National Consumer Disputes Redressal
Marathon Realty Limited vs M/S. Monte Vista Residence Welfare ... on 30 July, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 492 OF 2015 (Against the Order dated 02/06/2015 in Complaint No. 207/2015 of the State Commission Maharastra) 1. MARATHON REALTY LIMITED HAVING ITS OFFICE AT 702, MARATHON MAX, MULUND-GOREGAON LINK ROAD, MULUND (W) MUMBAI-400080 ...........Appellant(s) Versus 1. M/S. MONTE VISTA RESIDENCE WELFARE ASSOCIATION & 4 ORS. THROUGH ITS SECRETARY, RM. CHANDULAL S. THAKKAR, HAVING ITS ADDRESS AT 2802, MONTE VISTA, MADAN MOHAN MALVIYA ROAD, MULUND (W) MUMBAI-400080 2. PROPOSED MONTE VISTA CO-OPERATIVE HOUSING SOCIETY LIMITED, THROUGH ITS SECRETARY, MR. CHANDULAL S. THAKKAR, HVAING ITS ADDRESS AT 2802, MONTE VISTA, MADAN MOHAN MALVIYA ROAD, MULUND (W) MUMBAI-400080 3. THE EXECUTIVE ENGINEER, BUILDING PROPOSAL (EASTERN SUBURBS), MUNICIPAL CORPORATION OF GREATER MUMBAI, PAPER MILLS COMPOUND, L.B.S. MARG, VIKHROLI, MUMBAI-400083 MAHARASHTRA 4. MR. MAYUR SHAH, INDIAN INHABITANT MANAGING DIRECTOR OF MARATHON REALTY LIMITED, HAVING ITS OFFICE AT 702, MARATHON MAX, MULUND-GOREGAON LINK ROAD, MULUND (W) MUMBAI-400080 5. MR. CHETAN SHAH INDIAN INHABITANT, VICE-CHAIRMAN OF MARATHON REALTY LIMITED, HAVING ITS OFFICE AT 702, MARATHON MAX, MULUND-GOREGAON LINK ROAD, MULUND (w), MUMBAI-400080 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : Mr. Kunal Vajani, Mr. Pranaya
Goyal & Mr. Shubham
Kulshreshtha, Advocates
For M/s Wadia Ghandy & Co. For the Respondent : For Respondent No.1&2 :Mr. Rajesh Sipahimalani with
Ms. Meenakshi Iyer, Advocates
For Respondent No. 34,5 : Deleted
Dated : 30 Jul 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against the order dated 02-06-2015 passed by the learned State Commission in Complaint No. 15/207 - M/s The Monte Vista Residence Welfare Association Vs. Marathon Realty Ltd. by which temporary injunction was granted.
2. Brief facts of the case are that the complainant no. 1/respondent no. 1 is registered welfare Association of the flat owners and complainant no.2/respondent no. 2 is proposed society of flat purchasers who have purchased flats from opposite party no. 1 / appellant no. 1. Complainants filed complaint before State Commission against opposite parties along with application for interim injunction and submitted that opposite party advertised for sale of flats in five buildings as per draft plan made in land formed out of CTS No. 551/13 of Village Nahur, Taluka Kurla, situated at Madan Mohan Malviya Road, Mulund (W), Greater Mumbai. Complainants purchased flats in one of the building called 'Monte Vista' and opposite party no. 1 executed agreements with individual flat purchasers. Opposite party agreed to provide parking space in the basement of the building but opposite party no. 1 failed to give access to the basement. It was further submitted that opposite party did not hand over possession of flat as promised but in September, 2013 flats were handed over for fit outs to the flat purchasers who booked flats in March, 2009. On 29-03-2014 full occupancy certificate was received by opposite party wherein parking space for the flat owners have been provided in three basements below the building though no access to the basement 2nd and 3rd have been given to the flat owners. It was further submitted that in April, 2014 construction of basements beneath the proposed recreation ground commenced. Complainants apprehended that opposite party may create third party interest in basements and opposite party has started illegal construction against the lay out plan approved by BMC and contrary to site kept for open garden as shown at the time of booking of the flats. Opposite party has not taken any consent/permission from flat purchasers for changing lay out plan which is mandatory under Section 7 of MOFA which will affect light and air of the flat owners and open garden/playground of the members of flat owners so opposite party may be restrained by interim order not to make any illegal construction or create any third party interest in the aforesaid property and to maintain status-quo till disposal of complaint. Opposite party no. 1 & 2 resisted application and submitted that complainant have no locus-standi to file complaint. It was submitted that 'Monte Vista' is small portion of the larger property and injunction prayer may affect property as a whole. It was further submitted that opposite party disclosed everything to the allottees in the registered agreement and there is no violation of provisions of Section 7 of MOFA. It was further submitted that some of the flat owners have taken possession and confirmed satisfaction. It was also submitted that parking space will be allotted in the new building at Podium level to flat purchasers and prayed for dismissal of application. Learned State Commission after hearing both the parties allowed application and directed opposite party to stop construction of disputed building as depicted in photograph B till decision of the complaint, against which this appeal has been filed.
3. Heard learned counsel for the parties finally at admission stage and perused the record.
4. Learned counsel for the appellant submitted that appellants are carrying out construction in accordance with law and approved site plan and would be providing parking space as per agreement even then learned State Commission committed error in granting injunction, hence appeal be allowed and impugned order be set aside. On the other hand, learned counsel for the respondents submitted that as respondents proved prima-facie case, order passed by learned State Commission is in accordance with law, hence appeal be dismissed.
5. Perusal of impugned order reveals that after granting interim relief complaint was adjourned to 10-07-2015 for hearing on admission which makes it clear that interim relief was granted even before admission of complaint. Interim relief could have been granted only after admitting complaint and it could not have been granted before admitting complaint and registering it as regular complaint and learned State Commission has committed error in granting interim relief application even without admitting complaint.
6. As far prima-facie case is concerned learned counsel for the appellant has drawn my attention towards agreement for sale dated 11-12-2012 executed between promoters and Mrs. Prema Rajan which provides that in phase-1 building 'Monte Vista' and 'Monte Carlo' will be constructed. In Clause XI of the agreement is has further been mentioned that recreation ground in respect of each building will be on the podium level and recreation ground for 'Monte Vista' and 'Monte Carlo' has already been approved by Executive Engineer by order dated 01-09-2009 at podium level. Clause XIII of the agreement provided that promoters need to hand over part or whole of the basement-1, basement-2 and basement-3 which are under building 'Monte Vista', 'Monte Carlo' 'Monte Serena' to MMRDA and purchasers have no objection or dispute regarding the same. Clause XVII (e) further provided that it was agreed between promoters and purchasers that purchasers give their irrevocable consent to change, revise or modify building plans of proposed building 'Monte Vista' to get sanction of further floors above 18 floors.
7. Learned counsel for the appellant submitted that as agreed by flat purchasers while executing agreements basement parkings were to be handed over to MMRDA and parking facility as well recreation ground was to be provided at podium level, learned State Commission committed error in granting injunction. On the other hand learned counsel for the respondents submitted that as per brochure of 'Monte Vista' parking was to be only in the basement which continued on the website of appellant right up to 31st May, 2015. In such circumstances, appellant had no right to create interest of third party in the basement parking. He further submitted that as per approved plan dated 29-03-2014 parking has been shown in the basement and recreation ground on the ground floor and in such circumstances order passed by learned State Commission is in accordance with law.
8. No doubt brochure of appellant is depicting parking only in the basement but brochure is only an invitation to offer and when parties enter into agreement which provide parking at podium level and recreation ground at podium level to flat owners, no prima-facie case is made out in favor of flat owners in restraining opposite party from creating interest of third party in basement parking as per agreement and in restraining construction on open land for podium parking and recreation ground at podium level. Learned counsel for the appellant placed reliance on judgment of Bombay High Court in [2013(4) Mh.L.J. 144] - Zenith Metalplast Pvt. Ltd. Vs. State of Maharashtra & Ors. in which in Para 30 it was observed as under:-
"The error is in presuming that what is stated in the brochure is sacrosanct. It is pertinent to note that the letter enclosing the brochure indicates that it is merely indicative of the manner in which an application for allotment ought to be made. It specifically states that the brochure is not a legal document and that its primary objective is to explain the procedural details in a concise form and in simple language."
In the case in hand it has specifically been provided in the brochure as disclaimer that developer reserves the right to change any area of all these in the interest of development and this printed material does not constitute any offer and party shall be governed by terms and conditions of Agreement for Sale. In the light of aforesaid judgment it becomes clear that on the basis of brochure which is apparently an invitation to offer, opposite parties cannot be restrained by temporary injunction. Learned counsel for the respondents placed reliance on judgment of this Commission in I(2015) CPJ 567 (NC) - New Generation Real Estates Pvt. Ltd. & Anr. Vs. Ramesh Chandra Khurana & Ors., in which compensation granted by District Forum was upheld as there was inordinate delay in executing Sale Deed and promise made in the advertisement did not match with construction and site plan was amended without consent of allottees. In the case in hand all these questions are to be decided while deciding complaint and prima-facie opposite party is acting as per clauses of agreement for sale executed between the parties.
9. Learned counsel for the respondents submitted that these agreements were executed under pressure but this submission is devoid of force as learned State Commission rightly observed that agreements under pressure by flat owners cannot be accepted because prospective owners are well educated and even lawyers who would not come under pressure to enter into unconscionable bargain. Once flat owners while executing agreements agreed that basement parking can be handed over to MMRDA and recreation facility can be provided at podium level no prima-facie case is made out in favor of the complainants to restrain opposite party from creating interest of third party in the basement parking and restraining them from construction or open land.
10. Learned State Commission has not discussed balance of convenience and irreparable loss in favor of complainant and in absence of any findings on balance of convenience and irreparable loss in favor of complainants; complainants are not entitled to any temporary injunction. Perusal of record reveals that balance of convenience and irreparable loss does not lie in favor of the complainants rather it lies in favor of opposite party because if opposite party is restrained from raising construction whole project will come to stand still which will cause loss to other flat owners also.
11. In the light of aforesaid discussion it becomes clear that learned State Commission has committed error in granting interim injunction even without admitting complaint and impugned order is liable to be set aside.
12. Consequently appeal filed by the appellant is allowed and order dated 02-06-2015 passed by the learned State Commission in Complaint No. 15/207 - M/s The Monte Vista Residence Welfare Association Vs. Marathon Realty Ltd. is set aside. Parties to bear their costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER