National Consumer Disputes Redressal
M/S. Vinayak Constructions & 3 Ors. vs Tilak Nagar Royal Co-Operative Housing ... on 29 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 351 OF 2014 (Against the Order dated 11/04/2014 in Complaint No. 123/2008 of the State Commission Maharastra) 1. M/S. VINAYAK CONSTRUCTIONS & 3 ORS. A Partnership Concern, Having its Office at: 15 & 16, Jai Laxmi, 4th Floor, M.G. Road, Ghatkopar (W), Mumbai-400 086 Maharastra. ...........Appellant(s) Versus 1. TILAK NAGAR ROYAL CO-OPERATIVE HOUSING SOCIETY LTD. To be Served at Building No.74, Riddhi Siddhi Apartments, Tilak Nagar, Chembur-400 089, Maharastra. 2. Mr. Kishore Mehta, Partner of M/s Vinayak Constructions, To be served at Traffic Light Building, 4th Floor, M G Road, Ghatkopar (W), Mumbai-400 086, Maharastra. 3. Mr. Jayesh Mehta, Partner of M/s Vinayak Constructions, To be served at Traffic Light Building, 4th Floor, M G Road, Ghatkopar (W), Mumbai-400 086, Maharastra. 4. Mr. Rajesh Mehta Partner of M/s Vinayak Constructions, to be served at Traffic Light Building, 4th Floor, M G Road, Ghatkopar (W), Mumbai-400 086 , Maharastra. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Appellant : Mr. Samrat Nigam, Advocate Mr. Vijeyender Kumar, Advocate Mr. Amit Latawa, Advocate For the Respondent : Mr. SukumarPattjoshi, Sr. Advocate with Mr. VikasNautiyal and Mr. S.K.Dubey, Advocates Dated : 29 Apr 2016 ORDER
1. Aggrieved with the order dated 11.4.2014 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission'), this first appeal no.351 of 2014 has been filed by M/s. Vinayak Constructions &Ors., appellant/the opposite parties in the complaint case No.CC/08/123 filed before the State Commission.
2. Brief facts of the case are that the opposite party and the complainant, Tilak Nagar Royal Co-operative Housing Society Ltd. entered into an agreement for redevelopment of the property. Complainant is a Co-operative Housing Society having registration No. M U M / M H A D B / W- HSG(TC)/10434/1999-2000 situated at Tilak Nagar, Chembur, Mumbai 400 089. The Society consists of total 101 members including 36 old members and 65 new members and also 10 shops on the ground floor. The appellant/opponent No.1 is a partnership firm in the business of builders and developers. The opponents Nos.2,3 and 4 are the partners of the said firm. On 10.05.2002, a Development Agreement was entered into between the Complainant and the opponents. Rectification Deed was executed on 26.06.2002. Deed of confirmation was executed on 07.08.2003. After reconstruction, the physical possession was given to different flat holders in the year 2005-2006. No occupancy certificate was obtained and no completion certificate was issued. As per the complainant, in absence of occupation certificate, the complainant was to pay extra water charges at double the rate. Complainant paid Rs.1,27,040/- as excess water charges. As per complaint, property tax was also paid at double the rate and the amount of Rs.10,43,973/- was paid extra on account of tax because of non-obtaining of occupancy certificate by the opponents.
3. The complainant- Society filed a consumer complaint No.CC/08/123 before the State Commission asking for the following reliefs:-
STATEMENT OF CLAIM Sr. No. Details of Claim Amount Rs.
1.
Cost of repairs 18,62,865/-
2. Excess water charges 1,27,040/-
3. Excess property taxes 10,43,973/-
4. Rs.3,00,000/- per lift 12,00,000/-
5. Compensation for mental agony and torture 15,00,000/-
6. Cost of litigation 1,25,000/-
TOTAL 58,58,878/-
4. The complainant later moved an amendment application with revised list of claim as under:-
STATEMENT OF CLAIM SR NO.
DETAILS OF CLAIM AMOUNT RS.1
Cost of repairs 18,62,865/-2
Excess water charges 1,27,040/-3
Excess property taxes 10,43,973/-4
Rs.3,00,000/- per lift 12,00,000/-5
Compensation for mental agony and torture 15,00,000/-6
Cost of litigation 1,25,000/-7
Refund of MHADA membership not paid Rs.5,52,500/-8
Maintenance charges for 2 Flats & 1 shop in possession of the OPs Rs.31,290/-9
Compensation/loss for shortfall in carpet Area of 55 new flats Rs.33,65,391/-
5. The State Commission vide its order dated 11.04.2014 allowed the complaint and directed as under:-
"(i) The complaint is partly allowed to the effect that the Opponents are guilty of deficiency in service and unfair trade practice.
(ii) The Complainant is entitled for an amount of Rs.1,27,040/- from the Opponents on account of excess water charges paid by the Complainant.
(iii) The Complainant is entitled for Rs.10,43,973/- from the Opponent as excess property taxes paid by the Complainant.
(iv) The Opponents should handover the proper and legal possession of the respective flats together with necessary documents such as completion certificate and occupation certificate within a period of four months from the date of this order. In default, the Opponents are liable to pay Rs.2,000/- per day as penalty to the Complainant.
(v) The Opponents are directed to refund an amount of Rs.5,52,500/- to the Complainant as amount collected from new 65 flat purchasers towards the membership of MHADA.
(vi) The Opponents are directed to pay an amount of Rs.31,290/- as outstanding maintenance charges for the Flat Nos.C-103 and C-603 and one Shop to the complainant.
(vii) Opponents are directed to pay to the Complainant Rs.33,65,723/- being compensation for less carpet are given to new 65 flats purchasers.
(viii) The Complainant is entitled for Rs.50,000/- as the costs of the proceedings.
(ix) Rest of the prayers stand rejected."
6. Hence, the present appeal by the opposite parties/appellants.
7. We heard the learned counsel for both the parties and perused the records carefully.
8. Learned counsel for the appellants argued that the amended complaint filed by the complainant was grossly time barred and should not have been considered by the State Commission. He stated that the complainant- Society members took the possession of the respective flats in the month of November, 2005 and the original complaint was filed on 01.08.2008 whereas the amendment was moved on 13.08.2012, which was allowed by the State Commission. The learned counsel argued that complaint can be filed within two years from the cause of action as per the provisions of the Consumer Protection Act, 1986. In this case, the possession was taken in November, 2005 and if calculated from that date, the amendment was moved after seven years. Even if it is taken from the date of original complaint, which was filed on 01.08.2008, amended complaint has been filed after four years. Moreover, it was pointed out that all the additional items included in the amended complaint were known to the complainant at the time of filing of the original complaint. Particularly, the compensation for shortfall in the carpet area of 55 new flats must have been known at the time of possession and definitely by the time original complaint was filed. Thus, the amended complaint was clearly time barred and the same should not have been considered by the State Commission.
9. Learned counsel for the appellants mentioned that the appellants gave possession of flats to the members of the respondent only for very limited purpose for carrying out furnishing and making furniture. This is quite evident from the possession letter dated 23.11.2005, wherein it was specifically made clear that the possession of the flats to the members of the respondent would be handed over after necessary approvals from BMC and other relevant authorities. The complainant -Society members did not give back the possession to the appellants and continued to reside in the flats without any legal possession having been handed over to them by the appellants. As the complainant- Society members are illegally continuing with the possession of the flats, they are responsible for their own wrong. Hence, as per the rules of Municipal Authorities, the illegal occupants without occupancy certificate are liable to pay water charges at double the rates. Similar was the argument for the excess property tax being paid by the complainant.
