IN RAIGAD DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, RAIGAD-ALIBAG.
Complaint No. 67/2014
Date of filing – 30/01/2014
Date of Judgment :- 31-01.2015.
1. Shri. Prashant Maruti Bharekar,
Residing at – Flat no. 102, Nidhi Park,
Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
2. Shri. Tapas Sudarshan Bera,
Residing at – Flat no. 202, Nidhi Park,
Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
3. Shri. Prabhakar Purumandala,
Residing at – Flat no. 201, Nidhi Park,
Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209. …….Complainant
V/s.
1. M/s. Nidhi Homes, A Partnership Firm,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
2. Shri. Satish J. Patel, Partner M/s. Nidhi Homes,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
3. Shri. Ramesh B. Patel, Partner M/s. Nidhi Homes,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
4. Shri. Shantilal Karsanbhai Patel,
Partner M/s. Nidhi Homes,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
5. Shri. Himmat R. Patel, Partner M/s. Nidhi Homes,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
6. Gurunath P. Mhatre, Partner M/s. Nidhi Homes,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
7. Smt. Vithabai P. Mhatre, Partner M/s. Nidhi Homes,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
8. Smt. Ramubai N. Mhatre, Partner M/s. Nidhi Homes,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
9. Smt. Ranjana M. Mhatre, Partner M/s. Nidhi Homes,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
10. Smt. Kamalabai M. Mhatre, Partner M/s. Nidhi Homes,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
11. Shri. Ganesh alias Ramesh M. Mhatre,
Partner M/s. Nidhi Homes,
Office at - Plot no. 39, Sector 19, Kamothe,
Navi Mumbai – 410209.
12. CIDCO Limited, through Managing Director,
Shri. Bhatia,
7 th floor, CIDCO Bhavan,
C.B.D., Belapur, Navi Mumbai. ……. Opposite Party
Before :- Hon. Mr. Umesh V. Jawalikar, President
Hon. Smt. Ulka Pawaskar, Member
Hon. Mr. Rameshbabu B. Ciliveri, Member.
Present: - Adv. R.S. Jagtap, for complainant.
Opposite party no. 1 to 8 & 11,12 no w.s. order
Opposite party no. 9 & 10 ex-parte order.
JUDGEMENT
Per Hon. Shri. Rameshbabu B. Ciliveri, Member.
- The complainants have filed this complaint against the Ops for deficiency in service and for unfair trade practice rendered to the complainants. The complaint is in brief as under.
- The Op No. 2 to 5 are the Partners of Op No. 1 and are responsible for the business. The Op No. 6 to 11 are lessees of Op No. 12. The Op No.12, who has allotted the plot bearing No. 39, in Sector 19, Kamothe, Navi Mumbai under 12.50% scheme on dated 20.10.2006 by lease agreement and same has been registered at the office of the Sub-Registrar, Panvel-1, under serial No. 8151/2006 on dated 27.10.2006. The Op No.12 was established to acquire land at Navi Mumbai and to allot the plots under scheme of 12.50% to the land owners. The Op No.1 to 5 obtained the said land by an Development Agreement dated 16.01.2007, from the Op No. 6 to 11 and same has been registered with the Sub-Registrar, Panvel-I on dated 16.01.2007. The Op No. 1 to 5 constructed the building know as “Nidhi Park” as a promoters on the said plot bearing No. 39, Sector-19, Kamothe, Navi Mumbai.
- The complainants has purchased the various flats by various agreements from Op No 1 to 5 on various dates for agreed consideration which is duly registered. Apart from the consideration of flats as demanded by Op No.1 to 5 complainants have paid the electricity charges, society registration charges, CIDCO transfer charges, Development charges, Conveyance charges and maintenance charges i.e. Rs.1/ per Sq. Ft. for the period of 1 year. On confirmation of all charges the Op no.1 to 5 given possession without obtaining the occupation certificate from the CIDCO. When enquired by the complainants it has came to know that the CIDCO has given the Occupation Certificate on dated 03.11.2009. Which shows the Op No. 1 to 5 rendered the deficiency in service.
- The Op No. 1 to 5 supposed to form Co. Op. Housing Society after selling of 60% flats in the building project, but the Op No. 1 to 5 did not formed the society of flat purchasers as mentioned in the MOFA Act, 1963, for which complainants filed the criminal complaint against Op No. 1 to 5. The complainant met the Op No. 2 to 5 and informed to form Co. Op. Housing Society or shall take legal action. The Op No. 1 to 5 took the signatures of flat purchasers on application for society registration in the month of October 2010 and assured to do the same at the earliest. In the month of March 2014 when the complainant met Op No. 2 to 5 and inquired about the society registration. It was surprised to hear from Op No. 2 to 5 that the Co. Op. Housing Society has been already registered on dated 11.10.2011. The copy of said society registration certificate was handed over to the complainants in the month of March 2014. It is also duty of Op No. 2 to 5 to take first General body meeting of the flat purchasers within 2 months after obtaining Society registration certificate, but Op No. 2 to 5 not bothered to inform the flat purchasers nor taken first General Body meeting.
