Per Hon’ble Shri Narendra Kawde, Member

[1]     Complainants are flat buyers.  Initially they filed this consumer complaint collectively against the opponent builder/developers alleging in not attending incomplete works and failure of the opponent to discharge statutory obligations under the provisions of The Maharashtra Ownership Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act,1963(“the MOFA” for brevity) i.e. to form the co-operative society, execute the deed of conveyance and handing over property card along with other details.  Subsequently, the cause title was amended and after formation of the co-operative housing society by the flat buyers themselves, co-operative housing society was impleded as complainant no.26.

[2]     It is the case of the complainant that several civil works were left half way in the incomplete condition by the opponents.  Complainants were compelled to avail services of private architect who carried out the survey and submitted estimate for completion of incomplete work.  The architect, while analyzing various deficiencies in civil work prepared detailed estimate to complete those works which is estimated to Rs.44,40,000/-.  Certain plumbing, flooring and other toilet fitting work was carried out by the complainant society and incurred expenses of Rs.29,457/-.  Opponents failed to form co-operative housing society of the flat buyers within specified period though an amount of Rs.5,860/- per member totaling Rs.3,62,100/- was collected.  Complainants themselves formed the co-operative housing society in the year 2009 though individual flat buyers were put into possession of the flat in March 2007.  Opponents have not executed deed of conveyance though the society was formed and such a request was frantically made by the society.  Amenities as listed in brochure like parking, elevated portion also have not been provided.  In short, it is contention of the complainants that there are glaring deficiencies on the part of the opponents in providing services to them. 

[3]     Opponent builder/developers appeared and contested the consumer complaint and claim by filing written version.  It is averred by the opponents that due to lack of co-operation from the flat buyers, co-operative housing society could not be formed and registered.  Occupation certificate has already been obtained from the competent authority.  However, building completion certificate has not been issued by the competent authorities because alterations and modifications have been carried out by the flat buyers.  Complainants have been put to the notice by the municipal authorities.  Report of architect has been seriously challenged by the opponents stating that the architect is not registered with the concerned authorities and body of the architects, who is unqualified to carry out such survey and prepare estimates and reports.  Survey report is without notice to the opponents.  Report has no evidentiary value as there is no supporting affidavit of the concerned architect.

[4]     Opponents further pleaded that there is no documentary evidence led by the complaints to demonstrate which of the civil works remained incomplete and as to how possession of flats was taken over by each of the flat buyers without verifying completion of interior work.  However, the opponents have shown their willingness to execute deed of conveyance.  Opponents have denied the monetary claims put forth by the complainants as they are unfounded and without any tangible proof and finally prayed for dismissal of complaint.

[5]     Heard learned counsel Ms.Rashmi Manne for the complainant and learned counsel Mr.Prakash Kadam for the opponent no.1 and 3.  We have gone through the record placed before us.  Registered sale deed available in the complaint compilation reveals collection of Rs.5,860/- towards formation and legal charges of the co-operative housing society collected from each member.  As regards amenities claimed in para (h) of the prayers by the complainants is mere reproduction from the brochure by the opponents which is not a part of registered agreement.  Therefore, amenities claimed by the complainant like providing nursing home, elevation etc. cannot be taken into consideration.  There is no denial by opponents of forming co-operative housing society by the flat purchasers in the year 2009.  Opponent did not lead any evidence in support of their contentions of non-co-operation of flat purchasers for forming such a co-operative housing society.  Though it is claimed by the opponent that occupancy certificate has been obtained from the competent authority, yet opponents failed to demonstrate the same from the complaint compilation.  No details have been provided when such occupation certificate was obtained and whether copy thereof has been handed over to the complainant society and individual members. 

[6]     Claim of the complainant for reimbursing Rs.29,457/- for carrying out the work of plumbing, shifting of pipe lines and labour charges is supported by the payment vouchers.  Therefore, this claim for reimbursement, complainants shall be eligible to get this amount.  Likewise, opponents are under obligation to refund the amount of Rs.3,62,100/- [Rs.5,860/- per member] towards charges collected for formation of the society, since opponent failed to discharge statutory obligation to form the society U/s.11 of the Mofa Act, 1963.  On carefully going through written version and affidavit of the opponents, execution of conveyance deed by the opponent can be expedited since it is admitted by opponents.  Rest of monetary claims as rightly pleaded by the opponents, are not supported by documents.  We are not inclined to consider these amenities claimed.  On going through the record and pleadings of the parties, documentary evidence led, opponents have failed to discharge the statutory obligation u/s.10 and 11 of the MOFA Act, 1963 to form co-operative society, to execute conveyance deed and obtain occupation certificate, completion certificate which amounts to deficiency in service on the part of the opponents.  Therefore,  consumer complaint must succeed.  Hence, we pass the following order.

ORDER

1)     Complaint is partly allowed.

2)     Opponents, jointly and severally, are directed to execute Deed of Conveyance, by obtaining completion certificate and occupation certificate for transferring rights, interest and title of building and piece of land bearing Survey No.273, Hissa No.3(P), Survey No.274(P) and Survey No277, Hissa No.1(P), CTS No.791 and 791/1 to 26 totally admeasuring 3411.00 sq.mtrs. of Village Dahisar, Taluka Borivali, Mumbai Suburban District, in favour of complainant society within period of 90 days from date of the this order, failing which opponent shall pay Rs.1,000/- per day to the complainant society from the date of this order till compliance.    

3)     Opponents, jointly and severally, are directed to refund  Rs.3,62,100/- for failure to register co-operative housing society along with interest @ 9%p.a. effective from the date of filing of complaint i.e. 01/09/2008 within period of 90 days from the date of this order, failing which the rate of interest shall be payable @12% p.a. from 01/09/2008 till its realization. 

4)  Opponents are further directed to hand over statement of accounts to the complainant society and also certified copies of property card with CTS plan, set of approved/completion plan and copy of NA permission issued by competent authority within 90 days from the date of this order.

5)     Opponents shall bear their own costs and pay costs of Rs.50,000/- to the complainant society.

6)  Complainants are at liberty to bring to the notice of this State Commission, failure, if any, to comply this order.

7)     Certified copies of this order be furnished to the parties.

Pronounced on

Dated 6^th January, 2015.