First Appeal No. 210 of 2011

15th April, 2011

Petitioner Counsel: SANJAY B MORE

JUDGMENT

Mr. S.B. MHASE, Hon'ble President :- Heard Mr.Sanjay More-Advocate for the appellant.

2. Admittedly, appellant is a developer and builder and the appellant has taken a plot from CIDCO. There is a tri-partite agreement in respect of plot given by the CIDCO i.e. between CIDCO, appellant and the original complainant-society. Construction has been carried out and the possession has been delivered. However, as per clause no.24 in the agreement conveyance was not effected. Even to form a society and to convey the property in favour of the society is a statutory obligation of the builder and developer being promoter under the Maharashtra Ownership of Flats Act 1963. Since the said obligation was not discharged, the proposed society filed a complaint bearing no.200/09 and it was decided on 08/10/2010 and the appellant has been directed to execute the Conveyance deed in respect of the land in favour of the society by constituting the said society. The District Consumer Forum has also directed to pay cost of Rs. 5000/-. Even though society has claimed damages, District Consumer Forum has not granted damages. It is further directed that the amount shall be paid within a period of 60 days otherwise there will be interest @ 10% p.a. till realization of the amount. This order of the District Consumer Forum is challenged.

3. First ground raised by the Ld.counsel for the appellant is that the complaint filed by the respondent is not tenable because the complainant/ respondent is not a registered society and it is submitted the unregistered society cannot file a complaint. This submission appears to be based on the basis of definition 2(m) wherein the Legislature has defined the word 'person'. According to said definition 'person' includes (a) a firm, whether registered or not, (b) a Hindu Undivided Family, (c ) Co-operative society and (d) every other association of persons whether registered under Societies Registration Act, 1860 or not. It is to be noted that in respect of firms and the other association registered under the Societies Registration Act even though these firms and societies are not registered those bodies have been treated as 'person'. So far as Hindu Undivided Family is concerned, it requires no registration under any other law. So far as Co-operative society is concerned, it is not having a suffix "whether registered or not". However, since such words are not there, therefore it cannot be insisted that only a registered society can file a complaint. In fact the word Co-operative society without any prefix and suffix will have to be read along with other clauses. The Legislature intends by providing such type of Legislation to make available the Consumer Fora to the registered and even unregistered bodies. What is important to be noted that under the MOFA to form a society of the flat owners is an obligation of the promoters, builders and developers and if such an obligation is not discharged and if the flat owners themselves try to form a society and/or proposed society and if they are precluded from filing complaint, very object of Act will be defeated because flat owners will render remediless because there is no registered society. Therefore, keeping in view this aspect what we find that there is no substance in the contention of the Ld.counsel that the complaint of the respondent is not tenable because respondent society is not registered. On the contrary, it is a self invented ground and for which appellant himself is responsible and if such a mischief is permitted, very object of the Legislation will be frustrated and, therefore, submission is rejected.

4. Secondly, Ld.counsel tried to submit that there is no agreement to effect conveyance. However this statement is incorrect.

5. Admittedly, clause no.24 of the agreement provides that the conveyance shall be effected by the builder. Even assuming for the moment, that such clause is not in the agreement, still statutory provisions of the law even though are not incorporated as part of the agreement are part of the agreement and those statutory legal obligations cannot be avoided by the builder/ developer.

6. It is further to be noted that the format which has been provided under the said Act contends clause in respect of formation of the society by the promoters and any agreement contrary to the statutory formats which have been provided, is illegal agreement. In the result, there is no substance in the contention raised by the Ld.counsel.

7. Thirdly, Ld.counsel tried to submit that appellants are and were ready and willing to execute conveyance but however, balance amounts were not paid by the flat owners and, therefore, conveyance was not executed. For that purpose, we scrutinized the material on record. On going through written version of the appellant, we find that vague allegation has been made that the balance amount is not paid but the particulars of the balance amount to be received from each member of the respondent society have not been placed on record. No accounts were tendered before the District Consumer Disputes Redressal Forum. Basically, the figures of due amount were not reflected in the written version and to support written version affidavit is also not filed following the procedure as laid down under section 13(4) of the Consumer Protection Act, 1986. Not only that but along with this appeal, nothing has been produced on record to show that there are certain amounts to be recovered from the members of the society. A vague statement without any particulars cannot be used as a weapon to defeat the claim of conveyance in favour of respondent society, since there was no material, District Consumer Forum has rightly considered this aspect.

8. Except these three points, no other point was submitted for reconsideration. We find that there is no substance in the appeal. Appeal is hereby rejected. Copies of the order be furnished to the parties.

Appeal dismissed.