State Consumer Disputes Redressal Commission
1. S M Constructions And Others vs 1. Shri Vijay Madanlal Lalpuria And ... on 5 September, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No. A/10/531
(Arisen out of Order Dated 30/03/2010 in Case
No. 510/2004 of District Mumbai(Suburban))
1. S M CONSTRUCTIONS,
SHOP NO 2 LAKE VIEW
APT OPP TO DENA BANKMAROL MUMBAI -59.
2. SHRI YUNIS KHAN,
PARTNER OF
S.M.CONSTRUCTIONS
SHOP NO.2, LAKE VIEW
APRTMENTS,
OPP. TO DENA BANK,
MAROL,
MUMBAI 59.
3. SHRI IMTIYAZ KHAN,
PARTNER OF
S.M.CONSTRUCTIONS
SHOP NO.2, LAKE VIEW
APARTMENTS,
OPP.TO DENA BANK,
MAROL,
MUMBAI 59.
...........Appellant(s)
Versus
1. SHRI VIJAY
MADANLAL LALPURIA
A/703 A/704 PADMARG
CHS LTD, J B NAGAR, ANDHERI (E), MUMBAI 59.
2.SMT.KAVITA VIJAY
LALPURIA
A/703 A/704 PADMARG
CHS LTD, J B NAGAR, ANDHERI (E), MUMBAI 59.
........Respondent(s)
BEFORE:
HONBLE Mr. P.N.
Kashalkar PRESIDING MEMBER
HONBLE MR. Dhanraj
Khamatkar Member
PRESENT:
Ms.Rashmi Manne,
Advocate for the appellant.
Mr.Vijay Kanoria,
Advocate for the respondent.
ORDER
(Per Shri P.N.Kashalkar, Honble Presiding Judicial Member ) (1) This is an appeal filed by the original opponent builder against the judgement and award passed by Central Mumbai District Forum in Consumer Complaint No.510/04 decided on 30/03/2010. While allowing the complaint partly it directed opponent to complete formality of procuring share certificate from the society in respect of premises sold to the complainant by the opponent and directed to pay `10,000/- towards mental agony and `3,000/- as costs. Hence, this appeal came to be filed.
(2) Facts to the extent material may be stated as under:
The complainant had purchased flat Nos.703 and 704 on the 7th floor in the society building of Municipal Employees Padmarag Co-operative Housing Society Ltd., Andheri (East).
Two separate agreements were registered between the complainant and opponent regarding the sale of flats.
The complainant paid full amount of consideration. While paying consideration, complainant had paid to the builder amount towards share certificate, society formation charges, electricity charges and maintenance amount. Opponent categorically assured the complainant the he would procure two separate share certificates, but he did not procure the share certificates for the complainants. However, possession was given. Therefore, the complainants filed consumer complaint.
(3) Opponents filed written version and contested the complaint. Opponent pleaded that the complaint was barred by limitation.
On 10/ 08/2001 possession of both the flats were handed over to the complainants and they should have filed the complaint on or before 09/08/2003. However, the complaint has been filed as late as on 14/12/2004.
Opponents also pleaded that the complaint is also suffering from non-joinder of necessary parties. The complainant has not impleded society namely Padmarag Co-operative Housing Society Ltd., Andheri (East) as party.
Moreover, the opponents pleaded that there was development agreement between him and the society. He was simply developer. There was no privity of contract between him and the complainants. To grant or not to grant share certificates/membership is totally in hands of the society. However, by goodwill gesture, he had requested the society to procure share certificates. According to him, society was ready to give share certificates, but the complainant filed false and fabricated complaint before the district forum.
(4) The forum below considering the documents and affidavits, on record allowed the complaint and directed to the builder to procure share certificate from the society in respect of premises sold to the complainants and he is also directed to give the membership to the complainant in the society. Hence, the opponent, aggrieved by the order, filed this appeal.
(5) We have perused the agreement on the record executed between the parties. We heard the arguments of Adv.Rashmi Manne for the appellant and Adv.Vijay Kanoria for the respondents. Counsel for the respondents specifically brought to our notice that in the development agreement, society has agreed that society shall enroll the prospective flat or unit purchasers whose name would be nominated by the Developers to the Society as members of the Society at the nominal payment of `250/- towards share money and `11/- for entrance fees and without demanding any further and/or additional amount of whatsoever nature from the said prospective buyers of the said flats and units. The society also permitted the developer to enter into agreement with the prospective purchasers of the flats and/or units having a definite clause that the prospective purchasers or purchasers shall become the member of the society which is a tenant co-partnership housing society. The builder has executed a separate agreement with the flat purchasers including complainants. In that agreement also, it is mentioned by the builder that upon possession of the flat or unit handed over to the purchasers as above the builders/promoters shall also ensure that the said The Municipal Employees Padmarag Co-operative Housing Society Ltd. enroll and/or admit the Purchaser as member of the society and upon the purchasers being admitted member as above, the purchaser shall follow and abide by the rules, regulations and bye laws of the said society and shall from time to time pay to the said society the proportionate amount of the Municipal taxes and other outgoing as well as the societys other outgoing without committing any delay and/or default. Strictly on going through the terms of agreement entered into between the appellant builder and respondent No.1, the forum below allowed the complaint partly and directed the opponents to get the complainants admitted as members of the society and to see the complainants are given share certificates by the society. This order, in our view, is perfectly correct and does not call for any interference by this Commission. The appeal, therefore, at the admission stage itself, is liable to be rejected. Hence, the order.
ORDER (1) The appeal is rejected with costs of `25,000/- payable by the appellant to the respondents/complainants.
(2) Inform the parties accordingly.
Pronounced on 5th September, 2012.
[HON'BLE Mr. P.N. Kashalkar] PRESIDING MEMBER [HON'BLE MR. Dhanraj Khamatkar] Member pgg