Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member 1. This consumer complaint filed by the 74 flat purchasers of the Co-op. Housing Society in a building developed and constructed by the opponent, which is part and parcel of the larger scheme of the building for Housing complex. The building wherein members of the complainants are housed or the flats are allotted is known as ‘Godrej Garden Enclave- building A-1’. The purchasers of the flats from the said building were put in possession prior to the registration of the complainant society (registration of the society is dated 17/04/2006). 2. It is the contention of the complainant society that as per the agreement with the flat purchasers by the opponent, it failed to discharge its contractual obligation in respect of not providing common amenities particularly, the Club House (inter-alia including Pool room, Table Tennis, Card room, Gymnasium, Swimming pool, Garden/children play area, jogging track and Tennis court). It is further contended on behalf of the complainant that by its letter dated 07/9/2007, opponent committed that such club house facility would be made available by July 2008 but failed to honour said commitment and, therefore, there is deficiency in service on the part of opponent on that count. Compensation of `74,000/- is prayed accordingly. 3. It is further contention of the complainant that from the flat purchasers against allotment of open parking spaces, the opponent had collected `17,80,000/-. Such collection of charges being contrary to the provisions of the Statute, particularly, Maharashtra Ownership Flats Act, 1963 (‘MOFA’ in short); alleging deficiency in service/unfair trade practice on the part of opponents, refund of the said amount of `17,80,000/- along with interest is claimed. 4. It is also alleged that `1 lakh was collected by the opponent from the members of the complainant society as transfer charges and branding collection of such charges illegal, refund of said amount is claimed. 5. It is further alleged by the complainant that as agreed, the opponent failed to provide facility of Video Door Phone/ Video Surveillance system and, therefore, to install such facility at the estimated cost of `5,04,478/-, said amount is claimed. Besides this `50,000/- is prayed as cost of the complaint. 6. Opponent by its written version dated 28/09/2010 denied the averments made in the complaint in toto and denied that they could be held guilty for either deficiency in service or for unfair trade practice. It is now submitted that parking and transfer charges were not shown but only parking charges within their own right and competence were collected and there is no violation of any term of the respective agreements with the flat purchasers. It is also submitted on behalf of the opponent that it was not agreed to provide Video door phone as per the agreements with the respective flat purchasers. Only Video surveillance system and intercom system was agreed to be provided and which in fact has been provided and, thus, there is no deficiency in service on its part. 7. Heard Mr.Anil Kumar Menon-Advocate for the complainant and Mr.U.B.Wavikar-Advocate for the opponent. 8. The documents, particularly, specimen of the agreement entered into with each one of the flat purchasers by the opponent and the correspondence entered into between the parties as well as copies of the receipts in respect of some of the members reflecting recovery of the parking charges and transfer charges are not in dispute. What is in dispute is only the interpretation tried to be advanced by the complainants in respect of these items or issues. 9. It is also not disputed even by the complainants as reflected from the affidavit of its Secretary Mr.Mohammed Atique Khan and the affidavit filed on behalf of the opponent, namely, i.e.Mr.Purvez Kersi Gandhi and from the reply notice of the complainant sent by the opponent dated 16th July 2007 that as agreed per item 10 Schedule 4 of the agreement with the respective flat purchasers, Video surveillance system and the intercom system was provided by the opponent. It was never agreed as per those agreements that any Video door phone system was to be provided. When there is an agreement in writing, what is stated in the brochure is irrelevant. Therefore, no deficiency in service on the part of opponent on this count could be alleged and, thus, complainant failed to establish any deficiency in service on the part of opponent on this count. 10. The clauses 12, 18 and 32 of the agreements with the flat purchasers are relevant in respect of parking spaces in the background of allegation of deficiency in service/unfair trade practice levelled against the opponent. Clause no.12 mentions that the parking spaces and the common areas shall remain the property of owner and developer until the whole property is transferred to a Society as herein mentioned upon the project being declared and duly completed by the owner and developer and also subject always to the rights, reservation and covenants in favour of the owner and developer. 11. Clause 18 provides that if the stilt parking place is allotted to the flat purchasers, he shall use the same only for the purpose of keeping or parking vehicles and for no other purpose whatsoever. 12. Clause 32 refers to the fact that it was stipulated between the parties that the flat purchasers shall have no claim, save and except in respect of the premises agreed to be sold to him and on open spaces, parking space, lobbies, etc. will remain the property of the owner and developer until the said land and building is transferred to a Society of the flat purchasers. 13. Besides this, clause 20 refers to execution of conveyance and it reads as under:- “Unless otherwise agreed to by and between the parties hereto the OWNER AND DEVELOPER shall after registration of the Society, Limited Company or and upon completion of entire development of the Society as aforesaid, cause conveyance/deed of assignment to be executed in favour of such Society together with the building/s obtaining and upon formation of Federal Society assign and transfer common amenities in respect of the said Property, in favour of such Federal Society.” 14. Admittedly, even according to the complainant, the entire project is yet to be declared as completed. Though the complainant society is registered on 17/04/2006, execution of conveyance/deed of assignment in favour of the Society is not the subject matter before us considering the prayers made in this consumer complaint. 15. Referring to the documents i.e. receipts produced in respect of parking charges recovered from some of the flat purchasers, it could be seen that those amounts were collected by way of charges for open parking. There is nothing on record to show that the parking spaces were actually sold to some of the flat purchasers. In fact, along with the written version filed by the opponent total parking charges collected are mentioned in the annexure to the said written version and this amount of `17,70,000/- collected is ultimately admitted by the complainant also. This shows only from 54 flat purchasers as per said list, parking charges were collected and parking slots were allotted. 