This is a complaint alleging deficiency in service on the part of the promoter & builder. The relevant facts are as under:-

[2] The Opposite Party No.1 is a promoter/builder. The Opposite Party No.2 is an agent of the Opposite Party No.1. The Opposite Party No.1 had developed a land situated at S. No.22, Kondhwa-Khurd, Pune. It had constructed two buildings consisting of 66 flats. These flats are offered for sale to the general public by issuing the advertisements and brochures to that effect. Certain facilities & amenities were assured in these advertisements. The Opposite Party No.1 is under a legal obligation to form a co-operative housing society and to execute the conveyance, transferring all its right, title & interest in favour of the society. On the other hand, the Opposite Party No.1 has failed to provide the basic amenities such as supply of drinking water to the flat-purchasers – the members of the society. The members of the Society had purchased their respective flats, by executing the agreements in favour of the builder. They are also put in possession of their respective flats by Dec-2004. Time & again, the members of the society had written letters to the Opposite Party No.1 for completing the incomplete work. These letters were issued on 2/8/2005, 9/1/2006 and on 29/1/2006.

[3] The office-bearers and the representatives of the Opposite Party No.1 had visited the buildings on 10/8/2005. A meeting was held between the office-bearers of the Complainant Society and the representatives of the Opposite Party No.1. Certain facts have been admitted by the Opposite Party No.1. An assurance was given that the work left incomplete would be completed within a reasonable time. That was never completed by the Opposite Party No.1.

[4] It was obligatory on the part of the Opposite Party No.1 to form a society. The Opposite Party No.1 had formed a co-operative society, but had concealed this material fact from the flat-purchasers. It was only after couple of months that the society came to know that it was already registered on 23/5/2007. That society thereafter sent a letter on 9/7/2007, calling upon the Opposite Party No.1 to complete the incomplete work. The list of such incomplete work was also furnished to the Opposite Party No.1. Amongst other, the problem of drinking water supplied to the buildings by the Pune Municipal Corporation was pointed out. The back-up generator was found situated outside the compound of the society building. The security cabins are not as per specifications. These and such other amenities and facilities were left incomplete.

[5] The representative of the Opposite Party No.1 however, pasted a letter on 29/7/2007, informing that the Opposite Party No.1 has stopped maintaining and providing the services to the members of the Society. Earlier, an Annual General Meeting was convened on 24/7/2007. That date was found unsuitable to most of the members of the society. A letter to that effect was sent to the Opposite Party No.1. The Complainant had also issued a notice on 30/7/2007 and had called upon the Opposite Party No.1 to make the compliances. That notice was replied to by the Opposite Party No.1, vide its reply dtd.4/8/2007. Ultimately, a letter was addressed to the District Deputy Registrar of Co-operative Societies to intervene in the matter. Such a letter was sent on 16/7/2007. An order was passed by the District Deputy Registrar of Co-operative Societies on 16/8/2007 and an Administrative Committee was appointed. The main contention of the Complainant Society is that the Opposite Parties may be called upon to hand-over the documents & property in favour of the Complainant Society by executing the Deed of Conveyance. The Complainant Society also claims an amount of Rs.33,510/-, which was paid by the Society towards the electricity charges during the period the Opposite Party No.1 was managing the affairs of the building. The Complainant Society has also claimed compensation of Rs.5,00,000/- from the Opposite Parties.

[6] The Opposite Party No.1 has filed its written version and has contested the claim of the Complainant. The written version is of denial simplicitor. It is pleaded that the prayers made by the Complainant Society are barred by the period of limitation. There is no resolution passed by the Complainant Society, authorizing it to initiate any legal proceeding against the Opposite Parties. It is also pleaded that the Opposite Party No.1 had constructed two buildings consisting of 66 flats and that after inspecting the buildings the Pune Municipal Corporation had issued the Completion Certificate. After an Administrative Committee was so appointed by the District Deputy Registrar of Co-operative Societies, the Opposite Party No.1 had actually handed over the record and the documents in favour of that Society. It is then, pleaded that once an Administrative Committee is formed, which looks after the maintenance & affairs of the Complainant Society, the Opposite Party No.1 has no role to perform in the matter. These and such other contentions have been raised by the Opposite Party No.1. It is, therefore, prayed that the complaint may be dismissed.

[7] By & large, the same plea is reiterated by the Opposite Party No.2 in its written version, separately filed on the record.

[8] During the pendency of the complaint, having regard to the defects & deficiencies alleged by the Complainant Society, the Complainant Society had filed an application for appointment of a Court Commissioner. The said application was allowed by this Forum on 8/4/2008. The Complainant Society had suggested the name of the Court Commissioner. He was accordingly appointed and in due course, he has submitted his report. It is dtd.3/6/2008. On the receipt of the said report, both the parties were called upon to offer their remarks to the report of the Court Commissioner. The ‘Roznama’ starting from 3/6/2008 prima-facie shows that the Opposite Parties had received the copies of the Court Commissioner’s report on 3/6/2008. Still the Opposite Parties did not file any remarks to the report of the Court Commissioner. The Opposite Parties were found present on 11/7/2008. The Opposite Party No.1 is, therefore, fully aware of the contents of the report of the Court Commissioner. The complaint was heard before this Forum on 1/10/2008. On that date and on the previous date thereto i.e. 22/8/2008, the Opposite Parties were found absent. It is under such circumstances, we have to deal with the complaint on merits without there been any active participation on the part of any of the Opposite Parties.

[9] The main question that would arise for our determination in such context is as to why the Complainant Society should be disbelieved. There is voluminous correspondence placed on the record by the Complainant Society. It is not at the behest or at the instance of the Opposite Party No.1 that an Administrative Committee was formed by the District Deputy Registrar of the Co-operative Societies. An application to that effect was filed by the Complainant Society. An Annual General Meeting was unilaterally fixed by the Opposite Party No.1 on 24/7/2007. Consensus of the members of the society was not obtained. On being apprised of the matter that such date was unsuitable to most of the members of the Complainant Society, the Opposite Party No.1 was adamant to convene the meeting on that date only. Then the pasting of the letter on 29/7/2007, informing the society that the Opposite Party No.1 has stopped providing the maintenance & services to the society aggravated the matter. That was followed by issuance of legal notice dtd.30/7/2007 by the Complainant Society and the reply thereto by the Opposite Parties on 4/8/2007. After having seen that the Opposite Party No.1 is unwilling to hand-over the documents, property and to execute the conveyance, the Complainant Society had no other option but to approach the District Deputy Registrar of Co-operative Societies. It is under such circumstances, the ultimate step of approaching the Forum was taken by the Complainant Society.

[10] All these facts would, therefore, go to show that there is no reason to disbelieve the Complainant Society. On the other hand, every possible step had been taken by the Opposite Party No.1 to protract the formation of the society and to execute the conveyance in favour of the society. We, therefore, have no other option but to rely on the report of the Court Commissioner. Apparently, it is of an independent and unbiased person. Although the Opposite Party No.1 had received a copy of the Court Commissioner’s report on 3/6/2008 and he was present before the Forum on 11/7/2008, the Opposite Party No.1 did not file any remarks to that report nor did he remain present for the purpose of hearing before the Forum. Under such circumstances, we have no other option but to allow the complaint. Suitable directions will have to be given to the Opposite Parties to execute the conveyance in favour of the Complainant Society, by transferring right, title & interest in the property in favour of the Complainant Society and to hand-over relevant documents. The claim for refund of Rs.33,510/- will also have to be allowed.

Hence, we proceed to pass the following order:-

The complaint is partly allowed.

The Opposite Parties are jointly & severally directed to take steps for execution and registration of the Conveyance Deed in favour of the Complainant Society and to hand-over relevant documents to the Complainant Society, within a period of four months from the date of this order.

The Opposite Parties are further jointly & severally directed to refund to the Complainant, an amount of Rs.33,510/- together with interest thereon @ 9% p.a., as from 15/Oct/2007 till realization thereof by the Complainant Society, within a period of four months from the date of this order.

The Opposite Parties are also directed to complete the incomplete work and to remove the defects & deficiencies, as pointed by the Court Commissioner in his report dtd.3/6/2008, which shall form part & parcel of this order.

Rest of the claims of the Complainant Society stands rejected.

No order as to costs.