CHANCHALA THEJOMAYA vs SHEIKH MOHAMMED HANEEF & ORS.

This revision petition has been filed by the petitioner against order dated 21.10.2011 passed by State Commission in Appeal No. 3828/2010- Mrs. Chanchala Thejomaya Vs. Sheikh Mohammed Haneef & Ors.; by which while dismissing appeal, order of District Forum allowing complaint was upheld.

Brief facts of the case are that complainant Nos. 1 to 4/respondent Nos. 1 to 4 are owners of Apartment known as Sukhsagar and complainant No. 5/respondent No. 5 is Apartment Owners Association. It was further alleged that at the time of entering into contract, opposite party/petitioner being promoters and builders, promised to provide two lifts, municipal water supply with underground sump and arrangement for lifting water to the overhead tank, electrical panel, one D.G. set room, car parking slot etc. It was further submitted that in spite of repeated requests, opposite party has not provided all the facilities. Alleging deficiency on the part of opposite party, complainant Nos. 1 to 4 filed complaint before District Forum. Complainant No. 5 was impleaded later on. Opposite party resisted complaint and submitted that complainant Nos. 1 to 4 have already filed civil suit and President of complainant No. 5, has also filed civil suit. It was further submitted that complainants have not paid entire value of the flat and opposite party is ready to provide basic facilities and amenities subject to payment of full

consideration of the flats and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed opposite party to pay Rs. 6,61,958/- alongwith 10% p.a. interest to complainant No. 5 and Rs. 25,000/- to each complainant Nos. 1 to 4 towards compensation alongwith Rs. 5,000/- as cost. Appeal filed by opposite party was dismissed by Learned State Commission vide impugned order against which this revision petition has been filed.

Heard Learned Counsel for the parties and perused record. Learned Counsel for petitioner submitted that as sale consideration is still due in the complaints, petitioner was not required to provide alleged facilities even then Learned District Forum committed error in allowing complaint and Learned State Commission further committed error in dismissing appeal, hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, Learned Counsel for respondents submitted that order passed by Learned State Commission is in accordance with law, hence, revision petition be dismissed.

Initially, complaint was filed by complainant Nos. 1 to 4 which was dismissed by Learned District Forum and during pendency of appeal, complainant No. 5 completed unfinished work and provided aforesaid facilities who was impleaded as complainant No. 5 and later on relief in the complaint was amended and Learned District Forum allowed expenditure incurred by complainant No. 5 in providing aforesaid facilities by allowing complaint.

Learned Counsel for petitioner submitted that as complainants were defaulters in paying dues of the flat, petitioner was not under any obligation to provide all amenities and facilities. He placed reliance on judgment of Hon''ble Supreme Court in (2007) 6 SCC 711- Bangalore Development Authority Vs. Syndicate Bank in which it was observed that if an allottee does not pay all the instalments, he cannot obviously expect completion of construction and developer is not liable for any delay. It is true that as per petitioner, amount is outstanding in complainant Nos. 1 to 4 and civil litigation is also pending between complainant Ns. 1 to 4 and opposite party, complainant Nos. 1 to 4 are not entitled to any relief in the complaint. Learned District Forum has granted Rs. 25,000/- to each of the complainant as compensation which is not in accordance with law because if complainants themselves are defaulters in making payment, they cannot claim facilities. From perusal of statements of parties before District Forum, it becomes clear that complainant Nos. 1 to 4 have not made full payment and amount is still due in them. In such circumstances, in the light of judgment of Hon''be Supreme Court in Bangalore Development Authority (supra) , complainants are not entitled to any compensation. Learned District Forum allowed expenditure incurred by complainant No. 5 in providing facilities. Learned Counsel for respondent has drawn my attention towards Deed of Declaration under Section 2 of Karnataka Apartment Ownership Act, 1972, by which petitioner agreed to provide common facilities of two lifts, municipal water supply with underground sump and arrangement for lifting water to the overhead tank, electrical panel, one D.G. set room, car parking slot etc. As petitioner failed to provide these facilities, Association of Apartment Owners rightly incurred expenditure in providing these facilities and Learned District Forum has not committed any error in allowing complaint to this extent and Learned State Commission has rightly dismissed appeal to this extent and revision petition is liable to be dismissed to this extent. Consequently, revision petition filed by the petitioner is partly allowed and impugned order dated 21.10.2011 passed by Learned State Commission in Appeal No. 3828/2010- Mrs. Chanchala Thejomaya Vs. Sheikh Mohammed Haneef & Ors.; and order of District Forum dated 31.5.2010 passed in Complaint No. 43/2004- Sheikh Mohammed Haneef & Ors. Vs. Mrs. Chanchala Thejomaya ; is modified and compensation of Rs. 25,000/- granted to each complainant Nos. 1 to 4 is set aside and rest of the order is affirmed.

Petitioner is free to initiate action against complainant Nos. 1 to 4 for recovery of outstanding dues. There shall be no order as to costs.