National Consumer Disputes Redressal
M/S. Oberoi Woods Co-Operative Housing ... vs M/S. Oberoi Reality Limited on 14 October, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 263 OF 2014 1. M/S. OBEROI WOODS CO-OPERATIVE HOUSING SOCIETY LIMITED Mr. Mitaram Jangid Having Its Registered Office at Mohan Gokhale Marg, Off Western Express highway, Goregaon (East), MUMBAI - 400 063. MAHARASHTRA ...........Complainant(s) Versus 1. M/S. OBEROI REALITY LIMITED Through Its Managing Director Mr. Vikas Oberoi, Having Regd. Office at Commerz, 3rd Floor, International Business Park, Oberoi Garden City, Off Western Express Highway, Goregaon (East), MUMBAI - 400 063. 2. M/S. NOVARTIS INDIA LIMITED Office at Sandoz House, Dr. Annie Besant Road, Worli, MUMBAI - 400 018. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE MR. BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. ANIRUDH JOSHI, MR. NISHANT SASIDHARAN, MS. TRUPTI SHETTY, ADVOCATES FOR THE OPP. PARTY : MR. MAYUR KHANDEPARKER, ADVOCATE THROUGH VC
MR. REA MEHTA, ADVOCATE FOR OP-1
MR. MANOJ, ADVOCATE THROUGH VC FOR OP-2
Dated : 14 October 2024 ORDER
PER HON'BLE BHARATKUMAR PANDYA, MEMBER
1. Heard Mr. Anirudh Joshi, Advocate for the Complainant and Mr. Mayur Khandeparker, Advocate for OP 1 and Mr. Manoj, advocate for OP 2.
2. The complaint was originally filed on 28.07.2014 and subsequently amended twice on 27.11.2016 and 06.01.2017. As per amended complaint, the Complainant, a housing society registered under the Maharashtra Co-operative Societies Act, 1960, on 17.06.2009, is representing its members who have purchased their respective flats from the OPs. The complainant society was formed vide registration dated 17.06.2009 and took over the charge for day to day management of the affairs of the Oberoi Woods project developed by OP-1 comprising 600 units and simultaneously started corresponding with the OP-1 to execute deed of conveyance to transfer the rights, title and interest in respect of the property, as provided under MOFA vide letter dated 21.12.2009(Page 200), which was responded on 15.01.2010 by the OP-1 by citing MOFA provisions and pointing out that the lease is valid mode of conveyance and that after completing the sale of all the units and receipt of all outstanding amounts of dues from all allottees, the conveyance can be and shall be executed in favour of the complainant. The present complaint is filed against the OPs for not complying with their contractual and statutory obligations and consequent deficiency in service, namely, rectification of defects in construction, severe leakage problems in more than 400 flats, parking place, payment of interest on Corpus fund received on 02.09.2009 without interest, and for execution of deed of conveyance of the plot of land along with all structures standing thereon. OP-2 are the owners of a large piece of land admeasuring 47,346.50 sq. mtrs. OP-2 is the promoter under MOFA, 1963 as their name appears in the property card. OP-1 constructed three buildings under the project name "Oberoi Woods" consisting of three towers - A, B and C. All the towers have common basement, 2 level podium, stilt floor and 1 to 35 stories. Full OC was obtained on 03.05.2008 and thereafter the possession by most of the allottees was handed over by September 2008. OP-1 had promised to provide premium quality construction, recreation ground, internal roads, open spaces, terraces, swimming pool, club house, etc. to all residents of the Oberoi Woods. But till 10.07.2014, the date of filing of this compliant, OPs have failed to honour their commitment. Possession of flats has been given to the respective flat purchasers, however, right from the beginning, there are heavy leakages inside the flats and in the common areas. Very few leakages were temporarily repaired and the leakages are still continuing. More than 400 flats are facing leakage problem where either the work of concealed pipes laid in the flooring is not proper or water proofing is not done properly or the pipes are leaking. Despite repeated complaints, OPs have failed to rectify the same on permanent basis. In September, 2013, the complainant society appointed an independent Architect & Interior Consultant Mr. Shrikant Hadke to inspect the building, who, in his