ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not providing the amenities assured and mentioned in para 9 a to r of the complaint and to direct OP to complete the same within 30 days from the date of order failing which to direct OP to pay Rs.1,000/- per day as damages and further to remove all the debris and to attend external and internal snags inside and outside the flats within 30 days failing which to direct OP to pay Rs.1,000/- per day as damage and to pay Rs.10 lakhs as compensation for deficiency in service and causing mental agony and strain and for other reliefs as the Commission deems fit under the circumstance.

2.      The brief facts of the complaint are that;

OP is the builder and developer of multi storied apartment called by name ‘Hoysala Habitat’ constructed over BBMP khata sy.no.17/1/17/53/3/1, situated at Harohalli Village, Yelahanka Hobli, Bangalore North Taluk. The said project consisted of six blocks having 294 apartments.  At the time of promoting the project OP promised several amenities and also informed that the project has all statutory approvals, permissions and in case any permission is pending the same would be obtained during the course of construction.

3.      It is further contended that the complainant intended to purchase flat No.E-102, in First Floor, E-Block of Hoysala Habitat measuring 1853 sq. feet, mentioned in B schedule in the Sale Agreement and Construction Agreement entered into on 03.09.2014.  In the agreement of sale and construction the statutory approvals permission payment plan, time line amenities were mentioned.

4.      During the construction of the flats, OP insisted and intimidating and threatened the complainant to get the Sale Deed registered in respect of the said flat, failing which heavy penalty to be paid by the complainant.  Left with no alternate, complainant got the sale deed in respect of the flat registered on 05.07.2018, though the agreement of sale and construction was executed on 03.09.2014. The complainant got the commencement certificate for the project on 03.08.2016 only. Under the guise of providing the amenities mentioned in the agreement, OP has mislead the purchasers and took the full value of the construction with an intent to cheat the innocent purchaser in not providing the amenities as agreed.  It is learnt that OP commenced the construction of the work without obtaining the approval from the competent authorities.   The complainant paid all the amount as demanded by OP with a fond hope that the project will be completed in time as promised. However OP did not complete the project as assured, whereas, illegally collected the entire sale consideration.  As on 28.08.2018, the day on which OP got the occupancy certificate from BBMP only 45% of the work was completed.  It is contended that

1. No permanent power from BESCOM has been supplied.
2. No individual electricity meters have been installed from February 2018 since the first resident shifted into his apartment unit;
3. The diesel Generator (DG) was bereft of diesel, which led to serious safety issues with people being struck in lifts for hours together with people being trapped and gasping for fresh air;
4. The lift had inherent defects and it would not even function or operate properly, causing inconvenience to the complainant
5. The lifts do not even have Automatic Rescue Device (ARD) devices and even after multiple follow ups, the Opposite has failed to get them installed.
6. There is no Cauvery water connection provided in the apartment complex
7. There is no functional borewell provided in the apartment complex;
8. Construction of club house is not yet started even to this date;
9. Swimming pool is pending completion;
10. Compound wall around the Apartment Complex is not yet constructed/completed;
11. Fire protection system has to be completed properly;
12. Drainage channels are not covered in the drive ways;
13. Rain water harvesting system is not yet properly functional;
14. Outdoor play area such as basket ball, volley Ball, Badminton Court and Children’s play area are not yet been constructed; Indoor Games, Jogging track are not planned.
15. STP is not operational yet. Few Mandated Fundamental specifications are missing;
16. Borewell 3 Nos. to be installed.
17. Khata to be bifurcated and independent khata for each apartment units to be obtained; and earlier dues and cost incurred to be reimbursed
18. Apart from not providing the aforesaid basic amenities, the Opposite party has also removed the security guards and housekeeping staff.

5.      Further it is contended that though the OP has received and collected Rs.7,50,000/- which included in the sale consideration to provide the power connection and deposits with KPTCL, BWSSB and to provide other amenities, OP did not provide permanent electricity, water connection, amenities and also did not allocate the car parking.  Further the materials used for construction for fitting and fixtures were of substandard one.  The quality of door, bath fittings, switches were also of substandard in nature, required to be replaced immediately. There is water leakage around the building/apartment making the life of the occupants miserable.  The photographs in respect of that has been produced.   Inspite of collecting the money towards providing the amenities, OP failed to provide basic requisites and paid in its obligation. As on the date of complaint, OP has sold 286 apartments in the said residential complex and collected several crores of rupees whereas did not spent the money to provide the amenities as assured.  Which amount to deficiency in service and also unfair trade practice in using the defective and substandard materials for the construction and fittings. 

6.      Though the same was brought to the notice of the OP by addressing several communications, since OP is highly influential and having rowdy elements in contact, threatened the complainant as well as other inmates of the flat to face the consequences. Even OP is threatening of disconnecting the electrical supply which was been given temporarily.  Due to the act of OP, the inmates of the flat including himself has to suffer hardship and in view of not providing a permanent electrical supply, the power supply is irregular, lift brakes down oftenly, for shortage of power supply, water scarcity due to non-availability of permanent borewell, AMC to the lift not provided, and even the repairs were not carried out to the building and the debris not removed causing nuisance. Mosquito problem and foul smell coming from the surrounding areas. Even OP has withdrawn security and housekeeping services making the premises unsafe to live. In view of the hardship faced complainant with no alternate has to file this complaint and prayed the Commission to allow the complaint.

7.      Upon the service of notice, OP appeared before the Commission and filed the version contending that the complaint is not maintainable either in law or on facts and there is no deficiency in service or unfair trade practice as alleged by the complainant either in obtaining the permission from the authorities for construction of the building, or using substandard building materials and fixtures.  It is contended that it is a registered real estate company having executed many real estate projects since 2005 to the satisfaction of its customers/purchasers.  After obtaining the sanction of the plan, it started construction of 294 apartments in ‘Hoysala Habitat Project’.  The Airport Authority of India, the Karnataka State Pollution Control Board, the director general of police fire services have given their no-objection to the construction of the flat.  Even consent for operation of HTP installed in the building was also obtained.  The said project /flat was completed in all respect as assured and the joint director of town planning north BBMP, Bangalore, has issued occupancy certificate on 28.08.2018.  Out of 294 flats, 95% of the apartments have been sold to the purchasers and they have occupied their respective flats.  Further on 12.01.2019 the purchasers of the apartment have farmed apartment owners association consisting of 11 members, and it is collecting monthly maintenance charges, in addition to corpus fund from the owners of the respective flat, and it is the duty of the association regarding periodical maintenance and upkeep of the project ‘Hoysala Habitat’.

        8.     It is further contended that the complainant and other persons approached K-RERA against this OP by filing online complaints, making false and frivolous allegations and the same was contested by the OP, raising the question of maintainability.  During the pendency of the said proceedings, the complainant has come up with this complaint on false and frivolous grounds.

        9.     It is contended that the complainant entered into agreement of sale and construction on 03.09.2014 and obtained a regular sale deed duly registered on 05.07.2018 and also took the possession of the flat after inspection and fully satisfied with the construction of the flat, and also stated that he has no further claim or demand whatsoever in respect of the said flat. This complaint is filed as an afterthought one and is barred by sec 24A of the C.P.Act, which is filed after two years from the date of cause of action. There is no cause of action for the complaint to file the complaint. Once the sale deed is executed and registered, it is a concluded contract, and now the complainant cannot go back and make allegations and illegal demands.  Complainant did not raise any dispute in respect of any of the allegations, discrepancies, substandard work or incomplete work after executing the agreement of sale and construction agreement and even after obtaining the regular sale deed. The allegation that only 45% of the work is complete at the time of filing of the complaint is absolutely incorrect and misleading.

        10.   It is contended in respect of the deficiency pointed out in para 9 A of 2 of the complainant that “permanent power supply has been providing and separate individual meters have been provided to each of the flats by BESCOM.”  Providing diesel generator is the duty and responsibility of the association. The lifts have already been provided to the building which are of reputed company and it is functional.  Any up gradation required is to be made by flats owners association.  In respect of the cauvery water connection there is no BWSSB water line in the locality, where the apartment is situated. The apartments are getting water through borewell for all the 24 hours.  In respect of the compound wall, surrounding the building has been constructed and is in existence. Fire protection system has been completed and a clearance certificate has been issued by the department on 31.07.2018.  The driveway for the cars is in operation with unhindered movements.  Consent for operation of the HTP has been obtained and the same is required to be operated and managed by the flat owners association.  OP had applied for bifurcation of the Khatas and the BBMP has issued individual khatas in respect of the flat owners who have paid the khata transfer fee.  The appointment or removal of the security guard and the house keeping staff is the responsibility is the owners association.

        11.   It is further contended that the rain water harvesting system has been provided and is functional. The contract for construction of the swimming pool has been entered into and the civil works are complete, except tailing work and minor works.  As per the allegation that the club house outer play area are not completed, there is no willful deliberate negligence on the part of OP and OP has no intention whatever to not to proceed with the said works.  The car parking allotment has been done in respect of every flat owner. The material used for construction, fitting and fixtures are of good standard and there is no leakage of water in the building.  This complaint is filed with an ulterior motive by making unwarranted, reckless, baseless allegation with malafide intention to make himself illegally rich. There is no deficiency in service or unfair trade practice or negligence or using substandard materials and prayed the commission to dismiss the complaint.

12.    In order to prove the case, both the parties 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 Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

13.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

14.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties. It is not in dispute that the complainant purchased the flat No.E-102, in First Floor, E Block, of Hoysala Habitat, from the OP under registered sale deed dated 05.07.2018. It is also not in dispute that before execution of the sale deed the complainant entered into an agreement of sale and construction agreement with OP. It is the duty of the OP to provide all the amenities assured in the brochure at the time of selling the flats and also as per the terms of the agreement.  The documents produced by OP clearly shows that it has obtained commencement certificate on 03.08.2016 and it has to abide by the terms and conditions upon which the commencement certificate has been issued. OP has also produced the occupancy certificate dated 28.08.2018 subject to the conditions mentioned therein, which has to be adhere to by the OP. 

        15.   The complainant has produced some photographs to show that there is some shabby work done in respect of fixing the firefighting equipment’s, the driveway not cleared, which was having some dustbins kept by the side of the walk way near the compound and also the pipes coming out of the sump or HTP.  The wires are hanging and also in one of the photographs the walkway has been partially dismantled which has to be set right and in the walkway or the driveway, there are cracks in the floor and even some steps have not been completely finished. 

16.   On the other hand the OP has filed the photographs to show that the walkway, entrance, the lift has been completed in all respect and so also has provided the firefighting equipment in the floors. The compound wall has been completed, whereas in the same photographs some pipes have been kept in between the compound and the main wall. Bullard’s have been kept to demarket and divide the roads for incoming and outgoing vehicles. Even the basement of the parking has been marked with numbers probably that the car parking has been allotted to the individuals. Electrical panel and technical meter has also been provided.  Even the generator has been installed and the transformers have been installed and safety measures have been taken and provided only in respect of the HTP, the rain water harvest and in providing the swimming pool, the same has not been completely carried out. There is no evidence on the part of OP regarding completion of the club house, outer play area, gym, meditation hall, steam and sauna rooms, jogging track, facility for indoor games, seating arrangements over the campus, land scape area, intercom facility, car wash point, drivers toilet.  OP has not at all stated anything in this regard except the say that the diesel general set has been provided and it is the responsibility of the association to run it and further there is no intention that they do not want to proceed with the work of club house, outer play area and there is no willful or deliberate intention in not completing the same. 

