The High Court
Case Details
- 1 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2025 PRESENT THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE T.M.NADAF RERA APPEAL NO.18 OF 2025 BETWEEN: M/S STERLING URBAN VENTURES PVT. LTD., LEVEL 5, PRESTIGE NEBULA, NO.8, CUBBON ROAD, OPP. IT OFFICE, BANGALORE - 560 001. (REPRESENTED BY ITS DIRECTOR MR. SHANKAR SASTRI). (BY SRI. M ARUN PONAPPA, ADVOCATE) …APPELLANT Digitally signed by MADHUSHREE H Location: High Court of Karnataka AND: 1. MR. AMIT KUMAR SHARMA 2. MRS. ANUSHKA SHARMA, BOTH RESIDING AT T 5092, STERLING ASCENTIA, OPP. ECOSPACE, ORR, BELLANDUR, BANGALORE - 560 103. 3. KARNATAKA REAL ESTATE REGULATORY AUTHORITY, 1/14, 2ND FLOOR, (SOUTH WING) SILVER JUBILEE BLOCK, BEHIND UNITY BUILDING CSI COMPOUND, 3RD CROSS, MISSION ROAD, - 2 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 BANGALORE - 560 027. (REPRESENTED BY ITS SECRETARY). …RESPONDENTS THIS RERA APPEAL IS FILED UNDER SECTION 58 OF THE REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016 PRAYING TO CALL FOR THE ENTIRE RECORDS OF THE PROCEEDINGS IN THE APPEAL NO.(K-REAT) 91/2023 BEFORE THE KARNATAKA REAL ESTATE APPELLATE TRIBUNAL, BANGALORE AND SET ASIDE THE IMPUGNED JUDGMENT DATED 10.01.2025 PASSED IN APPEAL NO.(K-REAT) 91/2023. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO and HON'BLE MR JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR JUSTICE V KAMESWAR RAO) This appeal lays a challenge to an order dated 10.01.2025, passed by the Karnataka Real Estate Appellate Tribunal, Bengaluru (‘the Tribunal’ for short) in Appeal No.(K-REAT) 91 of 2023. 2. The Tribunal has dismissed the appeal filed by the appellant herein challenging the order dated 27.04.2023, passed by the Karnataka Real Estate Regulatory Authority (‘the Authority’ for short) in - 3 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 complaint filed by respondent Nos.1 and 2 in this appeal, as they have purchased an apartment in the real estate project known as ‘Sterling Ascentia’ developed by the appellant. He has filed complaint under Section 31 of the Real Estate (Regulation and Development) Act, 2016, praying to grant compensation for not providing amenities and structural defects. The Adjudicating Officer of the Authority allowed the complaint and directed the promoter to pay the following: i. Compensation of Rs.1,000/- per month to the complainant from 16.02.2021 till providing of club house; ii. Compensation of Rs.500/- per month to the complainant from 16.02.2021 till providing of promised amenities like basket ball and tennis courts etc.; iii. An amount of Rs.1,00,000/- with 6% interest per annum on the said amount of Rs.1,00,000/- from 01.09.2022 till payment as compensation towards pain and agony; iv. An amount of Rs.5,000/- to the complainant towards cost of litigation. - 4 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 3. Challenging the order only to the extent where the Authority has directed the appellant to pay a sum of Rs.1,00,000/- with interest at 6% p.a. as compensation towards mental pain and agony, the promoter has filed the appeal before the Tribunal. On the said issue, the Tribunal has, in paragraphs No.7 to 17, come to the following conclusion:
Legal Reasoning
“7. Point No. (i):- Before adverting into the point in controversy, first of all it is necessary to facts. The Allottee had notice the undisputed purchased an apartment constructed and developed by the Promoter in the project "Sterling Ascentia", on the converted lands bearing Sy. Nos. 46/1 (20 guntas), portion of Sy.No.46/2 (31 guntas), portion of Sy. No. 47 (4 guntas) of Devarabeesanahalli Village and the lands being the portion of Sy. Nos. 11 (23 guntas) (part), 18/2 (38 guntas) 18/3 (7.5 guntas) 19/1 (7 guntas), 19/2 (6 guntas), 19/3 (37 guntas), 19/4 (19 guntas), 19/5 (20 guntas) and 19/7 (14 guntas) in all measuring 5 acres and 26.5 guntas excluding kharab land, all situated at Bellandur Village of Varthur Hobli, earlier Bangalore South Taluk now Bangalore East Taluk in Bellandur Ward No.150, Marathalli Sub Division within the administrative jurisdiction of Bruhat Bangalore Mahanagara Palike, Bangalore. 8. As far as this appeal is concerned the contention of the Promoter is that, during the torrential rains during July/August 2022, the entire Bellandur area where the project is situated was inundated/flooded with water, which breached from the nearby lakes, further compounded by the fact that all the storm water drains and the Rajakaluves - 5 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 were completely clogged due to the apathy of the BBMP and the civic authorities, resulting in the water rising upto seven feet from the road level and entering the property despite the presence of five feet retaining wall around the property. to the the completion of flooding, time of 9. The further contention of the Promoter is that at the time of sanctioning the plan, only the structures are constructed and the compound wall of the residential complex is not required to be Praised while the construction is in progress and the same is the built subsequent construction. At the construction of the residential complex had not been there was no Statutory fully completed and obligation on the Promoter to put up any compound wall. The existing compound wall and the gate in the rear side of the project through which the flood water quashed into the residential complex was a temporary structure which was built at the instance of the residents. The Promoter has neither received any letter from the Association nor objection from any of the residents for using the said gate Further, if the Promoter were to use the front gate to bring in the construction materials, it would cause grave hardship and inconvenience to the residents of Tower 5 & 6. In order not to inconvenience the residents of Tower 5 & 6, the Promoter has opened the gate at the rear side of the project to bring in the construction material, keeping in mind the welfare, safety and well-being of the residents of Tower 5 & 6. 10. The Promoter has further contended that, even though the Authority despite coming to the clear conclusion that, the flooding occurred due to the unprecedented rains and an Act of God/force majeure, which was beyond the control of the Promoter, the learned Adjudicating Officer erred in granting Rs.1,00,000/- with interest at 6% per annum from 01.09.2022 till payment, towards pain and agony. The finding is contradictory to his own conviction, vague, whimsical, without any cogent - 6 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 reasoning and highly unjustified, especially after already having adequately compensated the Allottee. The impugned judgment so far as relates to the grant of compensation to the tune of Rs.1,00,000/- with interest at 6% per annum from 01.09.2022 upto date, not being a reasoned and speaking order, taking into consideration the factual situation, the impugned order is liable to be set aside. 11. To substantiate his arguments, the learned counsel for Promoter has relied on the division bench decision of Kerala High Court in the case of N. Narayanan Bhattathirippad Vs. Trav.-Co. Govt. reported in 1955 SCC OnLine Ker 65. Relying on the law laid down by House of Lords in the case of Rylands Vs. Fletcher and Nichols Vs. Marsland, Hon'ble High Court of Kerala has discussed the theory of Vismajor i.e., Act of God in length.. However, in the reported decision it has clearly held that, at the instance of the Appellant therein the dam was constructed to facilitate them to raise an that additional crop of paddy and extraordinary rainfall was an Act of God was negatived. the plea 12. Refuting each and every contentions taken by the Promoter, the Allottee has taken contention that, the compensation awarded by Adjudicating Officer for the agony faced by the Allottee was not only due to flooding alone, but also due to delay in providing certain promised amenities. He further contended that, the Promoter broke open the temporary gate on the rear side of the apartment to facilitate some other construction of himself, which exacerbated the severity of the flooding. He further argued that, the Promoter sold land meant for Tower 1 and 2 to some of the developer, which was originally the part of the present project. As a result of which, some of the land meant for the parking area and amphitheatre which were part of the project, are no more provided for. As such the promised promoter towards responsibility in paying compensation cannot shirk from its - 7 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 mental pain and agony and inconvenience caused to the allottee and thereby supports the findings given by the Authority. 