detailed report dated 12.11.2013 estimated the cost of repairs of leakage problems at Rs.6,17,50,000/-. OP 1 was obliged to provide one stretcher lift out of four lifts provided in each tower, which they have not provided. Further, none of the lifts are accessible to and from Podium no. 1. OP 1 informed to the complainant society that they have entered into a Premises Ownership Agreement dated 31.03.2012 for the sale of Flat No. 3503 on the 35th floor in 'B' wing to M/s Oberoi Constructions Ltd. along with 106 car parking spaces in Podium-I level. However, maximum car parking that can be allotted to any flat is only two and allotting 106 car parking is illegal and unjustified. By letters dated 02.05.2012 & 03.05.2012, OP 1 requested complainant to issue share certificate in respect of the said flat to Oberoi Constructions Ltd. Complainant rejected the said application because of the unjustified allotment of 106 car parking spaces by OP 1 by their letter dated 30.06.2012. Complainant also informed Dy. Registrar of Cooperative Societies, Mumbai about such unjust allotment of 106 parking spaces through letter dated 05.01.2013 stating therein that OP-1 has committed deficiency in service and unfair trade practice by allowing the outsider to have car parking in the complainant's premises by allotting 106 car parking spaces to flat no. 3503. It is further submitted that complainant society and its members are in physical possession of the land and building but OPs are still holding the title. OPs are bound to execute the Deed of Conveyance transferring rights, titles and interest in respect of the land and building in favour of the complainant within four months of registration of the society, which they have not done. Complainant society, time and again, did correspondence with OPs for the same. In response thereto, OP 1 vide their letter dated 20.07.2011 forwarded a draft of Indenture of lease for 99 years with the right of way and access of Oberoi Foundation to the portion of land between the said property and the school property at Podium-I level of the said building. However, the same is not acceptable to the complainant society because as per Section 11 of MOFA, OP 1 is under obligation to transfer all the right, title and interest in the land and building, fully and unconditionally, to the complainant society within four months from the date of registration of the society. As per complainant society, OP 1 has also committed deficiency in service and unfair trade practice by not settling their pending financial and other grievance as detailed in their letter dated 05.04.2011. Complainant society filed present complaint on 28.07.2014 and amended it on 06.01.2017 with permission of this Commission dated 28.11.2017, seeking following reliefs alleging deficient service and unfair trade practice on the part of the OPs:
Direct the OP 1 to pay a sum of Rs.6,17,50,000/- towards the expenses to be incurred to rectify the leakages and other sub-standard work as per expert report.
Direct the OP 1 to pay Rs.3,92,20,337/- (Rs.1.5 crore in original complaint) being the expenses to be incurred for replacing one of the lifts in each of the three towers with the stretcher lift and to make all lifts accessible to podium no. 1 level parking.
Direct OP 1 to pay contribution towards property tax and maintenance charges for flat no. B-3503 amounting to Rs.4,74,774/-
Direct OP 1 to reimburse Rs.58,51,529/- incurred for getting the tanker water due to delay in commissioning of BMC water connection lines.
Direct OP 1 to pay Rs.1,43,04,000/- being the interest at 24% p.a. on the Corpus fund collected from the members and used by the OP for their business purposes.
OPs jointly and severally be ordered and directed to execute the Deed of Conveyance at their own cost in respect of plot of property admeasuring 28,506.20 sq. mtrs. (19670 sq. mtr. in original complaint) with structures standing thereon i.e. three towers being Wings A, B and C comprising of common basement, 2 podium + stilt + 1st to 35 upper floors, recreation grounds, all parking space a/w all hereditaments within three months of order of this Commission, failing which penalty of Rs.10,000/- per each days' delay from the date of expiry of the specified time till compliance.
