Complaint No. : 658/2009 Filed on : 05/10/2009 Decided on : 20/03/2010 Duration : 0 year 05 months 15 days BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COLLECTOR OFFICE, ROOM NO. 214, IIND FLOOR, THANE) Shri. Govind Dham Co-op., Hsg., Soc., Ltd., Shri. S.S.Bhagwat Shri. A. T.Sangurdekar Smt. D. K D'Souza Smt. S. B. Kondurkar Address: S.M.Joshi Marg, Old Mumbai -Pune Road, Kalwa, Thane 400 605. ..Complainant V/s. M/s. Shree Krupa Builders. Through its partner, through its partner 1.Shri. Nandkumar Salvi 2.Shri. Nilesh B. Salvi Office at: Ground floor, yashwant apartment, Nr. Kalwa Swimming pool, Manisha Gate No. 2, Kalwa, Thane 400 605. ..Opponent
CORUM : HON'BLE PRESIDENT I/C : MRS. BHAVANA PISAL HON'BLE MEMBER : MR. P. N. SHIRSAT Complainant through Adv. R.B.Kulkarni Opponent Exparte. J U D G E M E N T (20th March 2010) HON'BLE MEMBER : MR. P. N. SHIRSAT 1. Complaint is filed by the Complainants under section 12 of the Consumer Protection Act 1986 against the partners of M/s Shree Krupa Builders for compliance of their statutory obligation for obtaining the occupation certificate as well as execution of conveyance deed of the property. The brief facts of the complaint are narrated as under:- That the Complainants states that the Opponents has launched the housing project known as Govind Dham comprising of 5 buildings namely A,B,C,D, and E with an assurance of providing various other amenities. Accordingly the Opponents have constructed and sold the flats by April 1996 by executing agreements after receipt of monetary dues and offered possession to the flat purchasers without providing occupation certificate. The Opponents verbally assured to obtain occupation certificate after completion of construction of other buildings in phase II project. The Opponents have reluctantly formed housing society after continuous insistence by the Complainants. The Opponents have accepted the entire .. 2 .. monetary consideration and other charges demanded from time to time. Hence the Complainants are consumer and the Opponents are service providers. However the Opponents have failed to obtain the occupation certificate as well as not provided conveyance deed to the Complainant society thereby also violating the provisions of the Maharashtra Ownership Flat Act causing deficiency as well as negligency in service towards the Complainants as enumerated in the Opponents letter dt. 02/05/2009. Being aggrieved and dissatisfied by the attitude of the Opponents, the Complainants has filed the complaint in the forum stating therein that the cause of action is contineous and the property is situated at Kalwa, Thane. Therefore this forum has teritorrial as well as pecuniary jurisdiction to adjudicate and decide this complailnt. The prayer of the Complainants are as follows:- 1. The Opponents to obtain occupation certificate for building no. A, B, C, D and E in Govind Dham Co-op., Hsg., Society. 2. The Opponents to execute conveyance deed of plot of land of the buildings no. A, B, C, D and E in Govind Dha, Co-op., Hsg., Society. 3. The Opponents to pay Rs. 5,00,000/- to the Complainants towards mental harassment/agony.
