2013(5) ALL MR (JOURNAL) 40
CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA STATE, MUMBAI

S.R. KHANZODE, DHANRAJ KHAMATKAR AND NARENDRA KAWDE, JJ.

M/S. Siddhi Construction Co. Vs. Mr. Sanjay Putlaji Darekar & Ors.

First Appeal No. 292 of 2010

3rd April, 2012

Petitioner Counsel: Mr.U.B. Wavikar
Respondent Counsel: Mr.Dattatray H. Daund,Ms.Deepali Patil

(A) Consumer Protection Act (1986), S.2 - Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (1963), S.12 - Consumer complaint - Lack of amenities, failure to obtain occupation certificate, non-formation of society - Complainants were in arrears and failed to pay dues as per S.12 of MOFA - Not entitled to make such complaint. (Para 12)

(B) Consumer Protection Act (1986), S.12(1)(c), 13(6) - Civil P.C. (1908), O.1 R.8 - Consumer complaint - Maintainability - Numerous consumers having same interest - No permission taken under S.12(1)(c) of the Consumer Act before filing complaint - Non compliance with provision of O.1 R.8 r/w S.13(6) of Consumer Act - Complaint not maintainable. (Para 9)

Cases Cited:
Rajendra Vitthal Thorat Vs. Mrs. Nalini Pandurang Limaye & Ors., First Appeal No.1087/2009, dt.05/01/2010 [Para 9]


JUDGMENT

Shri S.R. Khanzode, Hon'ble Presiding Judicial Member :- This appeal takes an exception to an order dated 16/01/2010 passed in consumer complaint No.117/2009, Shri Sanjay Putalaji Darekar & Ors. V/s. M/s.Siddhi Construction Co. through its partner and Ors., by Addl. District Consumer Disputes Redressal Forum, Thane ('the Forum' in short).

2. It is a consumer complaint filed by the flat purchasers in a building constructed by M/s.Siddhi Construction Company (in fact it is a proprietary concern of Mr.Pradeep Dalichand Shah, hereinafter referred to as 'builder') known as 'Siddhivinayak Park' situated at Airoli, Navi Mumbai. The consumer complaint against the builder came to be allowed and it was directed that the builder shall complete the incomplete construction work, provide all the amenities as mentioned in para 1 of the body of the impugned order and shall obtain an Occupation Certificate from opponent No.3/Navi Mumbai Municipal Corporation. It was further directed to the builder to execute the conveyance in favour of the Society which is to be registered and of which the complainants are members. In addition to this, '8,000/- to each of the complainants were awarded as compensation towards mental torture and '10,000/- as costs. Feeling aggrieved by said directions, builder preferred this appeal. It may be mentioned here that no direction is given against opponent No.2/City & Industrial Development Corporation ('CIDCO' in short) and Navi Mumbai Municipal Corporation ('NMMC' in short) and thus, in effect the consumer complaint as against them stood dismissed. It appears that the complainants did not prefer any appeal against dismissal of consumer complaint against opponent Nos.2&3.

3. It is contention of the complainants who are some of the flat purchasers, that they agreed to purchase flats in a building constructed by the builder, namely, Siddhi Vinayak Park, supra, as per their respective agreements. There respective agreements had taken place in the year 2003 and 2004. It is further alleged that the builder failed and neglected to hand over possession of the flats/shops as per the agreements. The flats were not provided with the amenities as agreed but due to their urgencies, the complainants accepted the possession without prejudice to following incomplete work as spelled out in Para 4 of the complaint and which reads as under :-

"(a) To provide domestic water supply,

(b) Installation of remaining electric meters,

(c) Compound Wall,

(d) Entrance Gate from Second Entrance,

(e) Recreation Ground is not developed,

(f) Joggers Track is not constructed,

(g) Incomplete electric fittings,

(h) Staircase Civil Works with proper electric wiring,

(i) Cement Floor Block fitting in the premises,

(j) Cabin for Watchman,

(k) Gardening Work,

(l) Painting the name of the building,

(m) Installation of Flat owners name plates for each wing,

(n) Fire Fighting Works and NOC for the same,

(o) Street and Compound light installation,

(p) Generator as substitute electric power as per CC issued by NMMC,

(q) Leakage problems in the flats,

(r) Proper lobby tiles works etc.,

(s) Unequal distribution of water due to faulty plumbing,

(t) Drainage Line incomplete,

(u) To repair the flooring damaged by rats.

4. It is also submitted on behalf of the complainants that the builder failed to form the co-operative society of the flat purchasers and failed to obtain no objection from the CIDCO. It is also contended on behalf of the complainants that the builder is not maintaining the building. The complainants are trying to maintain the building but due to non-formation of the society, they find it very difficult to do so. The complainants by their lawyer's notice dated 09/04/2009 no objection certificate from CIDCO for formation of the Society. Said notice was falsely replied by the CIDCO. Due to non-registration of the Society and for want of Occupation Certificate, NMMC has levied huge property taxes. Following reliefs were claimed by the complainant :-

"(a) The Opposite Party No.1 be directed to form co-operative Housing Society by obtaining No Objection form Opposite Party No.2 and Opposite Party No.1 be further directed to take immediate steps for execution of conveyance.

or in alternative

The Opposite Party No.1 be directed to obtain No Objection from Opposite Party No.2 and refund the amount collected towards the formation of Co-operative Housing Society toe ach Complainant and the Opposite Party No.1 be further directed to take immediate steps for execution of conveyance.

(b) The Opposite Party No.2 be directed to issue NOC to Complainants for formation of Co-operative Housing Society as per the provisions of Maharashtra Co-operative Societies Act, 1960.

(c) The Opposite Party No.3 be directed to charge water charges at residential rate.

(d) The Opposite Party No.1 be directed to complete the incomplete work i.e. (a) To provide domestic water supply, (b) Installation of remaining electric meters, (c) Compound Wall, (d) Entrance Gate from Second entrance, (e) Recreation Ground is not developed, (f) Joggers Track is not constructed, (g) Incomplete electric fittings, (h) Staircase Civil Works with proper electric wiring, (i) Cement Floor Block fitting in the premises, (j) Cabin for Watchman, (k) Gardening Work, (l) Painting the name of the building, (m) Installation of Flat owners name plates for each wing, (n) Fire Fighting Works and NOC for the same, (o) Street and Compound light installation, (p) Generator as substitute electric power as per CC issued by NMMC, (q) Leakage problems in the flats, (r) Proper lobby tiles works etc., (s) Unequal distribution of water due to faulty plumbing, (t) Drainage Line incomplete, (u) To repair the flooring damaged by rats.

(e) The Opposite Party No.1 be directed to supply the documents i.e. (a) Letter of intimation dated 26/06/1998, (b) Allotment Letter dated 25/08/2000 by CIDCO to Shri Jeevan Ganpat Patil and others, (c) Agreement to lease dated 30/08/2000, executed by CIDCO and Shri Jeevan Ganpatil and Others allotting Plot No.21, Sector 8A, Dive, Airoli, Navi Mumbai, (d) The Development Agreement dated 21/07/2001, (e) The General Power of Attorney dated 25/07/2001, (f) Set of Plans approved by NMMC sanctioning the plans in respect of the above Plot No.21, (g) Copy of Specifications, (h) Title Certificate issued by M/s.Shelke & Co., Advocates and Solicitors, (i) NOC from CIDCO for formation of Co-operative Housing Society under the Maharashtra Co-operative Societies Act, 1960.

(f) The Opposite Party No.1 be directed to return the amount of water charges paid by Complainants to Opposite Party No.3 at commercial rate.

(g) The Opposite Party No.1 be directed to pay the property tax till August 2008.

(h) The Opposite Party No.1 be directed to make payment of compensation of '10,00,0000/- (Rupees Ten Lacs only) to Complainants towards mental agony.

(i) The Hon'ble Presiding Officer be pleased to award '1,00,000/- or thereabout for legal charges paid to advocate.

(j) The cost of this complaint be granted to the Complainants.

(k) Any other relief, which this Hon'ble Forum deem fit and proper be granted in favour of the Complainants."

5. Opponent/builder resisted the claim pointing out that the complaint itself is misconceived. The complaint as presented is not tenable for want of compliance as per Section 12(1)(c) of Consumer Protection Act, 1986 ('the Act' for brevity). The complainants had forcibly entered and took possession of their respective flats. The flat purchasers since are in arrears and did not pay the entire dues, possession to them was not handed over by the builder and the builder even filed civil suits before the Junior Division Civil Judge, Vashi to recover the dues from the flat purchasers. Under the circumstances, the complaint deserves to be dismissed.

6. CIDCO and NMMC also submitted that complaint jas against them is misconceived. CIDCO categorically submitted that since there are violations of conditions of lease and their permission to hand over possession in respect of each flat purchaser was not taken, no occupancy certificate could be given.

7. The Forum observed that the flats are in possession of the complainants, the amenities were not provided to the flat purchasers as per the respective agreements as alleged in the complaint. Rejecting the contention of the builder that the complainants forcibly entered into the flats and to declare them as trespassers, the Forum further observed that civil suits filed by the builder, appears to be a counterblast. Thus, upholding the case of complainants for deficiency in service on the part of the builder, gave directions as mentioned earlier.

8. We heard both the sides.

9. On behalf of the complainants, affidavits of Mr.Sanjay Darekar are filed and relied upon while the builder has filed his own affidavit dated 28/11/2009 and another one dated 21/12/2009 giving particulars of the civil suits filed against the complainants. The affidavit of Mr.Sanjay Darekar titled as rejoinder to the written version filed by the builder. Amongst other documents which are not in dispute is the tripartite agreement dated 23/03/2005 whereby the builder gets leasehold rights assigned to him by the original owners, namely, complainants Nos.68, 69 & 70, who joined themselves as one of complainants being beneficiaries of some of the flats which are agreed to be given to them by the builder. A copy of agreement with one of the flat purchasers, namely, Mr.Sanjay Darekar dated 22/12/2003 is also on record. Other documents inter alia including copies of notices dated 14/05/2007 and 22/05/2007 and 09/04/2009 issued on behalf of complainants and replies dated 22/05/2007 and 05/05/2009 to those notices given by the builder, are also received. The consumer complaint is filed by some of the flat purchasers from the building 'Siddhivinayak Park' as many as 13 flat purchasers i.e. one who did not sign the consumer complaint and whose name was deleted as per request of existing complainants, are not parties to the complaint. Admittedly, no permission under Section 12(1)(c) of the Act is taken by these complainants before filing the consumer complaint and as such no compliance of provisions of Order I Rule 8 of the Code of Civil Procedure read with Section 13(6) of the Act is also made in the instant case. In the decision of this Commission in the matter of First Appeal No.1087/2009 decided on 05/01/2010, Rajendra Vitthal Thorat V/s. Mrs.Nalini Pandurang Limaye & Ors. (S.B. Mhase, J, S.R. Khanzode, JM and Dhanraj Khamatkar, M), it is observed as under :-

"11. ..These provisions from the Consumer Protection Act, 1986 cannot be said to be a formal one, but they are substantive provisions creating right in favour of consumers especially those who have not appeared before the Consumer Fora by filing complaint. .."

10. Under the circumstances, present consumer complaint ought not to have been entertained, much less, reliefs as given could not have been granted by the Forum. The Forum failed to consider this important aspect and arrived at a wrong conclusion.

11. Coming to the other aspect of the case, the builder come with a specific case that the complainants have unauthorisedly taken possession of their respective flats and in his affidavit, builder-Mr.Pradeep Shah also affirmed the same. The complainants failed to show that possession of the respective flats was handed over to them by the builder. The Forum in the impugned order referring to the statement of the builder during investigation by the Police consequent to the criminal complaint filed by the complainants, observed that in the said statement, the builder admitted having handed over the keys of the flats for the purpose of doing some interior work to the complainants. However, said statement is neither proved nor tendered in evidence and particularly, the builder, namely, Mr.Pradeep Shah is not confronted with his previous statement. Under the circumstances, the Forum erred in referring to such statement and further ignored the admissible material placed on record, particularly, evidence of the builder-Mr.Pradeep Shah to the effect that the possession of the flats were handed over to the flat purchasers by him.

12. Referring to the provisions of Section 12 of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 ('MOFA' in short), each flat purchaser who entered with an agreement to purchase the flat with the builder was under obligation to pay all the dues including the consideration agreed, proportionate share of municipal taxes and other charges with their respective agreements with the promoter and where co-operative society of the flat purchasers is to be constituted, co-operate in formation of co-operative housing Society as the case may be. In the instant case, the builder come with the specific case that the flat purchasers, particularly, complainants were in arrears. The builder also gave the particulars and showed how the complainants are in arrears, particularly, in his affidavit dated 21/12/2009. Further, the builder has also filed civil suits against the defaulter flat purchasers and which are still pending. Under the circumstances, since the complainants, prima-facie, themselves failed to discharge their obligation as per Section 12 of the MOFA, they cannot perhaps complain about lack of amenities, failure to obtain Occupation Certificate, non-formation of Society, etc. If the possession of the flats was lawfully obtained on payment of dues by the respective flat purchasers, then only the further obligation on the part of builder would arise/enforceable, namely, to form a co-operative Society of the flat purchasers and to hand over possession only after obtaining the occupation certificate from the NMMC.

13. The impugned order also witness said contradictory statements indicating confusion in the mind of the Forum while passing the order. In the impugned order, at internal page-15, while dealing with the arguments referring to the submission of the builder that since the flat purchasers did not pay the entire dues as agreed and therefore, the builder could not complete the construction work or provide the amenities; it is observed by the Forum that since the flat purchasers had paid amount of 10% and more of the agreed amount, the builder failed to discharge his legal obligation. In fact referring to Section 12 and clauses 5, 14 & 19 of the agreement (agreement of Mr.Sanjay Darekar dated 22/12/2003), it could be seen that such reasoning of the Forum is per se perverse and erroneous. In the following paras, it is also mentioned by the Forum that the builder ought to have filed civil suit to get recover the amount due from the respective flat purchasers and if such suits were filed, the Civil Court, certainly, can properly scrutinize the respective claims. Here the Forum failed to consider the admitted facts that the civil suits for such recoveries are already filed by the builder. The Forum was aware of this fact since at earlier point of time, it observed that those civil suits were filed to give counterblast.

14. The question of obtaining Occupation Certificate could arise only after completion of building and the project. The present complaint is not for compensation on account of deficiency in service on the part of the builder for delayed possession.

15. Before the Forum itself, one of the complainants, namely, Mr.Kunalkumar Ramanlal Patel, deleted complainant No.15, who is the purchaser of flat No.A-405 as well as respondent No.15 in the appeal; original complainant No.21 who is respondent No.21 in the appeal, namely, Mr.Abhay Narayan Raut, who is the purchaser of flat No.A-604; rescinded from the statements made in the complaint and stated that they have no grievance of any kind against the builder.

16. There is hardly any evidence led to show that the amenities or deficiency in respect of construction work as mentioned in Para 4, supra, are not provided. In fact any such claim is premature in the given circumstances against the builder. Further, the builder is not under legal obligation to provide those amenities unless the flat purchasers make the payment and therefore, no actionable claim as against the builder on this count could arise.

17. As far as grievance relating to higher assessment on the part of NMMC and also charging on higher rate of water charges is concerned, in the background of the given circumstances, the builder cannot be held responsible. Authorities assessed and charged the water charges as per the rules and no deficiency in service on that count on the part of the builder could be alleged.

18. Considering all these circumstances, we hold accordingly and pass the following order :-

-: ORDER :-

1. Appeal is allowed.

2. The impugned order dated 16/01/2010 is set aside and in the result, consumer complaint No.117/2009 stands dismissed.

3. In the given circumstances, both parties to bear their own costs.

4. Copies of the order be furnished to the parties.

Appeal allowed.