Back
TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HYDERABAD
V.V. Seshubabu, Member (M-J) and
R.S. Rajeshree, Member (N-J)
Ajitabh Kumar – Complainant
versus
Bimal Kumar Kedia and Anr. – Opp. Parties
C.C.42 of 2016
Decided on 26.6.2023
Counsel for the Parties:
For the Complainant: Party in person
For the Opp. Party Nos.1 and 2:Mr. Nelson Mathew, Advocate
IMPORTANT POINT
Club House - Retaining ownership rights over the club house is an unfair trade practice.
Headnote:
(A) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Retaining of Ownership – Over Club House - Amounts to Deficiency of Service - Whether some of the clauses in the agreement of sale dt. 31.06.2012 are in the nature of one sided or unfair trade practices - The law is very well established to the effect that no developer is permitted to retain his ownership rights over the common amenities. Admittedly, owners association was formed. Therefore, the company cannot retain its ownership rights over the club house and on the other hand it shall handover the same to the owners association and from then onwards owners associates is at liberty to maintain the same by collecting necessary charges as fixed by the association for the use of the same by the respective flat owners. If any flat owner sells the flat, the purchaser of the same or his tenant can use the club house by paying necessary charges to the association. Retaining ownership rights over the club house is an unfair trade practice – Also, the company is liable to pay penalty @Rs.5/- per Sft. per month from 01.10.2014 till the handing over of possession i.e., 25.02.2019 per month which comes to 1378 Sft.x5 = Rs.6,890/- - The owners association also addressed letters to the company under Ex.A14 dt.01.02.2015 to the company and under Ex.A15 also expressed the dissatisfaction. No documents is filed to show that all the problems are attended – Thus, opposite party is liable to attend those works or to pay compensation. [Paras 8 to 16].
(B) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Deficiency of Service – Attributable – Compensation for loss of rentals – can be claimed only in case of Agreement - The complainant is not entitled for the refund of amount paid for car parking, no relief can be granted in those lines including the interest of compensation claimed by him. The complainant failed to place any evidence to the effect that, he is entitled for rentals for residing in a rented house due to the delay in handing over of possession of the questioned flat by the opposite party. There is no agreement to that effect – Also, awarding compensation for those pending works will meet ends of justice. Towards the pending works a sum of Rs.3,00,000/- with interest @6% p.a., from the date of complaint till the date of payment, which includes for the alleged inferior quality of work, will meet the ends of justice. The complainant is also entitled compensation for mental agony suffered in the hand of opposite parties for their deficiency in service to the tune of Rs.2,00,000/- - Thus, the complainant is not entitled for the refund of car parking amount - The opposite party No.2 is directed to pay Rs.6,890/-, delayed charges per month from 01.10.2014 till the handing over possession i.e., 25.02.2019 – Complaint partly allowed. [Paras 16 to 18].
Result: Complaint partly allowed.
ORDER
V.V. Seshubabu, Member, Member—The complaint is filed on 05.12.2016 in all claiming Rs.57,74,220/- (prior to amendment Rs.49,37,220/-) under various heads from the opposite parties.
2. The brief averments of the complaint are that the opposite party No.1 is the director of opposite party No.2; that the opposite party No.2 floated a venture under the name and style of Emami Swanlake a multi storied residential complex having obtained permission from the GHMC; that the complainant entered into an agreement of sale dt.13.06.2012 with the opposite parties to purchase flat (unite No. 115) at tower No.1 (under construction) admeasuring 13.78 Sft. with one car parking in cellar with undivided share of 31 Sq. yards of land out of total land admeasuring 4 acres 24.41 guntas for a total sale consideration of Rs.44,22,800/- including car parking amount of Rs.1,50,000/-, but excluding sales tax; that prior to the sale deed the complainant booked the flat and as on the date 13.06.2012 altogether paid 95% of the total consideration excluding the car parking amount; that the opposite party agreed to deliver possession by 31.03.2014 with a grace period of six months and in case of failure to do so, agreed to pay Rs.5/- per Sft. per month till the date of delivery of possession; that the complainant signed the agreement of sale without properly going through the contents; that on subsequent perusal of the agreement of sale shows that, the terms and conditions are prepared in a one sided manner to favour the opposite parties which are nothing but unfair trade practices; that as against established legal principles the opposite party is charging amount for providing car parking when it shall be provided by default; that retaining amount paid towards club house and claiming ownership rights over the same; that location of swimming pool from the ground to top of the apartment and selling the ear marked area of the swimming pool, for providing car parking’s; that provided escape ladder in between units 14 and 15 of the tower-I from ground floor to 16th floor, without consent thereby it resulted loss of privacy and safety to the respective purchasers and also compromising safety of one room which is against the sanctioned plan; that not paid the rentals for the delay in delivery of possession except for few months, for the period from September, 2014 to till the date of handing over of possession; that made in inferior constructions; that failed to provide mosquitoes nets, magnetic door stoppers, glass partition in the bathrooms, not providing granite top for wash basins, not provided wooden flooring in the master bedroom and few other amenities; that the complainant got issued a legal notice on 12.12.2015 with a demand to rectify the deficiencies, and not to insist for car parking charges, to pay rental charges, besides compensation of Rs.5,00,000/- for causing mental agony but not complied with the demands; hence, the complaint.
3. The brief averments of the written version dt. 21.06.2016 of the opposite party No.1, representing opposite party NO.2 as director are that the complaint is not maintainable either on facts or under law; that opposite party No.1 in the personal capacity is no way liable or responsible for the alleged deficiencies; that M/s. Emami Constructions Pvt. Ltd., is registered under the companies act, 1956 and it is a juristic person; that the complaint is bad for non-joinder of the company which is a necessary party; that opposite party No.1 resigned from the directorship of M/s. Emami Constructions Pvt. Ltd., on 24.09.2015 form DIR 12 which was filed before registrar of companies and recorded in ROC; that the board of directors of the opposite party No.2 passed a resolution authorizing Mr. Reethesh Poddar, S/o. Sri Rajendra Kumar Poddar to defend the company; that complainant is put strict proof of all the averments made in the complaint except those that are admitted; that the complainant having gone through the terms a
