Per Shri Dhanraj Khamatkar – Hon’ble Member:

(1)          This appeal takes an exception to an order passed on 19.06.2010 in Consumer Complaint No.33/2009, Mr.Bhagwan Gundaram Jadhav & Ors. V/s. M/s.Balaji Construction & Developer, by the District Consumer Disputes Redressal Forum, Thane, (in short ‘Forum below’).

(2)          The facts of the case in brief can be summarized as under:

Total 15 Complainants have filed consumer complaint contending that they have purchased flats from the Opposite Parties and they are staying there and the Opposite Parties are the builders and developers.  The original Opposite Parties/Present Appellants had given advertisement for constructing Balaji Apartment.  Accordingly the Original Complainants  had booked the flats and executed an agreement to sale.  However, the Opposite Parties have not obtained occupancy certificate and completion certificate, not registered the housing society and have not paid amount of `2,70,170/- of the property tax when the property was in their possession.  To comply the aforesaid conditions was lawful responsibility of the Appellant as per the registered agreement and Maharashtra Ownership of Flats Act, 1963.  The Appellants have promised to do the same.  However, they have not complied and hence, they have filed consumer complaint praying that the Appellant be directed to obtain occupation certificate, completion certificate and do the conveyance deed of the amenities in the name of Society after registering the Society.  They also be directed to pay outstanding amount of the property tax and the Complainants be awarded `1,00,000/- for the mental agony and `20,000/- as cost.

(3)          The Forum below after hearing both the parties passed an order directing the Appellant to obtain occupation certificate and completion certificate and to handover the amenities to the Society after registering the same.  To pay the arrears of property tax standing on the property till the year 2002, to pay compensation of `10,000/- and awarded cost of `5,000/-.  It is against this order that the present appeal is filed.

(4)          Appellant contended that she has paid property tax.  Some of the flat purchasers have forcibly taken the possession.  The Appellant in their written version have admitted that they have not denied their responsibility, however they could not discharge the responsibility because of some technical problems.  The Ld. Counsel also argued that the residents have taken the possession of the flats in the year 2001-2002.  However, they have filed the complaint in the year 2009 and hence, it is not in time limit.  The Appellant has executed the agreement with the Respondents separately and hence, Respondents should have filed separate complaints.  The Appellant further stated that the amount as shown is outstanding against the Respondents and they are not paying the said amount.  That as per the condition no.12 of the agreement the Respondents should pay the expenses for the formation of the Society, property tax to the Appellant, however, they have not paid and in the absence of the payment of those charges the Society cannot be registered.  The Respondents have permitted to install the mobile antenna on the terrace of the building and they are collecting the amount of `2,00,000/- a year unathorisedly. Hence, the Appellant prayed that the appeal may please be allowed and the order of the Forum below may please be set aside.

(5)          Admittedly the original Complainants/Respondents are the flat purchasers and the Appellant is the builder developer.  In their written version before the Forum, the Appellants have admitted that the Society has not yet been registered, occupation and completion certificate has not been obtained and the property is to be convened.  The Appellant challenged the consumer complaint on the point of limitation.  However, this is a case wherein cause of action is continuous as the Appellant has not complied with their lawful obligations and hence, the contention of the Appellant that the complaint is not filed in time limit cannot be accepted.  As regards the outstanding amount against the Respondent, Appellants have not adduced evidence to prove that the amount shown as arrears against the Respondents is outstanding.  As regards Clause No.16 regarding amount of legal expenditure, an amount for the registration of society transfer charges, the agreement is silent.  When the agreement is silent the Appellant cannot claim amount for legal expenses, society formation charges and transfer charges.  As regards the outstanding property tax, Appellants have adduced the certificate from the Corporation, regarding outstanding property tax wherein no objection certificate is upto 31.10.2007.

(6)          The Forum below has directed the Appellant to give occupation certificate, conveyance and formation of the Society.  Regarding property tax Forum below has ordered the payment of property tax upto the year 2002 only.  Admittedly, the Appellants have not given the respondents occupation certificate, completion certificate and not formed the Society and handed over the property to the Society.  This amounts to deficiency in service and the Forum below has rightly held accordingly and awarded `10,000/- as compensation and `5,000/- as cost.  We do not find any merit in the appeal filed by the Appellant.  We hold accordingly and pass the following order:

O  R  D  E  R

     (i)       Appeal is dismissed.

    (ii)       The order of the Forum below is hereby confirmed.

  (iii)       No order as to costs.