State Consumer Disputes Redressal Commission
M/S Megha Properties Developers Ltd vs Monalisa Plaza Co-Operative Housing ... on 20 March, 2018
1 [FA/15/604]
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.FA/15/604
(Arisen out of Judgment and Order dated 21/02/2015 passed by Ld.Thane Addl.
District Forum in consumer complaint No.CC/12/04)
1.M/s.Megha Property Developers Ltd.
C-335 Big Splash, Sector 17,
Vashi, Navi Mumbai 400 709.
2.Mr.Ghanshyambhai Hasanand Hemdev
Managing Director of
Megha Property Developers Ltd.
C/335, Big Splash, 3rd floor,
Sector 17, Vashi,
Navi Mumbai. Appellant(s)
Versus
1.Monalisa Plaza Co-operative Housing
Society Ltd.
Plot No.80, Sector 8,
Koparkhairane,
Navi Mumbai 400 709.
2.CIDCO Ltd.
Nirmal, 2nd floor,
Nariman Point,
Mumbai 400 021. Respondent(s)
BEFORE:
Hon'ble Smt.Usha S.Thakare, Presiding Judicial Member
Hon'ble Mr.A.K.Zade, Member
PRESENT:
For the
Appellant(s): Advocate Shri.Ajay Pawar
For the
Respondent(s) : Amrita Manchanda holding for
Advocate Shri.Nitesh Singh for respondent No.1.
Advocate Smt.Smita Bhosale with authority letter from
Jurisperitus Mumbai, for respondent No.2.
2 [FA/15/604]
ORDER
Per: Hon'ble Smt.Usha S.Thakare, Presiding Judicial Member
[1] Being aggrieved by the Order passed by the Ld.Thane Additional Consumer Disputes Redressal Forum, Navi Mumbai in consumer complaint No.4 of 2012 dated 21/02/2015 original opponents No.1 and 2 have filed present appeal.
[2] By the order under challenge the Ld.District Forum was pleased to allow the consumer complaint bearing No.4 of 2012 partly. Opponents/present appellants are directed to execute conveyance deed in favour of the complainant society and further directed to handover all the original documents to the Managing Committee which are demanded by the complainant society in the complaint. Opponents are directed to pay Rs.40,000/- for legal expenditure to the complainant society and direction was given to comply the order within three months.
[3] The facts giving rise to present appeal in short are as under-
Complainant is a Co-operative Housing Society duly registered under the provisions of Maharashtra Co-operative Societies Act, 1960. Opponents/ appellants are the builder. Original opponent No.3 is CIDCO Ltd. Complainant society had filed consumer complaint by alleging deficiency in service against the opponents due to non execution of conveyance in favour of complainant society. In alternative complainant had demanded compensation of Rs.19,00,000/- from the opponent. It is submitted that on 21/09/2015 Opponent No.3 CIDCO allotted plot No.80, sector No.8, Koparkhairane to the Opponent Nos.1 and 2 for development and construction of the building vide Lease Agreement. Members of the complainant society separately executed agreement with the opponent Nos.1 and 2 and purchased their respective flats. The Opponent Nos.1 and 2 handed over possession of flats in the year 2006. It is alleged that the opponent Nos.1 and 2 demanded Rs.15,000/- towards water tax, performance of agreement, share and entrance fees, maintenance charges, 3 [FA/15/604] society formation and registration charges and other deposits. Inspite of receipt of amount as per demand Opponent Nos.1 and 2 failed to form the society. Complainant society was forced to spend additional amount for formation of the society. Society was formed on 03/05/2005. Opponent Nos.1 and 2 have violated provisions of MOFA Act, 1963 by non execution of the conveyance deed in favour of the society. Complainant society sent letter dated 03/11/2008 to the opponent No.3. In reply CIDCO alleged that on the said plot there is huge mortgage loan taken by the Opponent Nos.1 and 2 from LIC Housing Finance Ltd. and therefore the opponent No.3- CIDCO cannot execute lease deed. To meet out the grievance complainant society had filed consumer complaint.
[4] Opponent Nos.1 and 2 resisted the consumer complaint by filing written version and denied all adverse allegations. It is submitted that the complaint filed by the society through Secretary Shri.Anil L.Tiwari is not tenable. Complainant society is not entitled to file present complaint as the society has not engaged services of Opponent Nos.1 and 2 for consideration. Society cannot file complaint on the strength of contention that it is beneficiary of services engaged by its members. Complainant society cannot file complaint through Secretary Shri.Anil L.Tiwari in absnce of any authorization in the form of requisite resolution in the Annual General Meeting or Special General Body Meeting. Present complaint is filed on 13/01/2012. There is an unexplained delay of nearly five years. Application for condonation of delay was not filed. Complaint is liable to be dismissed as barred by limitation. Complainant ought to have obtained leave of the Ld.District Forum u/s 11 (2) of the Consumer Protection Act, 1986 for prosecuting the complaint against the opponentNo.3. It is further submitted that complainant society is seeking compensation of Rs.19,00,000/-. The claim is not based on well-recognized principle of quantification of damages and/or based on the strength of any cogent documentary evidence. Complainant society comprises of 44 units. All the members of the complainant society have not purchased the flats directly 4 [FA/15/604] from the builder. Some of them are second purchasers. There is no evidence on record to substantiate the allegations that the members were forced to spend additional amount towards formation of society. Opponent No.1 by letter dated 04/01/2006 called upon the complainant society to furnish necessary details of their members, copy of agreements and the copy of stamp duty paid and to arrange for payment of the stamp duty, registration and other charges required for executing the lease deed in favour of the complainant society by CIDCO. Opponent No.1 asked complainant society whether society is ready for execution of lease deed. Opponent Nos.1 and 2 repeatedly on several occasions requested the complainant society to comply with the requirement to initiate proceeding for lease deed/conveyance. Complainant society failed to comply the requirements. Complainant society was busy in exchanging legal notice on pretty issues with the opponent No.1. Notices were duly replied. Opponents handed over all required papers to the complainant society and same have been duly received by the society. Complainant society made wild and baseless allegations against the opponents without documentary evidence. Opponents had also handed over all the accounts on 16/02/2006 to the complainant society. Complainant society acknowledged receipts of the documents. It was the duty of the flat purchasers to contribute towards cost of conveyance etc. Complainant society failed and neglected to comply the requirement. As such there is no deficiency on the part of the opponent Nos.1 and 2 and complaint is liable to be dismissed with costs. [5] Opponent No.3-CIDCO resisted the consumer complaint by filing written version. It is submitted that complainant is not a consumer and CIDCO is not a service provider, therefore, complaint is not maintainable against the CIDCO. Opponent No.1 has mortgaged the plot to the LIC Housing Finance Ltd. and raised loan for construction. Opponent No.1 is in arrears of huge loan against the subject plot and lien of LIC Housing Finance Ltd. is still continuing. Complaint is filed without any justified reason. Statutory notice was not given to the Opponent No.3 as 5 [FA/15/604] contemplated under clause 9 of First Schedule of section 159A of the Maharashtra Regional & Town Planning Act, 1966. On this count the complaint is not tenable. It is further contended that the plot No.80, sector 8 of Koparkhairne was allotted to the opponent Nos.1 and 2. After payment of lease premium Agreement of Lease was executed on 21/09/1994. As per request of opponent No.1 No Objection Certificate was granted for mortgaging said plot in favour of LIC Housing Finance Ltd. Opponent No.1 has obtained development permission on 08/05/1995 and Occupancy Certificate on 15/10/2003. Opponent No.1 has submitted the application for grant of Lease Deed in favour of the complainant society on 03/11/2008. Since the plot was mortgaged with the LIC Housing Finance Ltd., Opponent No.3-CIDCO vide letter dated 04/11/2008 has called for Nil Balance Certificate from the LIC Housing Finance Ltd. LIC Housing Finance Ltd. informed the CIDCO that the licensee is in default of payment of loan. Amount of Rs.3,68,63,506.97 is outstanding against the Opponent No.1. Lien is still continuing. There is no cause of action to file complaint against the Opponent No.3. Hence, it is liable to be dismissed. [6] Ld.District Forum considered the pleadings, evidence, documents and written argument filed by both the parties. After giving thoughtful consideration to the contentions advanced on behalf of both the parties, Ld.District Forum was pleased to allow the consumer complaint partly by order dated 21/02/2015. Being dissatisfied, original Opponent Nos.1 and 2 are before the Commission in appeal. Respondent No.2-CIDCO is a formal party. No order is passed against the Opponent No.3 by the Ld.District Forum.
[7] Heard Ld.Counsel Shri.Ajay Pawar for appellant and Ld.Counsel Smt.Amrita Manchanda holding for Advocate Shri.Nitesh Singh on record for respondent No.1 and Advocate Smt.Smita Bhosale for respondent No.2. It is vehemently urged on behalf of the appellant that the order passed by the Ld.District Forum is illegal and incorrect. It is against the facts and merit of the case. Ld.District Forum wrongly held that the consumer complaint filed 6 [FA/15/604] by the complainant society is within limitation. Ld.District Forum should have observed that the complainant society is not a consumer and there is no relationship as consumer and service provider between the complainant and original opponent Nos.1 and 2/appellants. It is argued that the direction was given to execute the conveyance deed in respect of subject land in favour of the complainant society. Ld.District Forum lost sight of the fact that the land is owned by CIDCO and unless and until it is transferred in the name of Appellant No.1 such direction cannot be given. Complainant society was fully aware that the land was mortgaged with LIC Housing Finance Ltd. still the authority is not added as necessary party. Appellant had repeatedly called upon members of respondent society to comply with the various requirements for execution of lease deed. It is clear from the letter correspondence. Respondent society has not complied the requirements. Inspite of all these facts liability is casted upon the opponents /appellants. Ld.District Forum did not apply its mind to the fact that owner of land is CIDCO and CIDCO has not given consent for execution of conveyance. Ld.Counsel Shri.Ajay Pawar requested to set aside impugned order by allowing present appeal to avoid injustice.
[8] Ld.Counsel for the complainant/respondent supported findings of the order of Ld.District Forum and requested to dismiss the appeal for want of merit.
