Advocate Mrs. Supriya R. Joshi for the complainants
Advocate Mr. Anil G. Sardesai for the Opposite Party
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 20th March 2013
This complaint is filed by four Housing Societies against the Promoter and Developer for deficiency in service. Brief facts are as follows-
[1] The Societies are registered under the Maharashtra Co-Operative Societies Act 1960. The Opposite Party is Developer. There are in all 369 flat holders including shop owners. The Opposite Party has executed agreements in favour of each flat holder. In the year 1999 one of the Member of the Society No.3 has filed complaint against the Opposite Party which was allowed and the Opposite Party was directed to execute conveyance deed by collecting the entire record from the flat holders. However the Opposite Party has not complied with that order and not executed the conveyance deed. Now all the societies have asked the same relief from the Opposite Party as the same is not ready to comply with the order. The complainants have asked compensation of Rs.18,00,000/- along with interest @ 18 % p.a. for non execution of conveyance deed. They have also asked for directions to the Opposite Party for executing the conveyance deed.
[2] The Opposite Party appeared and resisted the claim. According to the Opposite Party the complaint is not maintainable as all the parties are not made party to the present complaint. It is further contended that the flat holders have not supplied the record showing that they have paid the stamp duty and registration charges. Hence Opposite Party could not comply with the order in the previous complaint. It is also submitted on behalf of the Opposite Party that as per the agreements the flat holders have to file affidavits as per the provisions of section 20 of Urban and Ceiling Act 1976 stating that they will not transfer the said flats within a period of five years. The complainants themselves are guilty for non compliance hence they are not entitled for the relief as claimed. The Opposite Party has prayed for dismissal of the complaint.
[3] After considering the pleadings of both the parties and scrutinizing the documentary evidence as well as hearing the argument of both counsel following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainants have proved that the Opposite Party has failed to execute conveyance deed and caused deficiency in service ? | In the affirmative |
2 | What order ? | Complaint is allowed |
REASONS:
The admitted facts in the present proceeding are that the Opposite Party has constructed the flats in dispute and in all four societies have been registered as per the provisions of Maharashtra State Co-Operative Societies Act. As it reveals from the Judgment in complaint No. 1343/1999 one of the flat holder has filed complaint against the Opposite Party and Opposite Party was directed to issue notice to the Co-operative Housing Society and its Members for collecting the documents and execute the conveyance deed in favour of the society. Admittedly that Order is not complied. Now all the four Co-operative Housing Societies have joined and filed the present complaint. One of the contentions of the Opposite Party is that the complainants have not supplied the documents which are required for the purpose of conveyance deed such as proof showing that all the flat holders have paid stamp duty and registration charges. For that purpose the Opposite Party has called the Index II extract of all the flat holders. It is significant to note that the Opposite Party itself had executed those agreements. It is not in dispute that all these documents are registered documents and certified copies of these documents are easily available as these are public documents. The complainants have produced Index II extracts of all the transactions and also supplied copies to the Opposite Party. Thus it is crystal clear that the complainant societies have complied with their part.
The second contention of the Opposite Party is that the flat holders have not filed affidavit stating that they have not transferred the flats as per the provisions of section 20 of the Urban and Ceiling Act. It is significant to note that the alleged societies have been registered long back. All the flats were sold out prior to 2009. The period of prohibition for transfer was five years. More over the Urban and Ceiling Act itself is not in existence at present. In such circumstances the excuse pleaded by the Opposite Party for non executing the conveyance deed cannot be considered. If any flat holder has transferred the flat in contravention of the provisions of the said Act he will suffer for the consequences and the State Government will take appropriate action against him. But this fact cannot be considered for non execution of conveyance deed.
In the light of this discussion I held that the complainants have proved that the Opposite Party has caused deficiency in service by non executing conveyance deed. Hence I held that the complainants are entitled for the relief of execution of conveyance deed from the Opposite Party. It is significant to note that this proceeding of execution of conveyance deed is lingering since 14/06/2004 i.e. from the date of the Judgment in the complaint No. PDF/1343/1999. Hence complainants are entitled for adequate compensation for non compliance i.e. to the tune of Rs.1,00,000/- in lumpsum. The complainants have also asked other reliefs i.e. the benefit such as FSI and TDR etc. But if these benefits are not available in the agreement these cannot be given to the complainant societies.
I answer the points accordingly and pass the following order –
:- ORDER :-
1. The complaint is partly allowed.
2. It is hereby declared that the Opposite Party has caused deficiency in service by non executing conveyance deed in favour of the complainant societies.
3. The Opposite Party is directed to execute the conveyance deed in favour of the complainant societies within three months from the date of the Order.
4. The Opposite Party is directed to pay compensation of Rs.1,00,000/- to the complainants societies for physical and mental torture and costs of Rs.10,000/- for the present litigation within three months from the date of the Order.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 20/03/2013