OPs to hand over to the complainant society all original documents to title in respect of the said property and to refund the excess amount collected by them from the members of the complainant society with interest at 24% p.a. from the date of collection of said amounts till the date of refund.
Direct the OP 1 to pay Rs.10,00,000 towards compensation and Rs.5,00,000/- towards the cost and incidental expenses.
3. OP-1 resisted the Complaint by filing a reply on 31.01.2018 (Part I Vol. III) denying the allegations and stating therein that complainant is guilty of suppressio veri and suggestio falsi. As per OP 1, complaint is barred by limitation because the complaint has been filed in July, 2014 and OPs handed over the possession of the flat to the members in and around September, 2008. The cause of action, if any, shall arise only in 2008 and by no stretch of imagination it can be construed that the cause of action arose in 2011. So the complaint is barred by limitation and therefore the same is liable to be dismissed on that count alone. As per OP 1, there is no privity of contract between them and the complainant society. In fact the contract is only between the individual flat purchasers and the OP 1. Moreover, the report of the Architect Mr. Shrikant Hadke, which forms the foundation of the complaint, is absolutely devoid of credibility as most of the assessments and observations made are beyond the scope of an Architect and Interior Designer and the reliability of the whole report is questionable and doubtful, the same is liable to be summarily rejected. OP 1 further states that they made repeated attempts to discharge their obligation under the agreement by executing a lease in favour of the complainant. However, lease can be executed only after the outstanding dues are settled by the complainant as provided under clause 12 of the FPA. Complainant's claims for conveyance of 28,506.20 sq. mtrs. area of land is not maintainable as the area of Oberoi Woods CHSL land is only a portion of a larger land property i.e. only 15,241 sq. mtrs. as per POA whereas on the remaining land, other developments are still in progress with due approvals from the Authorities. Hence, OP 1 denies all such allegations and submits that they have performed all their duties and obligations under the Premises Ownership Agreement and under law. It is further averred by OP 1 that building of the complainant society is constructed on land admeasuring 15240.96 sq. mtrs which is portion of a larger property. Even though a larger portion of the property is occupied by complainant society, however, relying on various clauses 9, 12, 20, 29 and 42 of the Premises Ownership Agreement, members of the Society have irrevocably agreed and consented that until the construction of all the buildings on the land is completed and until all the flats and other premises in the buildings are sold and also until all the outstanding dues of the allottees are received, OP 1 cannot be called upon to execute a lease or conveyance in respect of the project "Oberoi Woods". Some of the flat purchasers in the instant case have deliberately failed and neglected to pay outstanding of VAT. OP 1 further submits that the complainant society is entitled to raise the demand of conveyance only after all its members have cleared the outstanding liability. OP 1, through its lawyers, even served a legal Notice dated 21.01.2013 on the complainant society for the outstanding VAT liability, which was denied by the complainant through their reply dated 20.03.2013. As per OP-1, the complainant had previously, in its original complaint filed on 28.07.2014, averred the area of the land in question to be 19,670 sq. mtrs. Through first and second amendment application, complainant sought conveyance in respect of area admeasuring 28506.20 sq. mtrs. and merely on the basis of affidavits, the relief of the complainant cannot be considered. The complainant society is fully aware that the larger property admeasuring 28506.20 sq. mtr. comprises of the different project/constructions, including the one in respect of which the complaint has been filed (Oberoi Woods), "Oberoi Seven", Municipal Staff quarters and physical Recreation Ground (RG). Construction of building 'Oberoi Woods' is on the portion of larger property with separate boundary wall in order to demarcate the premise belonging to complainant society. However, the same is not to be construed as complainant society being separate and independent of other structures standing on portion of larger property. As regards the allegation of structural defects, OP 1 contended that the same had been attended to and there are no issues pending as regards leakage and any structural defects. As per OP 1, occupation of the project in question was handed over in 2008 and they have discharged their liability under the three-year defect liability period as prescribed under MOFA, and after expiry of that period, it is the duty of the complainant society to maintain the premises. On 27.06.2011, complainant society wrote to OP 1 against the breaking/removal of walls and such alterations by the residents inside their apartments which may impact the structure of the building. OP 1 vide their letter dated 20.07.2011 expressed their concern over such activities and vide letter dated 04.07.2012 intimated members of the complainants not to carry out alteration in the flat without following proper guidelines, being detrimental to the structural integrity of the building 'Oberoi Woods'. Further, OP 1 also denied any promise for installation of stretcher lift in any of the wings, as neither in the brochure nor in the Premise Ownership Agreement any such promises were made. OP 1 has already provided high speed elevators as committed in the agreement with the members of the complainant society and also constructed lifts/shafts in accordance with sanctioned plans which are prepared in accordance with law. Qua transfer of flat to a company and allotment of 106 car-parkings to it, OP 1 contended that there is no bar created under law prohibiting them to sell flats to a company. OP 1 admitted the Premise Sale Agreement dated 31.03.2012 for sale of flat no. B-3503 to M/s Oberoi Construction Ltd. The contention regarding allotment of 106 parking spaces cannot, by any stretch of imagination, be construed as valid because neither MCA Act nor MOFA or Development Control Regulations provides any restrictions on developer to sell, and flat purchaser to hold, any number of parking places. The complainant society has no discretion to accept or reject a bonafide flat purchaser as a member. Clause 9 of the Premise Ownership Agreement clearly states that the rights as regards unsold car parking vests with builder/developer and therefore the complainant has no right to make any grievances with respect to the same.
5. OP 1 further submitted that they have already paid Property Tax and Maintenance Charges of Rs.4,74,774/- and hence the question of relief as asked for by the complainant society, cannot arise. As regards water tanker charges, OP-1 submitted that they had provided sufficient water connections as per the law. OP-1 has obtained Building Completion Certificate dated 20.03.2009 in respect of the building, which can be granted only after compliance of every building regulations and existing laws regulating the construction of building and provisioning of water. OP-1 provided water to the occupants through tankers in addition to the municipal water connection for society already provided, and thereafter supply of water through water tankers was in addition to obligations of OP-1 and therefore they cannot be held liable to pay any such charges. As per Premise Ownership Agreement clause 23, the corpus amounts does not carry any interest component. Complainant society was handed over the management and accounts by OP-1 on 02.09.2009 without any demure and objections. It was only after almost six years that the complainant society raised objection and demanded for the interest from them.
6. The Complainant filed Rejoinder and both parties filed Affidavits of Evidence and affidavits of admission/denial of the documents. Heard Counsel for both the Parties and carefully perused the bulky records. Now we proceed to adjudicate the issue raised by the complainant and the OP in light of the evidence on record.
7. The first critical objection raised by the OPs is on the ground of limitation. The construction of the project started in 2004, allotments were made in December 2004, POAs were executed in October 2007, OC was received on 03.05.2008 after making application for the same on 15.01.2008 and possessions were handed over by October 2008. The complainant society was registered on 16.06.2009 and the responsibility of maintenance of the common areas and the corpus fund were taken over by the society on 02.09.2009. Complaint was filed on 28.07.2014 and amended complaint was filed on 22.01.2017.Then the Commission passed the following order on IA /11966/2017 for further amendment on 28.11.2017: "This is an application seeking further amendment of the complaint. Heard. The amendment of Para Nos. 3, 4 & 11 of the complaint as per the prayer made in para 10 of the application is allowed with liberty to the OP to file a written version to the amended complaint taking all such pleas including plea of limitation as may be open to it in law. The application stands disposed of". In the reply filed, the OPs have vehemently pleaded that the complaint, having been filed in 2014 more than 2 years after the date of alleged cause of action arose, is time-barred.
I say that the Occupation Certificate for the complainant society was obtained from concerned authorities on 2nd May, 2008. I say that OP No.1 handed over the possession of flat to the members of complainant society in and around September, 2008. OP No.1 registered Oberoi Woods Co-Operative Housing Society Limited ("Society") under Maharashtra Co-operative Societies Act, 1960 bearing registration No. MUM/W-P/HSG/TC/14478/09-10 on 16.06.2009. I say that the cause of action, if any, shall arise only in 2008 and by no stretch of imagination it can be construed that the cause of action has arisen on 20.07.2011 as alleged and therefore the Complaint is barred by law of limitation.
8. The averment in the complaint with regard to the conveyance of the land and common areas, cause of action, and section 11 of MOFA are is as under:
"23. The cause of action in the complaint being breach of statutory obligations under the MOFA, 1963, the cause of action is of continuing nature and hence the same is not barred by limitation. Without prejudice to the above the cause of action has arisen on 20/07/2011 when the Opposite Party No.1 by their letter failed and neglected to comply with their statutory obligations and hence the cause of action is of continuing nature and this complaint as filed is not barred by limitation.
The Complainant states that as per Section 11 of MOFA 1963 and Rule 9 of the Maharashtra Ownership Flats Rules 1964, the Opposite Parties failed to convey their right, title and interest in the land and building to Complainant society within four months from the date of registration of society. The said obligation is a statutory requirement under Section 11 of MOFA...., The Complainants crave leave to refer to and rely upon the judgement of the Hon'ble High Court of Judicature at Bombay reported in 2006 (2) ALL MR 726 - in the matter of Madhuvihar Co-op. Msg. Soc. Ltd. & Ors. v/s M/s. Jayantilal Investments & Ors.(D) wherein it was held: "Maharashtra Ownership of Flats Rules (1964), Rn8, 9 - Limitation Act (1963) Art.113 - Suit for mandatory relief directing promoter to convey title to suit property to society and for declaration that promoter is not entitled to carry on further construction on the property - Scheme for ownership flats started in 1985 and completed in 1989 - Society registered in 1993 - Promoter not taking steps to convey title to society within four months - Suit filed in 1997 - Suit is not time barred because breach of statutory obligation gives continuing cause of action to Society against the promoter"'.
MOFA section 11. (1) A promoter shall take all necessary steps to complete his title and convey to the organisation of persons, who take flats, which is registered either as a co-operative society or as a company as aforesaid or to an association of flat takers 6[or apartment owners], his right, title and interest in the land and building, and execute all relevant documents therefor in accordance with the agreement executed under section 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power.
9. There is no dispute that the complainant is entitled for conveyance and OPs are obligated for the same to the extent of 15,240 sq. mtrs. as per the POA executed by the allottees. However, the counsel's substantial endeavour during the hearing was to demonstrate and to make us comprehend how actually in view of statutory provisions relating to building constructions and in view of the building plans submitted by the OP and sanctioned from time to time by authorities, make the entitlement of actual area more than the area offered and agreed to by the allottees, and to the extent of 28,506 sq mt primarily because: (i) MOFA requires approval of allottees before change of building plans after allotment (ii) the plans have been changed without such approvals (iii) as per the revised plan for the project sanctioned on 1.03.2007, subplot A, on which the project stands, is reflected as 28506 sq.mtr. in the finally sanctioned plan (iv) the POA mentions IOD dated 04.09.2004 whereas actual construction is different and therefore, the lesser area shown in POA should be ignored, the recital re-cast, and should be read as 28,506 sq m. Therefore, notwithstanding POA entitling the society, through POAs by allottees, for only for 15,240 sq. mt., the society is entitled for 28,506 sq mt because of MOFA and other statutory provisions mandating the builder to disclose the building plans and not to deviate from the same without consent from allottees, which are admittedly not taken, and therefore to transfer such 28,506 sq mt as finally approved. When allottees paid the consideration consciously after noting the land-plot size of 15240, and have not challenged or even questioned the quantum of plot within 2 years of POA or of possession, the society"entitlements" derived from such POAs