PRESENT:-
Complainant by Adv. Vinod Sampat
Opponents absent
ORDER
(Per- Mr. S. S. Vyavahare, Hon’ble President.)
1) The complainant has filed this complainant under Section 12 of the Consumer Protection Act, against the opponents for getting compensation, alleging deficiency of service on their part.
2) Facts giving rise to the present complaint in short are as under.
3) The opponent No.1 deals in the construction and development business in the name of M/s. Devnar Construction Co. having its office on the address mentioned in the complaint. Opponent No.2 is the partner of opponent No.1. Opponent No. 3 was partner of opponent No.1 whereas opponent No. 4 to 6 were the landowners. Opponent No.7 is a co-operative housing society registered under Co-operative Society Act having its office at Deonar. Opponent No.8 to 11 are the office bearer of the opponent No.7.
4) During the pendency of the complaint the complainant has deleted opponent No. 3 to 6 from the complaint on 17/09/2014.
5) The complainant is a member of opponent No.7 and in possession of Flat No. 10 in D-Wing of the building of opponent No.7. It is the contention of the complainant that opponent No. 7 was formed in 27/05/1985. According to the complainant since the formation of opponent No.7 time and again the complainant and other flat holders were insisting opponent No. 7 to get the conveyance deed and transfer of property card in the name of opponent No.7 as per the provisions of MOFA it is the statutory responsibility of the builder to execute the conveyance deed and to transfer the title deed of the property of co-operative housing society within four months from the date of its registration. Therefore when the complainant was member of managing committee time and again he had requested opponent No. 7 to exercise its right referred above. However, inspite of repeated request from the complainant and other flat holders neither the opponent No.1 has executed conveyance deed and transfer property card in the name of opponent No.7 nor the opponent No.7 has made any efforts in that effect. According to the complainant his paying maintenance to opponent No.7 and therefore he is a consumer under Section 2(1) (D) of the Consumer Protection Act. At the same time he is beneficiary. It is also contention of the complainant that opponent No.1 has not obtained building completion certificate and he has not submitted the same to opponent No.7. The opponent No.1 by not executing the deed of conveyance in favour of opponent No.7 has indulged in deficiency of service and at the same time opponent No.7 by not exercising its statutory right is also equally responsible for deficiency of service and therefore the complainant has filed present complaint against the opponents calling upon the opponent No.1 to execute the conveyance deed of the property of opponent No.7 and to transfer its title documents in favour of opponent No.7. At the same time complainant is claiming compensation for delay in getting the conveyance deed executed as well as for mental agony.
6) The opponent No.1 has resisted the complaint by filing its written statement whereas opponent No. 7 to 11 have filed their separate written statement. According to opponent No.1 the complainant has filed his complaint against opponent No.1 without any cause of action. The opponent No.1 does not dispute his responsibility to execute the conveyance in favour of co-operative housing society as per the provisions of MOFA. According to him he was always ready and willing to give conveyance of the property to the society. He was also ready to provide certified copies of documents audited statement and structural plan, provided that opponent No. 7 to comply with all requirements in the agreement with reimbursement of the society and to submit the requirement through advocates who he has already provided. According to opponent No.1 entire stamp duty and registration charges and other expenses towards conveyance are required to be paid by opponent No. 7 as a whole. According to opponent No.1 it is opponent No.7 was negligent and unwilling to co-operative opponent No.1 and to obtain the conveyance of property in the favour of society. Therefore opponent No.1 denies any deficiency of service on his part. Opponent No.1 further denies that he has not obtained building completion certificate. According to him he has already obtained building completion certificate and has issued the same to some members of opponent No. 7. However, certain members of opponent No.7 has committed encroachment of common area of opponent No.7 and therefore he has requested opponent No. 7 to remove said encroachment committed by the members before issuing conveyance of property. Therefore opponent No.1 denies any deficiency of service and prays to dismissed the complaint with compensatory cost.
7) Opponent No. 7 to 11 have resisted the complaint by submitting that, the present complaint filed by the complainant is in collusion with opponent No.1 and with intend to harass the opponent No. 7. While admitting the membership of complaint with opponent No. 7, opponent No. 7 to 11 categorically denies that opponent No. 7 was not diligent in exercising it right of conveyance. According to opponent No. 7 the issue regarding the conveyance is subjuidice before competent Civil Court and opponent No. 7 is one of the complainant t in a proceeding before Civil Court. According to opponent No. 7 the original land owner Mrs. Roshan Balsara who is opponent No. 4 has expired on 09/02/2000 and therefore due to the death of original owner the power of attorney granted in favour of opponent No. 1 is no more in force. Opponent No.1 further submits that there are two firms with identical name with slight difference in spelling. Devnar Construction Co. having certificate of registration bearing No. B-89961consist of various partners and one Mr. Dinshaw Ardeshir Irani joint as a partner on 01/04/1990. Deonar Construction Co. is another registered firm bearing registration No. B-86241 consisting various partners in which Mr. Dinshaw Ardeshir Irani is not listed as a partner. Opponent No. 7 further states that there was some collusive litigation between original landowners and opponent No.1 that is Devnar Construction Co. The said matter is pending before High Court in Suit No. 1664/1987 in the said suit consent terms were filed and executed and consent decree was drawn. The said consent decree has been signed by Mr. Dinshaw Ardershir Irani as a partner on 15/02/1998. However, said Dinshaw Irani became the partner of the firm on 01/04/1990. However, he has signed the consent terms on 25/02/1988 in the capacity of partner of opponent No.1 which goes unsaying that consent decree was obtained by opponent No. 1 by fraud.
8) Opponent No.7 further submits that, opponent No.1 is claiming to be acting on the strength of power of attorney executed by land owners. However landowners have appointed one Mr. Noushir Irani and Mr. Chander Hemdas Devani as their constitute attorney the signature and date on said power of attorney shows that the stamp was purchased in the year 1981 whereas Mr. Ardeshir Balsara has signed the same on 22/10/1982. Mrs. Roshan Balsara and Mr. Ardeshir Balsara have signed the documents before notary in London. One Mrs. Roshan Balsara has again signed the documents in Mumbai on 01/03/19888, whereas Mr. Pheroz Balsara has not signed the documents. Moreover, said power of attorney is unregistered and therefore it is illegal. Therefore opponent No. 7 further submits that there are no documents on record to establish how constituted attorneys have passed on the right and title in the land to opponent No.1. Opponent No. 7 further states that on 14/05/2005 Deonar Construction has asked opponent No.7 to take conveyance of the property. However, said letter is not signed by opponent No.1. According to opponent No.7 the bye-laws of the society provide for deemed conveyance. The issue regarding deemed conveyance in Special Emergency General Meeting of society on 16/04/2011. The resolution to that effect was passed and it was decided to obtain the conveyance by new procedure and therefore the application as already made to competent authority. According to opponent No.7 since the issue regarding the conveyance was subjuidice in multiple proceedings before competent Civil Court and before present Forum. It cannot be said that opponent No. 7 was not vigilant in getting the conveyance of the property.
9) The opponent No. 7 further submits that complainant himself was member of managing committee of opponent No. 7 for more than 15 years however during his period he did not make any efforts to obtain the conveyance of the property. On the contrary the opponent No. 7 who was always interested and willing to obtain the valid conveyance of agreed area of the land specified in second schedule of the agreement for sale of flat. Therefore opponent No. 7 denies any deficiency of service and prays to reject the complaint. Opponent N. 8 to 11 have adopted the written statement of opponent No. 7.
10) On respective contentions of the parties following points arise for our consideration. Our findings are recorded against the same.
POINTS
- Does the complainant prove that opponents have indulged in deficiency of service in not getting the execution of property of opponent No. 7? No.
- Whether complaint is entitled to get compensation? No.
- What order? As per final order.
REASONS
Admitted Facts
11)Before going to the evidence on record it will not be out of place to go through some of the facts which are undisputed.
12)It is admitted position that, during the pendency of complaint opponent No. 7 has applied for getting deemed conveyance and vide order date 14/03/2014 the competent officer has issued deemed conveyance of the property in favour of opponent No.7.
13) In view of above admitted facts it is seen from the relief claimed by the complainant that the complainant has claimed deficiency of service against opponent No. 1 to 6 for not executing conveyance of the property in favour of opponent No. 7 and claimed deficiency against opponent No. 7 to 11 for not exercising the right of conveyance from opponent No. 1 to 6. Since the opponent No. 7 has acquired deemed conveyance of the property of the opponent No.7, the limited point to be decided as to whether complaint is entitled to get compensation for delay for executing the conveyance by opponent No. 1 to 6 and against opponent No. 7 to 11 for causing delay for not exercising the right of conveyance. In order to decide this point, while going through the legal provisions in respects of claiming conveyance, describe in MOFA Act then it is seen that, to issue conveyance of the property of co-operative housing society is the statutory duty of the builder / developer and as per Section 11, Rule 9 of MOFA Act the developer is duty bound to execute the conveyance within four months from the date of registration of co-operative housing society. The perusal of Section 11, Rule 9 of MOFA Act it is crystal clear that the individual flat purchaser does not get any right to claim deficiency of the developers for not executing conveyance in favour of society, whatever rights accretive is in favour of co-operative housing society.
14)Therefore whatever right available to the complainant is to claim deficiency of service against opponent No. 7 for causing delay for exercising its right to get the conveyance If the co-operative housing society can explains the delay or unavoidable circumstances to show why delay has been caused then certainly the complainant cannot claim deficiency of service on the part of co-operative housing society that is opponent No. 7. It is also pertinent to note that ifany dispute pending between the parties is pending before competent authority having larger jurisdiction than consumer Forum then the settled position of Law is that dispute between consumer forum in a narrow jurisdiction does not survive. Our view has been fortified by the judgment of State Commission, Mumbai in the case of Shankar Ganpati Jadhav V/s. Heritage Motors reported in 2012 (2) All MR Journal Page 11 wherein the Hon’ble State Commission has observed that, when the judicial remedy is avail, selection of summary remedy is not permissible/ Keeping in mind the said view of the Hon’ble State Commission, perusal of record it is seen that the contention of opponent No. 7 about the pendency of suit bearing No. 384/2006 filed by opponent No. 7 & others against opponent No.1 for executing of conveyance is pending before Bombay High Court, is not rebutted by the complainant. Therefore it can be safely inferred that the dispute for getting conveyance of the property between opponent No. 7 & opponent No.1 is pending before competent authority having larger jurisdiction and therefore said relief before this forum having narrow jurisdiction does not survive.
15)Considering for a moment that as per Section 3 of Consumer Protection Act this forum has additional jurisdiction to consider the dispute for conveyance even then the opponent No. 7 has demonstrated form the record that, the original land owner Mrs. who is opponent No. 4 has expired on 09/02/2000 and therefore due to the death of original owner the power of attorney granted in favour of opponent No. 1 is no more in force. Opponent No.1 further submits that there are two firms with identical name with slight difference in spelling. B-89961consist of various partners and one Mr. joint as a partner on 01/04/1990. Construction Co. is another registered firm bearing registration No B-86241 various partners in which Mr. is not listed as a partner. Opponent No. 7 further states that there was some collusive litigation between original landowners and opponent No.1 that is Construction Co. The said matter is pending before High Court in Suit No. 1664/1987 in the said suit consent terms were filed and executed and consent decree was drawn. The said consent decree has been signed by Mr. as a partner on 15/02/1998. However, said became the partner of the firm on 01/04/1990. However, he has signed the consent terms on 25/02/1988 in the capacity of partner of opponent No.1 which goes unsaying that consent decree was obtained by opponent No. 1 by fraud. In our considerate opinion the said exercise carried out by opponent No. 7 is sufficient to condone the delay on his part for exercising the right of conveyance. The deemed conveyance obtained by opponent No. 7 in the year 2014 goes unsaying that, the opponent No. 7 was not sitting idle over its rightfor getting conveyance of the property in favour of opponent No. 7. Therefore from any angel we do not find any merits in the matter.
16) Though much hue and cry has been made by the complainant to show that due to the delay for getting conveyance he was compelled to pay exorbitant court fee for getting the conveyance of the property of the society. Even then Clause No. 22 of the agreement of sale specifically shows that, it is the duty of flat holders to pay stamp duty and registration charges of his flat and therefore we do not find any substance in the submission of the complaint.
17)The contention of opponent No. 1 that he has obtained completion certificate is not rebutted by the complainant. On the contrary the complainant has practically not pressed this point.
18)From the above discussion we do not find any merits in the matter. Therefore we decide both points in negative and pass following order.
ORDER
- Complaint is dismissed.
- No order as to cost.
