BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 17^th DAY OF APRIL, 2021

CONSUMER COMPLAINT NO.1429/2016

PRESENT:                                                          

Sri.C.V.Maragoor, B.com, LL.M.           ….     PRESIDENT

Smt.L.Mamatha, B.A., LL.B.     ….       MEMBER

Sri. M.B. Seena, B.A., LL.B.                 ….     MEMBER

Ramesh R,

S/o Chandrakant,

Aged about 38 Years,

Residing t o.G-05,

Ground Floor, Vajravista,

BEML Layout,

 (By Sri.S.Nagaraj, Advocate)

V/s

OPPOSITE PARTIES:

1. M/s Vajra Constructions,

No.473-D/5A, 13 Cross, 4^th Phase,

Peenya Industrial Area,

Rep by its Partners.

2. Mr.Shivakumar A.S,
3.  

M/s Vajra Constructions,

No.473-D/5A, 2^nd Floor,

Peenya Industrial Area, Bengaluru-560058.

3. Arvind V, Partner,

M/s Vajra Constructions,

No.473, D/5A, 2^nd Floor,

Peenya Industrial Area,

 Bengaluru-560058.

(By Sri.T.S.Sathish, Advocate)

BY SRI C.V.MARAGOOR., PRESIDENT

******

//ORDER //

1. This complaint is filed u/s 12 of the Consumer Protection Act, 1986 to direct the Opposite Parties M/s Vajra Constructions, Bengaluru represented by its partners Opposite Party No.2 & 3 to furnish occupancy certificate issued by office of the BBMP, to get the Khata to be registered in the name of complainant in the register of the office of BBMP in respect of flat No.G-5 in the ground floor of the building “Vajra Vista” having 1020 sq.ft super built up area with one covered car parking space together with 280.25 sq.ft of amounting to 2.87% undivided share in the land situated at Mylasandra Village, Kengeri Hobli, Bengaluru South Taluk. Further to complete and deliver swimming Pool for kids in the basement of the apartment building Vajra Vista or order for refund of Rs.2,00,000/- collected towards swimming pool, to order the Opposite Parties to pay Rs.60,000/- for getting khata in case the Opposite Parties fails to do it, to pay Rs.35,000/- towards deficiency of service, Rs.25,000/- towards mental agony and hardship.  Hence this complaint.

2. The Opposite Parties in response to the notice appeared through their learned Counsel and filed written version admitting that the complainant had entered into an agreement to purchase a flat to be constructed by the Opposite Parties in the land Sy.No.61/11, measuring 7096 sq.ft situated at Mylasandra Village, Bengaluru South Taluk.  The Opposite Parties denied that they have agreed to construct swimming pool for kids in the basement, gymnasium hall, occupancy certificate etc.  It is the case of Opposite Parties that in the agreement of sale entered between the complainant and opposite parties the said facilities were proposed with a rider and condition clause. The said facilities would be subject to alteration and changes which fact is suppressed by the Complainant.  It is not correct to say that the opposite parties agreed to get the khata of the complainant in the office of BBMP.  The opposite parties have communicated to all the apartment buyers who had entered into an agreement to purchase that the swimming pool would not be provided due to the practical difficulties.   The opposite parties had promised to provide the khata mutated in the individual names of the purchasers at the cost of the opposite parties is false.  The opposite parties are in the process of obtaining the occupancy certificate which may be duly furnished by the competent authorities.  The Opposite Parties request this Commission to dismiss the complaint.

3. The complainant filed his affidavit evidence and produced agreement of sale, construction agreement, copy of the sale deed, legal notice and postal acknowledgement.  The 3^rd Opposite Party Mr.Arvind V, partners of opposite party No.1 filed his affidavit evidence and produced agreement of sale, copy of the sale deed, the settlement letter dt.21.09.2017, khata certificate and email communications.

