State Consumer Disputes Redressal Commission
M S Prime Developers Through Shri Hitesh ... vs Prime Manor Co-Op. Hsg. Soc. Ltd. Though ... on 11 April, 2018
1 [FA/14/411]
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.FA/14/411
(Arisen out of Judgment and order dated 12/12/2013 passed by Ld.Pune
District Forum in consumer complaint No.589 of 2010)
1.M/s.Prime Developers
Through its Partner
Shri. Hitesh Anil Shah
2. M/s.Prime Developers
Through its Partner
Shri.Kantilal Bhikalal Ladhani/Shah
Office -
36, Dhanji Street,
Mumbai 400 003. Appellant(s)
Versus
Prime Manor Co.-Op. Housing Society
Through its Chairman
Mr.Ashish Chandole
r/at- Prime Manor Co.-Op. Housing Society
Bavdhan(kd), Tal.Mulshi,
Dist.Pune. 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.Karandikar
For the Respondent(s) : Shri.Pralhad Naik, Chairman
ORDER
Per: Hon'ble Smt.Usha S.Thakare, Presiding Judicial Member
[1] Being aggrieved by the order dated 12/12/20113 passed by the Ld.District Forum, Pune in consumer complaint bearing No.PDF/2010/589 original opponent M/s.Prime Developers has filed present appeal.
[2] By the order dated 12/12/2013 Ld.District Forum was pleased to allow the consumer complaint partly. Original opponent Nos.1 to 3 jointly and severally were directed to execute conveyance deed in favour of the 2 [FA/14/411] complainant society and to pay compensation of Rs.10,00,000/- to the complainant society within six weeks from the date of receipt of order. Further it is warned that if the amount is not paid or deposited within the stipulated period, it shall carry interest @9% p.a. from the date of filing of complaint till realisation.
[3] Facts giving rise to present appeal in short are as under-
Complainant/respondent is a 'Prime Manor Co-operative Housing Society'. Complainant had filed consumer complaint against the opponent by alleging deficiency in service u/s 12 of the Consumer Protection Act, 1986. It is alleged that the members of the society have purchased the flats from the opponents which are situated at Bavdhand (Khurd), Tal.Mulshi. The members had paid entire consideration alongwith expenses. The possession of the flats was handed over to the members. They realised that the quality of flats was very poor. The opponent failed to construct office room of 12sq.mtrs for society's office. There is heavy leakage from overhead water tank, levelling of the ground was not proper, compound wall was not properly constructed as a result it fell down on 20/09/2010. It is further alleged that, the building is not painted properly. The electricity wiring is of low grade. No decorative entrance is provided. Moreover, opponents have created 12 congested stilt car parking places without sanction from the Municipal Authority and charged Rs.50,000/- per flat holder as consideration for car parking. Opponents have also sold common terrace to Shri.Shirish Kher and Shri. Vanaja Vaidyanathan. Opponents have not executed conveyance deed. Hence, complainant society had filed consumer complaint and claimed compensation for various defects and deficiency to the tune of Rs.19,80,000/-.
[4] The Ld.District Forum observed in the Judgment that the opponents have filed say to challenge the pecuniary jurisdiction to entertain the complaint. Subsequently, amendment was effected and claim was reduced to Rs.19,80,000/-. Therefore, opponents have not filed written version and have not resisted the claim. Ultimately, the Ld.District Forum considered 3 [FA/14/411] the claim of the complainant on the basis of affidavit, pleading and documents filed by the complainant. While deciding the claim in favour of complainant/respondent Ld.District Forum placed reliance on the correspondence between the parties.
[5] Being aggrieved by the order dated 12/12/2013 original opponent/ appellant is before this Commission in appeal.
[6] We have heard Ld.Counsel Shri.Karandikar for the appellant and Chariman Shri.Naik of the respondent society. 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. It is urged that the appellant started booking of the flats from the project. By the end of June/July 2006 entire project was booked. Construction activity was carried out on full swing. However, due to unforeseen circumstances, there was delay in completion of the project. All the difficulties were overcome. Construction was completed and possession was handed over for the purpose of moving furniture carrying out renovation work etc.to the purchasers in January 2007. On 17/10/2008 part occupancy certificate was obtained by the appellant. By the end of 2008 within period of two months occupation certificate was obtained by the appellant. On obtaining occupation certificate formal possession was handed over to all the members of complainant society by the end of 2008. At the time of taking over possession the purchasers/members of the society were given inspection of their respective flats and parking places. They had no grievance. They had taken peaceful possession of the respective flats. They were satisfied with the quality of work as per agreement. In or about 2010 i.e. after period of three years from the date of taking over possession the complainant/respondent filed consumer complaint which was barred by limitation and was hit by pecuniary jurisdiction. [7] Advocate Shri.Karandikar for appellant urged that the order is passed without application of mind. Appellants/opponents have filed written version. Said written version was not taken into consideration. It is 4 [FA/14/411] erroneously observed that the opponent/appellant have not filed any written version and not resisted the claim. Pleadings of the appellant were not at all considered. Ld.District Forum failed to consider that the deemed conveyance certificate was obtained on 06/08/2011 from D.D.R. Pune 5 vide their office order No.D.C./40/40211. Compound wall got demolished due to heavy down pour which was reported in most of the daily newspapers circulated in Pune that the calamity had occurred in addition to the excavation activities undertaken on the adjoining plot. Ld.Counsel Shri.Karandikar requested to set aside illegal order by allowing present appeal to avoid injustice.
[8] Chairman of the complainant society Shri.Naik supported the order and findings of the Ld.District Forum and requested to dismiss the appeal for want of merit.
[9] We have perused the impugned order and documents on record. Ld.District Forum observed in para 2 of the judgment that the opponents/ appellant initially appeared and filed application saying that total claim of complainant is above Rs.Twenty-two lakhs and the Ld.District Forum has no pecuniary jurisdiction to entertain the complaint. Subsequently complainant amended the complaint and reduced claim to the tune of Rs.19,80,000/-. Thereafter, opponents have not filed written version and resisted the claim. Hence, this complaint is decided on the basis of affidavit, documents filed on record and the pleadings of complainant. [10] This observation by the Ld.District Forum cannot be accepted. Ld.Counsel Shri.Karandikar for appellant has drawn our attention to the order roznama dated 25/03/2011 passed in CC/10/589. Certified copy of the roznama was obtained by the appellant from the Ld.District Forum. Said order shows that on 25/03/2011 consumer complaint was fixed for filing written version. On that day, the complainant was absent. Opponents have filed written version along with documents and consumer complaint was adjourned on 12/05/2011for hearing. Later on Advocate for complainant/respondent appeared and received copy of written version. It 5 [FA/14/411] means that written version was filed before the Ld.District Forum by the present appellant/opponent.
[11] Appellants have obtained certified copy of the written version from the Ld.District Forum which was lying in the compilation of the consumer complaint bearing No.589 of 2010. Certified copy of the written version was on record of the Ld.District Forum. It was not at all considered by the Ld.District Forum. The observations are against its own order and against the record. It shows non application of mind by the Ld.District Forum to the existing facts. Pleadings before the Ld.District Forum were not looked into by the Ld.District Forum.
[12] It appears that initially complainant/respondent had filed consumer complaint to claim amount of Rs.Twenty Two Lakhs towards compensation for deficiencies. Subsequently, amendment application was moved. Amendment application was allowed by Ld.District Forum vide order dated 25/04/2012. Complaint was admitted by order dated 31/12/2010 and written version was filed on 25/03/2011.
[13] Nothing is on record to show that the opportunity was given to the appellant/opponents to file affidavit of evidence by the Ld.District Forum. In written version the opponents/appellant have made attack about tenability of the consumer complaint on several grounds. Point of limitation was also raised. In support of the pleadings in written version, documents were also filed by the opponents. While deciding the consumer complaint points for determination were not raised in view of the submissions made by the opponents/appellant in written version. The impugned order was passed without application of mind, without considering written version and without giving sufficient opportunity to lead evidence by the opponents. [14] We are of the view that, the impugned order passed by the Ld.District Forum is illegal and incorrect. It requires to be set aside by allowing present appeal. It is desirable to remand the matter and to give opportunity to the appellant/opponents to file affidavit of evidence and brief notes of written argument. With this view, we proceed to pass the following order-
6 [FA/14/411] ORDER 1] First Appeal bearing No.FA/14/411 is hereby allowed. 2] Order passed by the Ld.District Forum in consumer complaint bearing No.PDF/2010/589 dated 12/12/2013 is hereby set aside.
3] Consumer complaint is remanded back to the Ld.District Forum for decision on merit after giving full opportunity to both the parties.
4] Parties are directed to appear before the Ld.District Forum 23/04/2018 at 10.30 a.m. 5] Opponents/appellants to file affidavit of evidence and brief notes of written argument before the Ld.District Forum. Copy of the same be supplied to the complainant/respondent well in advance so that complainant/respondent can file counter affidavit, if any, before the Ld.District Forum.
6] Inform the Ld.District Forum accordingly.
7] Parties to bear their owns costs of appeal.
Certified copy of this order be supplied to the parties. Pronounced on 11th April, 2018.
[USHA S.THAKARE] PRESIDING JUDICIAL MEMBER [A.K.ZADE] MEMBER rsc