Date of Filing:14/02/2020 Date of Order:12/05/2022 BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION SHANTHINAGAR BANGALORE - 27. Dated:12th 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 SMT.SHARAVATHI S.M, B.A, LL.B., MEMBER COMPLAINT NO.164/2020 COMPLAINANT : | | SRI. GURU PRASAD S/o Sathyanarayan Aged about 43 years R/at No.1610, Northern Extension, Hassan:573 201. Duly Represented by his GPA Holder Sri P.B.Ganesh S/o Bheemaiah Aged about 68 years No.185, AG’s Layout, New BEL Road, RMV 2nd Stage, Bangalore 560 094, Mb:9448051318. (Sri B.Rangaswamy Adv. for Complainant) | |
Vs OPPOSITE PARTIES: | 1 | M/s E Spring Building Systems Pvt Ltd, Rep By Mr.Ashok Gowda No.8, MC.Pherson Road, Cooke Town Bangalore 560 005. | | | 2 | SRI.LAKSHMIKANTH S/o Junjappa Gowda Aged about 54 years Director of M/s E Spring Building Systems Pvt. Ltd., | | 3 | Smt. PALLAVI LAKSHMIKANTH W/o Lakshmikanth Director of M/s E Spring Building Systems Pvt Ltd., Sl.No.2 and 3 are R/at No.233, Classic Orchards, Behind Meenakshi Temple Bannerghatta Road, Bangalore560 076. | | 4 | Sri ASHOK GOWDA Director of M/s E Spring Building Systems Pvt. Ltd., No.201, E Spring Seasons Kalpana Chawla Road, Boopasandara, Bangalore 560 094. | | 5. | Sri MADHU.DE S/o Eshwarappa Aged about 47 years Director of M/s E Spring Building Systems Pvt. Ltd., No.201, E Spring Seasons,Kalpana Chawla Road, Boopasandara, Bangalore 560 094. | | 6 | SRI CHANDRASHEKAR S/O VENKATRAM DIRECTOR OF M/S E SPRING BUILDING SYSTEMS PVT. LTD., R/at No.47, The Brother of Holy Cross, St.Marks Road, Bangalore 560 001. | | 7 | M/S EXPAT PROJECTS AND DEVELOPMENT PVT. LTD., No.2, 2nd Floor, Golden Point-1 Near Congress Office, Behind Nissan Showroom, Queens Road, Bangalore 560 052. Rep. by R.Srinivas Murthy. | | 8. | Sri.H.N.THYAGARAJA S/o Late Nanjunadappa Aged about 44 years R/at No.309, Hennur Main Road, Kalyan Nagar Post Opp. Old Police Station, Bangalore 560 043. | | 9. | Sri H.N.HARISH S/o Late Nanjundappa Aged about 41 years R/at No.39, 9th Cross, 9th Main, Maruthi Layout, Bangalore 560 043. | | 10. | Smt. MANJULA W/o Late H.N. Subramani Aged about 45 years, | | 11. | Kum.BRINDHA D/o Late H.N Subramani Aged about 22 years Sl.No.10 and 11 are R/at No.69/2, 1st Floor, Hennur Main Road, Bangalore 560 043. (Sri Nithin Chandra, Adv. for OP-1 to 6) (Sri K.V. Ramesh, Adv. for OP-9) (OP-7,8,10 & 11: Dismissed) |
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ORDER
SRI.H.R. SRINIVAS. PRESIDENT
1. This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 12 of the Consumer Protection Act 1986 for the deficiency in service in not providing civil amenities in respect of the flat purchased by him from OPs and for damages of Rs.10,00,000/- for the deficiency caused and directions to the OPs to complete the residential apartments as per the BBMP approved plan and to hand over the same at the earliest along with cost and other reliefs as the Hon’ble District Commission deems fit.
2. The brief facts of the complaint are that; OP 1 to 7 entered into the Joint Development agreement with OP:No.9 to 11 in respect of Sy.No.31/7 with Hennur Village within BBMP ward No.24 and after obtaining necessary sanction and permission, started construction of the flat. The complainant entered into a sale transaction with OPs and agreed to purchase flat No.103, 303 and 411 Under registered sale deed dated 25.03.2019.
3. It is contended that after execution of the sale deed, the complainant requested OPs to provide all the basic amenities at the earliest so that they can start living/renting out the apartment. Whereas, OPs much against to BBMP byelaws, started constructions of an additional floor in the 5th floor of the building in much violation of the sanctioned plan which is illegal and have sold to one Harsha against which they have filed a suit before the City Civil Court in O.S. No.9249/2019 wherein “statusquo” order has been passed and the matter is still pending for adjudication. They have also sought for demolishing the unauthorized portion of the building for which they have issued legal notice to the OP as well as the BBMP authorities. Inspite of it, BBMP authorities have not at all taken any steps to stop the illegal construction.
4. Further it is also contended that since the OP did not complete the construction of the building, he was put to lot of convenience and had the OP completed the building, he could have rented out the said flat and would have earned Rs.10,00,000/- for all these years which he suffered loss. Further it is contended that OP has not at all obtained permission from BESCOM and BWSSB and further the civil works like providing lift, water tank, granite work, safety grills, safety gate, tile work, rain water harvesting, completing of swimming pool and painting the building and other civil works are not at all completed which amounts to deficiency in service and prayed the commission to allow the complaint.
5. Since the complainant did not take steps against OP-7 to 11 the complaint is dismissed against them. OP-1 to 6 appeared before the commission through their advocate and filed the version.
6. In the version filed by OP 1 to 6 it is contended that the complaint is not maintainable either in law or on facts, and the same cannot be decided in a summary procedure as it requires evidence and cross examination. It is also contended that this complaint is frivolous, vexatious bereft of facts and liable to be dismissed.
7. OP has contended that the complainant purchased the flat from them under a registered sale deed dated.25.03.2019 in respect of B schedule property and under the said sale deed, they have delivered full vacant possession of the flat. In addition to, the complainants has confirmed that there is no claim whatsoever against the owner or the building hence there is no privity of contract between OP-2 to 6, as the sale deed has been executed by OP-1 only in favour of the complainant. The complainant is estopped from alleging deficiency in service against OP. OP has denied that it is constructing the 3rd floor much against to the sanction plan. It has admitted the filing of a suit by the complaint in OS No.9242/2019 which is pending adjudication. In view of the said admission of filing of the suit, this complaint is not maintainable under Section 10 of the Civil Procedure Code.
8. OP has contended that at the time of construction of the residential complex, which is purchased by the complainant, there were some construction material and building material to be used for the construction building. Since there was no adequate place available outside the residential complex to store the said construction material and equipment, they put up a temporary structure above the residential complex for the purpose of storage of construction materials and equipment and they were remove the said structure as soon as the construction is over and the materials would be moved to a different storage site. Therefore, the allegations it is constructing flat or building structure on the 3rd floor of the present flat much against to the sanction plan is not proper and without any evidence.
9. OP has contended that, the complainant agreed to purchase the flat No.411for Rs.9,95,000/-, Flat No.303 for Rs.10,00,000/- and Flat No.103 for Rs. 9,95,000/- and paid only Rs.12 lakhs with above three flats and is still due Rs.16,95,000/-. As the complainant requested that want an absolute sale deed so that they would get the bank loan sanctioned, OP-1 executed an absolute sale deed for the full amount. Whereas, complainant is due a sum of Rs.16,95,000/- in three flats. When the same was demanded, the complainant has come with this complaint as well as the suit. Even one Mr.Ashok Gowda OP-4 requested the complainant to pay the balance sale consideration so that he can tabulate the account statement for purpose of filing the income tax. In spite of it, complainant has not paid the amount and he is contemplating to recover the same by initiating legal action. In view of the demand for the balance of sale consideration, the complainant has filing this complaint before this commission and filing the suit before the civil court as an arm-twisting method. They have completed all the amenities required to be provided and there is no negligence/deficiency in service on their part and hence prayed this Commission to dismiss the complaint.
10. In order to prove the case, complainant filed affidavit evidence and produced documents. Whereas, inspite of giving sufficient opportunity OP did not adduce any evidence. 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?
11. Our answers to the above points are:-
POINT NO.1 & 2 : IN THE NEGATIVE.
For the following.
REASONS
POINT No.1 & 2:-
12. On perusing the complaint, version, documents, evidence filed by the parties, it becomes clear that, OP-1 executed the sale deed in respect of the Flat No.411, 303 and 103 in favour of the complainant by receiving the full consideration.
13. It is the specific case of the complainant that much against to the sanction plan obtained by OPs, they are constructing 3rd floor and have sold the same to one Sri Harsha. It is also the case that he filed a civil suit before the City Civil Court which is still pending. Complainant has filed the copy of the proceeding wherein a statusquo order has been passed against these OPs. When the matter is pending before the Civil Court in respect of the construction alleged to have been in violation of the sanction plan since the matter is before the Civil Court, we desist from deciding the said matter.
14. On the other hand, it is also the case of the complainant that the civil works like providing lift, water tank, granite work, safety grills, safety gate, tile work, rain water harvesting, completing of swimming pool and painting the building and other civil works has not been completed. No documentary proof has been provided by the complainant except filing some two or three photographs according to which some works are yet to be completed.
15. On the other hand, OPs have produced from the BESCOM the service certificate in respect of the flats of providing separate meter and separate sanction loads. Further OPs have produced the photographs regarding the lift, common passage electricity meter board, entrance gate, side view, covering of the transformers, side view of the apartment, providing of CC cameras, transformers, DG set, parking area with lights and numbering the flat number, Children play area which is still to be completed, security cabin, rain water harvesting, tracking path, and the inside of the flat which has been sold to the complainant. We see no deficiency in service in that respect. Further he has produced two photographs of rain water harvesting and the terrace wherein some rumblings, some cement blocks, sand materials have been stored haphazardly which requires to be cleaned and children play area to be completed. When this is taken into consideration the complainant has field to prove deficiency in service. Hence we answer POINT NO.1 IN THE NEGATIVE and in the result the complainants are not entitle for any of the relief prayed. Hence we answer POINT NO.2 ALSO IN THE NEGATIVE and pass the following:
ORDER
- The complaint is hereby dismissed. No order as to cost.
- However we directs OPs to keep the premises clean, neat and tiddy and provide the children park area and the swimming pool facility at the earliest i.e. within three months from the date of this order and file a completion report along with photographs in this regard.
- 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 12th day of MAY 2022)
MEMBER MEMBER PRESIDENT
ANNEXURES
- Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 | Sri PB Ganesh GPA Holder of the complainant Sri. Guru Prasad |
Copies of Documents produced on behalf of Complainant/s:
Ex P1: Copy of the Sale Deed.
Ex P2: Copy of the Layout Plan
Ex. P3: Copy of the Legal Notice
Ex P4: Copy of the Notice sent to BBMP Commissioner.
Ex P5: Copy of the Reply.
Ex P6: Photograph showing the construction.
Ex P7: Copy of the order sheet and proceeding in OS 9249/2019.
Ex P8: Copy of the power of attorney
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1:Sri Madhu Dibba Eshwarappa, Director cum Architect.
Copies of Documents produced on behalf of Opposite Party/s
Ex R1: Copy of the resolution passed by the board.
Ex R2: Copy of the Joint Development Agreement.
Ex R3: Copy of the Power of attorney.
Ex R4 to R6: Copy of the sanction plan.
Ex R7: Copy of the commencement certificate.
Ex R8: Copy of the agreement of sharing.
Ex R9: Copy of the Rectification Deed.
Ex R10: Copy of the application submitted to BWSSB.
Ex R11: Copy of the Demand notice issued by BWSSB.
Ex R12: Copy of online payment details.
Ex R13: Copy of BESCOM Documents.
Ex R14: Photographs.
Ex R15: Copy of Tax paid receipts.
Ex R16: Copy of the registration of the welfare association with rules and regulations.
Ex R17: Photographs pertaining to the complainant flat.
Ex R18: Copy of the reply to the notice issued by complainant.
Ex R19: Copy of the Order sheet and other documents relating to OS 9249/2019.
MEMBER MEMBER PRESIDENT
RAK*
