National Consumer Disputes Redressal
Bella Vista Empress Co-Op Housing ... vs M/S. Atul Realty (Pune) Through Its ... on 21 August, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 189 OF 2012 1. BELLA VISTA EMPRESS CO-OP HOUSING SOCIETY Registered address: S. No 192/7, Behind Datta Mandir, Wakad,
Thargaon Road, Wakad, Pune, MAHARASHTRA 411 057 ...........Complainant(s) Versus 1. M/S. ATUL REALTY (PUNE) THROUGH ITS PARTNER Through its partner
Mr Pradeep K. Shroff
At Shop No 8, Aakshada Avenue, Holy Cross Road,
I.C. Colony, Borivali(W) MUMBAI 400092 (MAHARASHTRA) ...........Opp.Party(s) CONSUMER CASE NO. 279 OF 2012 1. SHIVDAS KALATE & 15 ORS. All Residing at,
Bella Vista, Empress C.H.S., No. 192/7, Behind Dutta Mandir, Wakad Thargaon Road, WAKAD, PUNE MAHARASHTRA - 411 057. ...........Complainant(s) Versus 1. M/S. ATUL REALTY (PUNE) Thorugh Its Partner,
Mr. Pradeep K. Shroff, Regd. Add: Shop No.8, Aakshada Avenue, Holy Cross Road, I.C. Colony, BORIVALI (W), MUMBAI - 400 092. MAHARASHTRA ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE MR. BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. SURESH DHOLE, ADVOCATE
(THROUGH VIDEO CONFERENCE) FOR THE OPP. PARTY : FOR OPPOSITE PARTY-1 : MR. RANJEET SINGH, ADVOCATE
MR. KRISHNA YADAV, ADVOCATE
FOR OPPOSITE PARTY-2 : MR. VARUN KALRA, ADVOCATE
Dated : 21 August 2024 ORDER
1. Heard Mr. Suresh Dhole, Advocate, for the complainant, Mr. Ranjeet Singh, Advocate, for OP-1 and Mr. Varun Kalra, Advocate, for OP-2.
2. Bella Vista Empress Co-operative Housing Society has filed CC/189/2012 on behalf of 10 members for directing the opposite party to (a) pay an amount of Rs.10486800/- with interest @ 18% p.a. from the date of the complaint till realization; (b) pay Rs.752600/- @ Rs.75260/- collected from each member of the complainant; (c) provide health club equipment, tennis courts, senior citizens park, intercom facility, garden area, fire fighting equipment with fire alarms and society office; (d) convey the property bearing S. No.192/7, behind Data Mandir, Wakad, admeasuring 700 sq. mtrs.; (e) get the occupation certificate for the complainant's building; (f) pay arrears of water tax and property tax to Primpri Chinchwad Municipal Corporation; (g) pay Rs.25000/- as compensation for mental agony to each member of the complainant; (h) pay Rs.25000/- as litigation cost to each member of the complainant; and (i) any other order which is deemed fit and proper in the fact of case.
3. Bella Vista Empress Co-operative Housing Society has filed CC/279/2012 on behalf of 16 members for directing the opposite party to (a) pay an amount of Rs.15150870/- with interest @ 18% p.a. from the date of the complaint till realization; (b) pay Rs.1204160/- @ Rs.75260/- collected from each member of the complainant; (c) Rs. One lac to each of the members due to non-availability of the amenities; (d) pay Rs.25000/- as litigation cost to each member of the complainant; and (i) any other order which is deemed fit and proper in the fact of the case.
