National Consumer Disputes Redressal
Tulip Residency Co-Operative Housing ... vs M/S. Vikrant Enterprises on 18 April, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1966 OF 2019 1. TULIP RESIDENCY CO-OPERATIVE HOUSING SOCIETY LTD. ...........Complainant(s) Versus 1. M/S. VIKRANT ENTERPRISES ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Ms. Kalpana More, Advocate For the Opp.Party : Nemo
Dated : 18 April 2023 ORDER
1. Heard Ms. Kalpana More, Advocate, for the complainant. Mr. Prashant M. Maindargi, Advocate, was appearing for the opposite party. When the case was listed on 07.10.2022, Mr. Prashant M. Maindargi, Advocate circulated an application for adjournment without assigning any cause, which was strongly opposed by the complainant. However, in order to give an opportunity of argument to the opposite party, the case was adjourned and 04.01.2023 was fixed. On 04.01.2023, no one appeared for the opposite party, as such, after hearing the arguments of the complainant, the case was reserved for judgment. Mr. Prashant M. Maindargi, Advocate, the counsel for the opposite party, moved IA/478/2023, for recall of the order dated 04.01.2023. In order to give an opportunity of argument to the counsel for the opposite party, the case was listed on 25.01.2023 but no one appeared as such IA/478/2023 was rejected. Mr. Prashant M. Maindargi, Advocate moved another application on 06.02.2023, for recall of the order dated 25.01.2023, in which, it has been stated that the opponent was not aware of the date of hearing of IA therefore the opponent and his advocate could not remain present for hearing. The office has submitted report the parties were intimated about the date of listing of IA/478/2023 on 25.01.2023 through email. The case was also listed in the cause list. As such the allegation that the opponent was not aware of the date of hearing of IA/478/2023 is not liable to be accepted. As such, the application filed on 06.02.2023 is rejected.
2. Tulip Residency Co-operative Housing Society Limited has filed above complaint for directing the opposite party to pay (i) Rs.445266/- with interest @18% per annum from 30.08.2016 till its realization, towards balance amount of the maintenance collected from the flat owners and not paid to the complainant; (ii) Rs.695600/-, with interest @18% per annum from 30.08.2016 till its realization, towards excess amount collected by the opposite party for formation of society; (iii) Rs.1062500/-, with interest @18% per annum from 30.08.2016 till its realization, towards amount payable by the owners of the land; (iv) Rs.100000/-, as the expenses incurred by the complainant for repair; (v) Rs.500000/-, as compensation, (vi) costs of the litigation, (vii) rectify Fire Staircase as per expert report; (viii) execute conveyance deed in respect of the land and the building in favour of the complainant; and (ix) any other relief which is deemed fit and proper in the facts and circumstance of the case.
3. The complainant stated that the opposite party was a partnership firm, registered under the Partnership Act, 1932 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. One Namdev Narayan Ghodnadikar was the owner of Survey No.120-A and120-B, City Survey No.545/33, Final Plot No.545, Sub-plot No.33 (area 1878.50 sq. mtrs.), T.P. Scheme No.3, village Parvati, Pune, through sale deed dated 21.11.1997. Namdev Narayan Ghodnadikar and his family members entered into Development Agreement dated 20.05.2008 with the opposite party for construction of group housing residential/commercial complex on the above land and also executed a Power of Attorney on the same day, authorising to do all works for obtaining necessary approval/sanction for development and selling the units falling in its share. The opposite party got layout plan sanctioned for construction of the building "Tulip Residency" on above land from Municipal Corporation of the city of Pune, consisting 41 residential flats and 6 commercial units and obtained "commencement certificate" No.0564/2010 dated 21.05.2010 and made wide publicity of its facilities and amenities. The members of the complainant booked their units and entered into an individual agreement for sale with the opposite party in the year 2010 and 2012. The opposite party completed the construction of the building and obtained "occupation certificate" on 27.06.2014 and 01.08.2014. Thereafter, the opposite party handed over possession to buyers of the flats from October, 2014. With the help of the opposite party, the buyers formed Tulip Residency Co-operative Housing Society Limited and got it registered under Maharashtra Co-operative Society Act, 1960, vide Registration No.PNA/PNA(1)HSG/(TC)/16352/2015-16/ dated 26.05.2015. After taking possession, the buyers of the flat noticed that (i) emergency staircase (Fire Exit) to be used at the time of fire was of very sub-standard quality. Its use was highly risky and dangerous. The sanctioning authority, Municipal Corporation Pune inspected the site and instructed the opposite party to rectify it as per guideline and supervision of the College of Engineering, Pune Wakadewadi, Shivajinagar, Pune. In April, 2019, opposite party assured the complainant to rectify the emergency staircase but has not done it. (ii) The work of common compound wall was left incomplete in northern side, which is shared by neighbouring Suvernrekha Housing Co-operative Society. (iii) Solar water heating system has been installed of very low quality, resulting leakage of water. The work of paver block in ground floor is also of low quality. The pipes used for drainage system is also of very low quality which was leaking at several points. The complainant used to wrote letters to the opposite party to rectify these defects but the opposite party did not care. The complainant society of all the unit buyers/allottees of the building "Tulip Residency" was registered on 29.05.2015 but the opposite party has not transferred the ownership of the land and building to it. The opposite party had to collect Rs.100/- per sq.ft. from each flat buyers as "one time maintenance charges" as per agreement but the opposite party, vide letter dated 27.08.2016, informed that he had collected Rs.50/- per sq.ft. from the flat buyers in this head without supplying its details. The opposite party deprived the complainant from Rs.531250/- towards "one time maintenance charges" to be collected from the flat purchasers and Rs.531250/- to be collected from the land owner. As per provisions of Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA), the opposite party is required to open an account in the bank and transfer the amount of "one time maintenance charges" on the date of formation of Housing Society. After repeated request to transfer "one time maintenance charges", the opposite party transferred Rs.2500000/- through different cheques in the year 2016 and one cheque of Rs.150000/- dated 18.09.2017. Three flats were sold after formation of the complainant society as such Rs.351200/- was directly given to the complainants towards "one time maintenance charges". The opposite party, vide letter dated 27.08.2016, informed that they had incurred Rs.822159/- towards maintenance. Later on vide letter dated 27.11.2018, informed that they had incurred Rs.748849/- towards maintenance. The vouchers of Rs.172744/-, towards maintenance are not related to the maintenance. The vouchers of Rs.54818/- related to repair of defective works were also shown as maintenance charges. At the time of handing over possession, in October, 2014, the flats were not in habitable condition due to which, the flat owners could not shift for residing as such the opposite party has to bear electricity bill of Rs.45590/- dated 12.01.2015. The opposite party has collected total Rs.725000/- from 29 flat buyers in the head of formation of society, while actual amount of Rs.29400/- was incurred in it. In spite of various, letters, the opposite party did not carry out repairs as such repairing of plumbing works, LED light, earthworm pit shade, paving block, solar system, rain water discharge and compound wall were got done by the complainant expending Rs.100000/-. The opposite party, vide letter dated 27.08.2016, assured for payment of repair expenses. Bills and vouchers relating to the expenses of repairs were submitted to the opposite party time to time but the opposite party did not make its payment. As per Section 11 of MOFA, the opposite party is liable to settle all the grievances of the complainant but the opposite party is not paying any heed. The complainant gave a letter dated 06.09.2018 to the opposite party, in respect of the above grievances but the opposite party did not respond. Then this complaint was filed on 03.10.2019, alleging deficiency in service and unfair trade practice.
4. The opposite party filed written reply on 20.05.2022, in which, construction of the building "Tulip Residency", selling of its flats to the members of the complainant during 2010 and 2012, completion of the construction, obtaining "occupation certificate" on 27.06.2014 & 01.08.2014 and handing over possession to the buyers from October, 2014, have not been disputed. The opposite party stated that statutory authority inspected the building before issue of "occupation certificate" and fully satisfied with the construction of the building as well as amenities and facilities. After satisfying with the quality of "emergency exit", Fire NOC was issued by the statutory authority. The opposite party has denied that Municipal Corporation Pune ever instructed for any repair in emergency exit in consultation with the College of Engineering, Pune or the opposite party ever assured the complainant for doing so. There is no evidence of a qualified architect in respect of defects in staircase. The building plan as originally sanctioned on 21.05.2010, did not require for emergency exit staircase. Development Control Rule, 1991 as amended in the year 2013, for the first time introduced for fire emergency exit staircase. By that time 5 floors were already constructed as such fire staircase was installed in the duct as per settled norms. The flat buyers took possession in the year 2014-2015 without any objection in any respect. Tulip Residency Co-operative Housing Society Limited was formed and registered on 29.05.2015 and since then it has taken its charge. The complaint, filed on 03.10.2019, is barred by limitation. The opposite party denied that at the time of handing over, the building was not in habitable condition due to lack of basic amenities. The complainant is not maintaining the building properly. In spite of construction of vermiculture (wet garbage) plant, wet garbage is not being dumped there instead it was being thrown anywhere causing nuisance. The opposite party has denied that there was any deficiency in construction and quality in earthworm pit shade, paving block, solar system, rain water discharge and compound wall or there were leakage and seepage at anywhere. The opposite party sent the draft of sale deed to the complainant on 22.01.2019, which was in Marathi language. The complainant asked for the draft in English language, which was supplied on 10.08.2019 but the complainant did not approve the draft till today due to which, execution of sale deed is pending. Under Development Agreement, the land owner is liable to pay 50% of proportionate "one time maintenance charges". Copy of Development Agreement was supplied to each buyer at the time of agreement for sale in their favour as such they paid "one time maintenance charges" @Rs.50 per sq.ft., which was transferred in the account of the complainant in Kotak Mahindra Bank Limited, Kumtekar Road Branch, Pune, after adjusting the amount incurred for maintenance till formation of the society. The opposite party is not liable to pay any amount towards "one time maintenance charges" or interest on it. The opposite party has supplied correct bills and vouchers relating to the expenses of maintenance however due to strong objection of the complainant in respect of some bills, it were removed and Rs.73310/- was reduced. After offer of possession on obtaining "occupation certificate", the complainant had to pay salary of watchman. The opposite party collected Rs.25000/- per buyers for drafting bye-laws and formation of society, drafting conveyance deed and its registration, which require various expenses, administrative charge and advocate fee etc. The opposite party denied that the complainant had incurred any expense towards repairing. There was neither unfair trade practice nor deficiency in service on their part. The complaint has been filed on various false allegations and is liable to be dismissed.