[9] It is an admitted fact that the CIDCO has acquired land. On 21/09/2015 Opponent No.3 CIDCO allotted plot No.80, sector No.8, Koparkhairane to the original Opponent Nos.1 and 2 for development and construction of the building vide Lease Agreement. Appellants developed said plot. Building was constructed on it. Flats out of the said building were purchased from the appellants by the flat holders who are the members of the respondent society. In the year 2005 complainant society was formed and it was duly registered. It is clear that the purchasers of the flats are the members of the society. Complaint was filed by the flat purchasers/original allottees through the society which is named as Monalisa Plaza Co-
7 [FA/15/604] operative Housing Society Ltd. Consumer complaint was filed for the benefit of flat purchasers through society. Flat holders are staying in the flats allotted to them. Society is formed for protecting common interest of all the members.
[10] Ld.District Forum rightly observed that there is implied consent of all the flat purchasers to file consumer complaint to agitate their rights through society. Ld.District Forum rightly observed and held that there is relationship of consumer and service provider between the complainant society and opponent/present appellants. We do not find any illegality in this finding.
[11] It is an admitted fact that till today lease deed/conveyance deed is not executed in favour of the complainant society by the appellants. Execution of conveyance deed is statutory obligation on the builder developer as per the provisions of Maharashtra Ownership of Flats Act, 1963. Consumer complaint was filed for getting conveyance deed/lease deed from the present appellants. Appellants failed to fulfill their statutory obligation. Ld.District Forum rightly held that execution of conveyance is statutory obligation and as such cause of action to file consumer complaint was continuous one. Consumer complaint is based on continuous cause of action. It cannot be said to be barred by limitation. We do not find any substance in the objection raised on behalf of the appellants.
[12] Appellants harped upon the fact that various letters and reminders were issued to the complainant society for submitting various documents required for execution and registration of conveyance deed. Ld.Counsel Shri.Ajay Pawar has drawn our attention to the letters dated 04/01/2006, 01/10/2007 and 21/05/2008. It is vehemently urged that the appellants were ready and willing to execute conveyance deed/lease deed in favour of the said society. For want of consent from the respondent No.2-CIDCO conveyance deed could not be executed.
[13] We have perused copy of agreement executed between the present appellants and flat purchasers. Clause 36 of the Agreement is as under-
8 [FA/15/604] "All the cost, charges and expenses in connection with the formation of the society, shall be borne and aid by the members of the said co- op.society, as the case may be and also all the cost charges and expenses including advocate's and solicitors expenses for Deed of lease and other assurances shall be paid and borne by the members of the said co.operative society."
Clause 36 of the agreement makes it clear that expenditure for the execution of conveyance deed is to be borne by the flat purchasers. It is brought to our knowledge that the flat purchasers were ready to pay the stamp duty. Ld.Counsel for the respondent No.1 urged that for execution of conveyance deed/lease deed original documents were required. Original documents were not in possession of the appellants and therefore appellants were not in position to execute lease deed/conveyance deed. [14] It appears from the documents on record that respondent No.2 CIDCO had written a letter to the respondent society on 26/06/2009 about the LIC Housing Finance loan taken by the present appellants against the subject plot. It is not disputed that the subject plot was mortgaged for raising loan of LIC Housing Finance Ltd. Nothing is on record to substantiate that loan amount was fully repaid and nothing is due towards appellants. Appellants could not repay the loan amount and therefore they could not get No Objection Certificate. Non execution of the conveyance deed in favour of the complainant society amounts to deficiency in service. [15] Ld.Counsel for the appellant further urged that the original documents were handed over to the complainant society. This fact is denied by the original complainant/respondent society. On the other hand it is pointed out that the loan was obtained from the LIC Housing Finance Ltd. At that time subject plot was mortgaged and original documents were handed over to the said LIC Housing Finance Ltd. Appellant had given true copies of the documents and acknowledgement was obtained towards receipt of true copies.
9 [FA/15/604] [16] We find substance in the argument that original documents were never given to the complainant society. We do not find any base in the submissions of appellants that the appellants were ready to execute conveyance deed. However, fact remains that conveyance/lease deed cannot be executed, till the loan is satisfied and No Objection Certificate is granted by the CIDCO. Respondent CIDCO cannot give no objection unless loan amount is fully repaid by the appellants of LIC Housing Finance Ltd. Considering all these facts, Ld.District Forum rightly arrived at the conclusion that the opponents/appellants are guilty of deficiency in service. Consumer complaint was filed in the year 2012. Counsel was engaged to agitate the right. There was exchange of notices. Service of Advocate was hired. We do not find that the costs of litigation awarded to the respondent society is on higher side. Order passed by the Ld.District Forum is just legal and correct. In view of this discussion appeal deserves to be dismissed. Hence, we proceed to pass following order-
ORDER
1] Appeal is hereby dismissed.
2] Parties to bear their respective costs.
Certified copy of this order be supplied to the parties. Pronounced on 20th March, 2018 [USHA S.THAKARE] PRESIDING JUDICIAL MEMBER [A.K.ZADE] MEMBER rsc