State Consumer Disputes Redressal Commission
Mr.Subhash Jagdale vs Air Wing Co-Operative Housing Society ... on 13 July, 2015
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/11/525
(Arisen out of Order Dated 30/04/2011 in Case
No.476 of 2007 of District Mumbai Suburban)
Mr.Subhash Jagdale,
Director M/s. Vastu Build-Tech
Pvt. Ltd.,
A/302, Airwing CHS
Ltd.,
New Sunder Nagar,
Kalina, Santacruz (E),
Mumbai 400 098, Maharashtra.
...........Appellant(s)
Versus
1. Air Wing
Co-operative Housing Society Ltd.,
New Sunder Nagar,
Kalina,
Santacruz (E), Mumbai
400 098.
2. Mr.R.U. Shenoy,
Mr.M.A. Shenoy,
C-105, Air Wing CHS
Ltd.,
New Sunder Nagar,
Kalina,
Santacruz (E), Mumbai
400 098.
3. Mr.B.B. Singh,
C-405, Airwing CHS
Ltd.,
New Sunder Nagar,
Kalina,
Santacruz (E), Mumbai
400 098.
4. Mrs.M.A. Raje,
A/202, Airwing CHS
Ltd.,
New Sunder Nagar,
Kalina,
Santacruz (E), Mumbai
400 098.
5. Mr.L.V. Koyande,
C/308 Airwing CHS
Ltd.,
New Sunder Nagar,
Kalina,
Santacruz (E), Mumbai
400 098.
6. Mr.U.N. Pandey,
A-402, Airwing CHS
Ltd.,
New Sunder Nagar,
Kalina,
Santacruz (E), Mumbai
400 098.
7. Mr.S.K. Singh,
(Since deceased through
his legal heirs)
(a) Smt. Shanti
Singh,
(b) Mr.Ravi Singh,
(c) Mrs.Rekha Singh,
All having their residence
at A1/227 Lawrence Road,
Keshav Puram, In
front of A1 Gurudwara,
Delhi 110 035
(d) Mrs. Alka Singh,
R/at 65 G Block, R.
Dilshad Garden, Delhi 110 095,
(e) Mrs. Poonam
Singh,
Flat No.203,
Shubhangan 2, Bldg. 390,
Poonam Sagar Complex,
Poonam Sagar Road,
Meera Road, Thane 401
107.
(f) Mrs.Aarti Singh,
Flat No.E 201,
Olympia Bldg. Co-op. Society Ltd.,
Royal Complex, Poonam
Sagar Road, Meera Road,
Thane 401 107
8. Mr.Trevor
Gonsalves, DELETED
C/206, Airwing CHS
Ltd.,
New Sunder Nagar,
Kalina,
Santacruz (E), Mumbai
400 098.
...........Respondent(s)
BEFORE:
JUSTICE R.C. CHAVAN, PRESIDENT
DHANRAJ
KHAMATKAR, MEMBER
For the Appellant:
Advocate Anand Patwardhan along with Advocate
Ajay Pawar.
For the Respondent:
Advocate Shirish Deshpande.
ORDER
Per Mr. Justice R.C. Chavan President
1) This appeal is directed against the order passed by the District Consumer Disputes Redressal Forum, Mumbai Suburban, partly allowing consumer complaint no.476/2007 and directing the appellant to obtain occupancy certificate and completion certificate within three months of the said order and to pay to the complainants sum of Rs.5,000/- per month along with costs quantified at Rs.5,000/-.
2) Facts which are material for deciding this appeal are as under:
The complainants are members of opponent no.2 Co-operative Housing Society. The society had given a contract to a contractor to construct 30 flats in the year 1982. The contractor did not complete the work. The society then gave the contract to appellant/original opponent no.1 on 24th September, 2001. The work was to be completed within seven months at the cost of Rs.74,50,000/-. According to the complainants the appellant did not complete the work, did not obtain completion and occupancy certificates. A notice was sent to the appellant on 13th July, 2003, which the opponent no.1 did not reply. Complainants therefore filed complaint in April, 2007.
3) The complaint was contested by the appellant contending that the complainants had no privity of contract with the appellant. It was stated that the society had not paid amounts lawfully due for the works executed from time to time. Appellant stated that it was not its duty to obtain completion certificate. It was specifically urged that the society did not pay the appellant for the extra work which he had carried out.
4) After considering rival contentions, the Forum came to pass the impugned order. Aggrieved thereby the appellant is before us.
5) We have heard Ld.Counsel for the appellant and the respondents/original complainants and with their help we have gone through the material on record.
6) The Ld.Counsel for the appellant took us through the agreement between the society and the appellant. Clause 6 of the agreement may be reproduced as under for ready reference:
That the contractor shall be entitled to and are required to carry out all items of work for the development of the said property including construction of internal roads, lighting of roads and any other items as per the conditions imposed by the Municipal Corporation while sanctioning the layout, scheme and sub-division and all other terms of such sanction of the said plan and such items as may be required to be carried out for the purpose of making the said property fit for construction of residential buildings thereon and for obtaining occupancy certificate.
The Ld.Counsel for the appellant has submitted that in view of this clause it is clear that it was not for the appellant to obtain occupancy certificate. He was only to carry out the work which was entitled for getting occupancy certificate. He submitted that obtaining occupancy certificate is the work of the Architect who had been specifically appointed by the society. The appellant had been appointed only for carrying out the work as per the plan prepared by the Architect.
He pointed out that, in fact, the Architect had applied for getting occupancy certificate as could be seen from the letter dated 14th January, 2004. In that letter an Architect Shri Rane had specifically stated that he had applied for obtaining occupation certificate. Therefore, according to the Ld.Counsel for the appellant there was no question by the appellant being under any duty to obtain occupancy certificate.
Therefore, according to him the order passed by the District Forum holding appellant guilty for not obtaining completion and occupancy certificate was not correct.
7) The Ld.Counsel for the respondent submitted that though it is the Architect who applies for obtaining occupancy certificate, it would be the contractor who would be completing the works as per the requirements of Municipal Corporation in order to facilitate grant of occupancy certificate. He submitted that letter dated 14th January, 2004 written by the Architect itself shows that the occupancy certificate could not be obtained because of several reasons, one of which is spelled out in the letter as under:
We have applied to the M.C.G.M. for obtaining the Occupation Certificate for our building. There are certain conditions be fulfilled before the said certificate is issued by M.C.G.M They are as follows:
1.
Construction of internal storm drain and obtaining the Completion certificate from the Executive Engineer, S.W.D. Department, Western Suburbs.
He submitted that the appellant was supposed to complete construction of internal storm water drain and obtain completion certificate from Storm Water Drain department.
Upon this, Ld.Counsel for the appellant submitted that system of Storm Water Drain was not part of the appellants job as could be seen from specifications for building, annexed to the agreement between the society and the appellant. In these specifications Item no.26 reads as under:
Construction S.W.D. along the road side of a quality and cross section as required by M.C.G.B. along with any drains required by B.M.C. for surface drainage of the plot.
The other columns against this column have been left blank with a line drawn. Therefore, according to the Ld.Counsel for the appellant that since this work was already carried out by the previous contractor the appellant was not required to carry out this work, and, in any case, this was not the work for which he had been engaged as could be seen from the horizontal line drawn against item no.26. The Ld.Counsel sought to rely on Architects letter dated 4th April, 2003 which informs the society that the construction work of the building was virtually completed except for minor works which were listed therein.
These minor works did not include the work of internal storm water drain. Therefore, according to the Ld.Counsel, the appellant was not required to carry out this work.
8) Now, firstly, if the work of storm water drain was already completed the letter dated 14th January, 2004 would not make reference to it. Architect had specifically mentioned that the construction of internal storm water drain was a problem which had resulted in withholding the occupancy certificate. Therefore, the Architects letter dated 4th April, 2003 is unlikely to help the appellants cause. Further, the claim of the Ld.Counsel for the appellant that the work of storm water drain was already completed by the earlier contractor and that the appellant was not expected to do so again but was merely to connect this storm water drain to municipal sewerage lines, may not be correct as can be seen from the letter of the appellant received by Assistant Registrar, Co-operative Societies from 22nd September, 2003, since by that time an Administrator had been appointed by the society. Along with this letter a statement of outstanding dues has been enclosed and it shows in item no.3 that bill dated 05.04.2003 for sewerage line work in compound for which a sum of Rs.1,04,009/- is shown to have been due.
This is again repeated in the reminder dated 06.10.2003.
9) The claim of the Ld.Counsel for the appellant that the work was already done by the previous contractor is thus falsified by two bills sent by the appellant to the society after Architects letter dated 4th April, 2003 whereby he had asked the society to pay the appellant the retained amount. Thus, we find that issuance of occupancy and completion certificates was held up because of work which the appellant had not completed. Therefore, the question is, whether the appellant could be held responsible for the delay in obtaining the certificate.
10) Reverting back to clause 6 of the agreement which has already been reproduced above, it is clear that the appellant had agreed to carry out all the items of works for the purpose of making the property fit for construction of residential building thereon and for obtaining occupancy certificate. Thus, the defence that the work concerned was not mentioned in the specifications annexed to the contract would cut no ice. In the instant appeal the appellants contentions have been to say the least speculative. First, the appellant sought to shirk all its responsibility by submitting that duty of applying for and getting occupancy certificate was that of the Architect, forgetting that unless the appellant as a contractor completed the work the architect could not have obtained the necessary certificates. The appellant next sought to submit that the work of storm water drains, which held up issuance of occupancy certificate was already completed by the previous contractor, when this was not so, as the appellant had himself submitted bills for completing this work. The appellant also tried to submit that he was not required to do this work because it was not part of the specifications, forgetting the broadly worded clause 6 of the agreement.
11) In view of this, though we find that though the Forum could not have ordered the appellant to obtain completion and occupancy certificate, the Forum should have directed the appellant to complete the works required for getting the completion and occupancy certificates. The Forum was right in imposing a penalty of Rs.5,000/- per month for not completing the work and delaying the issuance of occupancy and completion certificates. In view of this, but, for this technical change, we would maintain the order of the Forum. If the appellant has any grievances about his unpaid dues he could take out proceeding against the society for recovery of such dues with appropriate authority, but perform his obligations under the contract. The following order is therefore passed:
ORDER
(i) Appeal is partly allowed.
(ii) Clause (2) of the impugned order is modified to read as under:
The appellant/opponent no.1 shall complete and carry out all the items of work for the purpose of getting occupancy certificate within a period of three months from the date of the order.
(iii) Rest of the impugned order is maintained as it is.
Pronounced on 13th July, 2015.
[Justice R.C.Chavan] PRESIDENT [Dhanraj Khamatkar] Member ep