Per Shri S.R.Khanzode, Hon'ble Judicial Member: 

These two consumer complaint though technically arise from separate set of facts, these facts being identical and common question of law arises, are disposed of by this common order.

          Consumer complaint no. 56/2006 is filed by Shyam A.Pherwani and his wife Nrimala who are the purchases of flat no.703 situated on 7^th floor extended portion of the building belonging to the Bandra Sea Hill Co-Op.Hsg.Society (hereinafter referred as “Society” for sake of brevity).  Mrs. Veena Sanjnani is the purchaser of flat no.803 situated on 8^th floor on the extended part of the building belonging to the society.  Consumer complaints are filed by these complainants against opp.party named above who are original purchasers of TDR rights from the society and service deficiency on their part is alleged on account of non obtaining occupancy certificate after completion of construction of respective flats by the complainants in both the complaints.

          Society with its 15 members i.e. 15 flats spread over stilt and five floors.  Additional FSI and additional TDR rights could be obtained in its respect and thereafter, the society entered into an agreement with opp.party nos. 1 to 4 on 03/11/1993 for sale of additional FSI and procurement rights of TDR ( transfer development rights).  Opp.party nos. 1 to 4 were given under said agreement permission to construct additional floors within limits of FSI after additional room for each flat member of the society as per the said agreement was constructed and to use procured TDR.  They were given further rights to sale the flats from the additional floors constructed accordingly with a promise that the flat purchasers would be given membership of the society after obtaining the completion certificate in respect of those additional constructed flats. 

          Opp.party nos. 1 to 4, as it revealed got  sanctioned development plan for raising three additional floors i.e. 6^th ,7^th and ,8^th floor.  Thereafter, TDR rights to utilize about 100 sq.mtr area covering construction of 7^th floor was purchased by one Manorama Shetty as per agreement dated 05/10/1994.  Similarly, her husband/ Narayan Shetty had purchased TDR rights of similar area covering 8^th floor construction by separate agreements of even dated from opp.party nos. 1 to 4.  As per these agreement, it is a transaction, simplicitor, selling the rights of TDR enabling purchasers  Manorama Shetty and her husband/Narayan Shetty to construct respectively 7^th and 8^th floor on their own.  For this purpose as mutually agreed Civil Contractor/ M/s. Prakalp Builders (Opp.party no.5 is impleaded as M/s. Prakalp Builders and described it as partnership firm of opp.aprty nos. 1 to 4, but such description finds no corroboration from no one from the documents on record.  In the agreement referred above “M/s. Prakalp Builders” is the one described/referred as a Civil Contractor engaged by Manorama and Narayan Shetty for carrying out the construction work but it is not made clear whether it is a partnership firm or what is its character).   They were suppose to carry out the construction as per sanctioned plan, which opp.party nos. 1 to4 were got sanctioned.  Nowhere in their agreement oppositeparties nos. 1 to 4 were asked to obtain completion certificate/occupancy certificate and no contractual obligation is cast upon them. 

The respective vendor of the complainant  accordingly carried out the constructions but could not complete the same.  From these un-constructed flats, flat situated on 7^th floor and following part of 7^th floor construction bearing no.703 was purchased by complainants/ Shyam Pherwani and his wife Nirmala from Manorama Shetty on 22/12/2000 and opp.party nos. 1 to 4 was the consenting party to the said transaction.  Similarly, complainants by agreement of even dated purchased incompleted construction on 8^th floor bearing flat no 803 from its owners Narayan Shetty and to which also the opp.party nos. 1 to 4 became the consenting party.  At the time purchasing their respective incomplete flats by the complainants from both the complainants, they had cancelled the agreement with Civil Contractor/ M/s. Prakalp Builders which the vendor had entered into and thus taken to carryout and complete construction of respective flats on their own.  It may be mentioned here that before purchasing respective incomplete flats on 22/12/2000 by the complainants in both the complaints, a deed of confirmation of 11/07/2000 was got executed and registered to confirm the execution of 05/10/1994 between vendors of present complaints and opp.party nos. 1 to 4, supra.

          Thus, it could be seen from the nature of transactions that as per agreement dated 22/12/2000, supra, complainants in both the complaints just step into the shoes of their respective vendors.  As per agreement dated 05/10/1994 between the respective vendors of the complainants and opp.party no.4 as per clause no.12 of those agreement, it was agreed by opp.party nos. 1 to 4 that on completion of construction of the flat and on obtaining completion and occupation certificate thereof from the Municipal Corporation of Greater Mumbai (hereinafter referred as MCGM), allottee i.e. respective vendors of the complainants in both the complaints shall be entitled to take possession of their respective flats from the contractor (M/s. Prakalp Builders) directly.  Thus, here opp.party nos. 1 to 4 who are original purchasers of TDR rights from the society nowhere came in picture with an obligation to obtain completion/occupation certificate from the MCGM .

          Now coming to the respective agreement dated 22/12/2000, supra, whereby the complainants in both the complaints have purchased their respective incomplete construction and have taken themselves the responsibility to complete the construction on their own. Clauses 11 & 13 of these agreements about payment of  consideration and which are relevant, read as under:

“ Clause No.11 :   It is hereby agreed that the Purchaser shall not be

liable to pay any Consideration to the Developers in respect of the said flat being flat no.803 on the eight floor of the building “ BANDRA SEAHILL”.

          Clause no.13:       On completion of the construction work in the said

flat, the Developers  shall obtain the Completion/Occupation Certificates thereof from the Municipal Corporation of Greater Mumbai and thereafter the purchaser shall be entitled to occupy the said flat.”

          Reading as a whole of the agreement referred and particularly the agreements dated 05/10/1994 and 22/12/2000, supra, it could be seen that no consideration whatsoever for any service within the meaning of Consumer Protection Act, 1986 (hereinafter referred as “Act”) was agreed to be paid to opp.party nos. 1 to 4.  Further service of opp.party nos. 1 to 4 under the circumstances cannot be said to have been hired within the meaning of Act for any purpose including obtaining occupancy or completion certificates.  Thus, there is no inter se relationship of “consumer” and “service provider” between the complainants from both the complaints and opp.parties  nos. 1 to 4.  As earlier pointed out there is no evidence that opp.party nos. 1 to 4 are the partners of opp.party no.5- M/s. Prakalp Builders a partnership firm.  Furthermore, as revealed and cleared from the facts narrated above that complainants from both the complaints have on themselves taken responsibility of construction of their respective flats and certainly opp.party nos. 1 to 4 had nothing to do with the said construction except the fact that the complainants from both the complaints were required to complete their respective constructions as per original construction plan got sanctioned by opp.party nos. 1 to 4.  It may be further mentioned that as per the agreement dated 22/12/2000 and as per the terms mentioned therein the portion of consideration retained and which is agreed to be paid on completion of the work and against obtaining occupancy certificate by opp.party nos. 1 to 4 was to be paid only to their respective vendors by the complainants from both the complaints.  In both the consumer complaints nowhere there is a statement as to when the construction work of their respective flats was completed and which was the agency engaged to get the construction complete, and further certification that it was completed as per the sanctioned plan following all the conditions of sanction.  This is important because contractual obligations (per agreement dated 22/12/2000) of opp.party nos. 1 to 4 to obtain completion certificate would arise only when all these necessary formalities are complete on the part of complainants from both the complaints and as such, communicated to opp.party nos. 1 to 4 along with supplying necessary documents/certificates to enable opp.party nos. 1 to 4 to take further steps to obtain completion and occupancy certificates from MCGM.  Even if it is assumed that these formalities are completed and opp.party nos. 1 to 4 failed to discharge their contractual obligation, still it is not a consumer dispute for the reasons mentioned earlier since, element of hiring service is absent and whatever obligation that arise on part of opp.party nos. 1 to 4 is on account of contractual obligation only and for the breach of which the remedies are available elsewhere under the Act. 

          For the reasons stated above, we find that both the consumer complaints deserve to be dismissed since, they do not pertain to any consumer dispute.  We hold accordingly and pass the following order:-

                                                :-ORDER-:     

1.                 Complaint nos. 56/2006 and complaint no. 57/2006

stand dismissed.

2.                 In the given circumstances no order as to costs.

3.                 Copies of the order herein be furnished to the parties.