4. The complainant stated that it is a co-operative housing society registered under the Maharashtra Co-operative Societies Act, 1960. The opposite party is a builder/developer of the building of the complainant's society consisting of six wings i.e. A-1, A-2, B-1, B-2, C-1 & C-2. The members of the complainant have purchased their respective flats by paying the entire consideration. As per clause-9 of the agreement opposite party was required to give possession of the flat complete in all respect in June, 2007. However, the opposite party abandoned the project in April, 2007. As some members of the complainant were living in rented house, they requested the opposite party to handover the possession on 'as is where is basis.' The opposite party handed over the possession in June, 2007 to the allottees of the "A" and "B" wings, after receiving Rs.25000/- as club membership, Rs.260/-as share money, Rs.6000/- as security deposit, Rs.40000/-, as MSEB charges, Rs.2000/-, as legal charges, Rs.2000/- as society registration charges and maintenance amount of Rs.1190/- per month for one year. Allottees of "C" wing were handed over possession on different dates from 2007 to 2012, after taking charges as mentioned above. The opposite party failed to complete the construction and obtain the 'occupation certificate' and register the housing society, rather sent a legal notice dated 22.03.2010 demanding further amount for maintenance. The allottees formed Bella Vista Empress Co-operative Housing Society. The complainant through its Secretary, Devesh D. Mehta, gave a letter dated 07.05.2010 to the Executive Engineer, Municipal Corporation Primpri Chindwad, seeking a direction to the opposite party, for obtaining the 'occupation certificate', which was not replied. Then Devesh D. Mehta filed Writ Petition No.4963 of 2010 before the Bombay High Court against the opposite party and Municipal Corporation Primpri Chindwad. The High Court disposed of the writ petition vide order dated 12.07.2010 directing the complainant to file a fresh representation before Municipal Corporation Primpri Chindwad which was to be decided within eight weeks. The Secretary of the complainant made a representation before Municipal Corporation Primpri Chindwad. The opposite party appeared before Executive Engineer on 16.08.2010 and took time for filing the documents for obtaining 'occupation certificate'. But thereafter nothing was done. Then the complainant filed contempt petition. After issuance of notice in the contempt petition the Executive Engineer filed his reply dated 29.03.2011 stating that in the meeting dated 16.08.2010 the opposite party and his architect had sought time to file the documents for obtaining the 'completion certificate', which was not filed till 11.02.2011. Two flat purchasers, namely, Devesh D Mehta and Dilip Mehta got the flats measured by an architect and found that the area of the flats in the wings A-1 and B-1 was less by 251.10 sq. ft. area of the flats in wings A-2 and B-2 was less by 221 sq. ft. They filed a criminal complaint No.200/SW/2010 before Metropolitan Magistrate on 18.06.2010 against the opposite party and the land owners which is still pending. The opposite party filed a proposal for registration of co-operative housing society with the Deputy Registrar in 2011 but did not pursue it and ultimately the society was registered on 16.01.2012. The complainant requested the opposite party to obtain occupation certificate of the building; execute the conveyance deed in favour of the complainant; provide the details of amount collected from the members of the complainant; provide gym equipment in the club house, maintain the swimming pool, provide tennis court, senior citizens park, joggers park, functioning generator backup, intercom facility, common bathroom/ toilet per floor, garden area, fire extinguisher office. The complainant also informed the opposite party about improper installation of the water tank due to which there was extensive seepage in the flats. On 02.03.2012 the local office of the Municipal Corporation threatened for disconnection of water due to non-payment of arrears of water bills, which were issued to the land owner for commercial user. Then the complainant filed Writ Petition No.2177 of 2012 against the Municipal Corporation and the opposite party, which is still pending. Alleging deficiency in service on the part of the opposite party, the complainant filed CC/189/2012 on 16.07.2012 and CC/279/2012 was filed by 16 allottees on 22.10.2012, and amended on 28.03.2019.