- As per the information there is 6 flats were transferred after 11.10.2011 and Op No. 2 to 5 have received the transfer fees of Rs.50,000/- each transfer. If the society could have handed over to the members at least Rs.20,000/- per transfer would have come the society’s account as income. Further when the complainants inquired about the society registration at the office of the Assistant Registrar, Co Op. Societies (CIDCO), were shocked to know that the said society registration made under the Non Co-operation to escape from CIDCO’s NOC and CIDCO service charges. For society registration the Op No.3 shown as Chief Promoter by giving wrong information saying the Op No. 1 to 5 are not co operating for society formation which is crime as per law.
- The complainants asked for accounts of maintenance to the Op No. 2, in reply, he said there will be separate bank account and at the time of handing over the society all details of accounts shall be given to society. Complainants say till today there is no bank account is opened which is again a crime made by Op No. 1 to 5.
- The complainant also came to know that at the time of occupation the Op No. 1 to 5 informed CIDCO that there are 24 flats, 5 commercial premises and 1 Nidhi Park’s society’s office. The office belongs to society has been given to some other person to use. For society premises Op No. 1 to 5 has constructed some illegal construction and promised to give it to the society. The complainant stated that the premises shown as society’s office on plans to be given to society which is binding on Op No. 1 to 5.
- The complainants also complained to Op No. 1 to 5 about the leakages from terrace and broken compound walls but the ops did not given any attention to repair.
- The responsibility of Op No. 1 to 5 to hand over the conveyance deed in favour of society within 4 months from the date of formation of society, but the they did not handed over the same.
- The complainant stated that after the building project is developed by Op No. 1 to 5 are to be taken the Lease deed from the Op No. 12 i.e. CIDCO with confirmation of Op No. 6 to 11. Which will be easy to transfer the said land in favor of society at the time of Conveyance deed. The Op No. 6 to 11 and Op No. 12 were made party to this complaint only for the purpose of transfer of lease in favour of society.
- Finally complainants through their Advocate send legal notice by speed post to Op No. 1 to 5 on dated 15.04.2014 at last know address to do the following:
- To call for General body meeting and to hand over society along with registration certificate and concern documents, papers to the newly elected office bearers of the society.
- To hand over the amounts collected towards the Transfer fees, CIDCO transfer charges, Conveyance chares etc. which were collected from the complainants.
The said legal notice dated 15.04.2014 returned as remark “LEFT”.
- For the purpose the complainants filed this complaint against Ops to clear the defects and to comply with the prayers made in the complaint.
- The complainants filed this complaint along with the Application under section 12(1) (c) and 11 (2) (b), before the Forum for deficiency in service, unfair trade practice and prayed for reliefs. After filing the complaint this Forum issued notice to Opposite parties as per the provisions of C. P. Act, stating to file written version regarding the complaint.
- The notices were served upon Ops. The complainants’ advocate made an application for No WS order against Op No. 1 to 8, 11 and 12 and under section 28 A against Op No. 9 and 10, to proceed with the complaint and to pass necessary orders. This Forum passed a No WS order against Op No. 1 to 8, 11 and 12 and order under section 28 A against Op No. 9 and 10 is confirmed as on today. The affidavit of evidence, written argument were filed and heard oral argument of the learned Advocate of the complainants.
- After gone through the documents available on record filed by the complainants the following points were raised for determination and we recorded our findings:
Point No: 1. Whether the complainants proved that the Opposite parties are responsible for deficiency in service and unfair trade practice rendered to the complainant ?
Ans: YES by Op No. 1 to 5.
Point No.2: Whether the complainants are entitled to claim compensation
from Opposite parties ?
Ans: YES, from opposite party no. 1 to 5
Point No. 3: What Order ?
Ans: As per final order.