16. Referring to the relevant clauses in the agreement with the flat purchasers, supra, and on considering provisions relating to standard bye laws of the society, particularly, bye law no.84, levying charges for use of the parking space is permissible even to the society. It is not synonymous with sale of parking space. The agreement(s) with the flat purchasers, the voluntarily act of each of these 54 flat purchasers would not allow to make the society grievance about it since these happenings are prior to formation of the society. Therefore no deficiency in service on that count or even any allegation relating to unfair trade practice can be levelled against the opponent. On execution of conveyance in favour of the Society, undoubtedly the ownership of the spaces marked as parking space would be that with the society. On behalf of the complainant one letter is produced which was addressed by one of the flat purchasers to the opponent, whereby it is tried to be conveyed to the opponent/developer/builder that the society is claiming ownership rights, etc. over the parking spaces. That controversy has nothing to do with the present consumer dispute. 17. In its notice/reply dated 16/07/2007 the opponent in detail explained of the situation and replied to the grievances raised by the complainant Society. We find in fact after receiving such reply/answers to every grievances, this consumer complaint ought not to have filed. Referring to the Transfer charges/fees in their said notice/reply it is stated as under:- “The builder, i.e. our clients has the right to transfer the various flats until the society is formed and takes control over the building. Till the society is formed our clients manage the society and levy the transfer fees and/or administrative fee for transferring the flat to another entity. The society has been formed on July 1, 2006. Our clients have not received any transfer fees after July 1, 2006 hence our clients are not liable to give you the details of and/or the Transfer charges.” 18. It is, thus, obvious that those transfer fees and/or administrative fees for transferring the flats to another entity were collected in quite different context and has nothing to do with any service hired of the builder/developer. Furthermore, those charges were collected before forming and registration of the complainant Society. Therefore, it had privity of contract between the flat purchasers and/or transferee thereof and cannot be a subject matter of consumer dispute of the present nature. 19. At the second instance, cause of action relating to such transfer charges/fees would arose when those transfer charges or administrative fees for transferring the flats was actually collected and it certainly much before the registration of the society in the year 2006 or even notice/reply dated 16/07/2007 was sent. Therefore, consumer complaint filed on 07/06/2010 in relation to this relief is clearly time barred. Same is the case in respect of levying parking charges or collecting any amount relating to the parking charges. 20. Lastly, coming to the case pertaining to amenities of Club house, etc., supra, according to the complainant, cause of action relating to extending such facilities arose when by letter dated 07/9/2007 the opponent informed that said facility is expected to be made available by July 2008. Considering the totality of the circumstances and all the material placed on record, we find such submission is devoid of any substance. 21. In the affidavit of complainant’s Secretary Mr.Mohd. Atique Khan dated 12/11/2010 in para 14, it is specifically admitted that the agreement to purchase flats entered with the flat purchasers there is no specific time limit fixed for providing common amenities and facilities for example, Club house. He further makes a reference to letter, supra, whereby according to him the opponent agreed to provide such facility by July 2008. Reading of the said letter would show that possibility of making operational or providing facility by that particular time is not a commitment to provide such facility by that date and on failure it would give rise to an actionable claim. 22. Further, in the said affidavit, in the opening sentence of page 6 of the affidavit in relation to the providing of said common amenities i.e. Club house, it is further stated, “thus, institution of present complaint on the basis of anticipatory breach is valid and legal. Since the project is not yet declared completed by the complainant, present complaint is not hit by the bar of limitation”. This indicates that the complaint relating to alleged breach of the obligation on the part of opponent to provide Club house, vis-à-vis deficiency in service on that count is premature action brought by the complainant. No cause of action arose in respect of same at the time of filing of the consumer complaint and, thus, consumer complaint covering the same is bad in law and could not be entertained. 23. Considering the subsequent development which is brought to the notice of the complainant by the opponent in respect of making available the common amenities of club house and which is reflected in opponent’s letter addressed to the complainant society dated 27th September 2010; it could be seen that as per the terms of the agreement with the flat purchasers not only to the building Tower A-1 where members of the complainant society are residing but even for the residents of Towers A-2, A-3 & A-4, the opponent conveyed the proposal to collect `50,000/- per month plus service tax from each one of the society (societies) towards the cost of running and maintenance of the club house including payment and utility bills and on each of the society making advance payment for three months of `1,50,000/- plus service tax @ 10.3% for the initial period from October to December 2010 and that they propose to start the Club house facilities for all flat owners of their society subject to maximum of four persons per flat and it was further conveyed that they propose to start or make available the Club house facility preferably before the festive season of Dassera/Diwali of the said year. It is further reflected from the said communication that it is only the complainant society which failed to give response to the said proposal. Under the circumstances, in the background of the terms of the agreements with the flat purchasers, supra, there cannot be any deficiency in service on the part of opponent which could be alleged in respect of alleged grievance of not providing the Club house facility by July 2008. No compensation, as prayed, on this count, therefore, could be awarded. 24. Thus, for the reasons stated above, we find the complaint is devoid of any substance. As earlier observed, in spite of getting fully satisfied from the notice-reply received from the opponent in the year 2007, supra, the complainant preferred to file this consumer complaint. Complaint in respect of some of the reliefs claimed is time barred and in respect of some of the reliefs e.g. the relief covering the Club house, is premature. Under the circumstances, we find it proper to saddle token cost on the complainant as per final order. For the reasons stated above, we hold accordingly and pass the following order:- ORDER Consumer complaint stands dismissed. Complainant to bear his own cost and pay `10,000/- as cost to the opponent. Copies of the order be furnished to the parties. Pronounced Dated 30th March, 2011. | 