5. The complainant has filed Rejoinder Reply, Affidavit of Evidence, of Rajendra Dnyaneshwar Awate and documentary evidence. The opposite party has filed Affidavit of Evidence of Vikrant Vipin Shah and documentary evidence. Both the parties have filed written synopsis.
6. We have considered the arguments of the counsel for the parties and examined the record. The opposite party raised preliminary objection that the complaint is barred by limitation as Section 24-A of Consumer Protection Act, 1986 provides two years limitation from the date of cause of action. The opposite party obtained "occupation certificate" on 27.06.2014 & 01.08.2014 and handed over possession to the buyers from October, 2014. The complainant society was formed on 29.05.2016 and took charge immediately thereafter. Cause of action for deficiency in construction, low quality of amenities at the time of taking possessing by the buyer and less collection/deposit of maintenance charges arose at the time of taking charge by the complainant. The complainant has claimed interest on deficient amount of "one time maintenance charges" from 01.09.2016, on excess amount collected for formation of the society from 26.05.2015 and on deficient amount collected from the owners of the land from 01.10.2014. Section 9 of Limitation Act, 1963 provides that once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it. Supreme Court in Vidya Drolia Vs. Durga Trading Company, (2021) 2 SCC 338 and Secunderabad Cantoonment Board Vs. B. Rama, (2021) 5 SCC 705, held that limitation once start to run cannot be shifted by making representation.
7. The counsel for the complainant relying upon the judgment of Supreme Court in Samruddhi Co-operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd., AIR 2022 SC 428, submitted that cause of action in this case is continuing day by day.
8. Section 22 of Limitation Act, 1963 provides that in case of continuing breach of contract or in case of continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or tort, as the case may be, continues. Monetary claim is not based upon continuing breach of contract as such it cannot be treated as continuing cause of action. The reliefs for Rs.445266/- with interest @18% per annum from 30.08.2016 till its realization, towards balance amount of the maintenance collected from the flat owners and not paid to the complainant; Rs.695600/-, with interest @18% per annum from 30.08.2016 till its realization, towards excess amount collected by the opposite party for formation of society; (iii) Rs.1062500/-, with interest @18% per annum from 30.08.2016 till its realization, towards amount payable by the owners of the land; (iv) Rs.100000/-, as the expenses incurred by the complainant for repair have become time barred.
9. The complainant has stated that Municipal Corporation Pune inspected the site and instructed the opposite party to rectify emergency staircase, as per guideline and supervision of the College of Engineering, Pune Wakadewadi, Shivajinagar, Pune. This fact has been denied by the opposite party. The complainant has not produced any document in this respect. The complainant even did not produce any Architect Report to the effect that staircase was sub-standard. On the other hand, it is admitted that "occupancy certificate" was issued by Municipal Corporation Pune, which is a proof of Fire NOC. As such allegation in this respect, is not proved.
10. Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 castes a liability upon the opposite party to execute conveyance deed in favour of the complainant. The opposite party has stated that it had sent the draft of sale deed to the complainant on 22.01.2019, which was in Marathi language. As asked for the draft in English language, it was supplied on 10.08.2019 but the complainant did not approve the draft till today, due to which, execution of sale deed is pending. Cause of action in this respect is continuing cause of action.
ORDER
ln view of aforesaid discussion complaint is partly allowed. The complainant is directed to finalize the draft of the sale deed and handover it to the opposite party, within 15 days from the date of this judgment, who shall examine it and ensure execution and registration of the sale deed, within a period of one month thereafter.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER