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Judgment
Heard Mr. Chandrachur Bhattacharya, Advocate, for the complainant, Mr. Upendra Pratap Singh, Advocate, for Opposite Party-3 and Mr. D.K. Devesh, Advocate, for opposite party-5 & 6.
Mantri Serenity Home Buyers Forum Bengaluru, a recognized consumer association has filed above complaint on behalf of 48 home buyers of Block-1, 3, 4 and 5 of the project “Mantri Serenity” for directing the opposite parties to (i) handover possession of the apartment with requisite “occupation certificate”, complete in all respect along with promised amenities and facilities to the home buyers; (ii) pay delay compensation in the form of interest @18% per annum on the deposit of the home buyers from due date of possession till handing over possession; (iii) transfer proportionate undivided ownership in common area, to the home buyers; (iv) pay Rs.1000000/-,as punitive damages to the each home buyers, for not giving proportionate undivided ownership in common area, inspite of having charged for the same; (v) extend the defect liability period for 5 years, covering structural defects or any other defects, free of charge in terms of Section 14(3) of Real Estate (Regulation and Development) Act, 2016; (vi) restrain the opposite party from forcing the home buyers to execute maintenance agreements with Propcare Real Estate Management Private Limited; (vi) pay Rs.500000/- to each home buyers as compensation for mental agony and harassment; (vii) pay Rs.100000/- to each home buyers as the litigation costs; and (viii) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainant stated that the opposite parties were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. Opposite parties-3 and 4 launched a group housing project “Mantri Serenity” at Doddakallasandra Village, Uttarahalli Hobli, Off Kanakapura Road, Bangalore-560062, in the year 2012 and made wide publicity of its facilities and amenities. The project consists six blocks (each block consists 3 to 5 towers) and total 2712 flats. The present complainants are allottees in Blocks-1, 3, 4 and 5 Believing upon the representations of the opposite party, each of the complainants booked a flat on different dates and deposited booking amount. The opposite party allotted a flat and executed an agreement for sale of undivided share in the land of plinth area of the building/tower and an agreement for construction shortly after booking in the favour of the complainants. Schedule-B of the construction agreement provides payment plan as “construction link payment plan”. Clause-6.1 read with Annexure-B1 of the construction agreement provides due date for possession as 31.12.2015. As per demand of the opposite parties, the home buyers deposited instalments on time. The opposite parties did not offer possession, although six years have expired after due date. The opposite parties through emails dated 2011.2020, 05.02.2021 and 13.09.2021, informed that construction was going on with full spring but no deadline for possession was given. Clause-7.0 of the construction agreement provides defect liability period as 12 months from the date of possession, it should be 5 years as per Section 14(3) of Real Estate (Regulation and Development) Act, 2016. The complainant gave a legal notice to the opposite parties on 11.07.2022 and filed this complaint on 15.07.2022, alleging deficiency in service.
The opposite parties filed written reply on 09.09.2022. The opposite parties raised preliminary objection relating maintainability of the complaint. The opposite parties stated that all the home buyers, for whose benefit, this complaint has been filed are allottees in Phase-II of the project “Mantri Serenity”. Some of the home buyers of Block-I, Phase-II of the project “Mantri Serenity” filed CC/913/2016, as a class action complaint, for handing over possession and other consequential reliefs with IA/5301/2016, under Section-12(1)(c) of the Consumer Protection Act, 1986, which was allowed on 30.11.2016 and the notices as required under Order 1 Rule 8 C.P.C. were published. CC/913/2016 has been decided on 08.06.2018. Some of the home buyers of Block-3, 4 and 5, Phase-II of the project “Mantri Serenity” filed CC/1678/2019, as a class action complaint, for handing over possession with other consequential reliefs with IA/13801/2019, under Section-12(1)(c) of the Consumer Protection Act, 1986, which was allowed on 01.12.2020 and the notices as required under Order 1 Rule 8 C.P.C. were published. CC/1678/2019 was decided finally by judgment dated 01.09.2022. The home buyers have filed Civil Appeal Diary No.31729 of 2022 before Supreme Court from order dated 01.09.2022, in which, all the home buyers on whose behalf this complaint has been filed, have filed their application for impleadment. This complaint has been filed on 15.07.2022. In view of the judgement of Full Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt.Lt., (2017) I C.P.J. (NC) 1, this complaint is not maintainable and be dismissed.
The complainant have filed Rejoinder Replies, Affidavit of Evidence of Dhananjaya and documentary evidence.
We have considered the arguments of the counsel for the parties and examined the record. The complainant admits that all the home buyers on whose behalf this complaint has been filed, have filed their application for impleadment application in Civil Appeal Diary No.31729 of 2022 before Supreme Court. Full Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt.Lt., (2017) I C.P.J. (NC) 1, held that after grant of leave under Section 12(1)(c) of Consumer Protection Act, 1986, no fresh complaint for same relief is maintainable. The counsel for the complainant, however, on the basis of the reliefs that to extend the defect liability period for 5 years, covering structural defects or any other defects, free of charge in terms of Section 14(3) of Real Estate (Regulation and Development) Act, 2016 and restrain the opposite party from forcing the home buyers to execute maintenance agreements with Propcare Real Estate Management Private Limited, argued that these reliefs were not in earlier complaints. These reliefs are consequential relief. Since all the home buyers have filed their impleadment application before Supreme Court as such these consequential reliefs can also be claimed there. Main relief is for possession, which is same. As such this complaint is not maintainable.
ORDER
ln view of aforesaid discussion complaint is dismissed as not maintainable with liberty to pursue their remedy before Supreme Court.