For the Complainant : Mr.Nair, Advocate
For the Opposite party nos.1 & 2 : Mr.Nandu Pawar, Advocate
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Per :- Mr. J. L. Deshpande, President Place : Bandra
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::::: JUDGMENT :::::
Facts giving rise to this complaint may be stated, in brief, as follows :
The Complainant is a registered Co-operative Housing Society whereas the Opposite parties are Builder/Developer.
2 Under several deeds of conveyance, the Opposite party no.2 became the owner of pieces of land bearing survey no.269(B), 270, 274, 293(P), 271 A, 265 corresponding to survey no.463/4, 463/5, 263/1, 466/3, 463/6. The Opposite party no.2 got the building plan sanctioned from MCGM to construct D and E wing. The Opposite party no.2 then entered into develop and agreement, dated, 25.07.2002 with the Opposite party no.1 and executed power of attorney in favour of the Opposite party no.1. On the strength of development agreement and power of attorney executed the Opposite party no.2, the Opposite party no.1 constructed D and E wing of the building. The society and further sold flats to the willing purchasers under different agreements. The flat purchaser then formed Co-operative Housing Society which came to be registered on 12.10.2004 which is the Complainant-Society.
3 It is the case of the Complainant-Society that despite persuasion and reminders, the Opposite party has failed to execute the conveyance in favour of the Complainant-Society. Legal notice, dated, 25.04.2007 was send to the Opposite parties to take effective steps for execution of the conveyance but the Opposite parties did not give positive response. Ultimately, the Complainant-Society filed this complaint against both the Developers seeking therein directions to the developers to execute the conveyance of the property of the society in favour of the Complainant-Society and also to pay compensation.
4 The Opposite party no.1-Developer /Builder filed written version of defence and denied the allegations that he was negligent in the execution of the conveyance and thus claimed that there was no deficiency in service.
5 The Opposite party no.2 filed separate written version of defence and took stand that its’ the Opposite party no.1 who is responsible for execution of the conveyance.
6 Both the parties referred to Bombay Corporation City Civil Suit No.817/2003 filed by China Link Co-operative Housing Society against present Opposite parties and application filed by present Complainant-Society under Chembur Summons No.65/2009 in the said suit. We will refer that litigation in the later part of the Judgment.
7 The Complainant-Society filed affidavit of rejoinder to the written version filed by the Opposite parties. The Opposite party no.1 filed affidavit of evidence of its Proprietor-Mr.Nalin V. Patel. Both the sides produced copy of the documents and filed written notes of the arguments.
8 We have gone through the complaint, written version of defence, documents and written notes of the arguments. Following points arises for our determination.
Nos. | Points | Finding |
1 | Whether the Complainant–Society has proved that the Opposite parties are guilty of deficiency in service vis-à-vis execution of conveyance deed in favour of the Society ? | Yes |
2 | Whether the Complainant –Society is entitled to recover compensation from the Opposite parties ? | Yes, Rs.50,000/- |
3 | What order ? | Complaint is partly allowed. |
REASONS FOR FINDINGS :-
9 The Complainant-Society has produced copy of one of the agreement entered into between the Opposite party no.1-Developer and one of the flat purchasers. On going through the same, it is seen that under Development Agreement, dated, 23.07.2002, the Opposite party no.2-Original Developer had entered into development and agreement with the Opposite party no.1 in respect of construction of wings D and E. From the contents of the agreement, it is seen that the Opposite party no.2 had already constructed wing A, B and wing C collectively known as China Link Co-operative Housing Society. The Opposite party no.2 also executed power of attorney, dated, 25.07.2002 in favour of the Opposite party no.1. Thus, it is seen that under authority and development agreement given by the Opposite party n.2, the Opposite party no.1 constructed building wing D and E and sold flats situated therein under different agreements. The Co-operative Housing Society (Complainant-Society) of such flat purchasers came to be registered on 12.10.2004 and copy of registration certificate is produced by the Complainant –Society at Exhibit-A of the complaint. Thus construction of building was completed by the Opposite party no.1 before year-2004 and Co-operative Housing Society has also been registered. According to the provisions, contented in section-11 of MOFA (Maharashtra Ownership of Flats Act), 1960, developer / builder is under legal obligation to execute conveyance in favour of the Society, as per the terms incorporated in the agreement. Under clause no.32 of the agreement in favour of the flat purchasers, the Opposite party no.1 has reserved absolute authority and discretion in the matter of execution of conveyance. That provision is contrary to MOFA because as per Rule-9 of MOFA, the builder is under obligation to execute conveyance in favour of the Society within four months from the date of formation of the society. That period of four months has expired long back. The Opposite party no.1 in paragraph no.14 of written statement has stated that due to some technical difficulty, as the Opposite party no.1 is not the owner, he could not complete the process of conveyance in favour of the society. That explanation is hardly conveycing. The Opposite party no.2 in its separate written version of defence as put the blame on the Opposite party no.1. Therefore, both the parties being developer/ builder have committed the breach of provisions contained in MOFA. Thus, they are guilty of deficiency in service.
10 Both the Opposite parties in the written version of defence as well as written arguments have referred to Suit no.817/2003 file by China Link Co-operative Housing Society against the present Opposite parties, which is pending before City Civil Court. That Suit was filed by the said society for conveyance. As stated above China Link Co-operative Society has been formed from the flat situated Wings A, B and C whereas the Complainant-Society has been formed by the flat purchaser of Wings D and E.
11 Along with the written arguments, the Opposite party no.2 has produced copy of Roznama in S.C. Suit no.517/2003 pending before Bombay City Civil Court. Present Opposite parties and Municipal Corporation are three parties to the said Suit. Copy of Roznama shows that on admission of the Opposite parties. Judge, City Civil Court has passed order of conveyance in favour of the Plaintiff –Society in that suit i.e. China Link Co-operative Society.
12 In the affidavit of rejoinder as filed by the Complainant-Society, it is specifically stated that the property of China Link Co-operative Society and property of the present Complainant-Society is different and thus that suit does not relate to property of the present Society. As stated above, China Link Co-operative Society consist of members from Wings A, B and C whereas the present Society consist of members from D and E wings of the building. Thus, the Complainant-Society is different from China Link Co-operative Society and properties are also different. Therefore, Suit No.817/2003 pending before City Civil Court (if any) should not be impediment for the Complainant-Society to get the award for conveyance.
13 As discuss above, the Opposite parties to fail to execute conveyance in favour of the Complainant-Society. In the process they committed breach of the provisions contained in MOFA. The Society had sent draft of conveyance to the Opposite party but there was no response, ultimately, the Society had filed present complaint for conveyance. Thus, the Opposite parties delayed the execution of conveyance without justifiable reasons. Therefore, the Opposite parties are liable to pay compensation to the Complainant which we determine at Rs.50,000/- inclusive of costs of the complaint.
With this, we proceed to pass the following order.
ORDER
(1) Complaint is partly allowed.
(2) The Opposite parties are held guilty of deficiency in service vis-à-vis execution of conveyance in favour of the Complainant-Society.
(3) The Opposite parties are directed to execute conveyance in favour of the Society of the property possessed by the Complainant-Society within three months form the receipt of the order.
(4) The Opposite parties are further, directed to pay to the Complainant, jointly and severally, compensation in sum of Rs.50,000/- inclusive of costs.
(5) If the Opposite parties failed to execute conveyance in favour of the Society within stipulated period, they shall pay penalty jointly and severally Rs.500/- per day till execution of the conveyance.
(6) Certified copies of this order to be furnished both the parties, free of costs, as per rule.