5. The opposite party filed its separate written replies stating that the allegations made by the complainant are an afterthought to extort wrongful gains from the opposite party. Devesh D. Mehta, authorised signatory of the complainant has personal grudge against the OP. In 2007, Devesh D. Mehta and his father Dilip Mehta had a fight with the supervisor of the opposite party, namely, Riyaz Khan who sustained various stitches injury on his head due to assault by Mr. Dervesh D. Mehta. Due to criminal attack, Mr. Devesh D. Mehta was behind the bar for 1- 2 days. There is no genuine grievance of the complainant against the OP. The OP has complied with each and every condition of the agreement. The complainant has concealed the material fact from this Commission that six persons in CC/189/2012, namely, Rohit Rangappa, Sumit More, Lalit Sharma, Vijay Aphate, Sweta Tiwari and Vishal Joshi and 9 persons in CC/279/2012, namely Prasad Burra, Amit Teli, Rajesh Dalawani, Ashwin Agarwal, Heramb Hatkar, Amitkumar Sahu, Sandeep Bansode, Prajwal Buranda and Sandeep Kumar Narala are not original allottees and they purchased their flats in resale, therefore, they are not consumers of the OP and the complaint filed on their behalf is not maintainable. Four members of the managing committee of the complainant, namely, Samrit Maity, Devesh D. Mehta, Alok Gupta and Dilip Mehta have not paid maintenance charges and an amount of Rs.15287, Rs.66747/-, Rs.13887/- and Rs.63743/- respectively is still payable by them. Shivdas Kalate, Prasad Burra, Prakash Desai, Akshat Bharadwaj, Shirjeet Moary, Rajesh Dalwani, Ashwin Agarwal, Onkar Joshi, Heramb Hatkar, Mudit Mathur and Ajay Taribagil have not paid maintenance charges, Maintenance charge of more than Rs.10/- lacs is payable by the flat buyers. The OP applied for 'completion certificate' for 'A' wing and "B" wing on 28.01.2010 but due to handing over of road widening area and other technical reasons, the same could not be issued. The building "C" wing was completed and the OP applied for 'completion certificate' on 27.01.2011. The OP required Fire NOC. The OP engaged M/s. Ram Fire Protection System for installing fire fighter equipment but the complainant did not allow M/s. Ram Fire Protection System to complete balance work for which, the OP wrote letters dated 22.04.2013, 24.08.2013 and 30.07.2014 to the complainant. After obtaining the occupation certificate, the OP would execute the conveyance deed in the name of the complainant. The OP has built 80 flats (with two flats on each floor) and each flat has full complete cross ventilation. The OP has to shorten the size of the club house due to objections by the municipal authorities. Due to length and width of the entire plot it was not possible for the OP to construct the tennis court. In order to provide more green area and open space, the area earmarked for two bungalows were also left as open space. The OP has deposited an amount of Rs.123000/- before the concerned authority for formation of the complainant society. The complainant is misconceived the concept of built up area, covered area and saleable area. The OP has given the flats with more and more carpet area less 20 to 21% from the saleable area. The OP has added 25% area on the carpet area whereas other builders are added 30%. The area mentioned in the agreement is only for the purpose of market valuation for stamp duty, which is clear from clause 27 and 31 of the agreement. Devesh D. Mehta was allotted Flat B/402 (2BHK) on 4th floor "B" Wing admeasuring 1190 sq.ft. in the project Bella Vista Empress vide allotment letter dated 31.07.2006. Saleable area of Flat B/402 is 1190 sq. ft. In the allotment letter dated 31.07.2006 issued to Devesh D. Mehta number of the flat, size of the flat and the consideration are mentioned, which is confirmed by him on the allotment letter itself (Exhibit-C). Dilip C. Mehta was allotted Flat B/503 (2BHK) on 5th floor "B" Wing admeasuring 1175 sq. ft. in the project Bella Vista Empress vide allotment letter dated 03.11.2006 and Saleable area of Flat B/503 is 1175 sq. ft. While taking measurement the complainant has not included the area covered by walls, plaster, skirting tiles etc. The complainant has also excluded the outside area of the