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TMI Blog2021 (3) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Care Pvt. Ltd (2nd Respondent) will provide services to the purchasers and also to other residents of Serene Rose for which a separate Services Agreement will be signed by the purchasers, the SSC (2nd Respondent) as well as the DEVELOPER (1st Respondent) along with this Agreement. This Construction Agreement with the Allottee Thiru A.K. Ragothaman has been executed on 16.09.2015 - It is also seen that the 1 st Respondent Promoter as Power of Attorney Holder of the lands on which this Project is developed has sold 25,746 sq.ft. of undivided share of land to the 2nd Respondent the Service Provider and executed the sale deed dated 27.10.2017. This act of sale by the 1st Respondent Promoter is not only in contravention of the Section 17 of the RERA Act, but also against the provision in the Construction Agreement in para-22, 23 and 24 specifying the eligible person to whom the undivided share in the project can be sold. It is also seen from the Construction Agreement executed with the Allottees of this Project that the Club House is a common facility and the sale consideration paid for the construction of the flat and common amenities and facilities includes the Club House. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating RERA Rules. 3. The Complainant Association has also stated that while the 1st Respondent registered with RERA another project of construction of 28 Villas at Perur, Chetty Palayam Village, Coimbatore vide SI.No. 110 of 2017, the 1st Respondent has mentioned the current status of Serene Rose as 'nearing completion' and also the 'residential project as completed and handed over' which are statements contradicting each other. 4. The Complainant Association has stated in the Complaint that the common facilities viz. Boundary wall, Medical Centre, Staff quarters, STP, Roads and Gardens which were promised are still not constructed and no effort was made by the Respondent Promoter to improve the infrastructure (incomplete structure of Block-B standing bare for long time, growth of wild bushes within the Complex). Thus the project is still incomplete. Also there are many defects in the occupied flats like leakages, blocked/choked pipelines, unfinished painting works, unfinished tile work, etc. which were brought to the notice of the Respondent Promoter and still not attended by them. The Complainant Association has sought the following reliefs: a. To enf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded over to the Service Provider as per the Agreement who is efficiently maintaining the same. 8. Regarding the staff quarters, the 1st Respondent has submitted that since the scheme as such has not been completed, two units have been taken on rent and converted into staff quarters and the rent is being borne by the Respondent/Service Provider, without adding the same to the maintenance charges collected from the Owners. The 1st Respondent also has denied that the Respondent has sold the amenities to the service provider and it is to be mentioned that the scheme was envisaged in a manner that the Developer being this Respondent shall restrict itself to the developmental activities including providing the amenities in the scheme. Since the amenities need to be maintained, the said amenities are transferred to the Service Provider who maintains the same for and on behalf of the Owners of the Scheme. The said amenities are for the common interest of the Owners of the scheme and form part of the services agreed to be taken care of by the service provider from and out of the maintenance charges collected by it. The said conditions have been clearly spelt out in the Agreement for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Provider (M/s. Serene Senior Care P. Ltd) and the compulsions to shift as early as possible from rented accommodations. Assurances were given in a meeting convened on 08.05.2017 that all works connected with Block 'A' and 'C' and infrastructure will be completed by end July, 2017. But the works dragged on further till October, 2017 and electric supply from TNEB source was provided in February, 2018 only. The Sewage Treatment Plant is not functioning and the black water drained out in open area / pits. Also they have submitted that as per RERA Rules, the common amenities / facilities should be handed over to the Residents Welfare Association by the Promoter within 30 days of completion. They have also stated that the defects were brought to the notice of the Promoter from early days, well within 1 year of taking over (copy of few correspondence - mail dated 20.09,2018/02.10.2018-[Annexure 10 of this Rejoinder] from the Association Secretary listing complaints in various flats attached) and the Promoter has not attended to most of the major items so far. 13. The Complainants Association also submitted that the property tax was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get these facilities maintained by using the Service Provider. 16. The Complainant Association has filed their Affidavit impleading the Respondent No.2 i.e. Columbia Pacific Communities P. Ltd. (previously known as Serene Senior Care P Ltd.) and prayed for the following: a) Operation of Sewage plant shall be completed and treated water shall be disposed properly. b) Long pending complaints of individual owners shall be attended to c) Construction of the boundary walls in around and the plot, medical centre, approach and inner roads and gardens as seen in approved drawing of Layout and catalogue shall be completed d) Temporary cordoning - by sheet fence around construction are (Block-B now) shall be done e) All other temporary structures (buildings, labour tenements, fences inside compound) shall be removed. All above shall be completed in 1 month time. f) The following also shall be built which are requirements of Ministry of Defence and Govt. of Tamil Nadu. (i) Standard Obstruction lights on top of the Building (Aircraft warning lights) (ii) Garbage treatment plant for avoiding bird activity (Ref; MOD letter dated 13.10.2011) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not maintainable before this Authority as the Act cannot be invoked retrospectively. The 2nd Respondent also stated that a mere reading of the Act would show that the service provider is not falling within the purview of the Act, unlike the Builder and the Flat Owners and no claim or remedy could be made before this Forum. It is well settled law, when there is a separate Agreement between the parties, such Agreement binds the parties and common law cannot supersede the same. 19. The 2nd Respondent further submitted that the Construction Agreement between the 1st Respondent and each Flat Owner, makes it clear that Columbia Pacific Communities Pvt. Ltd. (2nd Respondent) is to be the service provider and the Hat Owners while entering the Construction Agreement had full knowledge that the 2nd Respondent will be the Service Provider and having accepted the above terms and conditions had inked the Agreement and thus it is false and misleading to state in the Complaint that they were not aware of this Respondent as Service Provider 20. The 2nd Respondent also denied that in Clause 6(f) at page 181 of the Agreement, Maintenance of Common Area shall be handed over to the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, guest house, Medical centre, etc, The Developer had only constructed 2 Blocks (AC) with 40 apartments in 'A' and 48 apartments in 'C' Block. Of them 68 were sold and handed over to the clients. Out of 68 handed over apartments, only 38 clients have occupied, and the remaining remain unoccupied. 