Complaint no. 157/2010

                                           Filed on. - 15/07/2010.

                                          Decided on. - 20/02/2014

M/s. Shabi Complex Co-op. Housing Society Ltd.,

Plot no. 110/111, Sector -12,

Vashi, Navi Mumbai 400703.                .. Complainant

         Versus 

1.M/s. Arenja Builders               

Construction Firm,

Having office at, Arenja Corner,

Room No. 313, Sector 17, Vashi.               

2. Mr. Mithalal Laxmilal Jain,

Flat no. 2, 1^st Floor, Arihant, Plot no. 124,

Sector 28, Vashi, Navi Mumbai 400 703.

3. Mrs. Rekha Lalit Jain,

Flat no. 2, 1^st Floor, Arihant, Plot no. 124,

Sector 28, Vashi, Navi Mumbai 400 703.

4. Mr. Chandraprakash Jain

Flat no. 2, 1^st Floor,

Arihant, Plot no. 124, Sector 28,

Vashi, Navi Mumbai 400 703.                     .. Opponents

BEFORE – HON’BLE PRESIDENT MRS. S. S. MHATRE

            HON’BLE MEMBER MR. S. S. PATIL  

Present –  Ld. Adv. Virbhan Sharma for the Complainant

                 Ld. Adv. Sunil Garg for the Opponent no. 1

     Ld. Adv. R.D.Tambe for Opponent no. 2 to 4

           J U D G E M E N T

    (20/02/2014)

Per HON'ABLE MR. S.S.Patil MEMBER.

1.         This is the Complaint regarding deficiency in service on the part of Opponents as Opponent no. 1 has not executed conveyance deed in favour of the Complainant Society, as alleged by the Complainant.

2.         The facts of the complaint as stated by the Complainant are that the Complainant is Co-operative Society and Opponent no. 1 is the builder and Construction firm. Opponent no. 1 constructed the building under the name and style of Shabi Complex on Plot no. 110 and 111, Sector 12, Vashi, Navi Mumbai. These plots were allotted by CIDCO to one M/s. Shabi Construction Company Pvt. Ltd. In this respect CIDCO has entered into an agreement with the said M/s. Shabi Company vide lease agreement dtd.   09-01-1989. Thereafter the said M/s Shabi construction company Pvt., Ltd., entered into agreement with the Opponent no. 1. (Arenja Builders) and development rights and right to sell the flat on ownership basis were given to the Opponent no. 1.

3.         As per the agreement between the Opponent no. 1 and the M/s. Shabi Construction Pvt., Ltd., Company, the Opponent no. 1 constructed a building known as Shabi Complex and sold the flats to the buyers who are now members of the Complainant Society.

4.         It is further added by the Complainant that inspite of non       co-operation of the Opponent no. 1 the Complainant Co-operative Society was formed by the buyers of the flats and shops in the above said building on 09/06/1999.

5.         As the Opponent no. 1 has entered into agreement with individual buyer in respect of the sale of the flat, the Opponent no. 1 has to convey a deed of lease by CIDCO in favour of Complainant within 12 months from the date of Formation of the Society or putting the building on plot no. 110, 111, whichever is latter. However the Opponent no. 1 has not got executed a deed of lease in the name of the Complainant till filing of this complaint. Similarly as per the provisions of sec 11 of MOFA the builder is required to enter into conveyance of land with the society within 4 months of its registration.  Thus the Opponent has not executed the conveyance deed of the above said two plots in favour of Complainant since 09/06/1999.

6.         It is further alleged by the Complainant that Opponent is defaulter of Rs. 1,31,379/- against society maintenance charges and building repair fund against shop no. 19 – 22 as the Opponent no. 1 is the member of the society.

7.         It is also alleged by the Complainant that the Opponent is a defaulter of the CIDCO of Rs. 4,85,000/- against the service charges and lease rent.

8.         The Opponent no. 1 sold shop 19 – 21 to Mr. Mithalal Jain and 2 others without obtaining N.O.C. from the Complainant.

9.         Finally the Complainant has prayed that the Opponent no. 1 be directed to execute conveyance deed in favour of the society (Complainant) and dues Opponent no. 2 to 4 be directed to restrain to be the member of the Complainant society till dispose of this complaint and till execution of conveyance of the said plots in favour of the society.

10.        The Complainant has attached the Xerox copies of the following :-

a) flat purchase agreement between the Opponent no. 1 and the flat purchaser.

b) Bill issued by the Complainant.

c) CIDCO’s Due receipt.

11.         The Complaint was admitted and notices were served on the Opponents.  Opponent no. 1 filed its written statement wherein it denied the allegations of the deficiency. The Opponent no. 1 has admitted that it is a builder and construction firm.  Further it has admitted that Opponent no.1 has constructed the Complainants building Shabi Complex on plot no.119, 111 Sector 12, Vashi, Navi Mumbai.

12.        The Opponent no. 1 has also stated that the above said land is to be conveyed in favour of the Complainant society by CIDCO Ltd., with Opponent no. 1 as a confirming party.  The process of conveyance was initiated in 2000 but due to inconsistent actions of the Complainant it was delayed.  Opponent no. 1 also stated that it has already given N.O.C and clearance for the conveyance of the land in favour of the Complainant. It is also vehemently stated by the Opponent no. 1 that it has been ready and willing to complete its legal obligation.  The society on 01/02/2008 wrote to the Estate officer of CIDCO that they have obtained N.O.C from the builders for conveying land and urged to expedite the conveyance.

13.        The Opponent no.1 has further submitted that it has complied with all the requirements to facilitate the execution of conveyance and it is the Complainant and its member to contribute towards the cost, charges for conveyance of the property as per terms and conditions of the agreement for sale between them and Opponent no.1.

14.        It further averred that it has done everything required to be done for the execution of the conveyance deed. The Opponent no. 1 has wrongly stated in his written version that Opponent no. 1 has signed the conveyance deed prepared by the Complainant. Thus Opponent no. 1 has mislead this forum by pleading such thing.  The document ‘D’ referred by the Opponent no. 1 is not a conveyance deed.

15.        The Opponent no. 1 has further stated that it has cleared and paid all the maintenance charges till July 2009.  The Opponent no. 1 has attached the receipts of these amounts paid by purchasers of the shops regarding payment of dues of CIDCO. The Opponent no. 1 has vehemently averred that Opponent no. 1 is not a defaulter and no dues are payable by them to CIDCO. The bill raised by the CIDCO was received by the Society (Complainant) in September – October 2009 i.e after 13 – 14 years demanding service charges for the first time alongwith interest thereon. Instead of ascertaining whether the claim is justified, enforceable and if yes then can CIDCO can claim interest for lapse. The Complainant has blamed the Opponent no. 1.  It should have taken up the matter with CICDO. Finally the Opponent no. 1 has prayed that the Complaint be rejected.

16.        The Opponent no. 1 has attached the Xerox copies of the following documents alongwith its written version.

a) Minutes of annual general meeting Dtd. 24-11-2008, of Complainant.

b) Letter dtd. 01-02-2008 from Complainant to CIDCO.

c) Letter dtd. 20-1-2006 from Opponent no. 1 to Complainant.

d) A document termed by the Opponent no. 1 as Deed of conveyance dtd. 17-07-2007.

e) 2 Receipts dtd.26-06-2009.

f) 1 Receipt dtd.17-07-2007.

g) Document dtd.31-07-2007.

h) Document dtd.31-07-2007.

i) Document dtd.31-07-2007.

j) Document dtd.31-07-2007.

k) Letter dtd.10-07-2000.

l) Letter dtd. 05-12-2008

m) Letter dtd. Nil from Complainant to CIDCO.

n) Letter dtd.15-06-2009

o) Letter dtd.30-03-1996 in connection with formation of society.

