Mr.A.H.Gajbhiye-Advocate for respondent no.2

This appeal takes an exception to an order dated 16/11/2009 passed by Additional District Consumer Disputes Redressal Forum, Thane in consumer complaint no.88/2009.  Complaint filed by the appellant/org.complainant is rejected and it is further directed that if the complaint is filed before the appropriate forum, period spent in the Additional District Consumer Disputes Redressal Forum, Thane be ignored.  Thus, the complaint has been rejected on ground of want of jurisdiction and for want of necessary parties.

The complainant is a member of original opponent no.1. Respondent no.1/org.Opponent no.1 is a Condominium registered under the Maharashtra Apartment Ownership Act 1907. Complainant/appellant is having a flat no.11 in building no.6.  Above his flat there is flat no.15, which belongs to Mr.Ramji Patel.  He is a subsequent purchaser of the said flat.  However, he is not a party to the complaint.  Forum below has found that Ramji Patel is a necessary party and, therefore, has rejected the complaint.

Even the grievance of the complainant is that after the purchase of the said flat by Ramji Patel, he has carried out certain repairs in the said flat and as a result of which there is leakage in the flat of the appellant/complainant. He has further made a grievance that sometime in May 2008 there was a work of repair carried out in respect of terrace and, therefore, there is a leakage directly from the terrace to his flat and, resultantly, he has filed a complaint.

District Consumer Disputes Redressal Forum has found that said condominium is having their own bye-laws and as per said bye-laws responsibility of the internal maintenance is of the flat owners.  Therefore, responsibility of the internal maintenance of the flat no.15 is of Ramji Patel and if while carrying out any repairs and renovation in his own flat the leakage has taken place in flat of the complainant/appellant, the said defect will have to be removed by Ramji Patel by carrying out appropriate repairs in flat no.6. It is not a matter of external repairs for which association can be asked to carry out said work and for the said purpose District Consumer Disputes Redressal Forum has considered the bye-law nos.40 & 42 of the said Condominium.  Only because complainant/appellant has paid Rs.30,000/- for maintenance that does not mean that the responsibilities which are on the flat owners as per the bye-laws, can be shifted to association.  This aspect has been thoroughly considered by the District Consumer Disputes Redressal Forum and District Consumer Disputes Redressal Forum thereafter having found that Ramji Patel is not a party to the said proceedings has rejected the complaint. Not only that District Consumer Disputes Redressal Forum has taken precaution to protect the complainant by observing that in case he files appropriate complaint before the appropriate forum, time which is spent before the District Consumer Disputes Redressal Forum may be ignored and, thus, protection in respect of limitation has been also offered.  Under these circumstances, in fact appellant/complainant should have filed complaint before the appropriate forum, instead he preferred this appeal. 

We repeatedly pointed out this aspect and requested the complainant to withdraw the appeal and file appropriate proceedings.  However, for the best reasons known to him, he pursued the appeal and, therefore, even though we are rejecting the appeal we have to observe that he has to pay cost to the other side.  Hence the order:-

ORDER

1.     Appeal is hereby rejected. 

2.     Appellant/org.complainant is hereby directed to pay cost of Rs.2500/- to the respondent no.2. 

3.     Dictated in the open court.

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