23. The 2nd Respondent has further submitted that they have invested in constructing the common amenities and are maintaining the infrastructures needed for the entire project viz. 175 apartments. Since the project is not complete and only 38 clients have occupied and the rest unoccupied, they are facing a loss of approximately ₹ 3,50,000/- per month for the past two year and yet they are continuing the services. Also they are providing the service to the flat owners as per the Service Agreement entered into with each flat owner strictly to the quality and norms. It is pertinent to note that there is no single whisper in the complaint that this provider is in fault in providing the service and even if such claim is made the remedy available to the flat owners is elsewhere. 24. The 2nd Respondent denies the allegation that the security deposit shall be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per RERA Rules. Service Provider should have been selected by the Residents Association, after the Promoter hands over the common facilities to the Registered/Recognized Association. 27. The Complainant Association also brought to the notice of this Authority that the individual owners of the apartments signed the construction agreement and service agreement with Serene Senior Living Pvt. Ltd. (SSL) and Serene Senior Care Pvt. Ltd. (SSC) when both the companies were under one umbrella and had a common Board of Directors. The owners were assured of seamless services during construction and services thereafter. 28. The Serene Senior Care Pvt. Ltd. unilaterally sold their Company to Columbia Pacific Communities (CPC) when the Serene Rose was not fully completed. This unilateral action has put the owners to severe inconvenience as all issues, major or minor are now being shuttled between these two corporate entities which are under different ownership now. They have also appealed to this Authority to declare that Separate agreements with individuals should be treated as null and void as they are not in line with TNRERA provisions. Residents' Assoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They have stated that the following common facilities are still pending: a) Construction of boundary/ wall b) Sewage Treatment Plant c) Medical Centre and staff quarters d) Walking track e) Garbage treatment plant for avoiding bird activity f) Tower top lighting for aircraft sighting (This is one of the conditions stipulated by the Ministry of Defence while approving the apartments in the Airport area). g) Developing of garden in OSR 31. They have also stated that the sale of land and Club House is not in conformity with laws of RERA and therefore, this sale should be declared null and void. 32. The 1 st Respondent in the written submissions of arguments has stated that the construction of Compound Wall could not be completed due to restriction that were placed due to out-break of Covid-19 pandemic and the same shall be completed by end of this year. The 1st Respondent has further submitted that the Sewage Treatment Plant has been fully commissioned and the maintenance of the same vests with this service provider. Similarly the super structure areas in the common area as listed in the amenities to the Agreement including medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Block-C 2nd and 3rd floor will be delivered for fit-outs by 10.06.2017. The Club House will be handed over to the SSC for fit-outs by 15.06.2017. All other infrastructure will be operational by July 2017 end. SSC will complete fit-outs of the Club House by 15.07.2017 which will be fully operational from 01.08.2017. The Allottees can start living in this project with all amenities by 1st week of August, 2017. These minutes of the meeting has been issued by Thiru V. Kalyanaraman, Chief Operating Officer of the 1st Respondent. No documentary evidence has been produced by the First Respondent to the effect that this project has been completed on or before 01.05.2017. Therefore, it is abundantly clear that the project including all common amenities and facilities were not completed on 01.05.2017. The Hon ble Tamilnadu Real Estate Appellate Tribunal has also ruled in their various orders that the Real Estate Projects including common areas and common amenities and facilities should be completed in all respects in a habitable condition as on 01.05.2017 to qualify as a completed project. Hence, Block-A C including common amenities and facilities promised to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Project, 39. It is seen from the copy of the Construction Agreement for Flat No.C-104 in this Real Estate Project (attached with the Complaint as Annexure-I) that Para-21 of the Construction Agreement states that M/s. Serene Senior Care Pvt. Ltd (2nd Respondent) will provide services to the purchasers and also to other residents of Serene Rose for which a separate Services Agreement will be signed by the purchasers, the SSC (2nd Respondent) as well as the DEVELOPER (1st Respondent) along with this Agreement. This Construction Agreement with the Allottee Thiru A.K. Ragothaman has been executed on 16.09.2015. As this Authority has held that this Real Estate Project is an on-going project which will come under the purview of the Real Estate (Regulation and Development) Act, 2016 and also the Phases-B D of this Project have also been registered with this Authority already, the responsibility of maintenance of common areas and common amenities and facilities has to be with the Association of Allottees only under Section 11 (4) (d) of the Act, which alone can enter into Service Contract with various Service Providers for provision of various ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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