Per HON'ABLE MR. TRYAMBAK A THOOL , MEMBER.
1 The complaint of the Complainant in brief is as follows . The Complainant has purchased flat from Opposite Party in 2009 for Rs 73,00,000/- and he was given the3 possession of the flat . But even after two years the Opposite Party have not give the amenities promised by Opposite Party and has also not provided to the Complainant the car parking space and have also not formed the society and not made the conveyance of the plot in the name of the society and also the building constructed by the Opposite Party is not in proper way and cracks have developed in the building . The Opposite Party has not completed the electrification of the building. Hence for getting the compliances done by the Opposite Party and to get the compensation from the Opposite Party for the deficiency in the services by the Opposite Party the Complainant has come to this forum with this complaint .
2 The Opposite Party has submitted their reply and they have raised various issues and have to tried repudiate claims of the complainant by submitting various arguments such as that Complainant is not consumer , building is on amalgamated plot but other partner has not been made the party to this complaint , that as per agreement car park space can not be given and complainant making allegation after two year after taking the possession and flat is not used for individual use
3 After going through the evidence submitted by both the parties and hearing the oral arguments made by the advocates of the both the parties the following questions have come for decision before the forum
a) Whether the Complainant is consumer of the Opposite Party . Yes
b) Whether the Opposite Party have created any Deficiency in
Service by not providing the facilities to the Complainant . Yes
c) What order ? As per final order given below.
REASONS
4 The complainant as purchased the flat in the name of M/s XYZ securities and financial services and the payment has been made by the complainant and the receipt is issued in the name of the opposite party. Even though the complainant’s a private limited company the flat has been purchased in its name and is therefore the consumer of the opposite party. It could not be proved by complainant that the opposite party is not using the flat for its own use and therefore it is considered that the complainant is consumer of opposite party
5 It is also stated by the opposite party that the original plot was actually belonging to 2 parties and those plots belonging to different parties were amalgamated to make one plot and wing “A” was the in name of opposite party as per the documents produced by opposite party
6 It is also submitted by the opposite party that as per the agreement the complainant is not entitled for independent allotment of the car parking space and such allotment of parking space shall be done by the society whenever the society would be formed and plot and the building shall be handed over to the society similarly the conveyance of the land shall be made in the name of society when society would be formed. This argument of the opposite party is acceptable because this forum could not go beyond the terms and conditions of agreement and force any party to go and act beyond and in contravention to those terms and conditions
7 The opposite party has stated that as per requirement of the law 66% of the flats should have been disposed by the builder before the society could be formed. Since only 20% of the plots have been disposed the society would not be formed but the opposite party is always ready to form the society whenever this requirement is met. Since the society has not been formed the issue of giving the conveyance of the land to the society does not arise. The opposite party is ready and willing to take the steps and give the conveyance to the society of the land as soon as the society’s form
8 The opposite party has also stated that as per the agreement the complainant should have raised the issue of non-compliance of the agreement terms by the opposite party when the complainant to the possession of the flat which he is not done
9 In regard to the allegation by the complainant about the non-working of the lift in the building the opposite party has submitted the certificate of testing of the lift by the competent authority showing the date of testing of the live in the year 2013.
10 However as the society has not been formed it is the responsibility of the builder i.e. the opposite party to maintain the building in the proper condition and therefore any allegations made by the complainant in respect of non-maintenance of the premises are sustainable even if the allegations have been made by the complainant are made after two years from date position of the flat by the complainant
11 Finally after considering all the oral and written arguments from both parties and the citations submitted by the Complainant and Opposite Party and the forum has come to the conclusion that the Complaint by the Complainant is only partly maintainable and therefore the forum passes the following order
ORDER
1. The complaint no. 131 /2011 is partly allowed
2. The prayers relating to car parking space is rejected .
3. The Opposite Party shall repair the damage and also complete the remaining electrification work in the A wing of the building .
4.Passing any order for the complainant’s prayers for formation of the society and conveyance shall be premature , hence no order in that respect .
5 The Opposite Party shall pay to the Complainant the sum of Rs 10,000/- (Ten Thousand Only ) towards the mental agony and also Rs 5000/- (Five Thousands Only ) towards the litigation Charges .
6. Both the parties shall comply with this order within 45 days from the date of outward of the order .
7. Copies of this order shall be given to both the parties free of charge .
Place – Kokan Bhavan, Navi Mumbai.
Date – 28/10/2014
