w w w . L a w y e r S e r v i c e s . i n


Sai Sumukha Properties Pvt. Ltd & Others v/s Sumjukha Enclave Apartment Owner's Association

    First Appeal No. 138 of 2019
    Decided On, 05 November 2019
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER
    For the Appellants: Shekhar G. Davasa, Manish Tiwari, Luv Kumar, Advocates. For the Respondent: Sreedhar N.G., Amith J., Advocates.


Judgment Text

V.K. Jain, Presiding Member,

1. The complainant/respondent is a society registered under the Karnataka Societies Registration Act. The appellant entered into an agreement with two persons namely Smt. Mithya C.V. Reddy and Sh. C.V. Reddy on 21.4.2010 (hereinafter referred to as the land owners) for development of their land in Bangalore (South) and construction of 50 residential flats on the said land. As per the sharing agreement dated 1.6.2011 executed between them, the apartments which the appellant was to construct on the aforesaid land, were to be shared between the appellant and the land owners. 64% of the total apartments i.e. 32 flats were to go to the share of the appellant whereas 36% i.e. 18 flats were to go to the share of the land owners. After construction of the aforesaid residential complex, 18 flats were delivered to the land owners and remaining 32 flats were sold by the appellant. The possession of the flats is stated to have been delivered in November/December 2012. The case of the respondent, which is an association of the flat owners, is that there were several deficiencies in the flats delivered to them. The primary grievance of the complainant are as under:

(i) They had to pay a sum of Rs. 34,81,007 to Bangalore Water Supply and Sewerage Board towards water supply and sewerage connections and since the cost was to be shared in the ratio of 64% and 36% between the appellant and the land owners, the appellant is required to reimburse the complainant to the extent of 64% of the said amount.

(ii) The appellant had not prepared an architectural plan in respect of the underground parking and had not properly marked the car parking slots in each residential flat. They had to incur expenditure of Rs. 90,000 on the said work, which they are claiming from the appellant.

(iii) The appellant was required, by law, to provide Electricity Circuit Breakers in all the residential flats which it did not provide and therefore, it is required to provide the said Electricity Circuit Breakers.

(iv) The appellant, as per the agreement between the parties, was required to install teakwood doors at the entrance of each apartment but the doors so provided by the appellant were not teakwood doors.

(v) The height of the parapet wall constructed by the appellant is only 2 ft. whereas it should have been 4 ft.

(vi) The appellant was required to construct sump tank with capacity of 25,000 ltrs. whereas the sump tank actually installed by it was of a much lesser capacity.

(vii) The appellant did not install lightning arrester with aviation light.

(viii) The appellant was required to install SS railing on one side of the wall along the staircase which was not provided.

(ix) Safety measures on the panel board were not installed.

The complainants also want the appellant to deliver the title deeds and other original documents relating to the apartments, to the said Association.

2. The complaint was opposed by the appellant which has also disputed the pecuniary jurisdiction of the State Commission. On merits, the appellant denied any deficiency on its part in rendering services to the allottees of the residential flats. The execution of the agreements with the land owners however, has not been disputed, nor has the appellant disputed the sharing of the residential flats between the appellant and the land owners.

3. Vide its order dated 1.6.2018, the State Commission directed as under:

The above complaint is allowed in part holding that the OPs are jointly and severally liable to pay a sum of Rs. 22,32,576 towards reimburse-ment of the amount paid by the complainant association to BWSSB.

The OPs are also liable to pay a sum of Rs. 90,000 reimbursing complainants towards expenses incurred for obtaining architectural plan and for marking car slots for each apartment. Both the amounts shall be paid along with interest at 6% p.a. from the date of complaint till realization.

The OPs are further directed to provide Electrical Circuit Breakers (ELCB) to all the flats, install teak wood doors to the main doors of all the apartments, raise height of the parapet wall by fixing railings, construct sump tank with capacity of 25,000 ltrs., install lightening arrester with aviation light, to provide safety measures to the panel board already installed; provide SS railings on one side of the wall all along the staircase from basement to fourth floor, failing which the OPs shall reimburse whatever the amount spent by the complainants on production of proper receipts by the complainants.

The OPs are also directed to furnish title deeds and all other original documents pertaining to the apartment to the complainant’s association.

The OPs shall also pay compensation of Rs. 1.00 lakh to the complainant association for the deficiency committed.

The OPs shall also comply with this order within 3 months from the date of receipt of copy of the order.

Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of this appeal.

4. As far as the pecuniary jurisdiction is concerned, the learned Counsel for the complainant has submitted that the said plea was not pressed during the course of arguments before the State Commission. On a perusal of the impugned order, I find that plea of want of jurisdiction was not agitated during the course of hearing. In these circumstances, when the appellant did not press the plea of want of pecuniary jurisdiction during the course of hearing before the State Commission, it will not be appropriate for this Commission to go into the said issue at this stage. Recently, the Hon’ble Supreme Court did not approve intervention by the appellate Forum on the ground of want of pecuniary jurisdiction, in M/s. Treaty Construction & Anr. v. M/s. Ruby Tower Co-op. Hsg. Society Ltd., VI (2019) SLT 529, Civil Appeal No. 5699 of 2019, decided on 19.7.2019.

5. Coming to the merits of the case, a perusal of Clause 4 of the Joint Development Agreement executed between the appellant and the land owners would show that the appellant was required to provide all the necessary water, electricity and sanitary connections and the expenditure payable to BESCOM and BWSSB was to be borne by the appellant to the extent of 64% and by the land owners to the extent of 36%. The complainant led documentary evidence, comprising a receipt issued by BWSSB and its bank account before the State Commission, to prove that they had paid a sum of Rs. 34,81,007 to BWSSB. The submission of the learned Counsel for the complainants is that initially, BWSSB had demanded a much higher amount but during the pendency of this complaint, the said amount was reduced to Rs. 34,81,007 which was paid by the complainant. The State Commission therefore, was justified in directing the appellant to reimburse a sum of Rs. 2232576 which constituted 64% of the amount paid by the complainant to BWSSB.

6. As far as the car parking layout plan and marking of car parking slots is concerned, the complainant produced Ex. C-13 to Ex.C-15 to prove the expenditure incurred by it in respect of the car parking. Ex.C-13 is the report of the Architect who prepared the parking layout of the complex whereas Ex. C-14 is the receipt of Rs. 50,000 paid to the Architect in cash. Ex.C-15 is the invoice whereby the material worth Rs. 40,000 was purchased for marking the car parking slots in the basement of the complex. The complainant thus incurred an expenditure of Rs. 90,000 in preparation of the layout plan for the car parking and marking of the parking slots in the basement. It was for the appellant to prepare a proper layout plan of the basement parking and adequately mark the parking slots in respect of each apartment. Without such a plan and demarcation, it cannot be known where a particular flat owner has to park his car. The appellant having not done so and the complainant having incurred an expenditure of Rs. 90,000 for removing the said deficiency, the State Commission was justified in awarding Rs. 90,000 to the complainant for the said work.

7. As far as the Electricity Circuit Breakers is concerned, though the appellant produced documentary evidence to prove the purchase of ECBs, no evidence was produced to prove the actual installation of the ECBs in each flat. As many as 3 ECBs were required to be installed in each flat. If the appellant had actually installed the ECBs, it could have easily proved the same by filing the photographs showing the ECBs installed in each flat. No such photographs having been filed, the State Commission was justified in concluding that the ECBs have not been installed. Moreover, no report of the Architect of the building was filed before the State Commission to prove that the ECBs had been installed in each flat. Therefore, the view taken by the State Commission in respect of ECBs does not call for any interference by this Commission in exercise of its appellate jurisdiction.

8. As far as teakwood doors are concerned, though the appellant claims to have provided thick wooden doors, it does not even claim that teakwood doors were provided. As per Clause 6 of the Schedule of the Joint Development Agreement, the appellant was required to provide teakwood doors at the main entrance. Considering all the facts and circumstances of the case, the appropriate order to be passed in this regard, in my opinion, would be to direct the appellant to pay the difference between the cost of the teakwood doors and the doors provided by it at the main entrance of the flats to every allottee. The appellant shall pay a sum of Rs. 20,000 to each allottee towards the difference in the cost of the teakwood doors and the doors actually provided by it.

9. As far as the lightning arrester with aviation light is concerned, there is no evidence of the appellant having provided the same though it was a statutory safety requirement. Therefore, the direction given by the State Commission does not call for any interference by this Commission.

10. As far as the SS railing on one side of the wall along the staircase is concerned, though the case of the appellant is that the railing was provided by it, no evidence was led to prove such a provision which could have been easily proved by filing the photographs of the staircase. Even the report of the Architect was not filed to prove that the railing has been installed in the staircase along right from the basement till the fourth floor. Though the Joint Development Agreement between the parties does not expressly require provision of a railing, I am in agreement with the learned Counsel for the complainant that it is an essential safety requirement particularly for the elderly and aged and the children living in the flats. However, railing need not necessarily be a stainless steel. It can also be a wooden or a steel railing which is duly painted/polished on the surface. It is therefore, directed that the appellant may provide the wooden railing or steel railing instead of stainless steel railing as directed by the State Commission but the said railing should be duly painted/polished.

11. As far as the construction of sump tank is concerned, the submission of the learned Counsel for the complainant is that as per the applicable building bye-laws, a sump tank of 500 ltrs. Is required for each flat and there being 50 flats in the complex, capacity of the sump tank cannot be less than 25,000 ltrs. As noted by the State Commission, neither party led evidence to prove the capacity of the sump tank which the appellant has actually provided in this complex. It is therefore, directed that the capacity of the existing sump tank will be measured by an Architect to be appointed by the complainant, in the presence of the appellant and an additional sump tank which will meet the deficient capacity, will be installed by the appellant at its own cost so as to bring the total capacity of the sump tank to 25,000 ltrs.

12. As far as installation of panel board is concerned, the State Commission noted that vide letter Ex.R-51, BESCOM required the appellant to get the scope proved in the main panel board and distribution panels. There is no evidence of the appellant having complied with the said requirements. The State Commission, on perusal of the photograph Ex.R-17, found that the panel board did not have safety facilities such as grills and mat and therefore, directed the appellant to provide such safety measures on the panel board. The direction being necessary and having been given by a statutory authority for the safety of the electrical installments, the order passed by the State Commission in this regard, does not call for any interference by this Commission.

13. As far as the parapet wall is concerned, neither of the parties led evidence to prove the actual height of the parapet wall constructed by the appellant. Therefore, it would be appropriate to direct measurement of the height of the parapet wall by an Architect to be appointed by the complainant, in the presence of the appellant. If the Architect finds that the actual height of the parapet wall is less than 4 ft., the appellant would raise the said height at its own cost so as to make it 4 ft. high.

14. It is also made clear that if the appellant does not execute the work in terms of this order, it will be open to the complainant to get the said works executed at its own cost and recover the cost of those works from the appellant through the process of the State Commission.

15. As far as the original title deeds are concerned, the learned Counsel for the complainant has drawn my attention to Section 11 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 which reads as under:

“Section 11—Promoter to convey title, etc., and execute documents, according to agreement

A promoter shall take all necessary steps to complete his title and convey to the organisation of persons, who take flats, which is registered either as a co-operative society or as a company as afore

Please Login To View The Full Judgment!
said, or to an association of flat-takers his right, title and interest in the land and building and execute all relevant documents therefor in accordance with the agreement executed under Section 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power.” It would thus be seen that the promoter is required to convey all his right, title and interest in the land and building to an association of the flats owners and deliver all documents in his power and possession to the said association. The complainant is an association of the apartment owners and there is no evidence of any parallel association having been formed by the apartment owners in this complex. Therefore, it is the statutory obligation of the appellant to deliver all the title documents relating to the subject property to the complainant association. The appellant is therefore, directed to provide all the title documents of the subject property to the complainant. The appellant is also directed to provide attested true copies of the building plan and architectural designs to the complainant association along with the title deeds. 16. The State Commission has awarded compensation amounting to Rs. 1 lac to the complainant without awarding any cost of litigation. The said compensation cannot be said to be excessive or unreasonable in any manner. The Appeal stands disposed of. Appeal dismissed.
O R