17.        The Opponent no. 2 to 4 also filed their written statement wherein they have reiterated the facts and points raised by the Opponent no. 1. Opponent no. 2 to 4 also filed their affidavit of evidence wherein all the facts and points mentioned in their written statement were reiterated. They have also attached the Xerox copies of the agreement of sale, cheque of Rs.20,400/- in favour of joint registrar Thane dtd.28-07-2009 Occupancy Certificate dtd. April 1992 issued by CIDCO possession letter, letter dtd.30-07-2009. Cheque of Rs.12,750/- Receipts no. 1400, 1401, dtd. 26-06-2009, No dues certificate dtd. 08-09-2009 from NMMC, N.O.C’s dtd. 31-07-2007 from the Complainant in respect of Shop no. 19, 20, 21 and 22, Letter dtd. 02-10-2009 from the Complainant to Arenja Builders to pay CIDCO charges of Rs. 4,91,000/- The Opponent no. 1 also filed its affidavit in support of  evidence and written argument on 11-11-2013.  The Complainant has already filed his written argument on 05-02-2011 wherein he has reiterated the facts mentioned in his complaint.  Thereafter the Complainant filed his affidavit of evidence on 04-01-2014, wherein he has stated that whatever in mentioned in the complaint and written argument be treated as the part and parcel of this affidavit.

18.        After completion of the above pleadings the matter was orally argued on 04-01-2014.  We heard the Ld. Advocates of all the parties and perused all the documents filed by them and our findings are as follows:-

19.        Plot no. 110 and 111 originally belonged to CIDCO Ltd.,. The said plots were leased to Shabi Construction Co., Pvt., Ltd., vide lease agreement dtd. 09-01-1989 and allotted these plots to Shabi Construction Co., Pvt. Ltd., This Shabi Construction Co. Pvt., Ltd., entered into agreement with Opponent no. 1.  As per this agreement the rights of development and right to sell the flats in the buildings constructed on the above said plots by Opponent no. 1 were given to Opponent no. 1 by the Shabi Construction Co., Pvt., Ltd.,   Accordingly Opponent no. 1 constructed a building known as Shabi Complex on the said plot no. 110 and 111 and sold the flats on ownership basis to the purchaser who are now the members of present Complainant Society.

20.        It appears from all the record that the Co-operative Society has been formed by the above said purchasers from the Shabi complex building on 09-06-1999.

21.        The purchasers of the flats in the above said Shabi Complex building had entered into an agreement of sale with the Opponent no. 1 in respect of the sale of these flats.  The clause 29 of this agreement stipulated as follows-

“The builder shall get a deed of lease executed by the said corporation or a society or Association of persons as the case may be in respect of the said property and the building erected thereon within 12 months from the formation and registration of the said society or Limited Company or association as the case may be, or from the date on which the building intended to be put on the said property is completed and is ready for giving possession thereof whichever is latter; provided that the builders have been paid and have received the full consideration amount payable by all premises holder”.

The clause 40 of this agreement also stipulates that, -

“This agreement always be subject to the provisions contained in the MOFA Act 1963 and MOFA Rules 1964 as amended upto date or any other provisions of law applicable thereto”.

21.        Taking into consideration the above said contractual provisions and the legal provisions in the MOFA 1963, MOFA Rule 64, it is the Opponent no. 1 who has the liability to convey the leased land to the Complainant.  It has also admitted by Opponent no. 1 that it is aware of the legal and contractual liabilities and it is ready to convey the leased title of plot no. 110 and 111 in favour of the Complainant but the main thing the Opponent no. 1 has done is, it has avoided its legal and contractual obligation by issuing only NOC and drafting a so-called conveyance deed which is not actually a conveyance deed as contemplated in the agreement to sale and in MOFA Act 1963.

22.        It is the obligation of the Opponent no. 1 to prepare the draft conveyance deed and send it to the society for approval.  The Society would sign it and sent back to the Opponent no. 1 who would after completing the formalities with DDR of Alibaug District should have sent the conveyance deed to CIDCO Ltd., and asked the CIDCO Ltd to convey the leased land in favour of the Complainant. Instead of doing the above things the Shabi Construction Co., Pvt., Ltd., who is the original leasee, has requested the CIDCO, vide its letter dtd 10-07-2000 Exh. C with written statement of Opponent no. 1 that, “Shabi Construction Co., Pvt., Ltd., wants to enter into a lease deed agreement with CIDCO for the above mentioned plot and would like to know what is the procedure and requirement for the same”. This certainly indicates that the Opponent no. 1 was not intending to convey the leased land consisting of plot 110 and 111, at Vashi Sector 12 to the Complainant.  Therefore, the Opponent no. 1 is absolutely deficient in the service by not making any efforts to convey the above plots in favour of Complainant.  In fact the Opponent no. 1 has mislead the Complainant in conveying the property in Complainants name.

23.        The further allegation of the Complainant is that “Opponent is defaulter of Rs.1,31,379/- against shop no. 19 to 22.  Here the Complainant has omitted to mention, which Opponent is a defaulter. Therefore we have to refer to the other documents which shows that the Opponent no. 2 to 4 are the purchasers of these shops and the Complainant’s intention is to recover  maintenance and building repair fund  from these Opponents  i.e Opponent no. 2 to 4.  But in this connection the Complainant has very conveniently forgotten to realize that it is a co-operative society, service provider to Opponent no. 2 to 4 and Opponent 2 to 4 are its consumers.  Therefore this Forum is not a proper authority to help the Complainant in this respect consequently prayer ‘ e ’ cannot be granted. The prayer ‘ f ’ that Opponent 2 to 4 be restrained to be a member of the Complainant Society cannot be granted as it is beyond the purview of Sec 14 of Consumer Protection Act 1986.

24.        The next deficiency in service alleged by the Complainant is that the Opponent no. 1 is defaulter of CIDCO of Rs. 4,85,000/- against service charges.  In this connection the Complainant has produced Exhibit ‘ C ’ para 13, a bill issued by CIDCO for Rs. 4,85,000/- in the name of Shabi Construction Co.op Ltd., i.e the Complainant.  But this document is not a dated document.  Even it is not mentioned in this bill as, for which period this bill pertains to. Therefore, the Complainant has not proved the liability of Opponent’s in respect of this bill.  Consequently the prayer ‘ d ’ cannot be granted.

25.        So far as the prayer a to c are concerned, the Opponent no. 1 is certainly deficient in getting the conveyance deed in favour of the Complainant.  As noted earlier, it is the contractual as well as legal obligation of the Opponent no. 1 to convey the leased land comprising of plot 110, 111, and the whole building Shabi Complex constructed on these two plots, in favour of the Complainant Society. The land is originally owned by CIDCO Ltd.  It is leased to Shabi Construction Co., Pvt., Ltd., and Opponent no. 1 is the builder. Therefore in performing the legal and contractual obligations of Opponent no. 1 the following parties are involved in making conveyance of the above said property in favour of the Complainant i.e  CIDCO Ltd., Arejna builders  and the Complainant.  It is the Opponent no. 1 to take initiative and prepare conveyance draft, get it approved by the Complainant Society and after completing the formalities get it sanctioned from the CIDCO Ltd, so that the leased property is conveyed in the name of the society. The Complainant has already passed resolution in this connection. Therefore, the contention of the Opponent no. 1 that the conveyance is delayed due to the Complainant fault, does not hold water.  Hence taking into consideration the above said observations we pass the order as follows.

-: ORDER :-

1.   Complaint bearing no. 157/2010 is partly allowed.

2.  The Opponent no. 1 is directed to execute the conveyance deed of leased property consisting of plot no. 110 and 111 and the building Shabi Construction constructed thereon at Vashi Sector 12, Navi Mumbai while the Complainant is directed to pay all the legal charges for his conveyance as per the agreement between individual purchaserेs (member of the Complainant Society) and the Opponent no. 1.  The Complainant shall also co-operate Opponent no. 1 in drafting conveyance lease deed.

3.  Opponent no. 1 is also directed to pay Rs. 10,000/- (Rs. Ten Thousand Only) to the Complainant towards the cost of this complaint.

4.  Opponent no. 1 is directed to comply with the above direction within  

3 months of the receipt of this order.

5.  Complaint against Opponent no. 2 to 4 is dismissed.

6.  Copies of the above said order be given to both the parties free of cost.

Date :- 20/02/2014.

Place :- Kokan Bhavan, Navi Mumbai.

                                  (S.S.Patil)      (S.S.Mhatre)

                               Member         President