4. We have heard the arguments advanced by the learned counsel for complainant and opposite parties and  the points that would arise for our consideration are;

1. Whether the Complainant proves the deficiency in service on the part of Opposite Parties?

2. Whether the complainant is entitled to the reliefs sought in the complaint ?

3. What order? 

5. Our findings on the above points are as under:-

1. POINT NO.1  : In the Affirmative
2. POINT NO.2  : In the partly Affirmative
3. POINT NO.3   : As per the final order for

                       the following;

:REASONS:

6. POINT NO.1 to 3:- The learned counsel for complainant submitted that the opposite parties have failed to comply with the terms of agreement of sale by constructing swimming pool for kids in the basement and further failed to get Khata of the complainant in the register of BBMP, even after handling over possession of the building by not obtaining completion certificate.  As against this, the learned counsel for opposite parties argued that the opposite Parties could not construct swimming pool in the basement as occupants told that it would be difficult to maintain the swimming pool.  It is the duty of complainant to get khata by paying necessary charges and it is not the duty of opposite parties to get khata of complainant.

7. The opposite parties have not disputed that the complainant has agreed to purchase flat in the apartment to be built by them and after construction of apartment sale deed has been executed in the name of complainant in respect of flat bearing G-05 in ground floor with super built up area of 1020 sq.ft, with undivided share of 280 sq.ft and one covered car parking.  The complainant and opposite parties have produced construction agreement and agreement of sale dt.02.09.2013 entered between the opposite parties and complainant.  The recital of agreement of sale is that the first party/Opposite Parties herein after called as builders shall build/construct residential apartment and complete the schedule-C property for a total contract price which is inclusive of one car parking and other deposits to be paid for Rs.23,18,691/-.  Schedule–E is on the agreement of sale page No.34 it is recited that swimming pool for kids will be provided in the basement.  The complainant has produced sale deed dt.25.10.2014 executed by the opposite parties in the office of Senior Sub Registrar, Rajarajeshwarinagar, Bengaluru.  At page No.39 of sale deed, it is mentioned that the complainant has paid Rs.25,26,600/- on various dates.  Further recitals of the sale deed indicate that the khata, physical and vacant possession of schedule–C property has been delivered by the builders to the purchaser/complainant simultaneously with the execution of present sale deed.  Clause No.21 of the sale deed says that on the date of execution of sale deed apartment occupiers association was not formed and registered. In the agreement of sale dt.02.09.2013, it is mentioned under obligations on the purchasers in Schedule-G.  Clause-13 of schedule-G says that the purchaser shall maintain at its cost of the said apartment, private swimming pool, parking space/Garden area and terrace area etc, forming part of the schedule-C apartment in good condition, state and order and shall abide by all the laws and regulations of the Government, Municipal Corporation of the city of Bengaluru.  Under this agreement, the opposite parties have agreed to construct swimming pool in the basement.  Though the construction of apartment was completed and handed over the flats to the owners in the month of October 2014, the opposite parties have failed to construct swimming pool till filing the complaint on 21.10.2016. 

8. The opposite parties have produced copy of the email dt.02.04.2016 along with the list of documents dt.24.07.2021.  This email sent by the opposite parties calling the meeting of the owners of ‘Vajra Vista” Apartment to discuss to get Rs.5.5 lakhs compensation for swimming pool from builders.  Let builders to decide whether this amount should go to individual flat owners who are having swimming pool in the agreement or to all the flat owners irrespective of agreement.  About khata transfer (OC and CC) Individual flat issues should be fixed as early as possible. The meeting could not be held due to lack of forum.  The email sent and produced by the opposite parties supports the case of complainant that the opposite parties have agreed to construct a swimming pool in the basement for kids.  It further proves that the opposite parties have failed to construct swimming pool and they decided to distribute the amount of Rs.5.5 lakhs.  The opposite parties have produced settlement letter dt.21.09.2017 said to have entered into between the apartment owners and developers and said documents produced along with list of document dt.23.11.2017.  The complainant is not party to this settlement said to have been entered into between the apartment owners and opposite parties/developers dt.21.09.2017.  This development has said to have been taken place one year after filing this complaint.  The opposite parties to overcome their act of deficiency in service i.e., not constructing swimming pool in the basement as agreed in the agreement of sale deed dt.02.09.2013 have come up with this settlement letter.  The said settlement is not binding on the complainant since already dispute was before this Commission.  

9. It is the case of opposite parties that they had obtained consent for cancelling of swimming pool proposed earlier due to the technical reasons.  As already observed that the complainant has not given consent or accepted proposal of the developer since he has raised dispute before this commission in the year 2016 itself and on the contrary opposite parties have come-up with said proposal in the month of September, 2017.  The complainant case is that he has contributed Rs.2,00,000/- for construction of the swimming pool.  The complainant has not produced any specific document to show that he has contributed Rs.2,00,000/- for construction of the swimming pool for flat owners kids by the developers.  In view of the materials available on record, the complainant might have contributed Rs.50,000/- for construction of the swimming pool.

10. It is the contention of complainant that the opposite parties shall enter his name in the BBMP register and expenses shall be borne by opposite parties/developers.  The case of complainant is against the terms and conditions of agreement of sale dt.02.09.2013. Clause No.16 of the agreement of sale dt.02.09.2013 reads as the 2^nd party i.e., complainant shall pay administration expenses or other incidental charges, such a professional fees, on per sq.ft or otherwise including the taxes, expenses for the bifurcation and registration of khata in his/her/their names.  The complainant has under taken to pay expenses of registration of khata of the schedule property in his name in the BBMP register on execution of registered sale deed.  Further it was the duty of developers to arrange for enter khata of complainant at his expenses.  The developers/opposite parties have produced khata certificate of complainant along with memo dt.18.03.2021.  This certificate dt.17.11.2017 issued by BBMP Bengaluru indicates that the name of complainant registered as owner to the schedule property. Though the sale deed was executed in the name of complainant in the month of October, 2014 but the opposite parties have got entered khata in the name of complainant at the fag-end of the year 2017.  The opposite parties have got entered the name of complainant in the BBMP register more than one year one month after filing this case.  This proves deficiency in service on the part of opposite parties as it was their obligation to enter the name of complainant in khata of BBMP immediately after execution of sale deed in the month of October, 2014 as per the terms of agreement of sale deed dt.02.09.2013. The complainant shall bear the expenses to enter the khata of complainant after execution of sale deed.  The opposite parties have paid Rs.2,967/- to enter the name of complainant in khata of BBMP and that can be found in property extract and receipt issued by BBMP along with memo dt.18.03.2021.  Therefore, the complainant is not entitled for Rs.60,000/- for getting khata in his name since the opposite parties have done it. 
11. The opposite parties have not furnished occupancy certificate issued by the office of BBMP to the complainant.  The opposite parties have failed to furnish the occupancy certificate immediately after execution of sale deed in the month of October, 2014.   Further opposite parties have failed to get khata in the name of complainant to schedule property till November, 2017.  This proves the act of opposite parties in deficiency of service as such the complainant was compelled to approach this Forum.  The complainant has suffered physically and mentally in not getting his khata in the BBMP register immediately after execution of sale deed as such, the opposite parties shall pay Rs.25,000/- towards mental agony and hardship to the complainant.  Accordingly, we proceed to pass the following;

         The complaint is partly allowed, directing the opposite party No.1 to 3 jointly and severally liable to pay a sum of Rs.50,000/- with interest at the rate of 6% p.a. for not constructing swimming pool from 01.11.2014 till the date of payment.

It is further ordered that the opposite parties No.1 to 3 are jointly and severally liable to pay a sum of Rs.25,000/- as compensation towards mental agony, hardship etc and Rs.10,000/- as litigation cost to the complainant within 30 days from the date of this order.  In case the opposite parties fail to comply with the said order it carries interest at the rate of 8% p.a. from the date of default till the payment.

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

 (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on this 17^th day of April, 2021)                                            

• M.B. SEENA )         (L.MAMATHA)          (C.V.MARAGOOR)    
•  

                                    //ANNEXURE//

Witness examined for the complainant’s side:

Sri.Ramesh R has filed his affidavit.

Documents marked for the complainant side:

1. Copy of the construction agreement.
2. Copy of the agreement of sale.
3. Copy of the sale deed.
4. Copy of the legal notice.
5. Copy of the served acknowledgment.

Witness examined for the opposite party side:                  

     Sri.Aravind V, Partner of Opposite Party has filed his affidavit.

Documents marked for the Opposite Parties side:

1. Copy of the Agreement of Sale Dt.02.09.2013.
2. Copy of Sale Deed dt.25.10.2014.
3. Copy of the Email dt.02.04.2016.

• M.B. SEENA )         (L.MAMATHA)          (C.V.MARAGOOR)    
•