State Consumer Disputes Redressal Commission
Saidham Enclave Co-Op Hsg Soc Ltd vs Takkar Builders & Developers on 2 April, 2026
EA-19-16
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA
EXECUTION APPLICATION NO. SC/27/EA/19/16
IN SC/27/CC/2010/20
Saidham Enclave Co-op.Hsg.Soc.Ltd.
Having office at:
Thakkar Complex, Near Jankalyan Nagar
Malad (West), Mumbai 400 095 .......Applicant/org.complainant
Versus
1.Thakkar Builders & Developers
Having office at :
Gokul Apartment, Ground Floor
Haridas Nagar, Behind Kora Kendra
Shimpoli Road, Borivali (West)
Mumbai 400 092
2.Mr.Manish Kutmutia,
Partner of Thakkar Builders & Developers
Having office at :
Gokul Apartment, Ground Floor
Haridas Nagar, Behind Kora Kendra
Shimpoli Road, Borivali (West)
Mumbai 400 092
3.Mr.Ajit Thakkar
Partner of Thakkar Builders & Developers
Having office at :
Gokul Apartment, Ground Floor
Haridas Nagar, Behind Kora Kendra
Shimpoli Road, Borivali (West)
Mumbai 400 092 ....Respondents/org.OPs
BEFORE: Justice S.P.Tavade - President
Vijay C.Premchandani - Member
PRESENT: Advocate Kaushik Mhatre is present on V.C. for the applicant.
Advocate A.V.Patwardhan present for respondents.
1
EA-19-16
FINAL ORDER
(Dt. 02/04/2026)
Per Hon'ble Vijay C.Premchandani - Member
1. The present execution application is filed u/sec.27 of the Consumer Protection Act 1986 for non-compliance of the order dated 29/09/2011 passed by this Commission in Consumer Complaint no.CC/10/20, which reads as under:-
1. The complaint is partly allowed.
2. The opponent-builder-developer is directed to execute the conveyance in favour of the complainant-Society at the costs of the complainant-Society.
3. The opponent-builder-developer shall also take necessary steps and obtain Occupation/Completion Certificate and hand over the same to the complainant-Society.
4. Both these directions be complied with as early as possible but within the six months from this order.
5. The opponent-builder-developer to bear its own costs and cost pay Rs.25,000/- as costs to the complainant-Society.
The facts of the application :-
2. The applicant states in the present Execution Application that the accused is the Partnership Firm and the business of the said firm is managed and controlled by its partners. The names and addresses of the partners of the accused are as under:
a. Mr. Manish Kutmutia, Partner having his office at Gokul Apartment, Ground Floor, Haridas Nagar, Shimpoli Road, Borivali (West), Mumbai - 400092 b. Mr. Ajit Thakkar, Partner having his office at Gokul Apartment, Ground Floor, Haridas Nagar, Shimpoli Road, Borivali (West), Mumbai- 400092 2 EA-19-16
3. In the facts and circumstances mentioned hereinabove, it is submitted by the applicants that the Order dated 29.09.2011 is to be complied within the period of six months. Said 6 months expired as on 29.03.2012.
4. The applicant submits that the applicant is entitled to seek the remedy provided under the provisions of Section 27 of Consumer Protection Act, 1986 and pray that this Hon'ble Commission be pleased to issue summons to the partners of the accused and further deal with the Accused in accordance with the law.
5. After verification of the complaint, the summons was issued to the respondent/ accused. The respondent/accused appeared. The plea of the accused was recorded. The applicant/complainant has filed the affidavit of evidence on the present Execution Application. The cross examination of the applicant/complainant was conducted by the advocate for the accused. The statement of the accused persons are recorded u/sec.313 of Cr.P.C. The applicant as well as the respondents/accused have filed their written notes of arguments. The applicant also moved an application/contempt u/sec.2(b), r/w. sec.37, 42, 43 of Contempt of Court Act, 1971 with Amendment Act 2006. The accused has filed the reply on the contempt application. The argument was finally heard on both the sides.
6. After going through the execution application, impugned order passed by this Commission in the consumer complaint, both the parties evidence as well as written notes of arguments, we are having two issues before this Commission as under:-
Sr.no. Point Answer
1 Whether the accused /respondent In affirmative
is guilty for disobedience of the
order passed by this Commission
in the consumer complaint
no.CC/10/20 for executing the
Conveyance Deed?
3
EA-19-16
2 Whether the accused is guilty for In affirmative
the offence punishable u/sec.27 of
the Consumer Protection Act,
1986?
3 What order? As per final
order.
REASONING:-
Issue no.1:-
7. The present execution application is filed u/sec.27 of the Consumer Protection Act, 1986 for non-compliance of the order passed by this Commission in consumer complaint no.CC/10/20 dated 29/09/2011. The final order passed in the original consumer complaint is mentioned herein above. The section 27 is regarding penalties, which is as under:-
"27. Penalties.--
(1)Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees, or with both: (2)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so 4 EA-19-16 conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).
(3)All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be."
8. The record reveals that the accused has contended in their defence as well as tried to bring the information by way of cross examining the witnesses on behalf of the applicant society that the applicant is ready for compliance of the order and draft of Conveyance Deed is given to the Society and the area mentioned in the draft of Conveyance Deed is aggreable to the applicant Society. The accused has brought case in his defence that the draft of Conveyance Deed has been provided on number of occasions since from 2019, for 1520 sq.mtrs with the benefit of the road set back so as to have an access road is handed over by the accused. However, the final draft of Conveyance Deed has not been approved and forwarded to the present accused. The Co- operative Societies Act provides to approve the draft of Conveyance and also pass a resolution along with the draft of Conveyance Deed. It is further brought in the defence of the accused that the person who has been appointed to represent the Society, no resolution of the Society is passed for the appointment of the person to represent the Society in the present Execution Application. The accused contended that there is no intention on the part of the accused to not comply the order and shown willingness to execute or comply the order. Hence the accused is not guilty for disobedience of the order passed by this Commission in the original consumer complaint for executing the Conveyance Deed.
9. The complainant has examined the one witness on behalf of the Society. It is admitted fact that the Agreement to Sale is registered as on 03/11/1999. As per Section 3 of MOFA, 1963 there emanate the statutory obligations of builder/developer under the provisions of MOFA, 1963 and MMC Act, 1888-(a) 5 EA-19-16 Rule 9 of MOFA Rules, 1964-Period for conveyance of title of promoter to organization of flat purchasers. - If no period for conveying the title of the promoter to the organization of the flat purchasers is agreed upon, the promoter shall (subject to his right to dispose of the remaining flats, if any) execute the conveyance within four months from the date on which the Co-operative society or the company is registered or, as the case may be, the association of the flat takers is duly constituted.
10. When a promoter has submitted his property to the provisions of the Maharashtra Apartment Ownership Act, 1970 by executing and registering a Declaration as required by section 2 of the Act, and no period for conveying the title of the promoter in respect of an apartment to each apartment taker is agreed upon, the promoter shall execute the conveyance or deed of apartment in favour of each apartment taker within four months from the date, the apartment taker has entered into possession of his apartment.
11. It is also admitted fact that the order passed by the Hon'ble Commission as on 15/07/2019 whereby the Sanctioned Plan dated 31/05/1986 issued by M.C.G.M. does not disclosed any internal road passing through the easementary right of the complainant, any amendment or modification to the original Sanctioned Plan u/sec.7(2) and 7(a) of MOFA Act, 1963, the law with respect to such modification is well settled. It is held by the Hon'ble Mumbai High Court in the matter of Ravindra Mutneja V/s Bhavan Corporation, 2003(5) BOM CR 695, wherein it is held that subsequent changing in building regulation or increasing FSI for construction ie. not bound by development plan already filed with the authority i.e. Original Sanctioned plan as per Section 4 of MOFA, 1963 is not permissible without the consent of flat occupiers/purchasers after the building is constructed. The Hon'ble Mumbai High Court in Lake View Developers and Ors. V/s. Eternia CHS Ltd. and Ors, it is held that amendment carried-out to section 7 of MOFA, 1963 does not provide a blanket consent for additional construction. The Hon'ble Apex Court in Jayantilal Investment V/s. Madhurvihar CHS Ltd and Ors, 2007 SCC (9) 220, it is 6 EA-19-16 held by Hon'ble Apex Court that additional construction has to be read in consonance with Section 3, 4 and 11 of MOFA, 1963 read along with Rule 8 and 9 of MOFA Rules, 1964.
12. In the present case, it appears that the accused has put the condition in the draft of Conveyance Deed after the modification of the Sanctioned Plan and offered the Conveyance to the present applicant in view of the order passed by this Commission. Such a conveyance offered after modification of Sanctioned Plan is violation of section 3 & 4 of MOFA, 1963. Hence, it is not expected from the applicant to accept such a conveyance on a particular condition.
13. We have also gone through the order sheet of this Commission, wherein it is categorically stated by this Commission as on 15/07/2019 that regarding right to access between the parties can be agitated before the competent Civil Court and further directions were given to the accused persons to comply the order and file the compliance report. In the present case, it is admitted fact that the Sanctioned Plan in respect of the building construction which mentioned area in square meters as 1882.70 sq.mtrs. conversion area 1520 sq.meters. Thus, the final order is to execute the Conveyance Deed in respect of the land upon which the building is constructed as per the Sanctioned Plan i.e. 31/05/1996. The right of access to the land sought to be conveyed are civil rights which may be agitated by the parties before the Civil Court but that cannot be a ground to refuse or put the condition to refuse or non-comply the order of this Commission passed in the original consumer complaint. Hence, we come to the conclusion that the accused/respondent are guilty for disobedience of the order passed by this Commission in the consumer complaint no.CC/10/20 for executing the Conveyance Deed. Hence we answer issue no.1 in affirmative. Issue no.2:-
14. From the evidence led by the applicant/complainant in the present execution application and from the discussed made herein above as well as the facts and documents placed on record clearly established that till this date of the passing of the order, the accused has not executed conveyance in favour of the 7 EA-19-16 complainant Society. Hence, we held guilty the accused for the offence punishable u/sec.27 of the Consumer Protection Act, 1986. Therefore, we answer to the issue no.2 is in affirmative.
15. The contempt application preferred by the applicant is not maintainable in law as there is specific provision for the penalties prescribed u/sec.27 of the Consumer Protection Act, 1986. Hence, the application is filed.
16. As the accused is held guilty for the offence punishable u/sec.27 of the Consumer Protection Act, 1986, therefore, the accused is called upon to argue on the point of quantum of punishment.
17. Heard counsel for the accused on the quantum of compensation, whereby it is contended that there was no deliberate intention for non-compliance of the order passed by this Commission. In fact, the accused is ready and willing to comply the order and also submitted that looking to the intention of the accused to comply the order, minimum punishment may be granted to the extent of fine amount only.
18. The representatives of the applicant Society are present. They submitted that they have waited since long for the compliance of the order. Looking to the waiting period and still the order is not complied, therefore, the punishment may be given accordingly.
19. Heard both the parties on the point of quantum of compensation. We are inclined to pass the following order:-
ORDER
1) The Accused no.1 is sentenced to pay fine of Rs.10,000/-.
2) The accused nos.2 & 3 are sentenced to suffer Simple Imprisonment to the term of six months each as per section 27 of the Consumer Protection Act, 1986 and to pay fine to the extent of Rs.10,000/- each. In default, they are sentenced to suffer Simple Imprisonment for one month each.8
EA-19-16
3) The execution application stands disposed of.
4) Copies of the order be furnished to the parties free of cost.
[Justice S.P. Tavade] President [Vijay C. Premchandani] Member MS 9