Abhay Nevagi & Associates for the complainants

Advocate Chinmay Vaidya for the Opponents

Per Hon’ble Shri. V.P. Utpat, President

                                     JUDGMENT

                                Dated 11^thJune 2014

This complaint is filed by the Purchaser against builder and promoter for deficiency in service u/s 12 of the Consumer Protection Act, 1986.  Brief facts are as follows-

[1]            Complainants had entered into an agreement with the Opponents for purchasing Row-house No.14 for Rs.27,94,000/-. Opponents had promised to provide Recreation area/Amenity space on the South side near the entrance gage of the residence of complainants consisting of Club House/Health Club, Swimming Pool, Card Room, Table Tennis, Pool Table and Jogging Track. They have agreed to provide exclusive bus service from the complainants residences to the main roads. They have also agreed to provide Sewage Treatment Plant as per international standards as agreed. They have also agreed to provide Water Filtration Plant as per international standards as agreed. It was agreed to provide water supply from Pune Municipal Corporation and further to provide potable water and sufficient capacity water tank. Evenafter accepting the entire consideration amount, the Opponents have not provided these facilities. Opponents had provided access to the complainants to the swimming pool and play ground which is owned by Vibgyor School. Subsequently the said facility was discontinued. Complainants have purchased the property after seeing brochure. Opponents are under obligation to provide these facilities as per the provisions of Maharashtra Ownership Flats Act which are agreed by them in the agreement. Complainants have required to purchase water eventhough Opponents agreed to provide the potable and sufficient water. As the Opponents could not fulfill the terms and conditions of the agreement the Memorandum of Understanding was signed between complainants and other property holders and Opponents on 22/3/2010, in which Opponents had agreed to execute deed of Apartment, sufficient water supply, proper sewage treatment plant, to construct club house with swimming pool, jogging track and common garden in the amenities area with parking facilities. They have agreed to provide separate store room and toilet block for the servants, watchmen, drivers near the second gate and plantation of trees with approval of PMC on both sides of internal roads. As per the terms and conditions these facilities should have been provided within the period of six months from the date of execution of Memorandum of Understanding. However, the Opponents had failed to comply with the Memorandum of Understanding and that amounts to deficiency in service. Hence, complainants have filed present complaint. Complainants have prayed for directing the Opponents to provide all the facilities and amenities which were agreed by the Opponents in the agreement as well as in the Memorandum of Understanding. Complainants have also asked compensation of Rs.15,50,000/- along with interest @ 12% p.a. Complainants have further asked injunction restraining the Opponents the Opponents from making construction on the property earmarked for club house, swimming pool, common garden and jogging track. Complainant has also prayed for direction of execution of conveyance deed.

[2]            Opponents have resisted the complaint by filing written version. They have denied the contents of complaint in toto. It is flatly denied that the Opponents have caused deficiency in service. It is the case of Opponents that the Pune Municipal Corporation has appointed the authority for the purpose of sanctioning of club house. Subsequently, the said authority was changed by the Pune Municipal Corporation. Hence, they could not construct the club house. It is contended by the Opponents that as regards the recreation area, amenity space on the south side near the entrance gate of the residence of the complainants consisting of club house/health club, swimming pool, card room, table tennis, pool table and jogging track. It is submitted that the project of Opponents is yet in progress and the said work will be completed in near future. It is further contended by the Opponents that, the project of the Opponents is abated by the Bio-Diversity Park which is designed by the Pune Municipal Corporation and the policy which is required for the said plant is not yet confirmed by the Pune Municipal Corporation. Hence, sanction is not given for the construction of club house, swimming pool and other amenities and facilities. It is further contended by the Opponents that it has provided water filtration plant and also installed sufficient water tank. It is flatly denied by the Opponents that they are willfully avoiding to provide the amenities and facilities which are agreed. The Opponents have also contended that the complainants had demanded exorbitant amount of compensation of Rs.15,50,000/- without any sufficient ground and complaint is liable to be dismissed.

[3]            After considering the voluminous documents which are produced by both parties, considering the pleadings, written argument and hearing the argument, following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-

Reasons-

As to the Point Nos. 1 and 2-

[4]            The undisputed facts in the present proceeding are that the complainants have purchased the property which is referred in the complaint from the Opponents. It is not disputed that the complainants have paid entire consideration which was agreed by them in the agreement. It is not disputed by the Opponents that they have not yet provided the facilities such as club house, swimming pool, jogging track and other amenities which are agreed in the agreement as well as in the Memorandum of Understanding. It is the case of the Opponents that due to some technical difficulties they are unable to provide these facilities as Pune Municipal Corporation has not sanctioned these facilities.  Opponents have prayed for revision of the plan. It is significant to note that initially when the plan was sanctioned these facilities were sanctioned by the Pune Municipal Corporation. Opponents have accepted the entire consideration and agreed that they will provide these facilities. In such circumstances, now they cannot avoid to provide the facilities and amenities by saying that the Pune Municipal Corporation is not ready for revising the plan. It appears from the pleadings of Opponents that the Opponents are going to construct second and third phase in the same vicinity and for that purpose place of club house is changed by them and that has required sanction from the Pune Municipal Corporation. It is significant to note that when the plan is sanctioned the builder is not entitled to change the sanctioned plan without consent of purchasers of the flat as well as Row-house etc. In the present proceeding the Opponents are trying to change the place of club house and other facilities that amounts to breach of promise. Evenafter execution of Memorandum of Understanding the Opponents have not provided these facilities to the complainants within the stipulated period. It is argued on behalf of Opponents that as the Corporation is not sanctioning the revised plan, they are unable to provide these facilities. But it is the fault of builder themselves that they have changed the original plan for their own purpose. Now they cannot withdraw from the promise which was given by them at the time of execution of agreement, in the Memorandum of Understanding and in the broucher. In these circumstances this Forum is of the opinion that the Opponents have caused deficiency in service by not providing the facilities within the stipulated period evenafter execution of Memorandum of Understanding. On that count the complainants are entitled for compensation for inconvenience suffered by them as well as for the discomfort suffered by them. It is not disputed by the Opponents that they have not provided bus service from the residence of complainants to the main door. Hence, it is the considered opinion of the Forum that the Opponents have caused deficiency in service by not providing the facilities which are referred in the agreement and in the Memorandum of Understanding. Complainants are entitled for compensation of Rs.50,000/- for deficiency in service, mental and physical sufferings. They are also entitled for cost of Rs.5,000/- for the present proceeding.

                In the result, this Forum answers points accordingly and pass following order-

                                        :- ORDER :-

1. Complaint is partly allowed.
2. It is hereby declared that the Opponents have caused deficiency in service by not providing the facilities such as club house, swimming pool, jogging track etc. as agreed in the agreement and Memorandum of Understanding within the stipulated period and also by not executing conveyance deed.
3. Opponents are jointly and severally directed to provide the facilities as agreed in the agreement and Memorandum of Understanding to the complainants and to execute conveyance deed within three months from the date of receipt of copy of order.
4. Opponents are jointly and severally directed to pay compensation of Rs.50,000/- [Rupees Fifty Thousand only] for deficiency in service and for mental and physical sufferings suffered by the complainants within three months from the date of receipt of copy of order.
5. Opponents are jointly and severally directed to pay amount of Rs.5,000/- [Rupees Five Thousand only] to the complainants towards cost within three months from the date of receipt of copy of order.
6. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.

Copy of order be supplied to both the parties free of cost.

Place – Pune

Date – 11/06/2014