- Reason of Point No 1 and 2: The Op No.1 to 5 taken land for development by a Development Agreement dated 16.01.2007, from the Op No. 6 to 11 which was allotted by the Op No.12 under scheme of 12.50% all that piece of land plot bearing No. 39, in Sector 19, Kamothe, Navi Mumbai. The Op No. 1 to 5 constructed the building know as “Nidhi Park” as a promoters on the said plot. The complainants has purchased the various flats from Op No 1 to 5 on various dates for agreed consideration by various agreement which are duly registered. On an above consideration of flats the Op No.1 to 5 has demanded the electricity charges, society registration charges, CIDCO transfer charges, Development charges, Conveyance charges and maintenance charges i.e. Rs.1/ per Sq. Ft. for the period of 1 year, which are paid by the complainants. After paying the charges the Op no.1 to 5 given possession without obtaining the occupation certificate from the CIDCO in the year 2008 and 2009. In reality the Occupation Certificate issued by CIDCO on dated 03.11.2009. The Op No. 1 to 5 supposed to form Co. Op. Housing Society of flat purchasers as provision made in the MOFA Act, 1963. They took the signatures of complainants on application for society registration in the month of October 2010. When there was no sign of registration of society the complainant met Op No. 2 to 5 in the month of March 2010, It was surprising to know that Society has been already registered on dated 11.10.2011 and there was no information to the complainants. When the complainants inquired about the society formation at the office of the Assistant Registrar, Co Op. Societies (CIDCO), were shocked to know that the said society registration made under the Non Co-operation to escape from CIDCO’s NOC and CIDCO service charges. For society formation the Op No.3 was shown as Chief Promoter by giving wrong information saying the Op No. 1 to 5 are not co-operating for society formation. It is also duty of Op No. 2 to 5 to take first General body meeting of the flat purchasers within 2 months from obtaining Society registration certificate, but Op No. 2 to 5 has not conducted the First General body meeting of flat purchasers. Secondly, Op No. 2 to 5 have received the transfer fees of Rs. 50,000/- each from the resale flats, which the should go to the society’s account as income. Regarding the maintenance of accounts no separate bank account was opened and not handed over the accounts to the members as assured by Op No. 1 to 5. Thirdly while taking the Occupation certificate the Op No. 1 to 5 informed CIDCO that there are 24 flats, 5 commercial premises and 1 premises for Nidhi Park’s society office and premises belongs to society has been given to some other person to use. For society premises Op No. 1 to 5 has constructed some other illegal construction. There is also leakages on terrace and compound walls are broken but the ops did not took the efforts to rectify the defects. It is responsibility of Op No. 1 to 5 to hand over the conveyance deed in favour of society within 4 months from the date of formation of society, but the they did not handed over the same. There is no relief is claimed against the Op No. 6 to 11 and 12. They made party to the compliant only for the purpose of conveyance deed. Hence it is clear that the Op No. 1 to 5 are responsible for the deficiency in service and unfair trade practice rendered to the complainants and also the complainants are eligible to claim the compensation towards the mental agony, physical harassment and for the cost.
FINAL ORDER
- The complaint No. 67/2014. is hereby partly allowed.
- It is declared that the opposite parties No. 1 to 5 jointly and severally guilty and held responsible for unfair trade practice and deficiency in service rendered to the complainants.
- The Op No. 3 is directed to call for the First General body meeting of the flat purchasers and shall hand over society along with society registration certificate and all original documents i.e. Development agreement, Lease Deed, Permission for construction, Occupation Certificate, Approved plans, water agreement with CIDCO and all necessary papers to the newly elected office bearers of the society.
- The Op No. 1 to 5 are directed to rectify the leakages of terrace and construct the broken compound wall.
- The Op No. 1 to 5 are directed to hand over the society’s office premises which is shown in the plan, to the office bearers of the Nidhi Park Co. Op. Hsg. Society.
- The Op No. 1 to 5 are directed to hand over the transfer fee which is received from the flat owners after the society registration for transfer of flats @ Rs.20,000/- per head.
- The Op No. 1 to 5 are directed to pay property/land transfer fee and service charges to CIDCO and incorporate the names of all members of society in records of CIDCO.
- The Op No. 1 to 5 are directed to complete the procedure of Lease Deed between Op No. 6 to 11 and Op No.12 and shall bear the expenses for the same.
- The Op No. 1 to 5 shall hand over accounts of amounts collected towards the Transfer fees, CIDCO transfer charges, Conveyance charges etc. from complainants.
- The Opposite Parties jointly and severally shall hand over the Conveyance Deed in favor of the Nidhi Park Co. Op. Hsg. Society Ltd., within 90 days from the receipt of this order.
- The Opposite party no. 1 to 5 shall pay Rs. 80,000/- (Rupees Eighty thousand only) towards mental agony and cost to the each of the complainant within 60 days from the date of this order.
- The Point No. 3 to 9 herein above shall be complied within 30 days from the date of receipt of this order.
13. The copies of this order to be given to the concern parties free of cost by R.P.A.D.
Date :- 31/01/2015.
Place :- Alibag – Raigad.
(Rameshbabu B. Ciliveri) (Ulka A. Pawaskar) (Umesh V. Jawalikar)
Member Member President
THE RAIGAD DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ALIBAG.
