31 lakh. The Sale Deed executed on 28.02.2007 is not disputed and the same also mentions the sale price of Rs.23.31.lakh. However, it is also not disputed that a sum of Rs.46.69 lakh had been paid for this flat as per which the respondent had paid Rs.18.69 flat in excess over the agreed price. The State Commission has noted that the appellant had not disputed the receipt of this amount. It is also noted that in the Agreement to Sale, as per Clause 16, it had been recorded that the price would not be subject to any escalation inclusive of Service Tax and VAT levied with the exception of charges mentioned in Clause 13 at the time of handing over the premises. Therefore, these Clauses bind the parties. The State Commission has accordingly, held that the respondent is entitled to contend that the appellant cannot claim escalation charges. However, they have collected a huge amount above the agreed price. It has therefore, been held that the Sale Agreement between the parties dated 30.07.2007, in so far as the sale price agreed upon, should be considered as the price mentioned in the documents which the Sale Deed dated 20.08.2007 also supports. State Commission also noted that the price fixed in the Sale Agreement is similar as in the Construction Agreement and read with the recitals of the Sale Deed, this indicates that the appellant have collected an amount in excess of the amount fixed from the respondent. It is therefore, contended that the same constitutes an unfair trade practice and not returning the same to the respondent, amounts to deficiency in service.

10.   It has also held, with regard to the lift, stair case, sewage connection and electricity connection that the same had been agreed to be provided by the appellant. The alleged short comings in the working of the lift is not denied by the appellant who has contended that the maintenance of the same lies with the Association. The State Commission has therefore concluded that the responsibility of maintenance of the lift rests with the appellants.

11.   As regard the failure to secure the Occupation Certificate from the competent authority and separate electrical meters, it is noted by the State Commission that the appellant has failed to comply with its responsibility to do so in view of the violation of the approved building plan. It is also not denied by the opposite party/ appellant as noted in the order of the State Commission that BBMP had issued notice to demolish the unauthorised construction put up by the appellant in violation of the approved building plan. While the appellant has placed an interim order of the KAT staying the notice issued by the BBMP, the fact of violation of the approved plan is yet to be resolved on which the issue of the Occupation Certificate hinges. Accordingly, the State Commission had allowed Consumer Complaint no. 88 of 2008 and directed the appellant to refund Rs.18.69 lakh and, in case of demolition of unauthorised construction by the BBMP, directed the appellant to rebuild/ reconstruct the building as per the approved plan at its cost.  Appellant was also directed to reserve and ear mark proper car parking slots as agreed under the Agreement to Sale, Construction Agreement and Sale Deed in favour of the complaint. Opposite party was also directed to secure the Occupation Certificate and Completion Certificate and hand over the same to the respondent. Lastly, the appellant was also directed to rectify the defects with regard to lift as the Association of Owners had not been formed, sewerage construction/ electricity connection, obtain the safety certificate and rain water harvesting certificate and to hand over these documents to the respondent along with the mother deed. A sum of Rs.10,000/- compensation  towards mental agony and litigation of Rs.1000 was ordered to be paid to the respondent. Compliance within three months was directed failing which interest @ 6% per annum till realisation was directed to be paid.

12.   It is apparent from the foregoing that the opposite party appellant herein entered into an Agreement of Sale with the respondent for a sum of Rs.23 lakh but collected Rs.46.69 lakhs towards the flats in question. The appellant has not been able to bring on record any document as per which an additional amount had been agreed upon between the parties towards the cost of the flat as claimed by it. Therefore, the Sale Agreement dated 30.07.2007 has to be considered as the basis for the agreed sale consideration between the parties. It is not denied by the appellant that there have been violations with regard to the construction in the basement which was ear marked as space for car parking, faulty operation of the lift, violation of the building plan as approved by the BBMP (local municipal corporation) and other short comings such as non-availability of occupation certificate, rain water harvesting arrangements and individual electricity connections. In view of these admissions, deficiency in service alleged by the respondents has been rightly upheld by the State Commission.

13.   In view of the foregoing, the order of the State Commission cannot be faulted in awarding reliefs to the respondent. We therefore, find no reason that warrants interference in the order of the State Commission. Order dated 30.07.2021 in CC no.88 of 2008 is therefore affirmed. All pending IAs, if any, stand disposed of with this order.

14.   FA nos. 881 and 882 of 2021 are also disposed of similarly in the above terms.