Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member

This consumer complaint relates to deficiencies left by the builder, particularly, not executing conveyance even after formation of the society, not obtaining Completion Certificate, not giving the accounts of the deposits accepted towards formation of the society and its registration charges for obtaining energy connection/energy meters, etc., not providing amenities as reflected through the brochure on the basis of which flats were purchased by the flat purchasers, not providing Club house, Gymnasium and Landscape garden, Children play area as promised in the brochure, other deficiencies leaving the work incomplete, not providing exclusive parking to some members, etc. 

Undisputed facts are that complainant is a registered Co-operative society of the flat purchasers of N wing which is a part of Housing complex developed and built by O.Ps.  Entire project consists of several buildings including N wing and the project was duly advertised through the material including brochure.  The possession of the flat from the complainant society was received on or about 30/10/2005. The complainant society was registered on 02/12/2006. First General body meeting of the society at the intervention of the Co-operative Registrar was held on 13/5/2008.

According to complainant society as per their own estimate, out of Rs.44.40 lakhs collected by way of deposits towards the society formation, registration expenses and MSEB expenses only Rs.25,15,630/- were spent and as such, Rs.19,24,370/- is lying idle with the builder.  It is also alleged that society’s open space was illegally sold by the builder as parking space and unlawfully collected amount of Rs.61,000/- and Rs.42,000/- respectively from Mr.Yaligar Madivalappa M. and Mrs.Priyadarshani Rajesh Narayan and Mr.Rajesh Narayan, while granting ‘No Objection Certificate’.  With all these grievances following amounts are claimed from the builder as specified in para 16 of the complaint:-

Particulars of Claim.

Amount(Rs.)                                                Particulars

Rs.19,24,370/-               Illegally retained amount towards Society formation      

                                      and registration expenses/MSEB expenses (as per

                                      Para no.7 of the complaint)

Rs. 1,03,000/-                Illegally collected amount for transfer of flat after

                                      formation of society(as per para no.8 of the complaint)

Rs.53,85,000/-               Illegally collected amounts for parking by sale of

                                      common spaces (as per Para no.11 of the complaint)

Rs.10,00,000/-               Compensation by way of damages

Rs.   50,000/-                 Legal expenses

Rs.84,62,370/-      …..    Total

In the complaint following reliefs are prayed:-

“a. The Opposite Parties be directed to execute conveyance in favour of the Complainant Society, of the property for which the Society is formed;

b. The Opposite Parties be directed to provide the amenities and facilities as agreed in the brochure.

c. The Opposite Parties be directed to complete the incomplete work as mentioned in para 4 herein above.

d.  The Opposite Parties be directed to remove the defects in respect of the elevators as mentioned in para 5 herein above.

e.       The Opposite Parties be directed to give accounts of deposits for common expenses and charges as mentioned in para (9) in complaint and hand over the balance amount after settlement of accounts along with interest @ 24% from 02/12/2006 i.e. from the date of formation of society till its entire realization.

f.        The Opposite Parties be directed to pay Rs.84,62,370/- as mentioned in Para 16 of the complaint along with interest @ 24% from 02/12/2006 i.e. from the date of formation of the society till its complete realization.

g.       The Opposite Parties be directed to replace the PVC doors as mentioned in para 10 in complaint, in all flats in the society or alternatively they be directed to pay damages by way of compensation @ Rs.15000/- per member to the society.

h.       The Opposite Parties be directed to obtain completion certificate from local Authorities.

i.        The Opposite Parties be directed to provide 20ft wide road abating to main entrance of the society.

j.        The Opposite Parties may please be permanently restrained from raising any construction or to deal with property of the society by themselves or their several agents or any other person in any manner except for providing the amenities as agreed by the opposite parties.

k.       The complaint be allowed with costs.”

Complaint is resisted by the O.Ps as per their written version.  They denied all the adverse allegations.  They denied any deficiency in service on the part of incomplete work or not providing amenities as claimed. They further submitted that the approach road as promised was provided, instead of flush doors, PVC doors with both side laminations were provided as it was their requirement.  They further tried to give particulars as to the accounts given to the society and denied that they illegally retained any amount.  Conveyance is admittedly yet to be executed but according to them looking to the terms of contract they have not committed any deficiency on that count since the project is not complete.  So is the case about obtaining Completion Certificate. 

Heard Mr.Sunil Jadhav-A.R. for the complainant and Mr.T.K.Swaminathan-Advocate for the O.P.

Besides copies of documents produced on record, complainant filed affidavit of Mr.Sunil Jadhav dated 09/2/2010 and other counter affidavit while on behalf of O.P. Mr.Hemendra Shah has tendered affidavit in evidence.

It is well settled law that even if certain amenities are mentioned in the brochure, they are only for the purpose of advertisement and in absence of inclusion thereof in the respective agreements of the flat purchasers, such vogue promises cannot be enforced. Both the parties would be governed by their contractual obligations in respect thereof as restricted by the statutory provisions.

Undisputedly, possession of their respective flats was received on or about 30/10/2005 by the flat purchasers.  Therefore, grievance as to not providing certain amenities as well as leaving the incomplete work as more specifically stated in para 4 & 5 of the consumer complaint, the cause of action thereof would arise as soon as the possession is received by the members of the complainant society.  Consumer complaint is filed on 11/5/2009 and, thus, any claim related to it is a stale claim barred by limitation.  Completion certificate is yet to be obtained.  Similarly, though it is stipulated in the agreement of the flat purchasers that the conveyance is to be executed within 5 years of the registration of the society, the provisions of Maharashtra Ownership Flat Act, 1963 (MOFA) and the standard bye-laws of the society would prevail and conveyance is to be executed within the specified time after the society is formed and registered.  Therefore, builder is under statutory obligation to execute conveyance as per the above referred provisions and the provisions of the MOFA.  Since he has not executed the conveyance, deficiency in service on its part is well established.  We may clarify at this stage that though the entire project is not complete, the conveyance can be executed on the basis of the description of the property appearing in the respective agreements of the members of the complainant society.

          Similarly, Completion Certificate without waiting for completion of entire project needs to be obtained and cause of action thereof being continuous in view of the provisions of section 3 of MOFA the builder has committed deficiency in service on this count also.

          About allotment of parking area as restricted area per agreements, and which is not a part of common area is to be looked not as deficiency in service.  Whether such parking area as a restricted area could be allotted or not by a builder or whether society has a full domain over allotment of such parking area is no more a question res-integra, since the law on the point is well settled.  Both the parties are governed by the same. However, on this count as earlier mentioned, there being no service deficiency on the part of the builder, this particular issue would fall beyond the provisions of the Consumer Protection Act, 1986.

          It is revealed from the statement made by the builder and which is not contradicted, that necessary approach road or desired specifications are already provided.

          There is some dispute about the correctness of the account of the deposit accepted.  It is a case of complainant that no accounts are tendered, but the builder has provided some material which is not disputed.  In any case as per the provisions of MOFA, builder is bound to give accounts to the society members i.e. flat purchasers and, therefore, holding deficiency in service on this count on the part of the builder, direction as per order below are given.

Defects in the elevator are not to be passed on to the builder as service deficiency since it is he who had taken the steps to provide the lift as per agreement. Lifts are subjected to warranty given by the manufacturer of the lift and further subjected to Annual Maintenance Contract, which the society may wish to enter with the manufacturer of the lift.  Hence no service deficiency on the part of the builder on this count would arise. 

As far as money claim as detailed in para 16 of the complaint, we find since the direction to render the accounts of the deposit would suffice, no monetary claim could be awarded as a consumer dispute.  Similar is the case of alleged illegally collected amount as transfer fee.  Remedy is available as per the bye-laws of the society under the Co-operative Societies Act but this dispute would not be covered under the Consumer Protection Act, 1986 in absence of any material to show that they relate to any unfair trade practice or that it properly established that no such amounts were illegally collected.

Considering the overall circumstances, we find award of cost as per final order would meet the ends of justice.

For the reasons stated above, we hold accordingly and pass the following order:-

                                      OPERATIVE ORDER

Complaint is partly allowed.

O.Ps are jointly and severally directed to comply the following directions:-

1.  To execute conveyance in terms of prayer clause 22(a) of the complaint within 60 days from the receipt of this order.

2. To give account of the amounts received and accepted as deposits as per MOF Act within 60 days from the receipt of this order.

3. To obtain Completion Certificate in respect of N wing of complainant society within 120 days from the receipt of this order.

4. O.Ps to bear their cost and to pay Rs.25,000/- as cost to the complainant society.

5. Copies of the order be furnished to the parties.