flat resulting in misconception in the area of the flat. The managing committee of the complainant has been formed without following the procedure of law and the election was not conducted in proper manner. The office bearers of the complainant have not furnished M-20 bonds with the Deputy Registrar of Co-operative Societies. With regard to club membership charges of Rs.25000/-, the OP has invested the money in construction of swimming pool, filtration plant, club house. Earlier the OP has constructed bigger size club house but due to PCMC (local corporation) directed to reduce the size of the club house and not put the gym equipment inside. Share money of Rs.260/- collected from the members of the complainant has been deposited in the co-operative bank and Mr. Sharma has been made as promoter of the society. Amount of Rs.6000/- was taken as security against non-payment of maintenance charges. MSEB charges of Rs.40000/- was invested in installation of cables, 3 phase meter for all flats, transformer substations and generator. Rs.2000/- taken as legal charges were spent on legal fees paid to the lawyer for drafting of sale agreement, verification of title, issue of public notice and title certificate etc. The OP has charged Rs.2000/- for registration of society, which has been got registered. With regard to the built up area, it is stated that the OP has not mentioned the built up area in the agreement as saleable area which covers the area of passage, staircase, servant toilet on each floor, lift duct, stilt parking, top terrace and underground water tank. The OP has provided common toilet on every floor and has also put benches for senior citizens. The complainant is issuing NOC to its members for resale of the flats without payment of maintenance charges and without consent of the OP. Devesh D. Mehta and his father Dilip Mehta had a fight with the supervisor of OP for which a police complaint was lodged against them. Due to this reason they are instigating the other flat buyers not to pay the maintenance charges. The OP is not liable to pay any compensation to the complainant as there is no deficiency in service on its part. All the allottees of "A" and "B" wing took possession in June, 2007 and CC/189/2012 has been filed on 16.07.2012. All the allottees in "C" wing took possession on different time till 2012. Section 24-A of the Consumer Protection Act, 1986 provides 2 years limitation for filing the complaint and the complaint is liable to be dismissed as time barred.
6. The complainant filed the Rejoinder and Affidavit of Evidence of Devesh D. Mehta, authorised representative and documentary evidence. The opposite party filed Affidavit of Evidence as well as Additional Affidavit of Evidence of Pradeep K. Shroff and documentary evidence. Both the parties have filed their written arguments.
7. We have considered the arguments of the counsel for the parties and examined the record. The OP raised preliminary objection that the complaint is time barred. Supreme Court in Samruddhi Cooperative Housing Society Vs. Mumbai Mahalaxmi Construction Pvt. Ltd, 2022 SCC OnLine SC 35, held that if the promoter has not transferred the project to the Cooperative Housing Society as per provisions of Maharashtra Ownership of Flat (Regulation of Development of Construction, Sale Management and Transfer) Act, 1963, then it is a continuing cause of action and the complaint is not time barred. The cases of Haryana Urban Development Authority Vs. B.K. Sood (2006) 1 SCC 164, State Bank of India Vs. B.S. Agriculture Industries, (2009) 5 SCC 121 and V.N Shrikhande (Dr.) Vs. Anita Sena Fernandes (2011) 1 SCC 53, have no application in the present case.
The society is a 'consumer' as held in Samruddhi Cooperative Housing Society's case (supra) and judgment in CC/116/2011 Bhagirath Cooperative Housing Society Vs. M/s. Nahalchand Laloochand Pvt. Ltd. (decided on 03.03.2023), has no application.
The objection of the OP that some members of the complainant are second purchaser has no merit as in Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, (2021) 20 SCC 401, it has been held that a transferee steps in to the shoes of his transferor with same right and liability. For the purpose delay, the date of transfer has to be considered.
8. The complainant has claimed Rs.10486800/- with interest @ 18% p.a. in CC/189/2012 and Rs.15150870/- with interest @ 18% p.a. in CC/279/2012 for shortage of built-up area. The complainant has stated that the built up area of the flats in Wing A-1 & B-1 was shown as 1048.32 sq. ft. while its actual built up area is 941.13 sq. ft. and there is shortage of area of 87.43 sq. ft. Similarly, there is shortage of the area in the flats and Wing A-2 and B-2 of 253.44 sq. ft. Similarly there is shortage of built up area 72.3 sq. ft. to 252 sq. ft. The opposite party has collected money for the more built up area. Therefore, the opposite party is liable to refund this money. In support of the arguments, the complainant has filed the measurement report of an architect namely 'Vastu Kala Architects and Engineers as annexure-I&J to CC/189/2012. According to the opposite party, the aforesaid architect has only measured the eternal area while the built up area has to include the covered area of walls, thickness of plaster, skirting and tiles etc. and other constructed portion used in the wardrobes, almirah which are also shown in the design of the brochure itself have to be included. The built up area means that the developer spent money on the construction of the project which includes construction of flat (with the flat and outside to an extent including the walls etc., parking passages, verandas, staircase, lift, terrace, overhead water tank, waling area, transformer room, chowkidar room and guard room etc.). The built up area has not been defined in the agreement. The flats were sold on unit basis and not on built area. The definition as provided in the development and control regulation has to be taken into account. The area as measured by the architect does not show that the area has been measured as defined in the Development and Control Regulation of Bombay. Alongwith the Additional Affidavit of Evidence, the opposite party has filed certificate of the Architect showing the built up area of Building A as 45060.90 sq. ft. and Building B as 45060.90 sq. ft. and Building C as 44936.00 sq. ft. and the built up area is complete as per approved layout plan. The opposite party has also filed a table giving the built up area of the various flats. According to which, there is no shortage of in any of the flats. The complainant has failed to prove that there is shortage of built up area.
9. So far as the deposit in the heads of club membership, share money, security deposit, MSEB charges, legal charges, society registration charges and maintenance charges for one year are concerned, these payments have been stipulated in clause-14 of the agreement itself. Admittedly, the "A" and "B" wing have taken possession in the year 2007 and allottees of "C" wing have taken possession latest till 2012. The complainant society was formed and registered in the year 2012. Therefore, charges in this head by the builder cannot be held to be illegal.
10. The opposite party has filed photographs alongwith affidavit of evidence showing that the project has been completed. The photographs also show the construction of a temple. The opposite party applied for 'completion certificate' for "A" and "B" wing on 28.01.2010 and for building "C" wing on 27.01.2011. In the Additional Affidavit of Evidence, the opposite party has filed 'completion certificate' issued on 12.04.2019. The opposite party has given reason for the delay that Municipal Corporation had requisition some land of the project for road widening and due to delay in handing over of road widening area and other technical reasons, 'completion certificate' of "A" and "B" wing was delayed. The office bearer of the complainant have not permitted M/s Ram Fire Protection System to carry out the balance work of fire fighting system in buildings C-1 & C-2. Therefore, the fire department has delayed issue of Fire NOC. At the time of approval of layout, there was no restriction on construction of elevation boxes, which were constructed for the benefits of allottees. However due to change of the policy, objection was raised for construction elevation boxes. In this connection, the opposite party has also sent a letter dated 11.06.2014 to the Commissioner and Deputy City Engineer requiring them to consider their say and allow them and get part completion certificate for Wing A & B. However, the municipal authorities have not agreed and imposed penalty upon the opposite party for it. Due to these reasons, the issuance of occupation certificate has been delayed. The opposite party has annexed a letter dated 30.11.2018 showing that the completion certificate has been obtained and they are proceeding for execution of the sale deed of the project in favour of the complainant society.
11. Since all the flat owners have taken possession and residing in it, therefore, they cannot avoid payment of maintenance charges and they are liable to pay the maintenance charges and the opposite party is entitled to recover it as according to the opposite party, a maintenance agreement has already been executed engaging an independent maintenance agency.
ORDER
In view of the aforesaid discussion, the complaints are partly allowed. If the opposite party has not executed the conveyance deed of the project in favour of the complainant society, after obtaining the occupation certificate, then the opposite party shall execute the conveyance deed after obtaining the occupation certificate within three months from the date of this judgment.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER