Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:

(1)                This consumer complaint is filed against the builder by the Co-operative Society of the flat purchasers.  Undisputed facts are that members of the Complainant Society agreed to purchase their respective flats in a building known as ‘Krishna Heritage’, developed and constructed by Opponent Np.1 – M/s.ENBICI Properties Pvt. Ltd. of which Opponent No2 – Mr.Alpesh Kalaria, is one of the Directors.  At the outset it may mention that Opponent No.3 – Mr.Umesh Bhatt, an Architect to the project, though impleaded as a party, neither any deficiency is alleged nor any relief is claimed against him.  There is no party impleaded as Opponent No.4 in the complaint, though in the prayer clause, reference is made of Opponent  No.4 occasionally.

(2)                The flat purchasers from the Complainant Society received possession of their respective flats during the period 2002-2003.  The Complainant Society got itself registered in the year 2004 on 17.04.2004 (annexure “C-3” the Society registration Certificate).

(3)                It is the grievance of the Complainant Society that the builder failed to provide basic amenities to its members and also failed to comply with contractual and statutory obligations and thus, guilty of deficiency in service.  According to them, on their own, they were required to get registered the Society. The builder failed to provide the documents, such as Property Card, CTS plan, set of approved/completion plans, occupation/building completion certificate, N.A. permission issued by the Collector and all other certificates in its possession.  It is also alleged that the builder is entitled to make them good the amounts of `33,53,490/- (`37261/- collected from 90 flat purchasers towards registration of the Society, consultancy legal/profession charges, share money and other related expenses).  For the other area of deficiency in service, it is pointed out that the builder failed to execute the conveyance in favour of the Society even though it was registered long back in the year 2004.  Claim of `96,01,295/- on the following counts is made:

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(4)                The Opponent Builder (Opponent Nos.1 and 2) resisted the complaint as per the written version.  They have denied all the allegations leveled against them in toto.  They contended that all the monetary claims are time barred and in fact no such claim could be made against them.  They admit non-execution of the conveyance deed, but submitted that it is the Society which has to submit draft of conveyance to them and which the Society failed to do.  As far as occupation certificate is concerned, it is submitted that they have also made application to obtain occupation/completion certificate on 24.09.2008 to the local authority, but since the flat purchasers of the Complainant Society made unauthorized alterations the occupation/completion certificate is yet to be issued. 

(5)                Opponent No.3, Architect, submitted that he is unnecessarily made party.  There are no allegations about deficiency in service leveled against him as an architect responsible for the project.  He further pointed out that occupation certificate could not be issued by the local authority due to unauthorized alterations carried out in the respective flats by the members of the Complainant Society.

(6)                We heard both the parties and considered the material placed on record.

(7)                Cause of action to claim the amounts covering total claim of `96,01,295/-,supra, particularly about claim for `33,53,490/- of reimbursement towards amount collected from the members of the Complainant Society as deposit is per se time barred.  Cause of action thereby would arise soon after the registration of the Society and when, if at all, the builder failed to render the accounts in the first meeting of the Society as per the standard by-laws of the Society.  Therefore, complaint filed almost after four years after registration of the Society such claim is clearly time barred.

(8)                As per own statement of the Complainant their irregularities were occurred in raising the floors by allotting T.D.R. is now regularized by the authorities imposing penalties etc.  Therefore, no more it is open to say that there is any violation by the builder towards any obligation in giving wrong information of F.S.I. or the construction.  In fact, one of the specimen agreements placed on the record on behalf of the Complainant and which is not disputed, it  can be seen that it specifically indicates construction upto 20 upper floors and 16 row houses (Clause (xii) internal page of 10 of the agreement dated 26^th January, 2001 with Dr.Sandip Kasbekar).  It is further alleged on behalf of the Complainant Society that to pay amount of regularization the builder asked a loan of `21,00,000/- from them and they accordingly paid the same to the B.M.C., i.e. local body. They claimed said amount in this consumer complaint.  Obviously,  since said amount has nothing to do with any element of hiring of service of the builder for house construction, recovery of the said amount cannot be a subject matter of a consumer dispute.

(9)                Other claim is in respect of excess water charges which were required to be paid for want of occupation certificate.  However, Complainant miserably failed to establish that they were required to pay higher charges for the water only because occupation certificate was not obtained.  As per the agreement with the flat purchasers, supra, (Clause 24 ) the flat purchasers agreed  to bear and pay increase in local taxes, water charges, insurance and other levies, if any, which are imposed by the concerned authorities and/or Government and/or other public authority on account of charge of user of flats/row house by the purchasers viz. use for any purpose other than residential purpose.  The Opponent builder stated that for want of occupation certificate no additional levies were levied and the charges for the water used which according to the builder were made in excess by the members of the Complainant Society, was at the rate of fees for supply of water to towers.  Except statement of words on oath against each other, there is absolutely no evidence adduced on behalf of the Complainant society to establish this fact and substantiate their grievance.  Looking to the provisions of MOFA there is simultaneous obligation on a builder to not to handover possession except for occupation certificate and equally the flat purchasers are under obligation to not to occupy the flat in the absence of occupancy certificate.  Therefore, when the flat purchasers with open eyes preferred to occupy the flats in the absence of occupation certificate, they perhaps cannot claim any deficiency in service on the part of the builder for not to obtain occupancy certificate.  Certainly, in any case, they cannot claim monetary benefits by way of compensation/damages for alleged payment due to enhanced charges for want of occupancy certificate and even if they were required to pay additionally all the property tax levied.  In fact levy of property tax on higher side as tried to be projected by the Complainant Society is also not established by them.

(10)            From the date the Society is formed and even prior to it, being the occupants, it is the responsibility and obligation of the flat purchasers to pay property charges and other taxes and levies pertaining to their respective flats.  If at all, said amount or part of it is covered by the deposits kept with the builder, as earlier pointed out cause of action for the said claim that is refund of the amount of taxes deposited with the builder which remain unused, would arise once the Society was registered and the builder failed to render the accounts in his first meeting.  Therefore, this claim is also time barred.

(11)            The builder cannot be blamed for annual maintenance contracts required to be entered in respect of operation of lifts.  It is not shown that the builder committed any deficiency in service by not obtaining proper licence to operate the lift.  In fact, very fact that the lift is operational, we find no substance in such grievance.  Further, any claim pertaining to it would be clearly time barred as far as consumer complaint is concerned, since cause of action, if any, for the same would arise soon after registration of the Society in the year 2004 or once the flat purchasers were put in possession of their respective flats in the year 2002-2003.

(12)            As far as supply of documents are concerned, in the written version the builder showed his willingness to supply those documents.  In fact, it is submitted that they actively cooperated with the Complainant Society to get it registered and which signifies that they even had supplied the documents to the Society which were necessary for its registration.  Whatever it may be, since, builder agreed to supply the documents we grant reliefs accordingly as per the final order.

(13)            As far as conveyance deed is concerned, since, it is an admitted fact that conveyance is not executed so far, it is a matter of continuous cause of action and non-execution of the conveyance deed certainly amounts to deficiency in service on the part of the builder.  Relief needs to be granted accordingly.

(14)            As far as occupancy/completion certificate is concerned, as earlier pointed out, the Complainant Society vis-à-vis its members who are equally responsible for taking the possession of the respective flats in the absence of such certificate.  As stated by the builder, it had already applied for obtaining completion certificate on 24.09.2008 but since the Society members carried out illegal construction or alterations in their respective flats and were not allowing their flats being inspected by the local authority, the completion certificate is not issued so far.  Affidavit of architect – Opponent No.3 is on record to support their said contention.  In his affidavit filed by the Hon.Secretary of Complainant Society Mr.Durgesh Zala, in reply to the written version, he simply denied that members of its Society had carried out renovation, alterations as alleged by the builder.  In any case, because of such controversy, perhaps the completion certificate is not issued.  Therefore, no deficiency in service on the part of the builder could be assumed in the background of facts of the case.  However, directions regarding handing over copy of the completion/occupancy certificate whenever it is received by the builder and the builder should take reasonable steps as expeditiously as possible to obtain occupancy certificate may be appropriate in the given circumstances.

(15)            For the reasons stated above, we hold accordingly and pass the following order:

ORDER

                (i)                 Complaint is partly allowed.

              (ii)                 Reliefs in terms of prayer clause 10(d) and (f) are granted.

            (iii)                 Opponent builder shall execute the conveyance deed in favour of the Complainant Society at the cost of Society within a period of three months from today.

            (iv)                 The Opponent builder shall handover copies of documents to the Complainant Society in terms of prayer clause 10(f).  In respect of completion/occupation certificate, it shall be handed over to the Complainant Society after the Opponents receives the same.  However, Opponents should take reasonable steps diligently to obtain the certificate.

              (v)                 Opponent Nos.1 and 2 are jointly and severally directed to pay `1,00,000/- to the Complainant Society for deficiency in service on account of delay in execution of the conveyance deed.

            (vi)                 Rest of the claims of the Complainant Society stand dismissed.

          (vii)                 Opponents to bear their own costs and Opponent Nos.1 and 2 are jointly and severally directed to pay `25,000/- as costs to the Complainant.

Pronounced on 27^th April, 2011.