BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 28^th DAY OF JUNE 2024

ORDER

SMT. SUMA ANILKUMAR, MEMBER

The complaint filed U/S 35 of Consumer Protection Act 2019, complainant seeking direction towards OP for the following reliefs:-

a) Compensate the complainant to the tune of Rs.1,00,000/- along with 14.75% p.a. interest.

b) Compensate the complainant to the tune of Rs.2,00,000/- for the mental harassment and trauma caused by the OPs.

c) Direct the OPs to provide a dedicated parking space with the standard size of 3, metres * 6 meters, NOC from BESCOM and possession certificate;

d) Compensate the complainant with Rs.25,000/- for the legal expenses incurred;

e) and pass any such other order that this Hon’ble Commission may deem fit in the interest of justice and equity.

2. Brief facts of this case are as follows:-

The complainant had the intention to own a suitable apartment and was in the lookout for appropriate projects in the vicinity of Choodasandra, Bengaluru. Subsequently, the complainant came across the apartment project in the name sand style Estella Maple Square by the 1^st OP (‘OP company’) located at Choodasandra Village, Hosa road, Bengaluru-560099 and after discussions and negotiations, an agreement for sale was entered into between the complainant and OP-company with OPs No.2-6 representing the OP-company who are its directors.

3. On 09.04.2021, the complainant purchased a 2 BHK apartment A804 A-block in Estella Maple Square Apartment (hereinafter referred to as “Schedule C Property” and morefully described in the Schedule hereunder). Schedule C property as below:

(Description of constructed portion hereby agreed to be conveyed)

All the peace and parcel of residential apartment bearing Flat No. 804, A Block in the Eight floor, having 2 bedrooms, being constructed on Schedule A measuring carpet area of 804 Sq.ft. (out of super built up area of 1149 Sq.ft.) together with one basement covered car parking in apartment known as “ESTELLA MAPLE SQUARE: walls to be constructed with cement and bricks, doors to be made of hone wood, steel windows, with vitrified tiles flooring and to be provided with all civic amenities and together with one covered car parking area and with proportionate share in the common area, entrances, stair cases, passages, corridors, lifts etc., provided in the Schedule A Property.

It is further submitted that post the registration of the sale deed dated 09.04.2021, the OPs have not yet delivered the complainant with a dedicated parking space, BESCOM NOC certificate and Possession Certificate. Pursuant to the sale, the complainant noticed that the tiles installed were gradually producing hollow sounds and could notice cracks on them. The complainant realized that the tiles were not laid properly and were having uneven levels at almost 80% area of the Schedule C Property.

4. The complainant on various occasions reached out to Mr. SudhakarAgani (‘OP No.2) who was the person with whom the complainant had most of the interaction from OP company  end, and sought for replacement of the tiles to which 2^nd OP did not bother to respond or take any steps.  Frustrated with the neglect by the OPs, the complainant decided to replace the tiles at his own expense by way borrowing a loan for over Rs.1,00,000/- at a rate of 14.75% interest using his Bajaj flexi loan account. On 25.06.2021 the complainant sent an E-mail to the OP-company seeking refund of Rs.1,00,000/- for the expenses incurred by the complainant in replacing the tiles. Copies of the loan application, loan approval E-mail dated 06.03.2021, Statement of Bank. The complainant appealing OP No.2 several times for compensation the cost of replacement incurred by the complainant, Op No.2 did not even react to the same and abruptly blocked the complainant’s phone number completely. The complainant has been repeatedly writing E-mails from 25.07.2021 till the end of December 2022,to which the OP, OP company had been giving vague and evasive replies.

5.

From the above E-mail trail, it can be clearly seen that the OP company has responded only three times to the numerous mails put forth by the complainant and the aforesaid three reply mails too do not provide a concrete solution to the complainant by the OPs.

6. The complainant also reached out to the OP No.2 via phone to which OP No.2 did not respond at all and merely left vague messages. The complainant has reached out to all the OPs for any remedy possible but all the efforts of the complainant have been in vain. The complainant further submits that since the execution of the sale deed dated 09.04.2021, the OPs are yet to deliver a dedicated parking space with the size of 2.5 feet X 5.5 feet to the complainant as per the sale deed dated 09.04.2021. In fact, the OP company has only got approval for 83 individual parking spaces with the standard size of 2.5ft X 5.5ft from the BDA. But the OPs have earmarked 99 parking spaced by not maintaining the standard sizes and have also, blocked extra spaces from access by placing Iron Poles and Rods.

7. Further, the OP company has also not handed over the NOC from BESCOM to the complainant due to which the complainant has not been able to change the electrical connection from the previous owner – OP No.4 name to the complainant’s name. As a result, all the electrical bills are reflecting the OP No.4’s name while it is borne by the complainant due to which the complainant apprehends other issues that may arise in future with the good title of the complainant over the property. In addition, the complainant has not been given his individual Apartment Possession Certificate that certifies that the complainant has been handed over the complete and peaceful possession of the Schedule Properties. Without this document, the complainant will not be able to satisfy that he has complete and peaceful possession of the Schedule Properties and the same would also benefit the complainant if he decides to sell the Apartment in future. It is submitted that the BDA has already approved Possession Letter vide its letter dated: 20.05.2022 but the OPs have not handed over the same to the complainant till date which shows the audacity of the OP company and its directors towards the complainant.

8. The complainant aggrieved by the acts of the OPs, sent a legal notice dated 26.12.2022 demanding the OPs to refund the expenses incurred in replacing the tiles and provide the dedicated parking space, BESCOM NOC and Possession Certificate for which a reply notice dated 10.01.2023 was sent by the OPs denying the allegations of the complainant. The complainant served another legal notice dated 02.02.2023. At this moment, it is pertinent to note that due to the complainant not being granted a dedicated parking space, the complainant was forced to park his car in an unreserved parking space. However, citing the same as a reason, the OP sent an E-mail dated 23.02.2023 where the OPs threatened the complainant to remove his car from the parking space failing which his car would be subjected to damage.

9. The complainant responded by E-mail dated 25.02.2023 whereby the complainant explained the complete issue faced by him as to why his car was parked in its present spot. The complainant gave a strong reply due to which the OP company responded passively by E-mail dated 25.02.2023, apologizing to the complainant and requested to move his car. However, no dedicated parking spot as sought by the complainant was provided. The OPs have not only provided a deficient service but have not fulfilled the essential requisites to make the sale complete as per Sale Deed dated 09.04.2021. The complainant has attempted to amicably resolve the dispute without adhering to judicial relief. However, this was plainly disregarded by the OPs. Therefore, the complainant has preferred this complaint.

On issue of notice to OPs, counsel for OPs filed vakalath for OPs No.1 to 6, OP No.1, 2 and 6 did not file version within 45 days period and hence taken as not filed. OP No.3 remained absent. OPs No.4&5 filed version.

10. In the version of OP No.4&5, OP No.4&5 denied the averments made in the complaint, except those which are specifically and expressly adverted to and admitted herein. The complainant has deliberately and intentionally approached this Hon’ble Court by suppression of true and material facts. The entire complainant deems necessarily liable to be rejected on the ground of suppresso-vari and suggestion-falsi in putting forth the claim alleged and purported to have been stated in terms of the allegations that are targeted as against this opponents. The complainant lacks particulars and puts forth facts that are not material and relies upon documents and facts that are not readily verifiable. In view of the above this opponents seeks the indulgence of this Hon’ble Court by requesting that the court be pleased to reserve liberty to file subsequent pleading or replication and even suitably amend their version as and when the situation warrants.

11. The OP No.4&5 submits that, the averments made in the para 1 of the complaint are matter on record and not required to be traversed. The complainant purchased a 2BHK apartment A804 A-Block I Estella Maple Square Apartment (hereinafter referred to as “Schedule C Property” and more fully described in the Schedule hereunder) are true and correct. Further averments that post the registration of the sale deed dated 09.04.2021, the OPs have not yet delivered the complainant with a dedicating parking space, BESCOM NOC Certificate and Possession Certificate are hereby denied as false and incorrect the complainant is to put strict of the same.

12. The complainant noticed that the tiles installed were gradually producing hollow sounds and could notice cracks on them. The complainant realized that the tiles were not laid properly and were having uneven levels at almost 80% area of Schedule C property are hereby denied as falls and incorrect and the complaint is to put to strict proof of the same with material evidence.

13. The OP submits that the complainant has purchased a 2 BHK flat bearing NO.A804 A-Block in Estella Maple Square Apartment from the opponents through a registered sale deed dated 09.04.2021 and he was put in possession the said flat. Before entering to the sale deed the complainant has personally verified that flat (including floor, wall and windows and doors and other civil works) which is more fully described as schedule C Property. Further all the work has been done in proper manner with the skilled labor and with the quality materials. After verifying the flat only, the complainant has entered in the absolute sale deed and the possession has been delivered to the complainant herein. Soon after taking the possession of the flat, the complainant has made some alteration works including the floor tiles and other minor works as per his wish. It is further submits and made it clear that the OPs are not at all liable to pay a penny, which the respondent has made some alteration in his flat for his wish. Hence the OPs are not at all liable/responsible to pay the claim made by the complainant.

14. The complainant is irregular in paying the maintenance charges to the OPs/association, and he has not paying the maintenance and other charges like water and electricity, which he suppose to pay to the management association namely ‘ESTRELLA MAPLE SQUARE’. Since the complainant has failed to pay the maintenance and other charges to OPs, or to the management association, the association complained the same to the OPs. Then the OPs have demanded the complainant to pay/clear the maintenance and other charges without any due, however the complainant evaded the same by posing one or the other reasons. With an intention to harass the OPs and to avoid the payment of maintenance and other charges the complainant has filed the present complaint suppressing these material facts. It is needless to mention here that the complainant has sent the mails and other communication only for the purpose of filing this false case and not otherwise. The case of the complainant is untrue to facts and untenable in law, besides being devoid of merit, berefit of bonafide, frivolous, vexatious and gross abuse of process of this Hon’ble Court, it is not main tenable in the form it is brought out and framed and despite the prolixity of the case, it does not disclose a triable or justifiable cause of action.

15. The complainant filed his affidavit evidence along with 19 documents marked as Ex.P.1 to Ex.P.19. OPs No.1 to 6 fail to submit their affidavit evidence. Complainant submits written arguments. OPs fail to submit their arguments.

16. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant proves the deficiency of service on the part of OP’s?

ii) Whether complainant is entitled for the relief?

iii) What order?

17.  Our answers to the above points are as follows:-

Point No.1:-Affirmative.

Point No.2:-Partly Affirmative.

Point No.3:- As per the final order.

                   REASONS

18. Point No.1&2:-These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

19. On perusal of the documents submitted by the complainant, as per the Ex.P.1 which is the copy of agreement of sale and Ex.P.2, a copy of absolute sale deed No. 200/2021-22 between OPs and complainant. It is true that the complainant has purchased an apartment in 2th floor, Block ‘A’ holding flat No.804 with 2 bedroom with carpet area of 204 Sqft and super built up area of 1149 Sqft together with one covered car parking in basement floor from the OPs known as “Estella Maple Square” with right to use terrace, walls to be constructed with cement and bricks, door to be made of lone wood, steel windows, with verified tiles flooring with all civic amenities together with one covered car parking area with proportionate share in common area, entrances, stair case, passage, corridors, etc. provided in the schedule ‘A’ property, Khata No.150200100500223264. The OPs No.4&5 in their version also agree to the fact, it is true that the complainant has purchased the said flat No.804 from them with a sale deed under above mentioned conditions to be fulfilled.

20. On perusal of the Ex.P.1 and Ex.P.8 we see that the complainant has changed that old damaged tiles to new tiles being installed. On looking into the Ex.P.9 to Ex.P.12 which is the E-mail and whatsapp conversation between the complainant and OP we see that the complainant has complained about the damaged tiles and refund of the same from the OPs and also complained about the car parking and possession certificate and pending paper work. The OPs in the conversations has nowhere mentioned about the maintenance and other charges to be paid by the complainant as the OPs said in their version. In the sale deed executed the schedule C which describes the property clearly shows that one car parking area is allotted in the basement for each apartment purchased, with other amenities such as common areas etc. The schedule also speaks about the materials used for construction such as cement wood and vitrified tiles flooring etc. The OP has failed to abid by the contract made with the complainant. The OP fails to give proper one car parking space to complainant as per the schedule described in sale deed and also failed to give proper good quality tiles to the apartments. The OP has further shown negligence and not responded to the complainants complaint regarding the same. The complainant has problems and has approached OPs for the rectification of problems but the OPs have shown sheer negligence by avoiding the complainant and his complaint. The OPs have shown deficiency in service by not responding to the complaint of the complainant and also Unfair Trade Practice by not following the contract of sale to allot the parking space and produce possession certificate as per the contract. Hence, OPs are jointly and severally liable to allot the parking space of 3 meters X 6 meters to the complainant. To issue NOC from BESCOM and Possession Certificate and also repay the charges of RS.1,00,000/- spent on the repair of the tiles with 6% interest p.a. from the date of complaint of the complainant sent through E-mail for refund i.e. 25.06.2021 till realization. The OP is further liable to pay a compensation of Rs.20,000/- towards mental agony and Rs.10,000/- towards litigation charges.

21. Point No.3:-In view of the discussion referred above, we proceed to pass the following:-

ORDER

1. Complaint filed by the complainant U/S 35 of Consumer Protection Act, is hereby allowed in part.
2. OPs are jointly and severally directed to allot one car parking of 3meterX6meter to the complainant. OPs are directed to issue NOC from BESCOM and Possession Certificate.
3. OPs are further directed to repay the charges of Rs.1,00,000/- spent on repair of tiles with 6% interest p.a. from the date of complaint of the complainant sent through E-mail for refund i.e, 25.06.2021.
4. OPs are further directed to pay compensation of Rs.20,000/- and Rs.10,000/- towards litigation charges.
5. OPs are directed to pay the entire Award amount within 45 days from the date of order failing which shall pay 8% interest p.a. till realization.
6. Furnish the copies of the order and return the extra copies of pleadings and documents to the parties, with no cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^th day of June 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL