Date of Filing:11/12/2020
Date of Order:05/05/2022
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated:05th DAY OF MAY 2022
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI. Y.S. THAMMANNA, B.Sc, LL.B., MEMBER
COMPLAINT NO.1094/2020
COMPLAINANT | | SMT. SUMATHI, W/o Sri C.J. Manjunath Aged about 52 years Residing at No.204, 17th ‘B’ Main Road, ‘Goodwill Apartment’, 6th Block Koramangala Bengaluru-560 095 Mob:9742614984. (Sri Sitarama.G.Hegde Adv. For Complainant) |
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Vs
OPPOSITE PARTIES | 1 | MRS. HASHMATHUNNISA SHERIFF, W/o Sri M.I. Sheriff, Major R/at No.598, 5th Cross, 17th Main, 4th Block, Koramangala, Bengaluru 560 034. Rep. by her GPA Holder Mrs. Shamshunnisa @ Shaheen Sheriff, W/o Mohammed Inayath Huq, D/o Late NA Rahman Sheriff, Major R/at No.598, 5th Cross, 17th Main, 4th Block, Koramangala, Bengaluru 560 034. |
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| 2 | SRI M. SRINIVAS, S/o Late Muniyappa, Major R/at No.141/1, Kathalipalya, 6th Block, Koramangala, Bengaluru 560 095 |
| 3 | SRI M. RAVICHANDRA S/o Late Muniyappa, Major R/at No.140/1, Kathalipalya, 6th Block, Koramangala, Bengaluru 560 095. |
| 4 | SRI K. HANUMANTHAPPA, S/o. Late Kuppaiah, Major R/at No.64, Kathalipalya, 6th Block, Koramangala, Bengaluru 560 095. |
| 5 | SRI MASSOD AHMED SHERIFF, s/o late NA Rehman Sheriff, Major R/at No.35/3, Flat No.102/3, 2nd Cross, Tavarekere Main Raod, Kavery Layout, Bengaluru 560 029. |
| 6 | SRI NOOR AHMED SHERIFF, S/o Late NA Rehman Sheriff, Major R/at No.103/A, 9th ‘A’ Main Road 4th Block, Koramangala, Bengaluru 560 034. |
| 7 | MRS. NASREEN SHERIFF W/o A.H Sheriff, Major, R/at No.442, 8th Main, 4th Block Koramangala, Bengaluru 560 034. (OP-1: Exparte) (OP-2 to 4: Dismissed) (Sri R Chandrashekar Adv. For OP-5 to 7) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT.
1. This Complaint is filed by the Complainant U/S Section 34 of Consumer Protection Act 2019, against the Opposite Parties (herein referred in short as OPs) alleging the deficiency in service in not allotting a flat out of three flats agreed to be allotted and for the cost of the said flat of Rs.47,00,000/- along with interest @ 18% per annum thereon and Rs.10,000/- towards the expenses incurred in issuing the legal notice and for Rs.50,000/- for the sufferance of hardship and mental agony and for Rs.15,000/- towards the cost of the litigation and for such other reliefs as this Hon’ble Commission deems fit.
2. The brief facts of the complaint are that: the Complainant is one of the partner with OP-1 to 4. They altogether put their properties measuring 924 Sq. feet belonging to the complainant, 1000 sq. feet belonging of OP-1, 462 sq. feet land belonging to OP-2, 924 sq. feet of belonging to OP-3, 1776 sq. ft belonging to OP-4 and together 5604 sq. feet of land as one single unit in order to construct the flats and to get the share 14%, 29%, 14%, 15% and 28% respectively. They also entered into an amalgamation deed and a partnership deed. OP-1 executed a GPA in favour of one Shanshunnissa @ Shaheen Shariff to manage and administer and to look after goodwill enterprises and complainant and OP.2 to 4 together executed General Power of Attorney which is unregister in favour of OP-5 to 7 to construct multistoried residential building in the said amalgamated lands. The partnership deed was also registered under the Act. Afterwards the partnership deed was dissolved wherein the authorities demanded all the parties to pay the stamp duty in respect of the immovable property. Inspite of it OP-1 to 4 did not pay the stamp duty as required under law.
3. The building contractor i.e. OP-5 to 7 started the construction of the flats in the amalgamated lands and work was very slow and contractor took much time to construct the flats. As per the agreed terms and conditions and contract of partnership firm, the complainant is entitle for 14% share in the profit by way of residential flat and entitle to 3 fully constructed residential flat. She demanded for the same. During November 2018, only one flat was handed over by OP-1 and 5 to 7. She waited for the remaining two flats but OP-1 and 5 to 7 went on postponing to hand over the same. When she repeated demanded them to handed over the flat some signatures on the blank papers were obtained from her, and also there life to her in case she did not listen to their directions. By utilizing the signature on the said blank papers, OP-1, 5 to 7 have manage to get a General Power of Attorney on 05.10.2013 granting powers to OP-1, 5 to 7 in respect of the said constructed land. Inspite of her continuous demand to handover the remaining flats only during February 2019, OP-1, 5 to 7 allotted a flat which was not constructed with quality construction and also not in accordance with the sanctioned plan. However she accepted the same as there was no alternative for her.
4. OP-1, 5 to 7 allotted only two flats against assured 3 flats. They have cheated her and they ought to have constructed one BHK flat in the 3rd floor and ought to have allotted the same to her. Hence she had to issue a legal notice demanding to pay a sum of Rs.35,00,000/- towards the cost of the remaining flat to be allotted to her, and Rs.12,00,000/- for the “Good will” along with interest at 18% per annum on the said amount. She is a consumer having obtained the services of OP-1, 5 to 7 for construction of the flats in the amalgamated lands. The service provided by OPs are not up to the mark and quality of construction was very poor. They are intentional in doing unfair trade practice in going slow regarding the construction of the 3rd flat, and also not handing over the remaining flat to her. With a dishonest intention to make themselves unlawful gain they have not handed over the 3rd flat to her. There is dishonest intention and breach of trust. Hence prayed the commission to allow the complaint and direct OP-1, 5 to 7 to pay the cost of the 3rd flat i.e. Rs.35 lakhs along with cost of good will i.e. Rs.12,00,000/-, costs of litigation of Rs.10,000/-, and Rs.50,000/- towards damages as compensation to the complainant.
5. Upon the service of notice, OP-1 remained absent and hence placed exparte. OP-2 to 4 were given up by the complainant by filing a memo. Hence the complaint against them was dismissed. OP.5 to 7 appeared before the commission and version filed by the OP.5 and 6 was adopted by OP.7.
6. In the version filed by OP.5 and 6 adopted by OP-7, it is contended that, the complainant was the owner of 924 sq. ft land in municipal corporation No.141. The complainant and other owners of small portion of the land intended to develop the same and accordingly a partnership firm was formed on 05.11.2012 and registered as M/s. Good Will Enterprises of which OP.1 was the managing partner. She executed the GPA on 05.07.2012 in favour of her sister Shanshunissa @ Shaheen Sharif constituting her a lawful attorney which was also registered and further on 11.06.2013 a Joint Development Agreement was entered into between complainant OP.1 to 4 and OP 5 to 7. As per the joint development agreement the builder share was 48% and owner share was 52%. A supplementary agreement, was entered into between the parties wherein apartment No. SF 206 in the 2nd floor and TF 306 on the 3rd floor along with one car parking area in the stilt floor was allotted to the share of the complainant. The partnership firm was reconstituted. One Ravichandra and Srinivas retired from the partnership out of their own will and volition and further released and relinquished their rights, privileges claims and title and entitlement for valuable consideration. Further to raise resources for the firm inducted 5th and 6th OPs as partners who had contributed from time to time for respective share capital. Further the firm was reconstituted and the 1st party was entitle for 30.86% and the 2nd party the complainant entitle for 8.64% 3rd party entitle to 14.89%, 4th party entitle to 30.34% and 5th party entitle to 16.95% and 6th party 15.33% in the asset of the said partnership. The reconstitution of the partnership was on 18.06.2016 and as per the terms and conditions entered therein, the shares of the partners have been entered into and allotted wherein complainant was allotted 8.64% share, and one bed room apartment bearing SF 204 on the 2nd floor having super builtup area on 948 Sq. Ft with 227 Sq. Ft of undivided share and one bed room house with study room apartment in TF 306 on the 3rd floor having super builtup area 787 sq. ft with 189 Sq. feet of undivided share with right, title, interest and ownership in the land wherein goodwill apartment construction in the A schedule property along with passage, lobbies, stair case common use with a right to pass through all the common passages leading to road and free for egress and ingress with all time, with all amenities with one parking slot in the stilt floor were given to the complainant. In this respect she has also executed a declaratory affidavit on 28.07 2017 wherein she has clearly admitted that she has received her share of 8.64%. She also undertook to pay the maintenance within 7 days for the common amenities inspite of it, did not pay the amount.
7. Inspite of it, she has made false allegations of taking her signatures on blank papers and allegation of fraud, misrepresentation and coercion which is far from truth. The complainant is not entitle for the 3rd flat or the cost of the same as claimed in the complaint. Upon handing over SF 204 and TF 306 in the year 2017 itself the complainant occupied flat 204 and residing therein and has rented out the another flat, she has been paying the electricity consumption charges for the usage of the electricity in respect of the said houses. Khatha has also been changed in her name. Inspite of the same by suppressing the material facts, encroached some common space and attempted to put up construction in the portion allotted to OP-5, 6 and 7 for which they have lodged a complaint with the police. She was also paid Rs.5,00,000/- as a refundable security deposit by way of cheque on 18.12.2013. The same has not been mentioned in the complaint. There is no deficiency in service on its part and hence prayed the forum to dismiss the complaint.
8. In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-
1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?
2) Whether the complainant is entitled to the relief prayed for in the complaint?
9. Our answers to the above points are:-
POINT NO.1 & 2 : IN THE NEGATIVE
For the following.
REASONS
POINT No.1 & 2:-
10. On perusal of the complaint, version, documents and evidences of both sides, it is undisputed that complainant along with others OPs became partner and merged her site with others and entered into a Joint Development agreement for construction of the flats wherein at the earliest point of time, she agreed to receive 14.65% out of the total area. It is her own case that the OPs agreed to provide her three(3) flats, whereas only two(2) flats were given to her whereas the remaining flats was not given to her for which she has filed this complaint.
11. She has also claimed the equivalent value along with money with damages, which OPs have contended that they are not bound to pay the said amount as the complainant along with other partners entered into Joint development agreement and a further partnership deed by dissolving the earlier partnership firm wherein she I unequivocal terms agreed to get 8.64% share out of the entire property and further has got two flats in the second and third floor along with all the amenities and further one car parking area in the stilt.
12. Though it is contended by the complainant that she was forced coerced and kept in dark and obtained some signature on the documents and on blank papers by playing fraud, which OPs have denied the same has to be tried before a criminal court. In a summary proceeding like this, the said allegations cannot be looked into and this commission’s hands tied in that respect. When the documents i.e. the new partnership deed, the affidavits, the joint development agreement when taken into consideration, the complainant has agreed to receive two flats along with common amenities with one car parking area which amounts 8.64% of her share, we are of the opinion that in view of the said documents, there is no deficiency in service or unfair trade practice Hence we answer POINT NO.1 IN THE NEGATIVE and in the result complainant is not entitle for any of the relief as claimed in the complaint and we answer POINT NO.2 ALSO IN THE NEGATIVE and pass the following:-
ORDER
- The complaint is hereby dismissed. Parties to bear their own costs.
2. Send a copy of this order to both parties free of cost.
Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 5th day of MAY 2022)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
PW-1 | Smt Sumathi – Complainant. |
Copies of Documents produced on behalf of Complainant/s:
Ex P1: Copy of the Deed of partnership.
Ex P2: Copy of the Amalgamation deed.
Ex P3: Copy of the General Power of Attorney.
Ex P4: Copy of the Acknowledgment issued by registration of firms.
Ex P5: Copy of the Power of attorney.
Ex P6: Copy of the another power of attorney.
Ex P7: Copy of the notice issued by District Registrar of firms.
Ex P8: Copy of the legal notice.
Ex P9: Unserved postal covers.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Mr. Masood Ahmed Sheriff of OP-5.
Copies of Documents produced on behalf of Opposite Party/s
Ex R1: Notarized copy of the Notarial register.
Ex R2: Notarized copy of the Deed of partnership deed dated 05.11.2012.
Ex R3: Notarized copy of the Amalgamation Deed dt:22.11.2012
Ex R4: Notarized copy of the show cause notice dt:28.01.2013 issued by BBMP.
Ex R5: Notarized copy of the Joint Development Agreement dt: 10.06.2013.
Ex R6: Notarized copy of the supplementary agreement dt: 10.06.2013.
Ex R7: Notarized copy of the declaratory affidavit.
Ex R8: Notarized copy of the Deed of Dissolution of Partnership dt:30.03.2017.
Ex R9: Notarized copy of the Reconstitution of partnership firm dt:18.06.2017.
MEMBER PRESIDENT
RAK*
