PRESIDENT
1) By this complaint the Complainant has prayed that it be declared that the Opposite Parties are jointly and severally guilty of deficiency in service and unfair trade practice as per the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the Act). It is also prayed that the Opposite Parties be directed to surrender the rights of the terrace in favour of the Complainant Society immediately within the time bound schedule framed by this Forum. The Complainant Society has also prayed to direct the Opposite Parties to execute Conveyance Deed in favour of the Complainant Society and to obtain the Occupation Certificate from Bombay Municipal Corporation for the Complainant Society. It is further prayed that the Opposite Parties be directed to handover upto date account of the society and refund Rs.4,000/- to each flat purchaser collected towards registration charges with interest @ 18% p.a. from the date of payment till the realization of the same. The Complainant Society has further prayed that the Opposite Parties to provide account for sum of Rs.3,000/-, Rs.260/- and Rs.3,000/- respectively collected from each flat purchasers towards miscellaneous expenses and refund the balance amount with interest @ 18% p.a. from the date of payment till the realization of the same. The Complainant Society has further prayed that the Opposite Parties be direct to pay of Rs.4 Lacs for loss of future income caused by not surrendering the rights of the terrace to the Complainant Society and to pay compensation of Rs.5 Lacs for mental harassment caused to the Complainant + Rs.50,000/- as cost of this proceeding.
2) According to the Complainant, it is registered Co-op. Hsg. Society under the Maharashtra Co-operative Societies Act, 1960 as per the resolution passed by the Complainant Society Mr.N.K. Bhansali, Chairman and Mr.S.G. Bibawanekar, Secretary and S.H. Gangan, Treasurer are authorized to proceed with this complaint on behalf of the Complainant Society. The copy of the said resolution dtd.27/05/06 is marked as Annexure ‘C1’. It is submitted that the Opposite Party No.1 is a partnership firm and Opposite Party No.2 & 3 are partners carrying on the business of construction of building. The Opposite Party No.4 is Government Public undertaking and concerned with housing proposals.
3) It is submitted that the plot of land/property of the Complainant’s Society was jointly held by one Madhusudan Motilal Gandhi and Tulsidas Nandlal Modi and the Opposite Party No.1 became entitled to the said tenanted land/property by virtue of two separate Deeds of Assignment dtd.30/08/1999 and 15/02/2000 registered with Sub-Registrar of Assurances at Mumbai under Sr.No.BBE 4151 of 1999 and BBE 732 of 2000 made between Smt. Shantibai Tulsidas Modi & 5 Ors. (Heirs of Late Tulsidas Modi) and Madhusudan Motilal Modi, respectively as assigners in favour of the Opposite Party No.1. It is alleged that the Opposite Party No.1 under the redevelopment scheme constructed the building with provision of 4 shops and 21 flats in respect of which NOC has been issued by the Bombay Housing and Area Development Board and the IOD and CC has been issued by the Municipal Corporation of Greater Mumbai for redevelopment of the said property.
4) According to the Complainant, on the representation of the Opposite Parties No.1 to 3 the flat purchasers of the Complainant Society agreed to purchase the flat in the said redevelopment projects of Opposite Party No.1 to 3 and entered into duly registered Agreement for Sale with the flat purchasers of the Complainant Society. The copy of the Agreement for Sale entered into by Opposite Party No.1 with the flat purchasers namely Mridula Shantaram Bibawanekar, dtd.04/12/01 in respect of Flat No.302 in ‘A’ Wing, built up areas admeasuring 39.5 Sq.mtrs. is marked as Annexure ‘C-2’ colly. It is submitted that the Opposite Parties No.1 to 3 contrary to their statutory and contractual obligations without obtaining Occupation Certificate and contrary to the provisions of Municipality Act handed over the possession of the flats to the respective flat purchasers in or about August, 2003. The copies of the letters dtd.04/07/03 and 21/08/03 sent by the Opposite Parties No.1 to 3 to one of those flat purchasers calling upon to make the payment of balance amount of consideration of a flat purchased by him and to take possession of the said flat are marked as Annexure ‘C-3’ colly. It is alleged that the Opposite Parties No.1 to 3 violated Sec.2 of the Maharashtra Ownership Flat Act, 1963, whereby builder/developer is duty bound to obtain all the necessary documents in respect of the redevelopment project including Occupation Certificate from the appropriate authorities before handing over the possession of the flat to the flat purchasers. It is alleged that the flat purchasers being layman and under a threat as their huge money was blocked with Opposite Parties NO.1 to 3 took the possession of flat from them. It is submitted that by not obtaining the occupation certificate at the time of handed over the possession of the flat by Opposite Party No.1 to 3 to the flat purchasers amounts to an illegal possession. It is alleged that Opposite Party No.1 to 3 by not complying with their statutory obligations are guilty of deficiency in service and unfair trade practice and have also committed breach of the provisions of Maharashtra Ownership Flat Act, 1963 of Sec.10 Rule 8 of Maharashtra Ownership Act, 1964 and Sec.11 of the said Act. It is alleged that the Opposite Parties No.1 to 3 failed and neglected to take any steps to form the co-operative society and thereafter to convey the property in favour of the Complainant Society and thus, the Opposite Parties No.1 to 3 are guilty of deficiency in service and unfair trade practices.
5) According to the Complainant, the members of the Complainant Society ultimately formed Complainant’s Society on 02/05/05 and registered the same as per the registration certificate dtd.02/05/05. The copy of which is marked as Annexure ‘C-4’. It is alleged that the Opposite Parties No.1 to 3 failed to provide basis and necessary amenities for the Complainant Society and due to failure on the part of them to obtain the occupation certificate for the said building. The flat owners and members of the Complainant Society have been put to considerable hardship as they are put to bear the charges of basic amenities such as, water at the higher rates. The Complainant Society incurred the necessary expenses and asked the Opposite Parties No.1 to 3 to reimburse the same. It is submitted that the Opposite Party No.1 to 3 accordingly sent the cheque of Rs.94,764/- as an by way of reimbursement of expenses incurred by the Complainant Society. The copies of the correspondence of the letter dtd.04/10/05 and 10/11/05 are marked as Annexure ‘C-5’ colly. It is alleged that the Complainant Society had also asked the Opposite Parties No.1 to 3 to submit the statement of account for the year 2004-05 which the Opposite Parties did not furnish despite of the fact that the Opposite Parties No.1 to 3 collected money from each of the members of the Complainant Society as under –
1) Proportionate share of taxes and other charges. … Rs.24,000/-
2) Societies formation and registration charges. … Rs. 4.000/-
3) Legal charges. … Rs. 3,000/-
4) B.E.S.T. Deposit. … Rs. 3,000/-
5) Application for entrance of Society … Rs. 260/-
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Rs.34,260/-
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6) According to the Complainant, on 14/12/05 the meeting had been taken place with the members of the society and the Opposite Parties No.1 to 3 wherein the acute problems faced by the flat holders on account of not obtaining the occupation certificate by them was brought to the notice and the arrangement was agreed that the Complainant Society will born the water charges first and the Opposite Parties No.1 to 3 could reimburse 50% of the water charges to the Complainant Society. It is submitted that as per letter dtd.11/02/06 the Complainant Society.
7) According to the Complainant in the year 2005 one advertisement company offered the Complainant Society to put the hoardings on the terrace of the societies building for consideration of Rs.4 Lacs per year with free interest deposit of Rs.1 Lac, however, the Opposite Parties No.1 to 3 did not surrender the rights of terrace to the Complainant Society with malafied intention to preclude the Complainant Society from the future income and thereby caused loss of future income of Rs.4 Lacs. The copy of the proposal given by Laksha Media Pvt. Ltd., dtd.20/12/05 is marked as Annexure ‘C-7’. The Complainant Society thus, submitted that the Opposite Parties No.1 to 3 are guilty of non compliance of their statutory obligation and are also liable for causing great discomfort to the members of the Complainant Society for the aforesaid reasons. The Complainant Society therefore, claimed that the reliefs prayed in para 1 of this order may be granted against Opposite Parties No.1 to 3.
8) The Opposite Parties No.1 to 3 contested the claim made in the complaint by fling their written statement. They denied all the allegations made in the complaint. It is contended that the Opposite Party No.1 by letter dtd.04/07/03 intimated the flat purchasers Mrs. Bibawanekar that her flat is being completed by them and on her specific request the Opposite Party had allowed her to temporarily take possession thereof for doing her said furniture work. It is denied that the Opposite Parties No.1 to 3 have violated the provision of Sec.2 of the Maharashtra Ownership Flat Act, 1963. It is contended that because of the high handed renovation work carried on by the various flat purchasers in the guise of the furniture/interior work in their respective flats, the flat purchasers caused material alterations in their flat as a result of which the Opposite Parties No1 to 3 are unable to sent the Occupancy Certificate. It is denied that the Opposite Parties have not complied with their statutory obligation and thereby the members of the Complainant Society are undergoing considerable hardship. It is denied that the Opposite Parties No.1 to 3 have failed and neglected to adhere the genuine grievances of the members of the Complainant Society. It is denied that the Opposite Parties No.1 to 3 are guilty of deficiency in service and unfair trade practice for which the Complainant is entitle for compensation. It is therefore, prayed that that the complaint be dismissed with cost.
9) The Secretary of the Complainant Society - Shri. S.G. Bibawanekar has filed his affidavit of evidence. The Opposite Parties No.1 to 3 did not file affidavit of evidence. The Complainant has filed written argument. The Opposite Parties No.1 to 3 did not file written argument. The Opposite Party No.4 remained absent though served hence, the complaint has been proceeded against Opposite Party No.4 as ex-parte. The Advocate for the Opposite Parties No.1 to 3 by application dtd.08/08/2013 has submitted that the Opposite Parties No.1 to 3 have never contacted him in respect of the present complaint for last about 5-6 years and he had sent letter to each Opposite Party No.1 to 3 by 20/08/2010 by RPAD and the same were returned with postal remark “Left”. He has enclosed the copies of those envelops and postal receipts and also mentioned that he does not know the present address of the Opposite Parties No.1 to 3. The Ld.Advocate Shri. Dhuri for Opposite Parties No.1 to 3 prayed to discharge him to appear on behalf of Opposite Parties No.1 to 3, accordingly the said request of him was allowed. We heard the argument of Ld.Advocate Smt. Rashmi Manne for the Complainant Society.
10) While considering the claim made in this complaint it appears that it is undisputed that the possession of the flat constructed by the Opposite Parties No.1 to 3 have been delivered to the flat purchasers and they are in possession of the same. It is also brought on record that the flat purchasers after getting the possession of their respective flats formed and registered Complainant Society on or about 02/05/05 as per Annexure ‘C-4’. In our view the prayer made by the Complainant that the Opposite Parties No.1 to 3 be directed to execute Conveyance Deed in favour of the Complainant Society and to obtain the Completion and Occupation Certificate from Opposite Party No.4 is justifiable. In our view the prayers made in Clause 12 (e), (f) are justifiable against the Opposite Party No.1 to 3. The prayer made in Clause 12 (g) as regards legal charges and application for entrance fees of Society to be refunded to the flat purchasers from whom the Opposite Parties No.1 to 3 have collected the same is justifiable, however, the prayer for refunding BEST deposit to the tune of Rs.3,000/- cannot be accepted as just and proper as without depositing the amount to the BEST the Electric Meter could not have been installed to the each flat purchasers by Opposite Parties No.1 to 3. Therefore, the said request in our view cannot be granted. While considering the point of compensation claimed on account of future loss of Rs.4 Lacs by not surrendering the right of terrace by Opposite Party No.1 to 3 cannot be considered as the Complainant has not produced any document showing that the Opposite Parties No.1 to 3 had agreed to surrender the rights of terrace in favour of the Complainant Society or the flat purchasers of the building constructed by the Opposite Parties No.1 to 3 on completion of its construction, we therefore, do not agree with the claim made by the Complainant in that regard. The prayer made by the Complainant to pay compensation of Rs.5 Lacs for mental harassment caused to the Complainant also cannot be considered as just and proper as the Complainant is a Society and not an individual person. In our view the Complainant is entitled for cost of Rs.25,000/- from the Opposite Party No.1 to 3 towards this proceeding. In the result the following order is passed -
O R D E R
i. Complaint No.318/2006 is partly allowed against the Opposite Parties No.1 to 3 and no relief is granted against Opposite Party No.4.
ii. The Opposite Parties No.1 to 3 are directed to execute Conveyance Deed in respect of the building of the Complainant Society within Four months in favour of the Complainant Society on receipt of this order by the Opposite Parties No.1 to 3.
iii. The Opposite Parties No.1 to 3 are directed to obtain Occupation Certificate and Completion Certificate from the Opposite Party No.4 or the Competent Authority in that regard within a period of 6 months in respect of the building of the Complainant Society from the receipt of this order by the Opposite Parties No.1 to 3.
iv. The Opposite Parties No.1 to 3 are directed to hand over the accounts of the Society to the Complainant within three months from the receipt of this order.
v. The Opposite Parties No.1 to 3 are directed to pay Rs.7,260/- (Rs. Seven Thousand Two Hundred Sixty Only) to the Flat Purchasers from whom the said amount if collected by the Opposite Parties No.1 to 3 towards the societies formation and registration charges, legal charges and application for entrance fees of society with interest @ 9% p.a. till its payment.
vi. The Opposite Parties No.1 to 3 are directed to pay Rs.25,000/- (Rs. Twenty Five Thousand Only) as cost of this proceeding to the Complainant Society.
vii. Certified copies of this order be furnished to the parties.
