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CONSUMER DISPUTES REDRESSAL FORUM MUMBAI SUBURBAN DISTRICT

Admn.Bldg., 3rd Floor, Near Chetana College, Bandra (E), Mumbai  400 051.

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Consumer Complaint No:  333-2004

Date of Filing: -            21/08/2004

Date of Judgment: -     23/07/2014

(The case has been decided after 10 years………….)

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1. Mhatre Palace Co-operative Housing Society Ltd.,

106-Link Road, I.C. Colony,

Borivali (West),

Mumbai 400 103                              .......  Complainant

V/s

1. M/s Nimesh Enterprises,

Rashmi Palace,

Behind Shanti Aashram,

Borivali (W), Mumbai 400 103

 

2. Mr. Balchandra Mhatre, Partner

M/s Nimesh Enterprises,

Rashmi Palae,

Behind Shanti Aashram,

Borivali (W), Mumbai 400 103     ……   Opponent No. 1 & 2

 

Corium: Hon’ble President, Shri. M. Y. Mankar

              Hon’ble Member,   Shri. S. R. Sanap

 

Complaint through Representative: Shri. Jagdish Babu Shetty

Opponent through Advocate: Shashank Thatte

 

JUDGEMENT

1. This Complaint has been filed by the complainant against the Developer for the breach of contractual as well as statutory obligations.

2. The case of the Complainant in brief is that it is a registered Society which came to be registered on 5th March, 2001. The building consists of 10 floors compromising 40 flats and the Society is having 38 flat purchasers as Members.  The Members of the Society individually entered into the agreement with the Opposite Party. The Opposite Party agreed to construct and sale the flats for consideration in the building known as Mhatre Palace in Borivali (West).  The Building was constructed and the Members of the Complainant Society were given possession in or about year 1997-98 after having received the full consideration.

3. The Opponent could not provide the service as per the agreement and statute.  The deficiency in their service is found regarding the obtaining of Occupation Certificate, failure to form and register the Society, failure to pay Municipal Taxes, failure to provide proper lift service, the Members were required to pay extra water charges and property taxes for want of  Occupancy Certificate to the tune of Rs. 4,42,624/- and Rs. 3,73,590, failure to execute the Conveyance Deed, failure to pay maintenance charges in respect of two flats in possession of the Opposite Party, failure to provide proper fire hydrant, failure to install proper electric meter in a room with ventilation and failure to provide garden and children playing equipment. The Complainant has accordingly prayed for the various reliefs. However, at the time of argument the claim for maintenance charges of two flats in possession of the Opponents and the claim for electric meter room with ventilation were not pressed for.  The Complainant have filed affidavit in support of the complaint as well as the written argument.     

4. The Opponents have filed the written statement. The main contention of the Opponents is that the complaint is barred by limitation. The possessions of the flats were taken by the Members of the Complainant with the knowledge that Occupation Certificate has not been granted.  The 60 % of the 120 feet D.P. Link Road area is in the possession of the landlord and that the landlord is not ready, willing and co-operating in selling the said 60% of the D. P. Link Road to the Opponent in spite of landlord’s promise to do the same and in absence of the same the Opponent can not apply for the Occupation Certificate and the BMC cannot process the same.  The Opponents had introduced one Mr. Masane for formation  & registration of the Society and the opponents had completed all the formalities and handed over the documents to him and who in turn handed over the said documents to the then Secretary Mr. John B. Fernandes to complete all the necessary formalities from the Members.  The Opponents have paid all the taxes for the Land under Construction till the year 2000. Some Members were defaulter in making the payment. The affairs of the building were handed over to the Complainant in March 2001. The Complainant was responsible for maintaining the lifts after receiving the charge.  The Conveyance Deed in favour of the Complainants is not possible as the Occupancy Certificate has not been obtained and the Landlord has not been joined as party. It is denied that the amenities of garden and children playing equipment were not provided. According to the Opponents the passing of the resolution for filing of the complaint as per Section 9 of Maharashtra Co-operative Societies Act 1960 was necessary. In absence of the same, the complaint is not tenable.  The Opponents have filed their affidavit and Written Argument.

5. Ld. Adv Shirish Deshpande appearing for the Complainant was heard. He argued that the amount was collected for formation and registration of the Society but the Complainant had to pay the amount for the same and the amount so paid to the Opponents should be refunded along with interest. He argued that in view of the recurring expenses required to be paid by the Complainant, the amendment was made and the amount thus incurred was added in the complaint and the same is demanded. He submitted that the fact of not obtaining the Occupation Certificate and not conveying property is clearly admitted by the Opponents. He submitted that the claim of the Complainant as regards to the Deficiency in Service be accepted and the amount as claimed may be awarded against the Opponents.

6. Ld. Adv. Thatte argued that the Opponents had raised the primary issue regarding the limitation in filing of the case. He also objected to the updation for claiming the amount, after filing of the complaint. He submitted that no resolution has been filed to show that the person was authorized to file the complaint and for claiming various reliefs. He argued that the application for updation was made after the Opponents had filed the written statement.  He submitted that the Complaint is liable to dismissed.

7. Ld. Adv. Shri. Deshpande withdrew himself after the permission was granted to Adv. Thatte for arguing in the matter. Thereafter Mr. Jagdish Babu Shetty for the Complainant gave the reply.

8. In view of the pleadings of the parties and the arguments advanced it can be said that the following facts are admitted.

The Complainant is a registered Society with effect from 05/03/2001. The Opponents are Builders/Developers. The Members of the Complainant had purchased the flat from the Opponents.  The possession was taken in the year 1997-98 without the Occupation Certificate. The amount was collected for formation and registration of Society. The building is having two lifts and it is 10 storied building.  The Occupation Certificate has not been obtained. The Conveyance Deed has not been executed.

9. In view of the above facts and circumstances it would be necessary to examine each claim of the Complainant.  The Complainant is seeking direction for obtaining Occupancy Certificate and in default for ordering the amount towards compensation. It is a statutory duty for obtaining the Occupancy Certificate before the residents are allowed to occupy the premises.  It is an admitted fact in this case the Occupancy Certificate has not been obtained.  The Opponents have given the reason for not obtaining the Occupancy Certificate. According to them the Landlord is not ready and willing to sell the 60% of the D.P. Link Road area to the Opponents in spite of the promise made.  It will be important to see whether this reason is proper and can be accepted. The possession was handed over in the year 1997-98. The Society was formed in March 2001. This complaint came to be filed on 21/08/2004. The written statement was filed on 19/11/2004. At the time of filing of the written statement nearly 6 years had passed since handing over of the possession to the Members of the Complainant. However, the record does not show that the Opponents have adopted any method for obtaining the 60% of area from the Landlord. The record does not show that the Opponents have appointed any Arbitrator or Mediator to find out some solution. Similarly the record does not show that the Opponents had filed any proceeding in any Court for compelling the Landlord to transfer the 60% of area of the D.P. Link Road. One can say under circumstances that the Opponents are hand in glow with the Landlord. The Opponents may get some benefit by postponing of not obtaining of Occupancy Certificate and not conveying the property but, definitely the Complainants are at loss. Hence, the ground put forth by the Opponents cannot be said to be proper reasonable and justified.

10. The Complainant has asked for the refund of the amount paid by the 38 Members towards the formation and registration of the Society. The copy of agreement for sale executed between the Opponent and Mr. Marian A. Menezes and Leela M. Menezes shows that the Opponent had collected the amount of Rs. 250+1+ 2,500/- as mentioned in Para No. 25 of the Agreement for formation and registration of the Society. Though the Opponents say that they had appointed one Mr. Masane for the said task and handed over the documents, however, they are silent about making of the payment to Mr. Masane and other legal payments.  On the contrary the Complainant has come out with the case that the Members took initiative and formed and registered the Society without the co-operation from the Opponent. The amount of Rs. 2751/- is collected for each flat as per the Agreement for Sale.  Collecting the amount for a specific work and not executing the same would amount to Deficiency in Service as well as he would be liable for returning the same. As per Section 10 of Maharashtra Ownership Flat Act it is the Promoter who has to take the steps for formation of the Society.  

11. The Complainant is seeking direction for directing the Opponent to make the payment of Property Tax to the BMC during the land under construction.  The Complainant has produced the warrant of attachment received from BMC for the amount of Rs. 13,09,606/-.  The copy of the same is placed on record.  The Opponents have come out with the case that they have paid all the taxes for land under construction till 2000 and thereafter it was the responsibility of the Complainant.  The copy of the warrant of attachment shows that the taxes were not paid for the period from 01/10/1995 to 30/09/1997, 01/04/2000 to 31/03/2001 and from 01/04/2002 to 31/03/2003. These Opponents have come out with the case that they have paid the taxes till the year 2000. But the warrant of attachment shows the period prior to year 2000 also. The Opponents have not produced any receipt to support their claim. Admittedly the property has not been conveyed and so it would be the duty of Opponents to pay the property taxes. The provision of section 6 of Maharashtra Ownership Flats Act 1963 can be referred to.

12. The Complainant has claimed that though the two lifts are installed but only one lift was operational and lifts are not suitable for 10 storied building and the Complainant was required to incur expenses. The Complainant has produced the documents to show the expenses incurred by it. It is the case of Opponents that they would not be liable for the maintenance after the affairs were handed over.  According to them the proper certificates were obtained before operating the lifts. The documents produced by the Complainant are for the period after the Formation of the Society. The Complainant has not produced any document to support the contention that the lifts are not suitable for 10 storied building.   

13. The document dated 14/06/2004 shows that the major repairs were to be carried out in the lift and the other document dated 28/05/2000 shows that the safety system was not fixed in the lift cabin. The facts on record show that the Members of the Complainant were put in possession in the year 1997-98 and the Society is formed in the year 2001. So there is a period about three years which required the maintenance and working of the lifts to be looked after.  The bills for this period are not produced by either party regarding the maintenance or repairs of the lifts. However the record shows that the safety system was not fixed in the lifts.

14. The Complainant has averred that they are required to pay extra water charges as the Occupancy Certificate has not been obtained by the Opponent.  The Complainant has claimed an amount of Rs. 4,42,624/- for the period up to filing of complaint and thereafter an amount of 3,73,590/- for the period from 08/04/2004 till 09/11/2009.  On this point the Opponents have come out with the case that the Members had taken the possession with full knowledge that the Occupancy Certificate was not issued. In our view, it was also the responsibility of the Opponents not to hand over the possession before obtaining the Occupancy Certificate and they cannot just run away from their duty by saying that the Members were insisting for the possession. Similarly the Members of the Complainant cannot claim ignorance and immunity in view of the provision of Section 3(2)(i) of Maharashtra Ownership Flat Act. The amount of claim has not been specifically denied by the Opponents.

15. The Complainant has prayed for directing the Opponents to complete the fire hydrant system as per the norms. The Opponents have simply denied about the facts. But, they have not produced any certificate from the competent authority to show that the fire hydrant system is in place and complete in all respect.  This fact becomes more important as the Occupancy Certificate has not been obtained. Surely this amounts to Deficiency in Service. 

16. The Complainant has prayed for providing garden and children playing equipment. The Opponents have simply denied this fact but failed to produce any photograph and the bills for placing order for the children playing equipment.  The bills could have been a good answer to the claim made by the Complainant. The copy of the agreement for sale clearly shows that in the list of amenities at annexure C, the beautiful garden with playing apparatus for children is mentioned under the head V other amenities at Sr. No. h. Hence claim of the Opponents that these amenities are provided is not substantiated by the record.

17. The Para 28 of the agreement for sell shows that the property was to be conveyed. The provision of Section 11 of Maharashtra Ownership Flats Act also casts obligation on the Promoter to convey the property.  The discussion in respect of the Occupation Certificate also holds good in respect of the ground taken by Opponents on this point. The ground is not justified. This also amounts to Deficiency in Service.

18. As we have mentioned above that the Opponents had taken the ground of limitation. They had filed an application to that effect which is dated 19/11/2004. The record shows that the Complainant had filed the application for condonation of delay and the Forum had passed the order dated 06/04/2010 and observed that there is no delay in the filing of the complaint and delay if any deserved to be condoned. In our view, in view of order dated 06/04/2010 we cannot consider the point of limitation.

19. Ld. Adv. Thatte had vehemently argued on the point of absence of the resolution though the Complainant is a registered Society. As per Section 2(1)(m)(iv) of Consumer Protection Act, the unregistered Society means a person who hires or avails of any service becomes a Consumer and a Consumer means a Complainant as per Section 2(1)(b)(i) of Consumer Protection Act. Hence in our view too much importance cannot be given to the resolution in a complaint under Consumer Protection Act. Moreover there is nothing on record to show that any of the 38 Members has at any time objected about any of the act of the Complainant.

20. The Members of the Complainant are also liable for taking the possession without Occupancy Certificate and so it will disentitle them from claiming the full amount on account of paying extra charges at least till filing of the complaint.  

21. Hence, considering the above discussion it is clearly made out that the Opponents have failed to carry out the contractual as well as statutory obligations. There is Deficiency in Service on their part. Hence we pass the following the order. 

22. The case could not be decided earlier because of the work load and other administrative factors.  

ORDER

1. The complaint is partly allowed.

2. It is hereby declared that there is Deficiency in Service provided by the Opponents.

3. The Opponents would be jointly and severally liable to comply the order.

4. It is hereby ordered that the Opponent should obtain the Occupation Certificate from the Competent Authority and hand over it to the Complainant  within 2 (two) months from date of this order. Failing which they shall be liable to pay Rs. 3800/- per month from the date of filing of the complaint till realization (excluding the period from 08/04/2004 to 09/01/2009).

5. The Opponents to refund Rs. 1,04,538/- (Rs. 2751/- X 38 Members) collected on account of formation and registration of Society to the Complainant on or before 01/09/2014. Failing which it will carry an interest @ 18% from the date of filing of the complaint till realization.

6. The Opponents would be liable to pay the taxes for the land till the property is conveyed to the Complainant.

7. The Opponents to pay Rs. 1,00,000/- for failure to provide security safety in the lifts on or before 01/09/2014. Failing which it will carry an interest @ 18% from the date of filing of the complaint till realization.

8. The Opponents to pay Rs. 3,31,968/- (the amount after deducting 25% towards the liability of the Complainant) to the Complainant towards extra water charges on or before 01/09/2014. Failing which, it will carry the interest @ 18% from the date of filing of the complaint till realization.

9. The Opponents to pay Rs. 3,73,590/- to the Complainant towards extra water charges for the period from 08/04/2004 till 09/01/2009 on or before 01/09/2014. Failing which it would carry the interest @ 18% from the date of filing of the complaint till realization.

10. The Opponents to convey the land property as specifically described in second schedule to the Agreement for Sale read with first Schedule along with the structure  on it along with all the rights and interest so also the unutilized FSI and the future FSI in favour of the Complainant within 2 months from the date of order. Failing which the Opponents would be liable to pay an amount of Rs. 3,800/- per month from the date of filing of the complaint till realization.

11. The Opponents to provide proper, complete and appropriate Fire Hydrant System to the Complainant duly certified by the competent authority on or before 01/09/2014. Failing which they would be liable to pay Rs. 5,000/- per month from the date of filing of the complaint till realization.

12. The Opponents to pay an amount of Rs. 2,00,000/- in lump-sum  for the amenity of garden and children playing equipments to the Complainant on or before 01/09/2014. Failing which it will carry the interest @ 18% for the date of filing of the complaint till realization. 

13.     The Opponents to pay Rs. 50,000/- as cost to the complainant for the litigation on or before 01/09/2014. The Opponents have to bear their own cost of litigation.

14. The Parties to file their affidavits regarding compliance/non compliance of this order on 06/09/2014 as per the circular dated 05/07/2014 issued by Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai.

15. The complaint stands disposed off.

16. Copy of this order to be provided to both the parties free of cost by post.

Place: - Mumbai.

Date: - 23/07/2014.

 

                     (S. R. Sanap)          (M. Y. Mankar)

                             Member                      President

 

Counselor’s comments: Why the Forum did not rule that the judgment so delivered in this particular case, should also be made applicable to all those delinquent and felonious Builders in Mumbai who have blatantly violated the provisions under Section 11 of MOFA, 1963 by not conveying the respective properties in favour of housing societies within a stipulated period of 4 months and that all such dishonest Developers must be forced to pay water charges, municipal taxes and other charges as applicable until the time the entire property is conveyed to the housing Society???

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