Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member This consumer complaint is filed by the Vastu-shrusti Co-operative Housing Society Ltd., the complainant (hereinafter referred to as ‘complainant’) against the opponents for alleged deficiency in service as spelled out in Para 12 of the complaint and which inter alia include the one relating to not providing certain amenities by the opponent-builder/developer; for not executing civil work, as promised, and also for non-execution of the conveyance. 2. It is the case of complainant that it is a Co-operative Housing Society of the flat purchasers from Wings - C to H of the buildings constructed on CST No.238, H-2 Para in a complex known as “Lodha Heritage”, Village Bhopar, Dombivali (East), Tal. Kalyan, Dist. Thane. The Society is registered in the month of November 2005. As per their respective agreements with the builder/developer, namely, M/s.Lodha Estate Pvt. Ltd. (hereinafter referred to as ‘Builder-Company’) each member had received possession of their respective flats a few months prior to registration of their Society. First Annual General Meeting of the Society wherein the Ad-hoc Managing Committee was elected, was held on 09/10/2005. It was attended by the Builder-Company’s representative Mr.P.K. Shrivastava, who agreed and promised to complete the work as embodied in Subject-7 of the minutes of said meeting viz. “7. In presence of Chief Promoter Mr.Anil Palande, Meeting President Mr.Prajapati, Managing Committee and all flat owners; Sr. Estate Manager Mr.P.K. Srivastava agreed and promised to complete the following :- a) Buildings related 10 external remaining work in 15 days span from the date of the meeting (list for the same has been handed over by the flat owners and accepted by Mr.P.K. Srivastava on 28/09/2005) b) Mr.P.K. Srivastava also agreed to give us fire fighting convenience. c) All flat related problems which occurred in one year after possession (where 12 months deposit has been paid in advance to the builder), will be solved out 30 days from the date of meeting. Applications from sufferer flat owners is attached herewith.” 3. According to the complainant, the builder/developer failed to provide and attend the following pending work :- “a) Lighting saver system – not provided. b) Fire fighting system along with the connecting borewell pertaining to Vastu Shrushti E-wing. c) Crack filling and leakage problem has not been completed till today. d) 2nd and 3rd coat of painting/colouring of all the wings of the society. e) Beautification of Garden to be done; which looks like jungle at present. f) Proper and permanent office premises to society / security cabin not allotted till today. g) Standby Motor Pump for the “E” wing. h) Civil work pertaining to “E” wing. i) No documents relating to building completion certificate & lay out plan given to the society and also all the documents related to the lift install in “E” wing.” 4. Since, the builder/developer did not pay much attention to complete those pending works, the complainant had engaged services of one Surveyor, namely, Anagha Pandit & Associates, who inspected the property on 28/11/2006 and gave estimate of the work in tune of `20,59,087/- towards various internal and external works which were to be carried out. By filing this consumer complaint, the complainant claimed said amount along with interest @ 18% p.a. and also further reliefs as follows :- “a) This Hon’ble Commission direct/order/decree that the opposite parties pay the sum of `20,59,087/- (Rupees Twenty Lakhs Fifty Nine Thousand & Eighty Seven only) together with 18% interest from November 2005 till payment and or realization. b) This Hon’ble Commission direct/order/decree that the opposite parties to give the certificate of occupation and conveyance to the complainant. c) The compensation of `5,00,000/- (Rupees Five Lakhs only) towards the mental agony and harassment to the complainant. d) For such further and other reliefs as this Hon’ble Forum may deem fit, proper and expedient in the circumstances of the case. e) For costs of filing this complaint.” 5. The consumer complaint was filed on 10/04/2007. After filing of the consumer complaint in view of objections taken by opponent, which is then opponent No.1, namely, ‘The Proprietor/Chairman, Lodha Group of Companies’, the cause title of the complaint got amended to the present form (as mentioned in this order). Said amendment was carried out on 07/01/2011 as per order dated 14/12/2010. It may be at the outset mentioned that said amendment which in fact relates to substitution of new parties or addition of new parties in place of original one has not given any effect whereby the amendment was related back to the date of filing of original complaint and as such as far as the existing parties as they stand, the complaint is presumed to have instituted against these opponents on the date of making amendment application or on the date of order i.e. 14/12/2010 for the purpose of limitation i.e. Section 24 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for brevity). The original opponents, namely, ‘Proprietor/Chairman, Lodha Group of Companies’ as per its written version dated 27/07/2007 resisted the complaint stating that no deficiency on their part is either alleged or established. They further denied all the allegations of alleged unfinished work, also denied categorically that any claim of `20,59,087/- as assessed by the Surveyor or any further claim for compensation of `5 Lakhs extra is legally tenable against it also raised objection stating that complaint as framed and filed is not maintainable making grievance in the following words :- “ a) The Complaint as framed and filed is not maintainable as the present Complaint is filed against Proprietor/Chairman of Lodha Group of Companies, who has no relation with Complainant as ‘Consumer’.” 6. After joining all the present opponents, they virtually adopted the same written version filed by original opponent, supra. It may be mentioned here that the builder/developer-M/s.Lodha Estate Pvt. Ltd. is a Private Limited Company registered under the Companies Act as mentioned in the agreement executed with the flat purchasers (one of such copy produced on record relating to the agreement of purchase of flat No.404 from G wing by Mr.Chandrakant Papule dated 23/07/2004). ‘M/s.Lodha Estate Pvt. Ltd.’ as such within the meaning of Section 2(1)(m) of the Act, is a jurisdic person. Said company being limited company by its nature, obligations and responsibilities of its Director, namely, opponent No.2-Mr.Abhishek Lodha and opponent No.3-Mr.Abhinandan Lodha and opponent No.4-Mr.Rajendra Lodha are restricted and generally they cannot be held responsible unless contrary it is established to show that for omissions or deficiencies on the part of builder-company, they could be held personally liable. The complainant failed to allege and prove any such fact to hold that opponents Nos.2to4 are liable for alleged deficiencies. 7. It may be further pointed out that it is not made clear whether ‘Lodha Group of Companies’ is a separate legal entity vis-à-vis it is not made clear that the Proprietor/Chairman of Lodha Group of Companies is a legal person or not. However, as per the amendment carried out, character of original opponent No.1 is since then changed and in the present form, opponent No.1 is described as “The Proprietor/Chairman, M/s.Lodha Estate Pvt. Ltd.’ through Lodha Group of Companies…….”. Therefore, it is the Proprietor/Chairman of builder-Company, namely, ‘M/s.Lodha Estate Pvt. Ltd.’ is opponent No.1 and which itself is a separate, distinct and independent ‘person’ within meaning of Section 2(1)(m) of the Act. It being a limited Company, for the reasons mentioned earlier, liability of the Chairman of the builder-company is not the same as that of builder-company itself and complainant is silent to spell out any other liability and responsibility of the Chairman of the builder-company, so as to consider and fasten the alleged deficiency in service on its part within meaning of Section 2(1)(g) of the Act. This aspect assumed importance, particularly, when one has to consider the alleged deficiency in service on the part of the builder-company to get direction to remove the deficiency in terms of Section 14(1)(e) of the Act and to execute conveyance in favour of the Society. Since the builder-company is not the party to whom such directions could be given, no such directions, per se, could be given against the opponents. 8. For the sake of argument, assuming that the present complaint in the present form is tenable against the opponents, as far as issue of alleged deficiency in service in relation to the work spelled out in Para 12 of the complaint, supra, no such relief could be granted, firstly, because service provider, namely, builder-company is not the party; secondly, because referring to the date of impleading/joining of the present opponents to the consumer complaint, the consumer complaint as against them in relation to any relief based upon such deficiency (except execution of conveyance) is barred by limitation and in absence of any application for condonation of delay, no consumer complaint for the same could be entertained [Ref.: Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. , III (2009) CPJ 75 (SC)]; thirdly, because on the facts and circumstances as established from the material placed on record, it cannot be said that the builder-company could be held responsible for the alleged deficiency; and lastly, because what is claimed by the complainant, as per the prayers made, supra, is not removing of the deficiency (named in paragraph 12 of the complaint), but a monetary claim based upon the Surveyor’s report (of Anagha Pandit & Associates). Such monetary relief cannot be granted within scope of Section 14 of the Act. Such relief at the most could be covered under Section 69 of the Indian Contract Act, 1872 (if the work is executed at its expenses by the complainant) and for which remedy lies elsewhere. 9. As far as conveyance is concerned, the cause of action against the builder-company would be continuous one till they execute the conveyance. Referring to Section 11 of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (‘MOFA’ in short), the builder-company would be under obligation to register the Co-operative Housing Society of the flat purchasers or a Company or Condominium of the Apartment Ownership Act. Further, conveyance is to be executed in favour of such body of flat purchasers or apartment owners in accordance with the agreement executed under Section 4 of MOFA. If there is no period for execution of conveyance is agreed upon then the builder-company is expected to execute the conveyance within prescribed period and also to deliver all the documents of title relating to the property which they possessed. To claim any relief, therefore, in respect of conveyance, the complainant-Society must refer to factual situation in the light of the above said provision. It is for the complainant-Society to allege and establish these facts. Evidence and material placed on behalf of complainant-Society is totally silent rather inadequate to establish any deficiency in service on the part of builder-company on this count. 10. The complainant-Society appears to have been formed of the flat purchasers from wings ‘C’ to ‘H’ of the building complex known as “Vastushrusti” from Lodha Heritage. The complainant-Society is silent to spell out its operation area as per its bye-laws. This is important, particularly, in view of the fact that the agreement with the flat purchasers (copy of one such flat purchaser-Mr.Chandrakant Popule, supra, dated 23/07/2004) in its clauses Nos.20 & 21, reference is made to execute conveyance in favour of Society or Limited Company or Condominium which is for all the flat purchasers. In the instant case, it is a Co-operative Housing Society which is formed. In the written version, opponents submitted that conveyance is agreed to be executed in favour of the Federation of the Societies of which complainant-Society will be one of the constituents and since the entire project is yet to be completed and Federation of the Societies is yet to be formed, claiming relief of execution of conveyance, is premature. However, we find no specific reference to Federation of various Societies in whose favour conveyance is to be executed. Apart from the affidavits and annexed documents of opponents’ Representative Mr.P.K. Shrivastav dated 15/03/2011, it could be seen that on 30/01/2006 the builder-company, namely, M/s.Lodha Estate Pvt. Ltd. had written to the Chairman / Secretary of the complainant-Society conveying them their willingness to execute Deed of Conveyance of C to H wings with reference to part of land on which those wings are situated. Further correspondence dated 19/03/2008 and 26/12/2008 show that even the draft of conveyance was also exchanged in between themselves by the parties but it is yet to be finalized or approved. Under the circumstances, it cannot be said that the builder-company is deficient in service in not executing the conveyance and therefore, no relief for this purpose under Section 14 of the Act could be claimed or granted. 11. As far as other deficiencies in service mentioned in Para 12 of the complaint are concerned, since no relief to remove deficiency pertaining to same is subject matter of this consumer complaint, no such relief could be granted. Further, from the correspondence between the parties, particularly, referring to the affidavit of Mr.P.K. Shrivastav, supra, which get corroborated from the documents on record, shows that the builder always tried and remain co-operative in removing the alleged defects and in fact appointed an independent agency to carry out necessary civil works and it was carried out accordingly. Therefore, no deficiency could be alleged on that count. 12. Furthermore, the complainant-Society must establish contractual obligation on the part of builder-company based upon obligation agreed upon by their representative Mr.Shrivastav in the first meeting of the Society, supra. No evidence is led to establish the same as per provisions of Section 13(4) of the Act. Affidavit of Mr.Pralhad J. Prasad (Prajapati) dated 10/04/2007 filed on behalf of complainant would not serve said purpose. Further, referring to the letter dated 01/10/2005 of the builder-company to the proposed Society, it is revealed that they even submitted the statement of accounts (which the Promoter is supposed to tender and submit to the Society on its formation). This particular fact is not contradicted. There is no rebuttal in evidence to the affidavit of Shri P.K. Srivastav. The correspondence on record shows that cracks filling and problem of leakage, pending work were duly attended. Once the garden was made ready, it is for the Society to maintain it and which they failed to do, as it appears. It is also stated on behalf of the builder-company that fire fighting system for the wing-E is already provided as specified. There is a certificate on record of the Electrician that earthing work was properly carried out, the office premises were already provided, and the builder-company specifically denied that any additional pump was agreed to be provided. No deficiency in service is established in respect of non-obtaining building completion certificate or non-supplying of documents like lay-out plan, lift licence certificate, etc. There is no evidence affidavit of Surveyor who had carried out inspection and submitted report dated 20/11/2006 i.e. of Anagha Pandit & Associates. The monetary claim based upon the Survey Report cannot be granted as pointed out earlier. Similarly, said report even if taken into consideration does not speak out any deficiency in service on account of construction either in quality of performance as part of housing construction activities of the builder-company. If the cracks, etc. were developed in a routine course as a part of normal wear and tear, then it cannot be said that it was due to inferior quality of civil work or material used. 13. Referring to the minutes of the 1st General Body meeting, supra, on the basis of which it is alleged that representative Mr.Srivastava agreed to carry out certain works, it is a reciprocal promise on ensuring / making payment of arrears of maintenance charges. The complainant-Society failed to establish that their members fulfilled their such obligation. In absence thereof and considering the provisions of Section 12 of MOFA, it cannot be said that the builder-company failed to discharge their obligation in respect of carrying out the repairs or attending the problem relating thereto. 14. For the reasons stated above, we find that the complainant failed to establish its case to claim any one of the reliefs as per prayer clauses to which reference is made earlier. We hold accordingly and pass the following order:- -: ORDER :- 1. Complaint stands dismissed. 2. In the given circumstances, both the parties to bear their own costs. 3. Copies of the order be furnished to the parties. Pronounced Dated 3rd April 2012. |
