03-12-2024

ORDER ON ADMISSION

BY SRI.RAVISHANKAR, JUDICIAL MEMBER

This appellant approached this Commission against the order passed by the District Commission which directed this appellant to comply the following;

a) To direct the Opposite Parties to do and comply all that are required and to obtain apartment building construction completion certificate (CC) and occupancy certificate (OC) from the BBMP authorities as mandatorily required in law.

b) To direct the Opposite Parties to do and comply all that are required and to obtain No-objection Certificate from the Pollution Control Board and Clearance for the Sewage Treatment Plant issued by the concerned Government Authority.

c) To direct the Opposite Parties to do and comply all that are required and to provide all Licenses, Approvals, Plumbing/ Electrical Plans, NOCs for operation of assets, related documentation, etc. to Sai Poorna Premier Apartment Owner’s Association.

d) To direct the Opposite Parties to do and comply all that are required and to clearly demarcate 3-acres of landed property and its boundaries (i.e. schedule “A” property), make clear segregation between commercial and residential complex and provide an official plan and survey sketch of asset distribution between them.

 e) To direct the Opposite Parties to do and comply all that are required and to install all fire safety infrastructures and get necessary no-objection certificate from the fire department.

f) To direct the Opposite Parties to provide as per original building plan separate entry from and exit towards on either side of the public road frontage is such a way that the driveway goes around the building allowing one way movement of vehicles.

g) To direct the Opposite Parties to do and comply all that are required and to install rain water harvesting system and solar power water heating system in “Sai Poorna Premier Apartment Complex”.

h) To direct the Opposite Parties to pay a compensation and damages and also the share of expenditure the complainant is required to bear for completing various un-complied and under finished work to the tune of Rs.10,00,000/- (Rupees Ten Lakhs only) including towards mental agony, expenses incurred by the flat owners, devaluation of the property/flat owned by the complainant.

i) To direct the Opposite Parties to pay/reimburse balance betterment charges of Rs.34,41,078/- (Rupees Thirty Four Lakhs Forty One Thousand Seventy Eight only) to the owners’ Association viz Sai Poorna Premier Apartment Owners’ Association as stated in para 25 above or pay the same to the individual complainant’s in such proportion, pari passu.

j) To direct the Opposite Parties to reimburse the cost of installation of Rain water harvesting system incurred by the Owners Association i.e. cost of Rs.4,00,000/- (Rupees Four Lakhs only) as stated in para 26 above.

 k) Order and direct the Opposite Parties to pay the cost of the proceedings.

l) Order and direct the Opposite Parties to pay the interest at the rate of 18% per annum on all the items of amounts claimed from the date it was due to till realization.

m)  To order and direct the Opposite Parties to segregate the land parcel pertaining to the commercial complex and the residential apartments, and also to segregate and separate all amenities including water connection and electricity between the commercial complex and the residential apartments.

2. This appellant submits that the respondents have taken sale deed registered in favour of them by the owner/land landlord and the flat was not sold by the appellant in favour of the respondent. There is no any deficiency of service on the part of this appellant. The respondent without knowledge of the plan sanctioned by the BBMP had filed a complaint evenafter the execution of the sale deed. The reliefs claimed are not fall within the purview of the Consumer dispute. They have taken all required permission and approval from the required authority for completion of the entire project. They have taken permission on 16.12.2010 from the Pollution Control Board for STP in the year 2014 they have taken license for plumbing and electrical plans and the entire documents were handed over to the Association in the year 2014 itself. The requirement to install rain water harvesting and solar power water heating systems were not agreed as per the agreement entered between the owner and this appellant for construction as such the complainant cannot insists this appellant to provide those facilities. The District Commission without considering the defence taken by this appellant had directed to comply the above and also directed to pay compensation. In fact, they are not liable to comply any of the above direction. The order passed by the District Commission is not in accordance with law. Hence, prays to set aside the order passed by the District Commission and dismiss the complaint, in the interest of justice and equity.

3. Further the appellant had filed an application under Section 5 of the Limitation Act to condone the delay of 396 days and sworn affidavit that on account of ill health and being a Managing Partner of the Firm and also on account of lack of availability of records, the version was not filed before the District Commission. They have not taken any defence in the proceedings before the District Commission.  

4. Further the free copies of the order dated 13-3-2023 was not dispatched well within time, only after approaching the District Commission, they have received certified copy of the order. Hence, there is a delay and there is no bonafide intention to file this appeal belatedly. Hence, prays to condone the delay and admit the case, in the interest of justice and equity.       

5. Heard on admission.

6. Perused the certified copy of the order and memorandum of appeal, we noticed after issuance of the notice from the District Commission, they appeared through their counsel but not contested the matter by filing any defence on their side, they have shown negligence during the course of trial. The District Commission after accepting all the evidences and documents from the complainant has allowed the complaint and directed this appellant to provide required amenities.     

7. Further we noted as per the office note, there is a delay of 396 days in filing this appeal.  The grounds urged for condonation of delay are not satisfactory. Mere production of one medical certificate is not sufficient ground to condone the delay. This appellant had not produced any hospital records to show has taken any treatment, without such documents that enormous delay cannot be condoned. Further the District Commission had given a direction to complete the under taken works which were required to be completed by developer. The appellant being a developer has to complete the entire project, though the sale deed was executed and possession was given. As such we do not find any irregularity in the order passed by the District Commission, at the same time the appeal is also filed beyond 45 days as per the provision of CP Act. Therefore, the appeal is liable to be dismissed as there is no merit in the appeal and the delay in filing this appeal.

8. It is appropriate to quote the decision rendered by the Hon’ble National Consumer Disputes Redressal Commission reported in 2018 (2) CPR 507 (NC)-the matter between M/s TDI Infrastructure Ltd., v/s Kulvinder Singh Bahl, the appeal can be dismissed on the point of delay alone.  Accordingly, the appeal deserves to be dismissed on the point of enormous delay. Hence, we proceed to pass the following:-

O R D E R

The delay application is hereby dismissed.Consequently, the appeal is also dismissed.No order as to costs.

Send a copy of this order to both parties as well as Concerned District Commission.

SMT.SUNITA C.BAGEWADI         SRI.RAVI SHANKAR

   (Lady Member)                                 (Judicial Member)