Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member This appeal takes an exception to the order dated 12/06/2007 passed in consumer complaint No.297/2006, Atlanta Arcade Premises Co-op. Society Ltd. V/s. Atlanta Construction Co. Pvt. Ltd. & Ors., by District Consumer Forum, Mumbai Suburban (‘Forum below’ in short). In the instant case, after the society was formed since the builder and developer failed to execute the conveyance as per the provisions of Maharashtra Ownership of Flats Act, 1963 (hereinafter referred to as ‘MOFA’), this consumer complaint was filed after exchange of notices. After receipt of notice, O.P./appellant preferred to remain absent and therefore, the consumer complaint decided ex-parte directing the O.P. to execute the conveyance and also to pay compensation of `1 Lakh and `5,000/- towards costs. Feeling aggrieved thereby, this appeal is preferred by the org. O.Ps. We heard both the parties. We have carefully gone through the record, inter alia including the impugned order and particularly, the agreement with the flat purchasers, which is placed on record. It is submitted that all the flat purchasers’ agreements are identical. Much stress is given on the fact that the O.Ps. were not properly served and therefore, ex-parte order be set aside. Considering the totality of the circumstances of this case, we are not much impressed by this and particularly, because, in a notice reply which was an event prior to filing of the consumer complaint, the builder and developer even showed his willingness to execute conveyance. MOFA also makes it mandatory on the builder and developer once society was registered. Another argument on behalf of the appellants that is advanced before us is that they are willing to execute lease, but not the Sale Deed. We find this argument is also devoid of any substance, particularly, when the character of title possessed by the builder vis-à-vis O.P. is made clear in the agreement with the flat purchasers. Further, instruction of construction for a star hotel i.e. commercial purpose, as could be seen from the agreement with the flat purchasers and the complainant/society, clause (h) on internal page-2 of the agreement is indicated and said provision reads as under:- “(h) In the first phase of construction the promoters have decided to construct a commercial building consisting of basement, ground and five upper storeys on the part/portion of the said land admeasuring 1455.83 sq.meters more particularly described in the Second Schedule hereunder written and shown flushed with red colour on the plan Annexure I hereto (hereinafter referred to as the said portion) utilizing FSI of 15670.44 sq.ft. including stair case and balcony and to be known as “ATLANTA ARCADE” (hereinafter referred to as Building No.1).” This makes it clear what title is possessed by the builder and developer vis-à-vis O.Ps. How much property including the FSI they want to utilize to construct the complainant/society. In view of this, whatever title they possessed is to be conveyed to the complainant/society to the extent mentioned in the flat purchasers’ agreements. Our attention is also invited to clause (n) on internal page-3 of the agreement, which reads as under :- “(n) The Flat Purchaser has demanded from the Promoters and the Promoters have given inspection to the Flat Purchaser of all the documents of title relating to the said land, the plans, designs and specifications prepared by the Promoter’s Architect SHRI BIPIN S. BAROT, Director, Kalpana Consultants Pvt. Ltd. and of such other documents as are specified under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, sale, Management and Transfer) Act, 1963 (hereinafter referred to as ‘MOF’) and the Rules made thereunder.” On the basis of this stipulation, it is submitted that only lease is contemplated and not the Sale Deed. This clause does not stipulate anything of that kind. Thus, we find the appeal devoid of any substance and holding accordingly, we pass the following order :- -: ORDER :- 1. Appeal stands dismissed. 2. In the given circumstances, there shall be no order as to costs. 3. Copies of the order be furnished to the parties. | 
