Karnataka
StateCommission
CC/344/2014
Praveen Kumar - Complainant(s)
Versus
Ziaulla Sheriff - Opp.Party(s)
08 Dec 2023
ORDER
Date of filing : 09.10.2014,
20.12.2014 & 04.12.2015
Date of Disposal :08.12.2023
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED:08.12.2023
PRESENT
HON’BLE Mr JUSTICE HULUVADI G RAMESH : PRESIDENT
Mr K B SANGANNANAVAR : JUDICIAL MEMBER
Mrs DIVYASHREE M : LADY MEMBER
CONSUMER COMPLAINT Nos. 249/2014, 250/2014, 251/2014, 342/2014, 343/2014, 344/2014 & 639/2015
1. CC No.249/2014
1. Mr V V Balumahesh
S/o Mr K Janardhanan
Aged 39 years
Residing at Apartment No.343
3rd Floor, Phase III O Block,
Platinum City, Yeshwanthpur
Bengaluru - 560 022
2. Mrs T K Jayasree
W/o Mr Balumahesh
Aged about 31 years
Residing at Apartment No.343
3rd Floor, Phase III O Block,
Platinum City Yeshwanthpur
Bengaluru - 560 022 Complainants
(By Mr K.G.Kamath. Advocate)
2. CC No.250/2014
Mr Senthil Kumar R K
S/o Mr R Krishnan
Aged 50 years
R/at Apartment No.842
8th Floor, Phase III O Block,
Platinum City, Yeshwanthpur
Bengaluru – 560 022 Complainant
(By Mr K.G.Kamath, Advocate)
3. CC No. 251/2014
Sri Santhosh Kumar M
S/o Late K V Kunhikanna Marar
Aged 47 years
Apartment No.346
3rd Floor Phase III O Block
Platinum City, Yeshwanthpur
Bengaluru - 560 022 Complainant
(By Mr K.G.Kamath, Advocate)
4. CC No.342/2014
Mr Anilkumar K
S/o Mr K Sreedharan Nambiar
Aged about 40 years
R/at Flat No.T-430
3rd Floor, Phase II O Block
Platinum City, Yeshwanthpur
Bengaluru – 560 022 Complainant
(By Mr K.G.Kamath, Advocate)
5. CC No.343/2014
Mr Prajeen Kumar
S/o Mr M K Vasudevan
Aged about 40 years
R/at Flat No.S-324133
2nd Floor, Phase II O Block
Platinum City, Yeshwanthpur
Bengaluru - 560 022 Complainant
(By Mr K.G.Kamath, Advocate)
6. CC No.344/2014
Mr Praveen Kumar
S/o Late Narayana Marar
R/at Flat No.133, 1st Floor
Phase III O Block, Platinum City,
Yeshwanthpur, Bengaluru - 560 022 Complainant
(By Mr K.G.Kamath, Advocate)
7. CC No. 639/2015
Mr B Nagaraj
S/o B Obaleshappa
Aged 45 years
Residing at No.F-532
Situated on 4th Floor of Phase-II of O Block
HMT Main Road, Peenya Village
Yeshwanthpur Corporation Division
No.1/2, Bengaluru – 560 022 Complainant
(By Mr K.G.Kamath, Advocate)
-Versus-
1. Mr Ziaulla Sheriff
Managing Partner
M/s Sheriff Constructions,
Sheriff Centre
73/1, St Marks Road
Bengaluru - 560 001
(By Mr Suraj Patil Advocate
in CC 249/2014
Mr Kamal & Bhanu in CC No.250
& 251/2014, 342 to 344/2014
and 639/2015) Opposite party No.1
2. Mr Nazeer Ahmed
Proprietor
M/s. Nacons Engineers & Builders
Nacons House
House No.75/3/2
8th Main, 3rd Block
Jayanagar, Bengaluru - 560 011 Opposite Party No.2
(By Mr Mohammed Arif Khan Makki, Advocate)
: COMMON ORDER :
Mr JUSTICE HULUVADI G RAMESH : PRESIDENT
1. The above 07 Complaints have been filed by the respective Complainant/s against the same OPs, who are common in all the Complaints, seeking similar relief, involving Apartments in the same complex and on similar grounds of allegations. In these circumstances, they are taken up together for consideration.
2. It is the case of the Complainants that, OP1 is the Managing Partner of M/s Sheriff Constructions, which is a Partnership Firm and it owns a land in Survey Nos 47 & 48 of Peenya Village, Yeshwanthpur Hobli, Bengaluru, measuring to an extent of 34 acres 28 guntas, which was later converted into residential land bearing No.2, HMT Main Road, Yeshwanthpur Corporation Division No.1/2 Bangalore-560 022. The OP2 is in the business of building construction. OPs constructed 3,000 Flats, in a location named Platinum City at No.2, HMT Main Road, Yeshwanthpur, Bangalore-560 002 as per Joint Agreement dated 18.09.2022 entered into between OPs 1 & 2. OPs issued a Public Notice dated 20.06.2006 in Deccan Herald News Paper, to the effect that wing (Phase-I) of the ‘O’ Block is complete in all respect & ready for occupation and calling upon the general Public to buy and have the Sale Deed registered in their favour and take physical possession. Many attractive comforts & facilities were offered to be provided to the prospected buyer’s viz., un-interrupted Power Supply, Water supply, Swimming Pool, Club House, etc., and also separate Sewage Treatment Plant was also offered to be set up in the premises.
3. In pursuance of such Advertisement and presentation made by OPs, the Complainants along with host of other prospective Purchasers, decided to purchase Residential Apartments in the above said Joint Venture Project. Further, OPs conveyed that necessary Sanctions, Approvals and No Objection Certificates from the concerned authorities, including the sanction of Development Plan and Building Plan from Bangalore Development Authority have been obtained and induced the Complainants to purchase their intended Flat property, with a promise to put the Complainants and other prospective buyers in possession of the property. Thereafter, the Complainant in CC No.249/2014 purchased Flat No.343, 3rd Floor, Phase III, O Block Platinum City for sale consideration of Rs.14 Lakhs, Complainant in CC No.250/2014 purchased Flat No.842, 8th Floor, Phase III, O Block Platinum City for sale consideration of Rs.14 Lakhs, Complainant in CC No.251/2014 purchased Flat No.346 in 3rd Floor, Phase III O Block Platinum City for sale consideration of Rs.14 Lakhs, Complainant in CC No.342/2014 purchased Flat No.T-430 3rd Floor, Phase II, O Block Platinum City for sale consideration of Rs.10 Lakhs, Complainant in CC No.343/2014 purchased Flat No.S-324 in 2nd Floor, Phase II, O Block Platinum City for sale consideration of Rs.10 Lakhs, Complainant in CC No.344/2014 purchased Flat No.133 in 1st Floor, Phase III, O Block Platinum City for sale consideration of Rs.10 Lakhs and Complainant in CC No.639/2015 purchased Flat No.F-532 in 4th Floor, Phase II, O Block Platinum City for sale consideration of Rs.10 Lakhs. Further all the complainants made other deposits towards BESCOM, Government Deposits and Electrification, Sewage Treatment Plant (STP), EPABX and processing charges entered into an Agreement to Sell/Agreement to Build with OPs and paid the stipulated Sale consideration and other charges, as demanded.
4. The Complainants contended that OPs did not provide the committed and essential facilities & amenities like Passenger Lift, Water Tank, Electricity connection under LT-2, Water supply and Sewage Treatment Plant etc., On account of the same, the Complainants and other similarly placed Buyers could not occupy the individual Apartments sold to them. OPs exploited the situation in which the Complainants were placed further proceeded to cheat the Complainants, by extracting towards considerable amount towards Electricity deposit, water supply, Sewage Treatment Plant and EPABX etc.,
5. The allegations of the Complainants are that, OPs have not so far provided the basic & essential service amenities viz., BESCOM LT2 connection, BWSSB water connection and provided only 2 Passenger Lifts against 6 Passenger Lifts provided as per the Plan, Swimming Pool, Club House, Gymnasium, Steam Room, Tennis Court, clearance from Fire & Safety Department and clearance from Pollution Control Board. In the absence of BDA Occupancy Certificate, Katha and Tax paid Receipts, Complainants are unable to sell the property and is totally trapped and at the mercy of the OPs for the past five years.
6. Further allegations of the Complainants are that, OPs have violated the norms and specifications as envisaged in Building Construction Rules prevailing in the area and failed to honor any of their commitments and hence, the entire Apartment Complex was unsafe for human dwelling. As per the Construction Plan, in the ‘O’ Block there are in all 616 Flats, out of which, as per the areas provided for the un-divided share of land to the Apartment Owners, varies from 85 Sq ft to 215.15 Sq ft and thus the share of the un-divided land, in all works out to 81,637.64 Sq ft to be available, but, as per the Sale Deed it is only 64,254.11 Sq ft, which means there is a difference of 17,383.53 Sq ft land, besides the area for 2 CA sites in the Project, as per the BDA Approved Plan are 27,041.42 Sq ft, which is Site Nos 5 & 6 measuring 4,701 Sq ft and 12,340.42 Sq ft respectively, which means that for the O Block the available land is only 37,212.69 Sq ft. and the OPs have sold to the Complainants and other buyers 81,637.64 of land. This clearly shows that the OPs have sold land in excess of 44,424.95 Sq ft held by them and selling non-existing land tantamount to cheating. OPs 1 & 2 have colluded with each other, knowing fully well that their action will cause loss to the Complainants and other Buyers, in their Website shown that the Project is ready and have wrongfully gained the complete amount from the Apartment Owners and thus the Complainants would suffer irreparable loss. Under the circumstances, the Complainants have filed the present complaints seeking direction to the OPs to pay compensation of Rs.87,76,718/- in CC No.249/2014, Rs.89,01,718/- in CC No.250/2014, Rs.89,01,718/- in CC No.251/2014, Rs.82,16,225/- in CC No.342/2014, Rs.82,16,225/- in CC No.343/2014, Rs.82,98,225/- in CC No344/2014 and Rs.81,88,359/- in CC No.639/2015 for mental agony and harassment.
7. Perusal of records reveals that in his Statement of Version, which is common and similar in all these cases, OP1 amongst other pleas, pleaded that the damages claimed in the Complaints are clearly un-reasonable and of an attempt to reap un-lawful profits through this litigation. All the grievances as alleged by the Complainants solely pertain to OP No.2 and no liability whatsoever can be attributed to OP1. The same is patently clear from the Joint Venture dated 18.09.2003 executed by and between OPs 1 and 2, the Construction Agreement executed by and between the Complainants and the OP2 and the Sale Deeds executed by and between OPs 1, 2 and the Complainants. Hence, Complainants are not Consumers under the provisions of CP Act in so far as OP1’s role is concerned.
8. Further it is pleaded by OP1 that, he is the absolute owner of the residentially converted land bearing No.2, HMT Main Road, Yeshwanthpur, Corporation Division No.1/2, Bangalore, totally admeasuring 34 Acres and 28 Guntas and that the OP1 acquired the said property vide registered Sale Deed dated 29.03.1995 and the Khata of the property was transferred in his name. The property consists of a residential township under the name and style of ‘Platinum City’ housing prudently designed, affordable 2 & 3 Bed Rooms homes along with lush landscaped greenery. The Platinum City consists of various blocks and in O block admeasuring 64,254.11 Sq ft. OP1 after obtaining sanctions of Development Plan and Building Plan from the Bangalore Development Authority had commenced constructions on the O Block of the property. Construction of residential units up to the stage of Ground Floor (basement and ground floor slab) was completed by OP1 by expending on amount of Rs.36,63,091/- and in order to delegate the construction works at O Block, entered into Joint Venture Agreement dated 18.09.2003 with OP2 after numerous deliberations. As per recitals of the Joint Venture Agreement, OP2 was entitled to retain the entire construction as his share and deal with the same as he deems fit and undertaken to carry on construction activities as per sanction plans. Further no liability whatsoever shall be attributed to OP1 in relation to O Block and liability on the OP2 to carry out all activities and payments towards construction cost and obtaining any connection of water, electricity, telephone etc.,
9. Further it was pleaded by OP1 that he shall not be entitled to provide any water, sewage, electricity facilities and such other amenities available in the project to the residents of the O Block. As per Clause B(1) (a) has further undertaken that OP2 shall be liable for any actions initiated by any statutory authorities towards violation/alterations from the Sanctioned Plan to the execution of OP1 and as per Clause J holds an indemnification clause, as per which, OP2 ought to keep indemnified OP1 against any loss, liability, cost or claim or proceedings that may arise against it, by reason of any failure on the part of OP2 to discharge his liabilities or on account of any act of commission or omission pertaining to the O Block and solely liable and responsible to the Government, Corporation of the City of Bangalore and other authorities for the due compliance of all statutory requirements. OP1 has no role to play and he is merely the land owner, over which the O Block is constructed and instant Complaints thus lacks any merits as against OP1. The Construction Agreement has been executed solely by and between the Complainants & the OP2 and completion of Block O shall vest with OP2. Thus OP1 denies all other allegations made in the Complaints and sought Dismissal of the Complaints against him.
10. Further, in his Statement of Version, which is common and similar in all the cases, OP2 amongst other pleas, admitted the construction of residential flats at No.2, HMT Main Road, Yeshwanthpur Corporation Division No.1/2, Bangalore – 560 022 and Apartments were ready for occupation in or about June 2006. OP2 denied that the Complainants and other Buyers were induced by representation, advertisement to purchase the flat in O Block of Platinum City constructed by him and to provide un-interrupted power supply, Water supply, Swimming Pool, Club House, etc.,
11. Further, OP2 pleaded that Water supply to all the Flats was provided from the Borewell sunk in the property and sewerage facility was given not by BWSSB apart from a Sewerage Treatment Plant. The deposit towards water supply was collected for O Block, for sinking of the Borewell and of water pipe installation, other repairs, maintenance of water supply, other infrastructure expenses and no money was collected towards STP. Further, he provided 4 Lifts, Water Sump of 4.5 Lakhs Ltrs capacity, Overhead Tanks and Sewage Treatment Plant and Electricity LT2 connection also provided. The Complainants and 469 other Buyers have taken possession of their respective Flats and they are living peacefully in their Apartments and all the basic amenities that were promised have been provided. Therefore, a sum of Rs.1,33,225/- was collected from each of the Complainants towards providing infrastructure facilities like Electricity supply, Water supply, etc., and they are fighting for permanent Electricity connection to each of the Flat against the Authority in WP No.5055/205 (GM-CPC) and on15.04.2015 Hon’ble High Court of Karnataka has directed the BESCOM shall provide power supply to RR No.HTDTP 17175, subject to payment of all legitimate charges.
12. OP2 further pleaded that, he obtained NOC from Fire Department and clearance from Pollution Control Board. The project was to cater to Low Income Group persons and Flats were sold for Rs.5 Lakhs for 1 BHK, Rs.7 to 10 Lakhs for 2 BHK and Rs.14 Lakhs to 3 BHK. The various Flat owners have been provided un-divided share, as per their entitlement in proportionate to built up area. As per BDA Sanction Plan, the FAR allowed is 2.23, the total FAR sanctioned area is 33,287.43 Sq Mtrs and the total land area of O Block Constructed area = 3,58,172 = 1,60,615.58 Sq ft/FAR x 2.23, which is far in excess of un-divided share sold as alleged. Further, OP2 pleaded that Complaints are filed nearly 9 years after securing occupation of the Flats by the Complainants and is barred by Limitation and there is no justification whatsoever made in the Complaints for payment of such damages.
13. It is observed that on behalf of Complainants, each of them chose to file their respective Affidavit in lieu of oral evidence. Inspite of giving sufficient opportunities to OPs not filed their Affidavit Evidence, hence, Affidavit Evidence of OPs is taken as not filed. No documents are marked by both the parties.
14. Heard the arguments.
15. During the pendency of the proceedings, on 21.04.2023, the learned Counsel for Complainants filed an Application under Order XXVI Rule 1 of CPC for appointment of Court Commissioner to inspect the Residential Apartment in O Block of Platinum City and same was allowed with cost of Rs.1,000/- payable to OPs and thereafter, on 22.05.2023 one Mr Kumar A Patil, Advocate was appointed as Court Commissioner to inspect the spot and to submit detailed Report. Accordingly, on 02.11.2023, the Court Commissioner appointed by this Commission had submitted his Report with documents.
16. The observations made by Court Commissioner in his Report dated 30.10.2023 are as hereunder :
“On my examination, I found that the Platinum City Project approved by the Bengaluru Development Authority and the Sanctioned Plan issued by the Bengaluru Development Authority to put up Construction of a multi-storeyed building under Group Housing Scheme of totally 17 Blocks. Out of the said 17 Blocks, this ‘O’ Block is allotted to LIG and MIG Groups. There is no Swimming Pool, Club House, Kaveri Water and there is no mention in the Sale Deed and Agreement of Sale regarding Swimming Pool, Club House and Kaveri water. There are three Borewells for water supply, the telephone EPABX connection available to all Complainants’ flats and Lifts are available. There is a General Park. Covered Car parking slot allotted to Mr Senthil Kumar and Mr Praveen Kumar. The open car parking slot allotted to Mr B Nagaraj is not comfortable to park the car, Mr Santhoshkumar and Mr Prajeen Kumar have not been allotted car parking and the remaining Complainants namely Mr Anilkumar and Mr Balu Mahesh, have not opted for car Parking”.
17. The Complainants in each of the case have explained in detail about the Date of Agreement, the Flat which they have booked and the promised Date of Delivery, Sale consideration amount, etc., For the sake of ready reference and convenience all the said details are excerpted in Tabulated Form as hereunder -
Sl No | CC No. | Sale Deed | Flat No. & Floor | Block No. | Measure ment | Promised Date of Delivery | Sale consideration Rs |
01 | 249/2014 | 15.03.2013 | 343 & 3rd | O | 1320 sq ft. | June/ July 2008 | 14,00,000/- |
02 | 250/2014 | 05.05.2011 | 842 & 8th | O | 1320 sq ft | - | 14,00,000/- |
03 | 251/2014 | 29.12.2010 | 346 & 3rd | O | 1320 sq ft | 18 months excluding Massonry work | 14,00,000/- |
04 | 342/2014 | 14.08.2009 | T-430 3rd | O | 860 sq. ft | - | 10,00,000/- |
05 | 343/2014 | 14.08.2009 | S-324 2nd | O | 860 sq. ft | - | 10,00,000/- |
06 | 344/2014 | 29.01.2010 | 133 1st | O | 860 sq. ft | - | 10,00,000/- |
07 | 639/2015 | 04.11.2009 | F-532 4th | O | 860 sq. ft | - | 10,00,000/- |
18. Thus admittedly, execution of Agreement of Sale, Agreement to Build and Absolute Deed between each of the Complainant and the OPs is not in dispute. Similarly, it is also not in dispute that the Complainants have made payment of the Sale consideration amount towards the sale of their respective Apartment.
19. It is the specific case of the Complainants in all these cases that, OPs did not provide the facilities and amenities like Lift, Water Tank, LT2-Electricity connection, Water and Sewage Treatment Plant, provided only 2 Lifts out of 6 Lifts as provided in the Plan, Swimming Pool, Club House Gymnasium, Steam Room, Tennis Court, clearance from Fire & Safety Department and clearance from Pollution Control Board and due to the absence of BDA Occupancy Certificate, Katha and tax paid receipt are unable to sell the property and is totally trapped for the last five years.
20. It is an admitted fact about the execution and subsistence of Joint Venture Agreement dated 18.09.2003 executed by and between OPs 1 & 2, the Construction Agreement executed by and between the Complainants & the OP2 and the Sale Deeds executed by and between OPs 1, 2 & the Complainants. The property consists of a Residential Township under the name and style of ‘Platinum City’ housing prudently designed, affordable 2 & 3 Bed Room homes along with lush landscaped greenery. Further it is also admitted fact that ‘’The Platinum City’ consists of various blocks and in O Block admeasuring 64,254.11 Sq ft. Though OP1 obtained the sanctions of Development Plan and Building Plan from the Bangalore Development Authority and had commenced constructions on the O Block of the property. Construction of residential units up to the stage of Ground Floor (basement and ground floor slab) was completed by expending on amount of Rs.36,63,091/-. As per Joint Venture Agreement dated 18.09.2003, OP2 had undertaken to carry on construction activities as per Sanctioned Plan, all activities and payments towards construction cost and obtaining any connection of water, electricity, telephone etc., have been received by OP2. Therefore, OP1 shall not be entitled to provide any Water, Sewage, Electricity facilities and such other amenities available in the project to the residents of the O Block.
21. The documents on record establishes the fact that Deposit towards Water supply for O Block is for sinking Borewell and for water pipe installation, other repair, maintenance of water supply, other infrastructure expenses and not for deposit towards BWSSB. Further, OP had provided 4 Lifts, Water Sump of 4.5 Lakhs Ltrs capacity, Overhead Tanks and Sewage Treatment Plant and Electricity LT2 connection. It is observed that all the basic amenities that were promised have been provided and Rs.1,33,225/- each was collected from the Complainants towards providing infrastructure facilities like electricity supply, water supply etc., OPs have also obtained NOC from Fire Department and clearance from Pollution Control Board.
22. OPs have obtained Project Approval and Sanctioned Plan from Bangalore Development Authority and the project was to cater to Low Income Group persons and the Flats were sold at Rs.5 Lakhs for 1 BHK, Rs. 7 to 10 Lakhs for 2 BHK and Rs.14 Lakhs for 3 BHK. Further, there is no clause or condition mentioned either in the Sale Agreement or in the Sale Deed for providing Swimming Pool, Club House and Kaveri water as alleged by the Complainants. Nevertheless, under the Agreement, the Complainants are not liable to be provided with Civic amenities as prayed for by them. However, to claim the same they are required to produce necessary documents of demand and also explain as to how they are entitled for the same. Further, the allegations against OPs is that they have violated the norms and specifications as envisaged in Building Rules prevailing in the area and failed to honour any of their commitments and hence, the entire Apartment Complex is un-safe for human dwelling is not justifiable and same holds no water.
23. Further, more than 90 to 95% persons have occupied the Apartments without any complaints in these buildings. Basically, there is no such Agreement entered into between the Developers and the Complainants herein, to provide any extra amenities which are beyond the scope of the Construction Agreement. These Complainants are expressing their grievances without there being any documents in writing regarding commitment for providing of these facilities. Moreover, these Allotments were made mechanically to the applicants from the weaker sections and the Middle Income Group. According to the Developers, they have spent more than Rs.5 Crore for providing sufficient accommodation, including investing money from their pocket for the social welfare of the occupants and whatever the amount paid by the Complainants are not sufficient even for construction of the Apartments. In such view of the matters and in the absence of any specific Agreement or undertaking by the OPs, un-necessarily seeking for providing of amenities and facilities by these complainants is without any basis, which is only harassing and causing mental agony to the Developers. In the absence of any specific clause in the Agreement for providing extra amenities, OPs are not liable to provide the same and as such these set of Complaints are not maintainable. The Court Commissioner has submitted his report dated 30.10.2023 after he examined the Platinum City apartments constructed at No.2, HMT Main Road, Yeshwanthpur Corporation Division No.1/2, Bengaluru – 560 022 in the presence of the stake holders and concluded that there is no mention in the Sale Deed and Agreement of Sale regarding Swimming Pool, Club House and Kaveri water. Though the brochure brought out by the OPs indicate certain facilities and the document No.7 newspaper publication that Builders of Platinum City didn’t provide facilities: Residents, as the same does not indicate any provision for facilities in the individual Sale Deed and Agreement of Sale entered into between OPs and Complainants. Further the Complainants are directed to approach the Developer with their details to enable the Developer to get the Occupancy Certificate and Khata Certificates for their specific premises, from the Authorities concerned. Parallely, the Developer is also directed to appraise the Complainants suitably on the developments from time to time. As such, the Complaints are liable to be Dismissed for want of specific Clause/Conditions in the Agreement. In the result, we proceed to pass the following
O R D E R
Complaint Nos. 249/2014, 250/2014, 251/2014, 342/2014, 343/2014, 344/2014 & 639/2015 are Dismissed with no order as to costs.
Keep the original of this order in CC No.249/2014 and copy thereof in rest of the Complaints.
Lady Member Judicial Member President
*s
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