Complainant through Lrd. Adv. Kulkarni

Opponents through Lrd Adv. Erande

Per : Mr. V. P. Utpat, President              Place   :  PUNE

                                      J U D G M E N T 

                                           16/07/2014

This complaint is filed by the consumer against the builder and developer for deficiency in service under section 12 of the Consumer Protection Act, 1986.  The brief facts are as follows,

1]       The complainant no. 1 and 2 are the husband and wife and complainant no. 3 is their son.  The opponent no. 1 to 7 are the builder and Developer of the property bearing survey no. 285, Hissa No. 1/1, Baner, Taluka – Haveli, District – Pune.  It is named as ‘Kumar Aatman’.  The opponents have declared scheme of ownership of flat and in response to the same complainants had approached  the  opponent for purchasing flat no. 403.  The opponents had executed agreement in favour of complainant on 17/11/2009.  The agreed consideration of the said flat was Rs. 51,48,175/-.  The said amount is paid by the complainants to the opponents.  After inspection of the progress work, the complainants have observed many lacunae and shortcomings in the construction as well as amenities and facilities, which are agreed by the opponents.  The opponents have not constructed retention wall on the bank of Ram river, that’s why water is logged in the entire stilt area.  In the month of Sept. 2010, the expensive cars of the residents in the building were damaged.  Common facilities and amenities, which are agreed in the agreement, are not provided.  Gymnasiun and hall for indoor games are not constructed.  Generator back up, landscape garden, children play field, swimming pool are not provided, community hall, entrance gate, security cabin at the entrance and internal road are not constructed, the generators and lifts are not working.  Garbage Chute is fitted but it is not operational.  The bathroom fittings are of the poor quality, tiles are not fitted properly.  There is heavy leakage from the bathroom, the electrical, plumbing and masonry work in the flat is not done up to the standard and of poor quality.  The tiles in the flats are fitted uneven and many of them are broken and damaged.  On request of complainants, these broken tiles were replaced with broken tiles again.  The doors of the rooms and the toilets are of substandard quality and broken.  Many of the glass sliding doors are ftted with broken glasses.  The opponents have not formed society, not obtained completion certificate and executed conveyance deed in favour of the society.  For all these defects, the complainants have claimed compensation of Rs. 15 lacs.  The complainants have further asked for the direction to the opponents for forming registered co-operative housing society, executing of conveyance deed in favour of the society, obtaining completion certificate and providing all the amenities and facilities, which are referred in the agreement.

2]      The opponents have resisted the complaint by filing written version.  According to them, the complaint is not filed in proper format.  Hence, it is not maintainable.  It is suffered from principle of non-joinder of the parties, as the Karta of Hidu Undivided Family, Shri. Lalitkumar Jain, though being party to the agreement, is not joined as party to the present complaint.  As per the provisions of Maharashtra Ownership Flat Act, the complainants are not entitled to approach the Consumer Forum, as there is separate Forum under the said Act for resolving the disputes between the flat owner and the bulder and promoter.  It is flatly denied that there is deficiency in service.  It is further contended that the development of scheme of ‘Kumar Aatman’ is phase-wise and it will take some time to complete the said scheme.  It has been specifically in the agreement that these Respondents shall either form a Co-op. Housing Society or a Company or Condominium of Apartment of the flat owners, only after the completion of the entire scheme and thereafter execute the conveyance deed in favour of such organizations.  The opponents have already completed the construction of wing ‘A’ and ‘C’ in accordance with the plan sanctioned by Pune Municipal Corporation.  However, PMC is not issuing completion/occupation certificate.  Hence, the complainants are not entitled for the same.  It is further contended that the claim of Rs. 15,00,000/-, which is made by the complainant is vague, baseless and unfounded.  It is also contended that the opponents have applied for the revised plan and that is pending before the PMC.  The complainants have obtained injunction order from the Civil Court against the opponents and that’s why the entire project is remained incomplete.  It is further contended that the opponents have preferred appeal against the order of PMC under section 47 of MRTP Act.  As there is no deficiency in service, the complainants are not entitled for any damages, as claimed.  The plan was initially sanctioned on 18/10/2006 and the opponents have applied for revalidation of plan, but the PMC had objected to the said proposal.  Hence, the opponents could not complete the phase-wise construction.  In such circumstances, the complaint is deserves to be dismissed.

3]      After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for the determination of the Forum. The points, findings and the reasons thereon are as follows-

REASONS    :-

4]      The undisputed facts in the present proceeding are that the complainants have purchased flat from the opponents.  The opponents have executed agreement to sale in favour of the complainants.  The construction of wing ‘A’ and ‘C’ is completed and the complainants are put in possession of the said flat.  It is also not in dispute that the opponents had received agreed consideration.

5]      It is the case of the complainants that, even though they have paid entire consideration, they have not received enjoyment of the amenities and facilities, which are agreed by the opponents.  They have paid consideration for flat as well as for amenities and facilities, which are agreed in the agreement for sale.  It is not in much dispute that the entire scheme is not yet completed and the proposal of revalidation of the plan is still pending before the PMC.  According to the opponents, the complainants themselves have filed civil litigation and obtained injunction, hence, the construction remained incomplete.  The opponents have not brought on record as to whether the opponents are restrained from formation of the society and obtaining completion certificate or from executing conveyance deed.  According to the opponents, the complainants have agreed that the construction will be completed phase-wise and it will require certain amount of time and the opponents are allowed to change the plan from time to time as per the contents of the agreement.  It is significant to note that, that does not mean that the opponents are entitled to prolong the performing of the obligations under Maharashtra Ownership Flat Act.  The learned Advocate for the complainant drew attention to the certain provisions of Maharashtra Ownership Flat Act.  It has pointed out that as per the provisions of Maharashtra Ownership Flat Act, 1963, particularly section 10 - Promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who take the flats as a co-operative society, as soon as a minimum number of persons required to form a Co-operative society or company.  It is significant to note that all the flats are occupied by the flat owners, but still no steps are taken by the opponent.  As per section 3, the opponent should not allow the person to enter into possession until completion certificate, which required under the law is duly given by the Local Authority.  As per section 8, the opponent shall apply to Registrar within four months from the date on which the minimum number of persons required to form such organization have taken flats.  As per section 9, conveyance deed to be executed within four months from the date of registration of Co-operative society.  Even though, it is admitted for the sake of convenience that the opponent has referred in the agreement that he will form society and execute conveyance deed after construction of entire project, that clause is contrary to the provisions of Maharashtra Ownership Flat Act, 1963 and void-ab-initio.  It reveals from the injunction order in special civil suit no. 2259/11 that the opponents are restrained from causing construction of swimming pool in the area earmarked as open space, shown in layout sanctioned by the Pune Municipal Corporation till the decision of suit.  It appears from the pleadings of the opponent that initially the opponent has constructed only two wings i.e. wing ‘A’ and ‘C’ and subsequently he started construction of ‘B’ wing.  Initially the place, which was kept as a open space, is now reserved for the construction of swimming pool by the opponents.  That amounts to violation of agreement as well as provisions of the Maharashtra Ownership Flat Act.  The learned Advocate for the complainant further argued that as the complainants have paid entire consideration amount, the opponent has no right to make delay for providing facilities and amenities, which are agreed in the agreement to sale and that amounts to deficiency in service.  It is argued on behalf of the opponent that efforts are being made for the formation of Co-operative Housing society, but that proceeding is still pending.  It is also argued that the complainants have claimed damages of Rs. 15,00,000/- but the complainants have not produced any evidence as regards lacunae, defects as well as shortcomings in the construction.  In the absence of evidence of expert, such as Architect or Engineer, it is very difficult to accept the theory of the complainant as regards defects, shortcomings in the quality of the construction.  However, it reveals from the evidence itself that the opponent has caused delay in obtaining completion certificate, forming Co-operative Housing Society and executing conveyance deed and that amounts to deficiency in service.  After considering nature of the litigation and evidence on record, it is the considered opinion of the Forum that the opponent shall pay compensation of Rs. 2,00,000/- to the complainants on the count of deficiency in service and mental and physical sufferings as well as costs of the litigation.  In the light of the above discussion, this Forum answer the points accordingly and pass the following order.

O R D E R

1. The complaint is partly allowed.

1. It is hereby declared that the opponents

have caused deficiency in service by not

obtaining completion certificate, by not

forming Co-operative Housing Society and by not executing conveyance deed in favour of the society as well by not providing facilities and amenities, which are agreed in the agreement.

1. The opponents are directed to obtain Completion Certificate, form Co-operative Housing Society and execute conveyance deed in favour of the society within six weeks from the date of passing of the order.

1. The opponents are further directed to provide all the facilities and amenities to the complainant which are shown in the agreement within six weeks from the date of passing of the order.

1. The opponents are also directed to pay an amount of Rs. 2,00,000/- (Rs. Two Lac only) to the complainant towards compensation for deficiency in service and mental and physical and mental sufferings as well as costs of the litigation within six weeks from the date of passing of the order.

6.       Copies of this order be furnished to

the parties free of cost.

7.       Parties are directed to collect the sets, which were provided for Members within one month from the date of order, otherwise those will be destroyed.