13. In this background of the matter we have carefully gone through the materials facts placed before the Tribunal, as well as the order impugned. In para No.12 of the impugned order the learned Adjudicating Officer has made his observation that, the materials facts and circumstances of the case evidences that the Allottee and other residents of the Towers 5 & 6 suffered mental pain and agony not only because of flooding but because of acts of the Promoter. Admittedly the Promoter has opened the temporary gate removing the wall on the back side of the apartment complex next to under construction Towers - 3 & 4 against the sanctioned plan. Under the circumstances the possibility of flood water entering into project causing damage to the STP, WTP, DG Gen-set, lifts etc., in the basement of Towers 5 & 6 cannot be over ruled as submitted by the Allottee. The materials on records evidences that in the month of September 2022 the flood water in the basement of Towers- 5 & 6 drained out and STP, WTP, DG Genst, lifts etc., are restored back, which took not less than a week time during that time the possibility of Allottee and the residents of the society suffering from mental pain and agony cannot be over ruled. That apart the Promoter having obtained partial OC for the Towers 5 & 6 till date has not provided the promised amenities, which may also caused mental pain and agony to the Allottee and the other residents of the society in the Towers-5 & 6 of the project. Therefore, it is just and proper to direct the Promoter to pay Rs. 1,00,000/- with 6% interest per annum on the said amount of Rs. 1,00,000/- from 01.09.2022 till payment of the said amount to the Allottee as compensation towards mental pain and agony. 14. As discussed earlier it is the contention of the Promoter that, all the storm water drains and the Rajakaluves were completely clogged due to the - 8 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 apathy of the BBMP and the civic authorities, resulting in the water rising upto seven feet from the road level and entering into the property despite the presence of five feet retaining wall around the property and thereby tried to shift the burden on BBMP. But opening of the gate on the rear side of the apartment has not been denied. Added to that, in para 6(d) of the appeal memo, the promoter has taken contention that, the compound wall and the gate in the rear side was only a temporary structure, built at the instance of the residents. 15. On perusal of the number of colour photographs furnished by the allottee, it is crystal clear that through the said opening the rain water gushed into the basement, wherein vehicles were parked and it took considerable time to pullout the rain water and thereby the residents of the said towers sustained loss and suffered mental agony. 16. As stated earlier the Promoter had taken categorical stand that, due to unusual heavy rainfall the entire area was flooded with water. It is nothing but Act of God and the promoter cannot be penalized for the natural calamities. However, the Allottee has taken specific contention that, as the promoter abruptly removed the compound wall, the rain water stagnated outside project, exacerbated the severity of water force. Further contended that, the residents of neighboring apartment were not affected by rain water as their project is covered by compound wall. It is his further contention that, as and when they were affected by flood water, the promoter did not take any trouble to let out the flood water and the residents of the apartment with the help of BBMP officials made their endeavor to remove the water. Though the allegations were denied by the Promoter, the sequence of events and the number of photographs furnished by the Allottee makes it clear that, there is substantial force in the contentions of the Allottee. One more thing for consideration is that, if the compound on the rear side was not broken or it was re-constructed well in advance, such - 9 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 untoward incident could not have occurred. Hence looking from any angle, the sum of Rs.1,00,000/- with 6% interest thereon as compensation awarded by the Adjudicating Officer is just and fair and there is no grounds to interfere with the well reasoned order. Hence, appeal is devoid of merits and is liable to be dismissed. 17. For the foregoing reasons, we answer the point (i) in the negative holding that the Appellant- Promoter has failed prove that the Authority was not justified in directing the Promoter to pay a sum of Rs.1,00,000/- with interest at the rate of 6% per annum, as compensation towards mental pain and agony. … … … … … xx xx xx xx xx ” 4.
Legal Reasoning
The submission of Sri.M.Arun Ponnappa, learned counsel for the appellant primarily is, the Authority/Tribunal could not have granted the compensation amount, that too with 6% p.a. when there is no fault on the part of the appellant which can entail the award of Rs.1,00,000/- as damages. In this regard, it is submitted by the counsel that, the primary reason for the Authority/Tribunal to grant the said amount is for the reason that, water has seeped into the basement, resulting in the damage to the cars, two-wheelers, STP and WTP systems which were located therein. According to him, during the torrential rains during July-August, - 10 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 2022, the entire Bellandur area where the project is situated was inundated/flooded with water, which breached from the nearby lakes, further compounded by the fact that all the storm water drains and the Rajakaluves were completely clogged due to the apathy of the BBMP and the civic authorities, resulting in the water rising from the road level and entering the property, despite the presence of five feet retaining wall around the property. Further, it was brought to the notice of the learned Adjudicating Officer that the rain water would have anyway flooded the property on account of the situation that existed at that point in time, regardless and notwithstanding the fact of the gate being opened as alleged by first respondent. In paragraph No.9 of the judgment passed by the Adjudicating Officer, he has clearly come to the conclusion as under: “9. xxx The pleadings of the parties and submission of the complainant and the learned counsel for the respondent as also the above discussed materials on record makes it clear that in the year 2022 in - 11 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 general and in the months of July/August/September 2022 in particular, there was heavy rain as a result the basement of the project including the basement areas of Towers 5 & 6 was submerged in flood water, later the same was drained out by the respondent, consequently STP. WTP, DG Genset, Lifts, were restored after one week period. As rightly submitted by the learned counsel for the respondent in the months July to September 2022 there was unprecedented rain in and around Bangalore City which also reported in daily newspapers and televisions, as such, there is substance in the argument of the learned counsel for the respondent in that regard". 5. On this, the learned counsel for the appellant submits that, despite bringing to the notice of the learned Adjudicating Officer and also to the notice of the Appellate Authority that regardless of the gate being opened on the northern side of the property, the flood water, which was flowing abnormally from the road level, would have entered the property, the said aspect has been overlooked. The flooding was on account of the fury of nature and not a disaster designed by the appellant, in other words, act of god/force majeure, which was - 12 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 completely beyond the control of the appellant. Despite relying on number of decisions with regard to force- majeure/act of god, the adjudicating officer passed the judgment, contrary to the documentary evidence on record and the factual situation that existed as on that day and against the judicial precedents quoted. The said finding was challenged before the Appellate Tribunal and the same defense was reiterated before the said authority, but the Appellate Tribunal has, without any application of mind and in a casual manner dismissed the appeal, without any re-appreciation of law, facts and the documentary evidence on record, which requires the intervention of this Court. 6. To buttress his argument, Sri.Arun M. Ponnappa, relied on the following judgments: i) John Rylands and Jehu Horrocks / Thomas Fletcher (House of Lords) – SCC Online (L.R) 3 H.L.330 ii) Nichols / Marsland (18762)(All E.R. Reporter) iii) 1955 SCC Online Kerala 65 : AIR 1956 TC 225. - 13 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 7. We are unable to accept the said submission of learned counsel for the appellant for the simple reason that, the Authority has given a finding of fact in paragraph Nos.11 and 12 of its order and also the Tribunal did not believe the case set-up by the appellant that it was because of unusual heavy rainfall that an entire area was flooded with water resulting in the damage. 8. From the above, it is clear that, the plea taken by the appellant that the flooding is an act of God, was not believed by the Authority/Tribunal. In fact, there is a finding of fact that the basement in the adjacent project was not inundated with water as was sought to be put. In fact, there is also a finding of fact, that there is an opening of the temporary gate by the appellant. Hence, to that extent it cannot be construed as an act of God. That apart, it is conceded by the counsel for the appellant that some of the amenities were not provided at the time of handing over of the flats to the respondent, but the same were provided with delay. So, the Authority/Tribunal has, - 14 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 on cumulative consideration of the facts, granted the compensation of Rs.1,00,000/- over and above the monthly damages for club house and tennis court. 9. The judgments relied by Sri. Ponnappa, are distinguishable on facts and not applicable to the case on hand. As in all cases relied on, there was no fault on the party against whom claim was made on the premise that it was force majeure or act of god, without there being any intervention by the party himself. Least to say in the judgment of John Rylands, referred supra, the answer to the arguments of the appellant lies in paragraph No.2 of the judgment which we reproduced as under: “But if he brings upon his land anything which would not naturally come upon it, and which is in itself dangerous, and may become mischievous if not kept under proper control, though in so doing he may act without personal wilfulness or negligence, he will be liable in damages for any mischief thereby occasioned.” 10. We have already observed in the preceding paragraphs that there is a finding of fact regarding opening of a temporary gate by the appellant which has caused/aggravated the flow of the water in the building, - 15 - NC: 2025:KHC:15105-DB RERA.A No. 18 of 2025 which had in fact not happened in the adjacent project. In these circumstances, the aforesaid judgments relied by the learned counsel for the appellant are of no avail. 11. We are of the view that the order, as challenged, needs no interference. We do not find any merit in the appeal and the same is dismissed. 12. In view of dismissal of the appeal, pending
Decision
application(s), if any, stand disposed of. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (T.M.NADAF) JUDGE JJ List No.: 1 Sl No.: 41