cannot be go beyond POA so as to challenge after 6 years of POA on the ground of non-possession being a continuous cause of action. We have noted that the POA clearly mentions in the recitals that the project consists of 3 towers and is to be on an area of 15241 sq m which itself is a portion of the "larger property". There is transparency in the POA about the larger property and the project property, RG and MSQ, etc. The counsel for the complainant has attempted to draw strength for the claim of 28,506 sq. mtrs., by painstakingly taking us through the progressive history of consecutive amendments in sanctioned plans and how logically therefore the society is entitled to not 15241 but to 28056 sq m of land. Essentially, the complainant would urge us that though members agreed as early as in 2007 and 2008 in POA for 15241 sq.mt., the respective POAs can be challenged even in 2014 simply because allegedly amended plans or applications to the authorities for the same were not disclosed or were wrongly disclosed and approvals of the allottees was not taken. We would not comment on whether we can do so, however, we have no hesitation in observing that such challenge and prayer for such relief is hopelessly barred by limitation prescribed u/s 24A. In the guise of "entitlement for conveyance of land", which is of course a continuing cause of action, the society cannot and should not attempt to seek entitlement for conveyance of land any way more than expressly stated in the POA and duly accepted by the allottees without a whisper of grievance for nearly 6 years before filing of the complaint. The reliance of the complaints on the Bombay HC judgement (supra) is completely misplaced. The judgment has not all dealt with the issue of limitation. As a matter of fact, the suit 4385 of 1997 was filed by the Cooperative Society on 12.08.1997 for enforcing the promoter's obligation for executing conveyance in terms of lay out plan amended as on such sanction dated 26.11.1994. Thus, the suit was very much within the limitation period of three years from the date the entitlement of the plaintiff for a higher quantum of land in terms of amendment sanction dated 26.11.1994. Moreover, the quantum of land to be transferred by the society is found to be not categorically decided in terms of sq. mtrs. (irrespective of sanction plan/layout) in that case which is entirely different from the facts in the present case. While the said decision lays down that the non-handing over of the possession by the promoters/developers is a continuing cause of action, it does not appear that the decision lays down that the cause of action would be continuous qua the quantum of land agreed upon in the POA also. In the present complaint, both the parties have categorically agreed that the plot size which need to be transferred to the cooperative society would be 15,241 sq. mtrs. Even if such agreement is to be challenged on the ground of being violative of any of the provisions of MOFA, we are of the considered view that such challenge qua the quantum of land to be transferred has to be within two years which arose on 02.09.2009 and any grievance beyond 01.09.2011 filed before us in this behalf is barred by limitation under Section 24A of the Consumer Protection Act, 1986. It is the fundamental principle of law of limitation that the limitation starts from the date on which the cause of action arose and is not halted or reversed by any event after the date of such trigger for limitation. We find no merit in the argument of the complainant that cause of action arose on 20.07.2011 when the OP sent a communication to the complainant with draft conveyance for a 99 year lease of 15240 sq m of land beneath the building. Even assuming this to be the date of cause action, we do not see how the matter still can be agitated by filing a complaint on 28/07/2014 when limitation period u/s 24A is only two years.
10. There is not a single communication sent to OP shown to us by the complainant to establish that the issue of quantum of area for conveyance was ever taken up before filing of the complaint. We do not find merit in the contention of the complainant that the quantum of land to be conveyed is part of the continuous cause of action of "non-conveyance" of land, particularly when the quantum is specified in the POA. As the main ground of the complaint regarding the conveyance for quantum of land exceeding 15,241 sq. mtrs. is rejected as barred by limitation u/s 24A. At the same time, we hold that the complainant is entitled, in view of the continuous non-conveyance of the land, title and amenities in terms of Section 11 of MOFA by the OPs, being a continuous cause of action, for agitating in this complaint. The issues emanating and relatable or in connection with such conveyance also need to get clubbed as eligible agitation.
