Complainant through Adv. Shaikh 

Opponents absent (Ex-parte)

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Per : Mr. V. P. Utpat, President                      Place   :  PUNE

// J U D G M E N T //

(27/08/2013)

          This complaint is filed by the flat owner against builder and promoter for deficiency in service under section 12 of the Consumer Protection Act, 1986.   The brief facts are as follows,

1]       The complainant has purchased flat no. 201 on the first floor in Hill Breeze building, which is constructed by the opponent.  The agreement to sale was registered on 18/8/2001 and the possession was delivered on 2/5/2002.  After taking possession of the flat, the complainant has noticed various defects in the said flat.  The opponents have not formed society and not executed conveyance deed.  Completion certificate is also not obtained from the local authority.  The opponent has installed two towers of mobile company on the terrace without consent of the flat owners which caused nuisance and inconvenience to the flat owners.  The complainant has paid charges for maintenance as well as formation of society and conveyance deed.  The opponent is not keeping maintenance of the building.  Out of 30 flats only 15 flats have been sold and remaining 15 flats are in the possession of the opponent.  Only complainant and other occupiers are contributing towards maintenance.  Opponent agreed to provide 24 hours water from bore well.  The said bore well is situated at long distance of 150 meters and now the opponents have sold out the flats which are situated near to bore well.  The opponent has constructed flats and shops on the ground floor against the contents of the agreement and sanctioned plan.  Parking space provided by the opponent is not sufficient.  There is defect in fitting and wiring.  There is no painting to the external surface of the building.   The opponent is not paying any heed to the request of the complainant.  Hence the complainant has filed this complaint and he has prayed for directions to the opponent to remove the defects and pay compensation of Rs. 5 lacs for deficiency in service, physical suffering and mental torture as well as cost of the litigation.

2]      The opponents though duly served remained absent.  Hence complaint proceeded ex-parte against the opponents.

3]      The evidence in the form of affidavit as well as documents remained unchallenged, as opponents have not filed any written version or affidavit in order to rebut the contentions of the complainant.  It reveals from the terms and conditions of the agreement, particularly para no. 12, if within a period of three years from the date of handing over the flat to the purchaser brings to the notice of the Promoter any defect in construction or erection in the flat, the Promoter shall rectify the defects at his own cost and if such defects are not removed then flat purchaser is entitled to receive reasonable compensation.  Undisputedly, the possession of the flat was taken by the complainant in the year 2002.  The complainant is not entitled to seek any relief as regards defects in the flat after three years i.e. after May 2005.  Hence, the complainant is not entitled for compensation for the defects as described in the complaint.

4]      The complainant has asked compensation for not starting lift, not forming society, not obtaining completion certificate and not executing conveyance deed.  As per the provisions of Maharashtra Ownership Flat Act, the builder and Promoter is under obligation to provide completion certificate, to form society and to execute conveyance deed.   It is significant to note that the opponents have not provided completion certificate and it appears from the same that they have not received the completion certificate.  In such circumstances, I held that the complainant is entitled for the smooth functioning of lift, completion certificate, formation of society and conveyance deed.  But complainant is not entitled for removal of defects in the construction as these reliefs are time barred as per the terms and conditions of the agreement.  The complainant is entitled for compensation for deficiency in service to the tune of Rs. 10,000/-, compensation for physical and mental harassment to the tune of Rs. 5,000/- and cost of the litigation to the tune of Rs. 2,000/-.  In the result, I answer accordingly and pass the following order.     

**  ORDER **

1.                 Complaint is partly allowed.

2.                 It is hereby declared that the opponents

have caused deficiency in service to the

complainant by not forming society and

by not executing conveyance deed and

supplying completion certificate. 

3.       The opponents are directed to start the

lift in proper running condition for the

said  building,  and  also form society,

provide completion certificate and execute

conveyance deed in favour of society within

six weeks from the date of receipt of this order.

If the opponents failed to execute conveyance

deed within stipulated period, complainant

is at liberty to apply for the same to competent

authority.

4.       The opponents are further  directed to pay

Compensation of Rs. 17,000/- (Rs. Seventeen

Thousand only) to the complainant  for

deficiency in service, mental and physical

sufferings as well as cost of the litigation

within six weeks from the date of receipt of

this order.

5.       Copies of this order be furnished to the

parties free of cost.

6.       Parties are directed to collect the sets,

which were provided for Members within

one month from the date of order, otherwise

those will be destroyed.