State Consumer Disputes Redressal Commission
Suri Rajendra Tower S.R.A. Co-Op. Hsg. ... vs M/S.Prithvi Enterprises & Ors. on 14 February, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/08/134
1. SURI RAJENDRA
TOWER S.R.A. CO-OP. HSG. SOC. LTD.
Mr. Dinesh V. Shah (Chairman), 90-A.R.K.SINGH MARG,OFF. PARSI
PANCHAYT ROAD,ANDHERI(E) MUMBAI 400 069
...........Complainant(s)
Versus
1. M/S.PRITHVI
ENTERPRISES
O/AT VEETRAAG
CHAMBERS, 46, CAWASJI
PATEL STREET, FORT, MUMBAI-400 001.
2. PRITHVIRAJ
SANKALCHAND SANGHVI, PARTNER
O/AT VEETRAAG
CHAMBERS, 46, CAWASJI
PATEL STREET, FORT, MUMBAI-400 001.
3. RAMESH SANKALCHAND
SANGHVI, PARTNER
O/AT VEETRAAG
CHAMBERS, 46, CAWASJI
PATEL STREET, FORT, MUMBAI-400 001.
4. SHAILESH
SANKALCHAND SANGHVI, CHIEF PROMOTER
O/AT VEETRAAG
CHAMBERS, 46, CAWASJI
PATEL STREET, FORT, MUMBAI-400 001.
5. RAKESH SANKALCHAND
SANGHVI, PARTNER
O/AT VEETRAAG
CHAMBERS, 46, CAWASJI
PATEL STREET, FORT, MUMBAI-400 001.
............Opp.Party(s)
BEFORE:
Hon'ble Mr. S.R. Khanzode
PRESIDING MEMBER
Hon'ble Mr. Narendra Kawde MEMBER
PRESENT:
Mr.Baliram Kamble, Advocate for
the Complainant
Mr.P.N. Patil,
Advocate for the Opponents.
ORDER
Per Shri S.R. Khanzode, Honble Presiding Judicial Member The consumer complaint is filed by the complainant/Society against the builder/developer, namely, Prithvi Enterprises (hereinafter referred to as builder) and against its partners opponent Nos.2to5 for recovery of monetary claim (of complainants) and to get executed the conveyance after obtaining full occupancy certificate, etc. The complainant is the society of flat occupants/flat purchasers in all consisting 30 members (hereinafter referred to as the Society).
2. Undisputed facts are that in the year 1995 as per the registered Sale Deed dated 29/07/1995 the builder purchased a part and partial of the land. Said land consists of some scattered tenements in which various tenants were occupying the premises. Under the Slum Rehabilitation Programme, the builder reached independent agreements with the tenants occupying those premises, obtained permission of Slum Rehabilitation Authority (hereinafter referred to as SRA) for development of the property and accordingly developed the same. Some 12 tenants with whom the agreements were reached to get possession of their tenanted property, were promised, in lieu thereof, to house them in the specified area in newly constructed flats, free of costs, and for additional area they were required to pay as per the price agreed upon. Similarly, remaining flats were sold as per the agreements reached with the respective flat purchasers. Each one of these flat purchasers, admittedly, received possession of their respective flats in the year 2001-2002 consequent to the part occupation certificate issued by SRA on 29/10/1999.
3. It is the contention of the Society that certain amenities as promised in the agreements entered with each one of the flat purchasers were not provided by the builder. The builder further collected certain amount from individual flat purchasers for formation of co-operative society and towards maintenance and up-keeping of the building and also for payment of Corporations Property Taxes and water charges, common electricity charges, conveyance charges, etc. However, builder did not give any accounts thereof. Even though the Society is formed on 12/02/2002, the builder is yet to convey the property to it after obtaining full occupancy certificate. It is further alleged that the builder wrongly retained with it `86,250/-
as material and repairs expenses and therefore, the complainant/Society claimed said amount along with interest @ 18% p.a. with effect from 12/02/2002.
4. Another claim made by the complainant/Society is of `26,75,000/- for use of sub-standard workmanship in the construction of the building; also claimed `28,24,315/- as compensation for encroaching 700 sq.ft. of common passage in contravention of the approved plan belonging to the member of the Society and for selling it fraudulently to the flat purchasers in the rehabilitation segment of the building. It is also contended by the complainant/Society that as per Slum Rehabilitation Scheme, the builder was to hand over possession of the Balwadi and so also the possession of Welfare Centre.
It is further stated on behalf of the Society that as per the Slum Rehabilitation Scheme, the builder was supposed to deposit `20,000/- per rehabilitated tenants with SRA and at the end of period of 10 years, the Society would get that amount along with interest accrued thereon. Such deposit since not made by the builder, resultant loss is claimed by the Society. It is also submitted that as per the inspection carried out by Architect Malik Associates, the drainage line since was not properly led, it was required to be repaired and the Society incurred expenses of `11,000/- for which reimbursement is claimed. It is also submitted that due to defective electric wiring the Society incurred further expenditure for rewiring and thus, claimed `8 Lakhs from the builder. Other expenditure were calculated and claimed by the Society such as expenses incurred for photography, fees paid to the Architect Malik Associates and Structural Audit Report from M/s.Supreme Consultants and costing of filing this consumer complaint.
5. Initially the complainant filed a complaint which was found defective and not proper. Said complaint was filed on 15/09/2008. Subsequently, a fresh draft of complaint is substituted in its place on 29/06/2010. Therefore, for all the purpose we have taken into consideration the fresh draft of the complaint dated 29/06/2010.
6. The complaint is opposed as per their written version filed by the opponents on 02/12/2010. They denied all the allegations in toto. They submitted that the Balwadi was already handed over to the Society and the Welfare Centre could not be handed over to the Society since Society themselves refusing to take possession of the same on one or other pretext. Full occupancy certificate could not be obtained from the SRA due to various false complaints made by the complainant-Society. They have denied all the monetary claims.
7. In evidence, complainant/Society filed affidavit of its Chairman Mr.Dinesh V. Shah dated 09/08/2011 and closed their evidence.
Said affidavit is nothing but verbatim reproduction of redrafted complaint dated 29/06/2010. In evidence on behalf of opponents, affidavit dated 09/08/2011 of Mr.Shailesh Sankalchand Sanghvi (opponent No.4 who is also described as Chief Promoter of the Society as described by the complainant) is filed.
8. We heard Mr.Baliram Kamble, Advocate for the complainant-Society and Mr.P.N. Patil, Advocate for the opponents.
9. The opponents/builder raised a contention about entertaining the consumer complaint since barred by limitation as per Section 24-A of the Consumer Protection Act, 1986 (the Act for brevity). Their such contention needs to be accepted except for the relief regarding execution of conveyance. As far as conveyance is concerned, it being a case of continuous cause of action till the conveyance is executed, bar of limitation will not come in the way even though said relief (for the first time) is specifically incorporated in the redrafted complaint dated 29/06/2010.
10. As far as claim regarding `86,250/- towards reimbursement of the expenditure incurred by the promoter of the Society for newly constructed building is concerned, it relates to the expenditure before forming of the society. Such expenditure being incurred by the promoter, it is an in-house matter for the society and for which builder cannot be held responsible. In the complaint, the Society described opponent No.4-Mr.Shailesh Sanghvi as Chief Promoter who is also the partner of builder-Prithvi Enterprises. Since Society was formed on 12/02/2002, cause of action arose since then and therefore, any consumer complaint filed on 15/09/2008 without any application for condonation of delay, per se, cannot be entertained in respect of such relief.
11. As far as compensation claimed by way of expenses for estimated expenditure for the repairs due to use of sub-standard material and poor workmanship of building is concerned, the cause of action (for the same) also arose when the flat purchasers took possession in the year 2001-2002 and therefore, when the consumer complaint filed in the year 2008 is clearly barred by limitation.
12. Apart from that the complainant/Society relied upon the agreement for alternate accommodation entered into with the flat purchasers. One of such agreement which is also termed as Agreement for Sale dated 06/04/2002 entered into with one of its Member Mr.Manish Gada and Mrs.Savitri Gada, is placed on record and relied upon by the complainant/Society. Clause 10 of said agreement specifically stipulates that complaint regarding any defects in the construction is to be brought to the notice of the builder within two years from the date of receipt of possession. None of the flat purchasers appears to have brought such defects to the notice of the builder within that stipulated period. For this reason also any complaint by the Society to claim reimbursement by way of compensation of `26,75,000/- is, per se, not maintainable and if at all maintainable, it is, certainly, cannot be entertained as barred by limitation. Same is the case in respect of compensation claimed for conversion contrary to the approved plan of common passage by encroaching 700 sq.ft.
as mentioned in the claim statement perhaps sold to or transferred to other flat purchasers, such claim is not supported by any material, the only agreement of Mr.Gada, supra, does not refer to any such passage.
The dispute as presented also cannot be termed as consumer dispute. Hence, no claim referring to it valued at `28,24,315/- could be entertained much less could be granted.
13. In his affidavit Mr.Shailesh Sanghvi i.e. opponent No.4 (as he was also a promoter of the Society) submitted that Balwadi possession was already received by the Society as per Slum Rehabilitation Scheme. He also categorically stated that as far as Welfare Centre is concerned, their obligation to hand over said Welfare Centre to the Society which being not part of the private agreement with the flat purchasers, but with the Slum Rehabilitation Scheme, they are willing to hand over said Welfare Centre to the Society but it is Society who has not willing to take possession of the same on one or other pretext just to harass the builder and there is no rebuttal to this fact. Therefore, no deficiency in service said to have been established on this count.
14. Furthermore, as far as Welfare Centre is concerned, if there is any lapse on the part of the builder to hand over the same to the Society and since, it is not a subject matter of the private agreement with the respective flat purchasers, the Society can very well take up the issue with the SRA and for which no consumer complaint could be entertained.
15. About retaining alleged premium received for the Balwadi, the complainant/Society failed to establish any such case.
Besides this, private agreement with the respective flat purchasers, one of such agreement of Mr.Gada on record does not speak for any such agreement regarding Balwadi by way of common facility to be handed over to the Society of the flat purchasers and therefore, it being not a contractual obligation, no such deficiency could be alleged against the builder. This issue can be taken up, if at all there is any grievance, with the SRA and in fact it was taken up with the SRA by the complainant/Society long back.
16. As far as deposit of `20,000/- per rehabilitated tenant is concerned, and alleged allegation that the builder did not deposit final installment with the SRA, the complainant/Society failed to substantiate the same. In fact these letters on which the Complainant/Society relied and which were written by the complainant/Society to the Chief Executive Officer of the SRA is dated 09/07/2004 and 31/08/2004. These letters or applications were made consequent to SRA writing to the complainant/Society as per its letter dated 11/06/2004 that to claim interest on the deposit kept with the SRA, they should make an application in a prescribed form. Therefore, the grievance of the complainant/Society that the builder did not deposit requisite deposit with the SRA and therefore, resultantly, they are expecting loss of interest, cannot be accepted. Much less it cannot be entertained as consumer complaint. The complainant/Society is free to take this issue with the appropriate SRA only.
17. As far as report of structural status obtained in August 2007 from M/s. Supreme Consultants is concerned, the same is not tendered in evidence and so is the case in respect of report obtained from M/s.Malik Associates. This report pertains to repairs and requirements after wear and tear of the Society building. The society building is in possession of the Society since from the month of March 2002. Under the circumstances, no claim pertaining to the same could be entertained and if at all could be entertained, they became time-barred by the time the consumer complaint was filed. This left with only one relief which could be considered i.e. in respect of execution of conveyance in favour of the Society after completing the formalities with the SRA including obtaining full occupancy certificate. It is revealed from the affidavit of Mr.Shailesh Sanghvi that they have completed everything which is in their hands to obtain full occupancy certificate, but it is attitude of the complainant/Society making various complaints with the SRA, said occupancy certificate is yet not given. The builder did not say anything about execution of conveyance. Under the circumstance, we prefer to grant only this relief in this consumer complaint.
18. For the reasons stated above, we hold accordingly and pass the following order :-
-: ORDER :-
1.
Complaint is partly allowed.
2. Opponents-Builders & Developers do execute Conveyance of the building in which the flat purchasers/occupants who are members of the complainant-Society are residing, after fulfilling the necessary formalities with the Slum Rehabilitation Authority (SRA), within period of six months from this order; at the cost of complainant-Society.
3. Opponents-Builders & Developers to bear their own costs and to pay `25,000/-
as costs to the complainant-Society.
4. Copies of the order be furnished to the parties.
Pronounced Dated 14th February 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER dd