PRESENT

                   Complainant Absent.   

                   Oppoent  by Adv. Shri.D.N. Wankhede  present.                  

                                        ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President)

1.                The  complainant a registered Co-operative Housing society, registered on 11.8.2000.  The flat purchasers  purchased flats from the developer i.e. opposite party and they formed  the complainant society.  The construction of the flats was made in 1999 and occupation certificate was obtained as per law.

2.                According  to complainant, the developer  sold stilt parking area converting it into flat No.101 to 106 towards southern wing of the building to different parties by constructing the side wall to such stilt parking area.

3.                The complainant alleged that developer  failed to pay attention to plinth beams and foundation of the said flat No. 101 to 106.  It is submitted that complainant came to know after  few months that the developer sold flat 101 to 106 by converting stilt parking area in to flats.

4.                The complainant alleged that, while registering the agreements for sale of said flats the developer submitted the sketch of  first floor by misleading the sub-registrar as well as flat purchasers.

5.                The complainant alleged that since 2000 the purchaser of flat No.11 to 106 discovered the defects in the form of cracks to the structure  of flats along with the damage to the walls and floorings resulting in separation cracks between RCC structure and the brick-work of said flat.

6.                The complainant society verbally  in formed the representatives of opposite party about the damage to the said walls, floorings and structure of the ground floor and asked for rectification of the said damage.  They assure orally but avoided to do so.

7.                The  complainant sent notice on 22.2.2009 to opponent which was replied on 16.4.2009 and admitted the damage to the flat No. 101 to 106.  The opponent failed to take cognizance,  though request was made from time to time.

8.                The complainant  appointed structural  engineer, and he submitted report dated 2.7.2010.  The opponent was requested to submit structural drawings of all building by letter dated 28.6.2010.

9.                The complainant alleged t4hat, the members of society, residing in flat No. 101 to 106  are subjected to harassment and mental agony due to negligence of opposite party, as there is danger to life  of flat owners of flat No. 101 to 106.

10.              The complainant prayed for direction to opposite party to rectify the structural defects in flat No. 101 to 106 or to pay cost of rectification to complainant.

11.              The complaint was admitted on 14.3.2011.  The opposite party filed written statement on 16.6.2011 and resisted the allegations made in complaint.  It is alleged that complaint is false, fabricated, vague , unspecific and lacking in material particulars.

12.              The opponent stated that, complaint is barred by limitation as flat-purchasers of  flat  No. 101 to 106 obtained possession in 1994.  The grievances made by complainant are imaginary, unrealistic and without any basis.  The complainant has no locus stand to file present complaint.

13.              The opponent alleged that copy of the occupation certificate itself shows that the said building No. 10 was duly completed before 25.7.1994 as per plans.  It is alleged that, flat No. 101 to 106 have been constructed by taking approval from competent authorities.  The said flats are housed in the said building  from the date of inception.  It is denied that said flats have been constructed by converting stilt parking area.

14.              The opp. party denied that while registering the agreement for sale of said flats the opposite party submitted sketch of the first floor thereby misleading the sub-registrar and respective flat owners.

15.              The opp. stated that complainant for the first time informed the opp. vide their letter dated 22.2.2009.  It is stated that there is no dereliction of duty and negligence and denied that complainant is suffering from danger to life of occupupants   of said flat.  It is prayed for dismissal of complaint as per section 26 of Consumer protection Act,1986.

16.              We have perused complaint, written statement, affidavit of evidence of the complainant dated 20.10.2011 , affidavit of evidence and written argument filed by opp. on 9.8.212 , written argument of complainant filed on 2.7.2013, report of structural engineer, photos of flats 101 to 106 , occupation certificate and certificate  of registration of complainant society.

17.              The record indicate that flat no. 101 to 106 was purchased by Dr. Heena Patel on 21.5.1992 , 102 was purchased by Arun Kumar Shukla from Santosh Misra on 12.2.2001, flat No. 103 was purchased by Manish Keshrvani from Mrs. Swarna Bhat on 30.8.2006, flat No. 104 was purchased by Rajesh Gudekar from Rajendra Dhamapurkar on 29.11.2001, flat No. 105 was purchased by Jitendra parekh from Kawaljit singh on 3.4.2008 and flat No. 106 was purchased by Mrs. Mangal Vaidhya from Smita Khanolkar on 3.8.1998.

18.              The occupation certificate show  that Anita Building   was ready on 25.7.1994.  The complainant society is registered on 11.8.2000.  The Complainant a registered Co-operative Housing  Society filed the present complaint on 14.1.2011.  The written communication was made on 22.2.2009.  The photos of wall indicate cracks to the part of building.  The report filed by Right Project Management consultant show that, RCC drawings of the buildings are not available to ascertain the damage.

19.              The expert report shows that since the cracks are expanding the society should take an indemnity bond from the builder,  absolving managing committee members of any liability or loss to life and limb that may occur in future.

20.              Considering the documents on record, we are of the view, that opposite party is legitimately expected to explain the society regarding the basic structure of society in the light of allegations made in the complaint.  The issue pertains to basic  foundation of the said building wherein these flats are housed, and safety of flat purchasers.

21.              We hold  on the basis of expert report pointing out the threat to life to residents of flat 101 to 106,  the society is under a duty to protect interest of all members including the above flat-purchasers.

22.              In the result, we pass the  following order.

                                                ORDER

1.                RBT complaint No. 23/2011 is partly allowed.

2.                 The  Lokhandwala  Construction Industries Pvt. Ltd. company  is

                    directed  to ascertain and rectify  the defects in flat No. 101 to 106

                    within two months from the date of receipt of  this order.

3.                No order as to cost. .              

4.                Copy of this order be sent to both parties.