2. The Forum has issued notice vide Exhibit no, 4. The Complaiant has filed acknowledgment receipt of the notice vide Exhibit 5 and 6. The Opponents have been served with the notice but they have failed to file written statement and hence they have been marked as Ex-parte. The Complainant has filed written arguments vide Exhibit no. 7 alongwith Legal citations. The Complainant has filed following documents alongwith the complaint namely:- 1.Registration Certificate of Shri. Govind Dham Co-op., Hsg., Society dt. 28/09/2001. 2.Complainants letter dt. 10/02/2008 to the Oppponents to furnish occupation certificate and conveyance deed. 3. 3 reminders to the Opponents dt.30/04/2008 and 04/04/2009 and 29/04/2009 for compliance. 4. Extract of Resolution dt. 06/09/2009. 5. Registered copy of Agreement for sale dt. 01/03/1994. .. 3 .. The Opponents have been issued the notice of the complaint but they have not taken any cognizance of the notice nor filed written statement. Hence the contention of the Complaint have not been contraverted by the Opponents. In other words the Opponents are in total agreement with the complaint. Hence the matter is posted for Ex-parte Judgment. In this complaint the following question arises for our consideration which are as under:- A. Whether the Opponents are negligent/deficient in their service in not providing occupation certificate and not executing conveyance deed in favour of the Complainants? Answer – Yes. B. Whether the Complainants are entitled for compensation on account of mental harassment and also legal expenses? Answer – Yes. REASONS A. Explanation:- It is crystal clear that the Opponents are builders who has launched and constructed a housing project known as Govind Dham Co-op., Hsg., Society comprising of 5 building namely A, B. C, D, and E. The Opponents have accepted the entire monetary consideration from the Complainants and provided possession of the flats. Hence there was privity of contract between the parties and also there was monetary consideration. The Complainants are therefore the consumers and the Opponets are service providers. The Opponents have verbally agreed to provide occupation certificate after completion of their other buildings in Phase II project but the Opponents though they have completed their phase II project did not give occupation certificate from the comptent authority or the Thane Municipal Corporation amounts to deficiency and negligency in service. The Opponents are also legally bound to provide occupation certificate and execute conveyance deed as per Maharashtra Ownership Flats Act in favour of the Complainants. Non fulfullment of the above contractual obligation amounts to deficiency in service. The Complainants has filed the following legal citations: 1) 2003 NCJ 619 (NC) Tehri Hydo Development Corporation Ltd., v/s New India Assurance Co., Ltd., in original petition no.332 of 2002 decided on 25/10/2002. Consumer Protection Act 1986 - section 24 -A limitation – sufficient cause for condonation of delay - Delay of 5 years to filed complaint after cause of action arises – corrospondence between the parties could encourage the period of limitation only when liability is acknowledged at any stage. .. 4 .. II] III (2005) CPJ 200 Manju Kothari v/s Dilip Sikdar and Anr. SC Case no. 112/A of 2004 – Decided on 29/10/2004. Consumer Protection Act 1986 – Section 24A – Limitation – Time barred – possession delivered – conveyance deed not executed – complaint dismissed by Forum as time barred – hence appeal – cause of action in such cases should be taken as continuing concept – possession of flat totally without any meaning and significance in absence of Execution and registration of deed – Opponents has not discharged his basic obligation, cause of action contineous- Complaint not time barred – order dismissing complaint set aside in appeal. Thus it is evident from the above citations that the cause of action is contineous for the Opponents to comply the occupation certificate and also to execute the conveyance deed in favour of the Coplainants. Non-complaince of the above amounts to negligency and deficiency in service by the Opponents. B. Explanation:- The Opponents being the builders has accepted the amount of the consideration and the Complainants have accepted the possession of the flats. The Opponents has assured to comply the Occupation Certificate after completion of their other building in phase II project. The Opponents phase II project was completed but they have neither given occupation certifcate nor executed conveyance deed in favour of the Complainats causing lot of inconveiences to the Complainants. Therefore the Opponents are legally duty bound to comply contractual obligation of providing occupation certificate and also execution of conveyance deed in favour of the Complainants. with this view we pass the following final order:- O R D E R 1.Complaint no.568/2009 is partly allowed and disposed off. 2.The Opponents to provide occupation certificate for building no. A, B, C, D, and E in Govind Dham Co-op., Society from the competent authority ie Thane Municipal Corporation, Thane. 3.The Opponents to execute conveyance deed of plot of Land of building no. A, B, C, D and E of the Govind Dham Co-op., Hsg., Soc.,
.. 5 .. 4.The Opponents to pay Rs. 25,000/-(Rs. Twenty Five Thousand Only) to the Complainants as compensation on account of mental harassment/Agony. 5.The Opponents to follow this order jointly and severally within 30 days from the receipt of this order failing which criminal proceedings shall be initiated against them. 6.Copies of this order be provided to the parties free of charges.
THANE DATE : 20/03/2010
(MR. P. N. SHIRSAT) (MRS. BHAVANA PISAL) MEMBER PRESIDENT
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