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Judgment
Subhash Chandra, Presiding Member
This complaint filed under section 12 (1) (c ) read with section 13 (6) of the Consumer Protection Act, 1986 (in short, ‘the Act’) alleges deficiency in service on the part of the opposite party who is the developer of a project ‘Ajmer Villows’, Bangalore in which the complainants were allotted the residential villas constructed by the opposite party.
The brief facts of the case are that the applicants on application have been allotted the following villas and had made payments as per the details indicated:
S no.
Applicant’s Name
Villa no.
Date of Allotment / booking
Date of agreement
Date of taking over the possession
Actual cost paid as per cost sheet
Actual amount paid as per the deed/ agreement of sale
1.
M M Thevar
B 22
08.12.2014
30.01.2015
29.05.2015
2,88,91,075/-
2,64,49,200/-
2.
Ranjeet Kumar
A – 5
05.06.2015
22.07.2015
26.10.2015
1,77,27,150/-
1,66,38,440/-
3.
Mohit Srivastava
A 13
11.03.2016
30.03.2016
04.06.2016
1,63,36,842/-
1,51,99,800/
The complainants allege that the opposite party has failed to provide various facilities and amenities promised to them in the brochure, sale agreement and numerous advertisements. They are also aggrieved by the imposition of unjustified costs on the complainants such as additional charge for increase in the super built up area, selling of road in the form of garden, including car parking, inclusion of terrace area in super built up area, additional charges on account of electricity connection provided by BESCOM/ KPTCL, water and sewerage charges by BWSSB and illegal imposition of service tax. The complainants have also filed an application under section 12 (1) (c) claiming reliefs on behalf of other similarly placed buyers in the same project having the same interest and grievances. Despite this application being allowed on 16.02.2021 and a paper publication done as per proof publication filed by Complainant on 26.12.2020, no other similarly placed allottee came forward to get impleaded. The complainants are before this Commission with the prayer to direct opposite parties:
a. to hand over all the amenities and facilities as promised in the brochure, agreement and sale deed, to the complainants and all other villament buyers having the same interest;
b. to pay to the complainants and other villament buyers with same interest compensation @ 12% per annum on the amount deposited by the villament buyers with the opposite parties for the entire period of delay in handing over the promised amenities and facilities or in the alternative, in case of non-provision of the promised amenities and facilities, direct opposite parties pay to the complainants and other villament owners with same interest a sum of Rs.50,00,000/- each;
c. to refund to the complainants and other villament buyers with same interest, the charges illegally collected by the opposite parties towards BSECOM/ KPTCL and BWSSB with 18% interest per annum;
d. to refund to the complainants and other villament buyers with same interest the amount collect towards club house with 18% interest;
e. to refund to the complainants and other villament buyers with same interest, the amount collected on account of garden area with 18% interest;
f. to refund to the complainants and other villament buyers with same interest, the amounts collected on account of terrace area with 18% interest;
g. to refund to the complainants and other villament buyers with same interest, the amounts collected on account of service tax with 18% interest;
h. to refund to the complainants and other villament buyers with same interest, the amounts collected on account of legal expense with 18% interest;
i. to refund to the complainants and other villament buyers with same interest, the amounts collected on account of maintenance charges till the formation of resident welfare association with 18% interest;
j. Opposite party 1 and opposite party no.2 to pay to the complainants and other flat buyers with same interest a sum of Rs.25,00,000/- each on account of mental harassment and trauma;
k. award cost of the complaint to the complainants; and
l. pass any such further order or orders which this Hon’ble Commission deems fit and proper in the facts and circumstances of the present case.
Opposite party was declared ex parte on 16.02.2021, when the matter was listed for final hearing since he has not entered appearance despite notice and has also not filed any reply to the complaint.
I have heard the learned counsel for the complainants and perused the material on record. For reasons of convenience, reference to Sale Deed and the house/ plot will be made based on details of the allotment to complainant no.1.
Learned counsel for the complainants submitted that the opposite party has failed to provide the promised amenities and charged additional amount under various heads resulting in his unjust enrichment without any benefits to the complainants. Complainants have been denied the promised amenities and facilities such as garden area and terrace area and have been charged for amenities that they have not been provided. The prayer in the complaint therefore seeks various reliefs in view of these deficiencies.
On behalf of the complainants it was contended that complainant no.1 had paid the entire sale consideration of Rs.2,88,91,075/- including Rs.14,40,000/- towards 800 sq ft of terrace, Rs.36,63,000/- towards 2035 sq ft garden area in respect of villa no.B 22. Complainant no 2 had paid the sale consideration of Rs.1,77,27,150/- including Rs.6,80,680/- towards 374 sq ft terrace and Rs.4,56,820/- towards 251 sq ft of garden area in respect of villa no. A 5. In respect of complainant no.3, sale consideration of Rs.1,63,36,842/- included Rs.6,10,867/- towards 374 sq ft terrace and Rs.6,77,833/- towards 415 sq ft garden area relating to Villa no. A 13. It is contended that the complainants were required to pay additional amounts towards terrace and garden area and while the promised terrace and garden areas were stated to be 800 sq ft and 2035 sq ft (in respect of complainant no.1), the actual Sale Deed mentions only 267 sq ft of terrace area and garden area. It is also contended that opposite party no.2 had categorically mentioned in the Sale Deed that the buyer’s right would be restricted to carpet area and the built up area only. It is, therefore, submitted that the opposite party has failed to give the garden area as promised and charged for a larger area of the terrace area while not executing the Sale Deed for the full area promised. It is contended that as promised in the brochure, no separate area was ear-marked for garden area except a small back yard garden carved out of the unit area. As no garden areas were available, the opposite party had wrongly charged the complainants for the garden area which had been included in the unit price. The other amenities promised in the brochure such as mini golf course, football field, landscaped pathways, tennis court, children’s play area, squash court, gymnasium, spa, badminton, table tennis, billiards, swimming pool etc., as part of the club facilities were not accessible, since these had been constructed on the adjoining larger property of the opposite party which the complainants were restrained from using on account of an injunction order obtained by the Association of residents in the larger property. The opposite party had undertaken to resolve the issue on 21.08.2015 but had failed to do so despite having collected Rs.1,00,000/- towards Club Membership charges. Complainants also contend that multiple charges have been collected towards deposits for electricity, water supply and sewerage to KPTCL/ BSECOM/ BWSSB and that the service tax collected has not been deposited by the opposite party with the relevant authorities, as ascertained by way of an RTI application. It is submitted that the BWSSB has also stated that the project area did not fall within its jurisdiction and that KPTCL has no connection with the electricity supply which is the responsibility of BESCOM. It is further contended that the service tax collected was over and above the Sale Agreement and had not been deposited with the Competent Authority. With regard to the maintenance charges it was stated that although the opposite party had categorically stated that these charges were directly payable to the Association as per the cost sheet and sale deed, the opposite party was collecting maintenance charges from the complainants. It was also stated that the opposite party had not formed the Association of Residents as promised and despite collection of maintenance charges from residents was not paying it to the various vendors which had led to the suspension of essential services. Therefore, the complainants prayed that the complaint be allowed and relief prayed for be granted.
Notice issued to the opposite parties on 03.03.2020 was returned back with postal remarks ‘left’. However, as per the track report, notice was served on 07.03.2020 to opposite party no.2. Dasti notice was collected on 20.02.2020. However, proof of dasti service not filed by the counsel for the complainant till date. A show cause notice was issued to the opposite party on 25.11.2020 which as per the track report was served on 01.12.2020 on opposite party no.1, although, service was incomplete in respect of OP 2. Notice was again issued to the opposite party and was served on 28.12.2020. None has been appearing on behalf of the opposite parties. Hence, vide order dated 16.02.2021 it had been ordered that opposite parties be proceeded ex parte.
Complainant filed his evidence and written submissions. I have heard the learned counsel for the complainant and perused the records carefully.
It is evident from the record that the complainants had entered into an Agreement with the knowledge of the architectural plans of the villas indicating the lay out of the garden and parking space. The Sale Agreement was also signed by them with the knowledge of the lay out which did not include any garden area.
As per clause XV, the purchaser/ complainants had entered into a Sale Deed as per which it was made clear that the club developed on the larger property would be the common facility for the residents of the apartment complex and the villas. The contention of the complainant, therefore, that no separate club facilities have been constructed cannot be justified. It is apparent that there is no injunction in a civil suit that restrains complainants as residents of villas from using the same. Having undertaken to provide common facilities and having undertaken to resolve the issues between the users of the two properties, the opposite party has been negligent in not providing the issues as undertaken by it. However, until the opposite party resolve the issue regarding the usage of club by the complainants it is charging membership and maintenance fees from the complainants is unjustified.
As regards the issue of statutory dues, the complainants cannot make that a grouse since the same has to be paid by them. Non-payment of the statutory dues to the competent authority as alleged cannot also become a subject of a consumer complaint.
The contention of the complainant that the opposite party has charged for areas ear-marked for terrace and garden areas which have not been provided/ handed over or which measures less than what was promised has been considered. It is seen that the Sale Deed mentions the suit property to be 3884 sq feet undivided share with 267 sq ft of the terrace area being 1/3 of the area of 800 sq ft. It also mentions that:
“The purchaser has the exclusive right to use the private garden area of two thousand thirty five square feet which is attached to the Schedule C Property.
The purchaser has the right to use the common area provided in the villows development area and the limited access area of the Schedule ‘A’ property being in form of common roads, pathways, garden area and other common amenities and facilities in the Schedule ‘A’ property.
From a reading of the Sale Deed, the contention of the complainant that 800 sq ft terrace had been sold to them as per the Sale Deed is not found to be the correct interpretation since only 1/3 rd area has been provided/ sold and exclusive right of use has been provided. It cannot therefore be said that the opposite party charged the complainants for the terrace area of 800 sq ft and conveyed only 267 sq ft.
From the above, it is evident that the only issue which remains outstanding is the levy of membership fee for the Club and maintenance fee by the opposite party towards the club facilities which the complainants have been prevented from utilising in view of the injunction obtained by the residents of other, larger area. From the record, the civil injunction was promised to be resolved by the opposite party which is an admission of the lack of access for the complainant. The contention of the complainants that they be allowed to use the same therefore, cannot be said to be unjustified.
For the reasons stated above, I find merit only in this contention of the complainants. The complaint is therefore, partly allowed and with the directions to the opposite parties to resolve the issue of use of club facilities by the complainants within two months of this order. The opposite parties are directed not to charge any membership or maintenance fee for the period for which the complainants have been deprived of the use of club facilities. In case this issue is not resolved by the opposite party within this period, it shall refund the amount collected to the complainants with interest @ 6% per annum. However, the opposite party shall have the right to collect the same as and when the issue is resolved from which date the complainants shall be eligible to be members of the club subject to payment of member ship and maintenance fees as prescribed. In addition to this, the opposite party shall also pay Rs.15,000/- each as litigation cost to the complainants.
All pending IAs, if any shall stand disposed of by this order.