        17.   It is to be considered here that already near four years is over from the date of execution of the sale deed in favour of the complainant, like this complainant, there are about 294 persons have purchased the flat for them OP has assured to provide the facilities. Inspite of it, OP has not completed the amenities which it offered.  In view of this we have to hold that there is deficiency in service on the part of OP in not providing the above facilities as agreed in the agreement of sale and construction agreement as well as in the brochure while selling the flats.  Hence we answer point No.1 in the affirmative.

18.   POINT NO 2:

In view of the above answer to Point No.1, OP is bound to provide the facilities which it has agreed but has not complied. In view of this it is in the interest of flat owners that a direction be given to OP to carry out the facilities to be provided to the flat owners or the occupants of the flat.  Further the act of OP in not completing the amenities and providing the facilities to the complainant, put the complainant into hardship, mental tension and financial loss as OP has collected the amount in respect of the said facilities with an assurance that the same would be provided but failed to provide the same. Hence we direct OP to pay a sum of Rs.50,000/- as damages and Rs.10,000/- towards litigation expenses besides directing them to do the acts and deeds as mentioned in the operative portion of this order.  Though OP has stated that the flat owner have formed association and it is the responsibility of the said association to maintain and carry out the amenities, no document worth believing is produced to show that such a association is formed and the entire administration of the project has been handed over to it by OP.

19.   If at all it is so, then the association is to be held responsible for the above extra deals, which OP has failed to carry out its assurance commitment. Hence we answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay a sum of Rs.50,000/- as damages and Rs.10,000/- towards litigation expenses.
3. OP is directed to provide sufficient number of bore wells to provide water 24/7 to the inmates of the flat.
4. OP is directed to keep the rain water harvesting system in order and in an operationable system.
5. OP is directed to keep the HTP in order and functional so that the inmates of the flat can live happily without there being foul smell of the underground sewage system.
6. OP is directed to provide water connection from BWSSB as it has collected money from the flat owners towards deposit for providing sewage connection and water connection, failing which to refund the proportionate amount.
7. Since OP has already provided individual meters, it is not known whether the same is connected to each of the flat. If the same is not done, OP is directed to get the meter connected to the installation of each of the house/flat within three months from the date of receipt of this order. 
8. OP is also directed to provide the club house facility, gym facility, outer play area, basket ball, volley ball, children play area, land scape and siting arrangement by providing number of benches and also keep the drainage channels clean and covered.
9. OP has to carry out the work and directions mentioned in para 8 within six months, failing which to pay Rs.1,000/- per day as damages to the complainant from the date of this complainant. 
10. OP is directed to clear the debris in the common areas, in and surrounding area of the flat of all six blocks or ‘Hoysala Habitat’ project, within three months and keep it clean always.
11.    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 failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 31^ST  DAY OF MARCH 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Power of attorney

Ex P2: Copy of the Agreement to sale and construction

Ex. P3: Copy of the sale deed

Ex P4: Copy of the Commencement Certificate to the project

Ex P5: Copy of the Occupancy Certificate

Ex P6: Random collection of photographs

Ex P7: Email correspondence

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.VINOD KUMAR R.B., -

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Authorization letter.

Ex R2: Copy of the plan sanction dated 12.02.2014

Ex R3: Copy of the No-objection certificate dated 18.02.2014

Ex R4: Copy of the consent dated 28.02.2014

Ex R5: Copy of the Commencement certificate

Ex R6: Copy of the fire clearance certificate dated 31.08.2018

Ex R7: Copy of the Consent for operation of STP dated 20.06.2018

Ex R8: Copy of the occupancy certificate dated 28.08.2018

Ex R9: Copy of the test report of STP treated water dated 19.12.2020

Ex R10: Copy of the bye-laws of the association

Ex R11: Copies of the swimming pool photographs.

MEMBER                      MEMBER                   PRESIDENT

HAV*