12. We have further noted that the "stretcher lift" is a phrase coined by the complainants without any mention either in the complaint or in the brochure. The correspondence filed with the complaint reveals that there was an issue qua the lift raised and discussed between the society and the Builder. Further, doubtlessly, the brochure at page 147 does show difference in the size of one out of the four lifts, but that also does not take away from the fact that the complaint qua such deficient service based on brochure is hopelessly time barred. With regard to the claim of Rs.6,17,50,000/- towards the expenses to be incurred to rectify the leakages and other sub-standard work as per expert report, the possessions were handed over in 2008. As per the provisions of MOFA, the structural deficiency liability of the builder last only for three years after the possession. Moreover, OPs have placed evidence on record to establish that the issue regarding the leakage has been duly handled whenever the complaints were received. In view of this fact and in view of the allegations having been made more than six years after the taking over of the possession by the society, the grievance and allegations in this behalf are dismissed. Similar is the case with the prayer of Rs.3,92,20,337/- (Rs.1.5 crore in original complaint) towards the expenses to be incurred for replacing one of the lifts in each of the three towers with the stretcher lift and to make all lifts accessible to podium no. 1 level parking. The claim being barred by limitation is dismissed. With regard to the contribution towards property tax and maintenance charges for flat no. B-3503 amounting to Rs.4,74,774/-, the POA agreement at page 67 provides that the maintenance charges in respect of unsold flats would not be payable by the developer in terms of Clause 27. Therefore, the liability does not seem to be arising from the POA. It has been the averment of the OPs that all relevant charges after the date of sale of flat no B-3503 have been duly paid. There does not appear to be any merit in this allegation and the consequent claim for compensation. With regard to the claim of Rs..58,51,529/- towards water tanker charges, the evidence on record suggests that in letter dated 04.07.2011 addressed to the complainant society by the OPs (page 229 of the complaint) in para A(1), it was clearly mentioned that adequate water supply has already been provided. The hydraulic engineer of MCGM has certified vide letter dated 09.12.2009 the provision of water supply. Moreover, the allegation arises from the water charges allegedly incurred by the complainant society during May, 2011 to January, 2014 during which no grievance regarding the same has been raised with the OP builder. The society had already taken over the common facilities and maintenance responsibilities in 2008 and no grievance regarding absence of sufficient municipal water connection and consequent deficient service has been raised by the complainants making the monetary claim barred by limitation in the complaint filed in 2014. The claim of Rs.1,43,04,000/- regarding interest on the Corpus fund, which was taken over by the society without any claim for interest is also equally barred by limitation for the twin reasons that no claim has been raised for six years till filing of the complaint after accepting the amount and also for the reason that the issue has been duly addressed in the OP's communication dated 04.07.2011 in para A(3). Such non-payment of interest is in absolute conformity with the POA.
13. That leaves us with the two balance issues left which are relating to provision of 106 parking spaces to one of the allottees (an associate of the builder) and the demand of payment of VAT charges before the conveyance of the land and building in terms of Recital (xiv) and Clause 20 can be made or note. Both the issues are intimately homogenous and part of the dispute for conveyance in favour of the society. It is the contention of the complainant that as per POA there is clause providing for only limited number of parking spaces for each flat. After considering the material on record, we are of the considered view that this issue, on the merits of which, we do not comment as of now because the issue is more appropriately to be decided by the Dy Registrar of Cooperative Societies who is seized of the matter, and leave the rights and obligations of the parties open for future agitation if required, we observe that the same cannot be and shall not be a ground for withholding the conveyance by the OP. Further, It is the contention of the OPs that as per clause 20 of the POA the requisite dues from the allottees is a precondition for conveyance. The perusal of Recital (xiv) and clause 20 shows that there is merit in what the OP submits. Moreover, VAT charges are statutory charges which ultimately would be passed over and must be borne by the allottees. It is therefore, just and proper that the allottees through the complainant society are directed to pay the demand when duly, transparently and objectively raised by the OPs after passing of this order. It is further mentioned that penalty or interest, if any, levied by the statutory authorities shall not form part of the allocation of such charges made amongst allottees. Subject to this observation, it is fair and it required that the OPs are directed to execute conveyance at their own cost in respect of plot of property admeasuring 15,241 sq. mtrs., with structures standing thereon i.e. three towers being Wings A, B and C comprising of common basement, 2 podium + stilt + 1st to 35 upper floors, recreation grounds, all parking space a/w all hereditaments, within six months from the date of the order.
11. Now we may turn to other issues raised in the complaint, all of which obviously have their roots either in the brochure issued by the Opposite Parties in 2006-07 or in the POAs of the allottees. We note that the availing of building construction service by the allottees would normally start from the date when through brochure or marketing efforts of the Developer, leading to a step when booking amounts are paid, and shall last till the continuance of the obligations of the promoter or developer as specified either under the BBA, or under POA, or under the applicable statutory provisions (MOFA), remain outstanding or pending which may be agitated by filing a complaint within two years of trigger by way of cause of action. Respective enabler for the allottee or society in brochure, BBA, POA or Law has to be first shown along with the date of cause of action has to be shown, at least at a prima facie level, by the complainant. Occupation Certificate was received by the OPs on 03.05.2008 and possession was handed over to the members of complainant society in and around September, 2008. Members of the complainant society signed a
possession letter and inspection report inter alia stating that they have inspected the flat and are satisfied with the condition thereof. As per section 7 of the MOFA, the period of defect liability is three years from the date of handing over the possession. In the present case, the liability to cure defects in the building ended in 2011 whereas this complaint has been filed even two years after that. Even the structural changes/alteration of flats by some individual members from time to time also led to some damages/leakages which cannot be the liability of the builder for life time. Moreover, these structural alterations in flats have been carried out without the consent to the developer which is contrary to MOFA. Various other issues such as leakages, structural problems, maintenance charges, municipal taxes, water tanker charges, interest on corpus fund, etc. have been raised after more than two years of formation of the society and taking over of the possession by most of the members. Similarly, all these concerns have been raised even after more than two years from the date of full completion certificate dated 20.03.2009. OP-1 contended that the flats were inspected and deemed satisfactory before taking possession, and any structural issues or substandard quality issues were a result of unauthorized alterations by the allottees. The report of Mr. Shrikant Hadke, architect dated 12.11.2013 presented by the Complainant society, which highlighted construction defects and issues of flat area/common amenities is indeed filed without any affidavit and cannot be relied upon, more so, because similar reports by him as professional witness have been previously rejected by other judicial forums. Further, the Opposite Parties have denied any violations of Development Control Regulations stating that valid OC have been obtained and minor concerns of the occupants have been addressed when raised which is absolutely clear from the fact that as undertaken. Additionally, the contention of the complainant society that flat no. 3503 cannot be sold to a company is rather contrary to law. In fact Oberoi Construction Ltd. is a bonafides purchaser of flat no. 3503 and complainant society cannot refuse admission and issue of a share certificate on their behalf.
13. In view of the discussion as above, we partly allow the complaint as per the following order:
ORDER
The complaint is partly allowed. Both the OPs shall coordinate amongst themselves and with the complainant society and convey the clear title of a plot of 15,241 sq. mtrs. as specified in second schedule to the Premises Ownership Agreements (POA) signed with the members of the complainant society and in terms of Recital (xiv) and clause 20 of such POA and in compliance with Section 11 (1) of Maharashtra Ownership of Flats Act, 1963, within a period of six months from the date of this order. The OP-1 shall provide to the complainant a consolidated statement along with individual demand letters addressed to the members for outstanding statutory and dues still payable by the members and which is already paid by OP in government account along with the evidence of such payment in terms of last para of this order, within one month of this order. Such amounts shall be duly paid by the members of the complainant within one month thereafter.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER