Per Shri Dhanraj Khamatkar – Hon’ble Member:
(1) This appeal takes an exception to an order passed in Consumer Complaint Nos.24/2009 and 26/2009 on 04.10.2010, Smt.Nidhei Choudhary & Anr. V/s Surya Builders, by District Consumer Disputes Redressal Forum, Pune (‘Forum below’ in short).
(2) The facts of the case in brief can be summarised as under:
One Ms.Nidhei Choudhary had filed consumer complaint before District Consumer Disputes Redressal Forum, Pune, which was subsequently numbered as Complaint No.24/2009 against Respondent/original Opposite Party – Surya Builders, who has constructed the tenaments. The Appellant/original Complainant had agreed to purchase Flat No.902 admeasuring 1125 sq.ft. for consideration of Rs.15,32,500/- from the Respondent/original Opposite Party. Apart from this amount, the Complainant had paid an amount of Rs.45,000/- towards M.S.E.B. charges, Rs.5,000/- towards legal charges, Rs.30,000/- towards club house development charges. In addition to this, the Complainant was liable to pay maintenance charges of Rs.16,875/-. The Appellant/original Complainant contended that she had paid all the charges referred above to the Respondent/original Opposite Party. The parking place was to be allotted to the Appellant/original Complainant on payment of Rs.70,000/-. The Appellant/original Complainant alleged that there was a deficiency in service in not providing the fire fighting equipments, lift and the quality of construction is of poor quality, water leakage. It was also contended that the Respondent/original Opposite Party had handed over possession of the area less than given in the agreement. Further, Complainant contended that the Respondent/original Opposite Party had not formed co-operative housing society and executed the conveyance in favour of the Society. It is alleged by the Complainant that the Respondent/original Opposite Party had not given the account of the payments made towards providing various amenities. Hence, Complainant prayed following reliefs:
“That the application be kindly allowed and the Opponent be kindly directed to give account for utilization of the payments made by the Complainant till date, a timeline as to when the issues relating to the flats mentioned in the para (1) to para (29) will be resolved and to pay to the Complainant the amounts as described in Clauses (a), (b) and (c) of this complaint within 30 days of the receipt of the order passed by this Hon’ble Forum.
Any other relief deemed fit in the circumstances of the case might kindly be also granted.”
(3) The Respondent/original Opposite Party filed written version denying the allegations of the Complainant in the complaint. The Opposite Party contended that he has obtained necessary permissions and sanctions from the concerned authorities and the construction is made in accordance with the sanctioned building plan and as per the agreement entered with the purchasers. He has complied all the promises and the Respondent/original Opposite Party has handed over the possession. Society is also formed and handed over all the accounts to the Society. Similarly, the Respondent/original Opposite Party has handed over the draft of final conveyance to the Society, however, it is not finalized by the Society.
(4) The Forum below after hearing both the parties has passed an order allowing the complaint partly and directing the Respondent/original Opposite Party to execute the conveyance in favour of the Complainant Society within four months from the date of receipt of the order by the Respondent/original Opposite Party. However, not satisfied with the relief granted, the present appeal is filed by the Complainant.
(5) The Appellant/original Complainant had contended in the appeal that she has paid additional amount to the Respondent/original Opposite Party as under:
Rs.45,000/- for M.S.E.B. charges, Rs.5,000/- as legal charges, Rs.30,000/- as club house charges and Rs.16,875/- as maintenance charges. However, the Respondent/Opposite Party had not furnished details about how the amount has been spent. The Appellant repeated the deficiencies as shown in her complaint and contended that the Forum below had not given any finding on the deficiencies shown by her in her complaint.
(6) Admittedly, the Appellant had booked flat in a construction to be carried out by the Respondent/original Opposite Party. The Respondent/original Opposite Party is not denying the fact that he has not collected the amounts as alleged by the Appellant/original Complainant in her complaint. However, the Respondent/original Opposite Party contends that he has formed the co-operative housing society and handed over all the accounts to the co-operative housing Society. In her rejoinder the Appellant admits that the Respondent/Opposite Party has handed over the accounts to the Society, however, the Appellant says that Society is in collusion with the Respondent/original Opposite Party. This cannot be accepted because the housing society is a representative body of all the flat holders and as per by-laws of the Society, which are binding on the Appellant too, the accounts have been rendered to the Society.
(7) The Respondent/original Opposite Party had obtained occupancy certificate from the local authority and the occupancy certificate is produced in the appeal compilation. When the construction is completed as per the building plan and when the necessary facilities as per the Development Control Rules are provided then only the occupancy certificate is issued by the local authority. The Respondent/original Opposite Party has attached the copy of maintenance contract executed with Omega Elevators to prove that he has provided the lift to the building. The Appellant has not produced any evidence to prove that the lift is substandard. Similarly, the Opposite Party has attached copy of the fire fighting certificate issued by the competent authority. When there are certificates from the competent authorities and the Appellant has not proved that the certificates are not valid, the Appellant cannot question the validity of the fire fighting arrangements and quality of lift.
(8) Apart from this, the Appellant has contended that there is seepage problem and because of seepage problems cracks are developed in the construction. However, to prove the allegations the Appellant has not adduced any evidence to prove that there is seepage problem and cracks have been developed. Appellant is alleging that the Respondent/original Opposite Party had handed over the possession of the lesser area than mentioned in the agreement. For proving this deficiency the Appellant is relying on the assessment notice given by the Corporation. For proving that area of the flat is less than the agreement the Appellant should have adduced the evidence from the competent technical person that the area is less than provided in the agreement. Hence, mere reliance on the notice issued by the Corporation will not prove the contention of the Appellant that the area provided by the Respondent/original Opposite Party is less than the Agreement.
(9) The Appellant has vehemently contended that the Respondent/original Opposite Party has asked for an amount of Rs.70,000/- for stilt parking place. This has been admitted by the Respondent/original Opposite Party in his written version. The Appellant relies on the ruling of the Bombay High Court dated 25th April, 2009, whereby the builders cannot sell stilt and open parking space. The same ruling of the Bombay High Court is upheld by the . In view of this, the Respondent/original Opposite Party cannot sell the area of stilt parking to the Appellant. It is not a case of Appellant that she has paid the amount of parking asked by the builder. Had she paid the amount she was entitled for the amount from the Respondent. The Forum below after taking into consideration the evidence adduced by the parties passed the order. Apex Court
(10) Therefore, we find that this appeal devoid of any substance and pass the following order:
O R D E R
(i) The appeal stands dismissed.
(ii) No order as to costs.
(iii) Copies of this order be sent to the parties.
