Date of filing:  10.03.2021                                                          Date of Disposal: 10.04.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,     BENGALURU – 560 027.

DATED THIS THE 10^TH DAY OF APRIL, 2023

CONSUMER COMPLAINT NO.250/2021

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mr. Allen Maxwell Enthat,

No.304, Third Floor,

A Block, Sree JD Gardens,

Horamavu Village, K.R.Puram

Hobli, Bangalore East Taluk.

(Rep by Sri. K.Sundaram, Advocate)

M/s. Sree Constructions,

A Partnership Firm with registered

Office at No.P2, Sree Pride,

CMR Pharmacy College Road,

Bangalore-560043 & Represented

By its Managing Partner Mr.CH Sridhar.

(Sri.Ashok Hande, Advocate)

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

01.    The complainant has filed this complaint Under Section 35 of the Consumer Protection Act, 2019 seeking for a direction to the opposite party to rectify all structural defects in the building and to fulfil all the promises made in the Brochure as well as in the Sale Deed and to provide all the promised services and such other relief as this Commission deems fit in the circumstances of the case.

02.    It is not in dispute that, the complainant along with his wife jointly purchased the residential apartment bearing No.304 measuring super built up area 965 Sq. Ft. in the apartment put up by opposite party in Sy. No.63/3, BBMP Katha No.15 in the land measuring 28 ½ guntas situated at Horamavu Village, K.R. Puram Hobli, Bangalore, through the registered sale deed dated: 21.03.2018.  Further it is not in dispute that, as per the sale deed the complainant had paid the sale consideration of INR Rs.32,48,000/-.  Further it is not in dispute that, the complainant had sent legal notice dated: 21.08.2020 to opposite party and opposite party had replied for the same.

03.    It is the further case of the complainant that, the opposite party did not provide the amenities as per the sale deed and the Brochure.  Further there are several defects in providing basic amenities as promised in the sale deed and the Brochure.  Further opposite party had constructed an extra floor (4^th floor) in the apartment which was not reflected in the design shown to the complainant and which appears to be in violation of sanctioned plan.  Further even though opposite party had advertised that, it would provide ‘A’ Katha document, it did not provide the same, thereby the opposite party had breached the promise given.  Hence the present complaint came to be filed.

04.    It is the further case of the opposite party that, opposite party did not assure Cauvery water supply.  Hence there is no question of providing Cauvery water.  Further the complainant cannot opt for car parking of his own car choice.  Further the construction of swimming pool has been completed and the same is not in operation due to COVID-19 pandemic situation.  Hence the complaint was filed without any valid grounds and sought to dismiss the complaint.

05.    To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P.1 to EX.P.5 documents.  The Managing Partner of opposite party (RW.1) has filed affidavit in the form of his evidence in chief and got marked EX.R.1 and EX.R.2 documents.

06     Counsels for the complainant and opposite party have filed their respective written arguments.

07.    The points that would arise for consideration are as under:-

  (1) Whether there is deficiency of service on the part of the opposite party?

  (2) Whether the complainant is entitle for the 

      relief sought ?

      (3) What order ?

08.    Our findings on the aforesaid points are as follows:-

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

09.    POINT NO.1:-  The complainant (PW.1) and opposite party (RW.1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. 

10.    It is the contention of learned counsel for opposite party that, the brochure is only a conceptual presentation of the project and it is clearly mentioned in the brochure and the same was orally conveyed to the complainant also.  EX.P.2 is the copy of the brochure and EX.P.1 is the sale deed dated: 21.03.2018 executed by opposite party and the land owners in favour of the complainant and his wife pertaining to the subject apartment.  We feel the contents of Brochure is also a promise to the public in general.  When the complainant by seeing the said Brochure purchases the apartment, the purchaser had accepted the promise made by the opposite party in the Brochure.  Therefore the relationship would be a Promisor and Promisee in between the opposite party and the complainant.  If the averments made in the Brochure has not been fulfilled it amounts to unfair trade practice within the meaning of Section 2(47) of Consumer Protection Act, 2019 and it amounts to promoting the sale.  

11.    The complainant has produced photographs vide EX.P.3 pertains to the apartment which indicates unfinished work.  On the other hand, the opposite party has also produced photographs vide EX.P.3.  On perusal of the same prima facie it appears that, the work has not been finished.  According to PW.1 as per the sale deed and Brochure the opposite party had expressed promise to provide free and uninterrupted passage of running water and electricity, rain water harvesting, car parking, lifts of 6 passengers capacity (2 lifts in each wing), Gymnasium, Multi-purpose hall, Landscaping, Intercom Facility.  The say of opposite party that, the promise made in the Brochure need not be done and it was only a conceptual presentation, itself indicates that, the opposite party did not comply the statements made in the Brochure.  Hence we feel there is no merit in the contention of opposite party.  The activity of opposite party and the factual things appears that, there is deficiency of service on the part of opposite party.  Accordingly we answer this point in affirmative.

12.    POINT NO.2:-     The complainant has claimed for a direction to rectify all structural defects in the building including painting the walls, corridor grills, exposed wiring, water seepage, etc., and to provide the amenities stated in the Brochures and the sale deed.  For the reasons stated above, we feel the opposite party shall comply the promise made in the Brochure as well as in the sale deed vide EX.P.2 & EX.P.1.  Further the complainant claims a sum of Rs.5,00,000/- towards deficiency of service from the date of purchase in 2018.  It appears that, as per Brochure the opposite party should have completed the work on the date of sale deed.  Since the opposite party did not finish the work the complainant has been deprived off all the amenities as assured in the Brochure and the sale deed.  Therefore the complainant is entitle for a sum of Rs.50,000/- towards compensation.

13.    Further the complainant claimed a sum of Rs.1,00,000/- towards damages.  We feel the above said compensation includes the damage also.  Further complainant claims a sum of INR 15,000/- towards cost.  The activity of opposite party made the complainant to get issued the legal notice and to approach this Commission.  Hence the complainant is entitled for a sum of Rs.10,000/- towards litigation cost.  Accordingly we answer this Point partly in affirmative.

14.    POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party is directed to provide the amenities and to complete the work as promised in EX.P.1 sale deed and EX.P.2 Brochure within a period of two months from the date of the order. 

Further the opposite party is directed to pay to the complainant a sum of Rs.50,000/- towards mental agony and damages and a sum of Rs.10,000/- towards litigation cost.

The opposite party shall comply the order within 02 months.   In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.60,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 10^th Day of April, 2023)                                             

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
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//ANNEXURE//

Witness examined for the complainant side:

Mr. Allen Maxwell Enthat, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.

Documents submitted by the complainant side:

1. Copy of Sale deed dt.21.03.2018 – EX.P.1.
2. Copy of Brochure – EX.P.2
3. Computer downloaded image of unfinished swimming pool (2 pages) – EX.P.3.
4. Computer downloaded whatsapp chart (two pages) – EX.P.4.
5. Computer download unfinished constructions (5 pages) – EX.P.5.

Witness examined for the opposite party side:   

Sri. C.H. Sridhar, Managing Partner of opposite party (RW-2) has filed affidavit in the form of his evidence in chief.

Documents marked for the Opposite Party side:

1. Copy of two legal notice dt.21.08.2020 – EX.R.1.

2. Office copy of the reply dt.12.10.2020 with postal receipt and AD – EX.R.2.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
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