10. So far as the question of obtaining the occupancy certificate is concerned, learned counsel for the appellants stated that the members of the complainant- Society have illegally made certain changes in the flats and that is why the authorities are objecting to these changes which have been made against the approved layout/ plan. Therefore, the complainant is responsible for the delay in obtaining the occupancy certificate. Learned counsel emphasised that the appellants are trying to get the occupancy certificate and completion certificate as early as possible from the concerned authorities.
11. Learned counsel for the appellants stated that the amount of Rs.5,52,500/- that was collected from the new flat purchasers towards the membership of MHADA has already been deposited with MHADA and learned counsel drew our attention to the fact that a demand of Rs.86,12,006/- was made by the MHADA Board vide their letter No.CO/MB.Arch/NOC/file-414/4411/2004, dated 01.10.2004 and an amount of Rs.86,12,006/- was paid to the MHADA vide appellants letter dated 04.10.2004. Thus, nothing was pending to be paid to MHADA. The State Commission has not given any importance to these documents and ordered the refund of Rs.5,52,500/- to the complainant, which is not justified.
12. Learned counsel for the appellants has argued that there is no shortfall in the area of flats and some very minor differences can always occur due to thickness of walls, plastering etc. This has been certified by the Architect of the project in his letter addressed to the appellant. Moreover, the issue of less carpet area has been raised after seven years of taking of the possession of the flat and hence the complaint regarding less area was not maintainable before the State Commission as it was highly time barred.
13. On the issue of delay in filing amendment application to the complaint, learned counsel for the respondent pleaded that the amendment was allowed in the interest of justice as a sister complaint was withdrawn. The State Commission vide its order dated 13.08.2012 had given opportunity to give objection to this amendment application. However, opposite party Nos.1 and 3 did not file any objection. Therefore, they cannot raise this issue at the appeal stage. Learned counsel pointed out that no appeal has been preferred against the order dated 13.8.2012 allowing the amendment and that order has become final. The issue of delay cannot be raised now as the final order has been passed by the State Commission in the case based on merits. Learned counsel also cited the following two judgments in support of his contention on the point of delay:-
i. Harpreet Singh Kohli Vs. Nelu Estate & Movers Pvt. Ltd., I (2015) CPJ 573 (NC).
ii. M/s. Dhruv (A.T.T.) Co-op. Housing Society Ltd. Vs. M/s. Dhruv Constructions & Ors., CC No.275 of 2012, decided on 01.02.2016 (NC).
14. Learned counsel for the respondent stated that as the complainant -Society was awaiting that the appellants would get the occupancy certificate but when sufficient time elapsed consumer complaint was filed. It was due to deficiency on the part of the appellants that the complainant is paying water charges and property taxes at double the rates. The appellants were unable to get completion certificate and occupancy certificate within the time period prescribed under the agreement and therefore, complainant was fully justified in continuing with the possession, which was given for the limited purpose of furniture etc. The responsibility to get the completion certificate and occupancy certificate solely rests with the appellants and therefore, they are liable to pay any additional amount that is leviable on the complainant- Society members on account of deficiency of not having the completion and occupancy certificate.
15. With respect to the amount of Rs.5,52,500/- collected from the new flat purchasers for membership of MHADA, the learned counsel for the respondent has stated that the same has not yet been deposited with MHADA. The documents filed by the appellants particularly the demand letter dated 01.10.2004 from the MHADA Board does not include this amount and it has been wrongly represented by the appellants that the amount has been deposited with the MHADA. Appellants have not filed any proof/ receipt for depositing this amount with the MHADA.
16. Learned counsel stated that a meeting of the complainant and appellants was held and in that meeting it was decided to appoint an independent surveyor to assess the shortcoming in the construction. The surveyor measured all the flats and came to the conclusion that there is a shortfall in the area in some flats. The appellants chose not to file any objection to this report of the consultant. It means that they have accepted the report of the consultant and thereby shortfall in the agreed area of flats.
17. We have carefully considered the arguments advanced by both the parties and have gone through the documents. It is admitted position that the possession of the flats was given only for a limited purpose for carrying out furnishing and making furniture. However, complainant-society members continued their possession. It is also true that the appellants did not arrange the completion certificate and occupancy certificate within the stipulated time period in the agreement. The State Commission vide its order dated 13.8.2012 has passed the following order while considering the amendment of complaint:-
"Heard Advocate Mr. Wavikar, for the Complainant on amendment application. We have gone through the proposed amendment together with the reply filed by the Opponent No.2. Opponent Nos.1 and 3 have not filed reply opposing amendment application. We are finding that in view of the withdrawal of the sister Complaint No.124/2008 on the direction of this Commission itself it is desirable that this application should be allowed in the interest of justice and we are not finding any legal hitch in allowing this amendment application despite objection taken by the Opponent No.2 in the reply. In the circumstances, we allow this application and permit Complainant to carry out the amendment within a period of 14 days from today."
18. From the above order of the State Commission, it is quite clear that the opposite party No.1, which is the appellant No.1, M/s. Vinayak Constructions did not file any objection to the amendment application. The State Commission has allowed the same in the interest of justice. The main issue in the amended complaint is in respect of the compensation for less carpet area in the flats. As this is a matter of right of the consumers to get the same flat area as agreed in the agreement, we are of the view that State Commission has accepted amendment in the interest of justice and we do not find any illegality, material irregularity or jurisdictional error in the order dated 13.08.2012 of the State Commission, which calls for any interference from this Commission. Moreover, the order dated 13.08.2012 has not been challenged by the appellants. Our view also gets support from the judgements cited by the learned counsel for the respondent which are Harpreet Singh Kohli (supra) and M/s. Dhruv (A.T.T.) Co-op. Housing Society Ltd (supra).
19. So far as the payment of water charges and property tax at double the respective rates is concerned, we find that the complainant -Society members were given possession of their respective flats for limited purpose for carrying out furnishing and making furniture which they continued without handing over the flats as per the agreement by the appellants. In a ray, the legal possession of the flats has not been handed over to the complainant and therefore, they are responsible to pay the water charges and property charges at double the rates. Clause 8 of the agreement for sale, it is provided that the flat/shop purchaser shall take possession of the flat/shop within eight days of the Developer/Promoter giving written notice to the flat/shop purchaser intimating that the said flat/shops are ready for use and occupation. But in this case, no such procedure has been adopted. Thus, we are of the opinion that the complainant is paying water charges and property taxes at the prescribed rates, which is double the normal rates due to their own wrong. Hence, the appellants are not liable to compensate for excess amount paid by the complainant for water charges and property taxes.
20. In respect of the amount of Rs.5,52,500/- collected from the new members for membership of MHADA, we find that both the parties agree that the amount has been collected by the appellants. This amount should have been deposited with MHADA by the appellants. Though, the appellants have claimed that this amount has already been deposited with the MHADA, but the proof submitted by them does not corroborate the same. It is true that the appellants have deposited Rs.86,12,006/- on 04.10.2004 as against demand of Rs.86,12,006/- raised by MHADA vide letter dated 1.10.2004, but this amount of Rs.86,12,006/- does not include any amount of Rs.5,52,500/- in the brake up given in the demand letter of MHADA. Appellants have filed no document to show any conclusive proof that the amount stands deposited with MHADA. The amount was collected for a specific purpose, but that purpose has not been fulfilled. The appellants are keeping this money with them for no fault of the complainant and therefore, we find no error in the order of the State Commission so far as refund of this amount of Rs.5,52,500/- is concerned.
21. As the appellants have themselves agreed to pay the maintenance charges for 2 flats and one shop, no decision is required on this part of the order of the State Commission, which directs the appellants to pay Rs.31,290/- on this account.
22. So far as the question of compensation of less carpet area to the complainant is concerned, we find that independent consultant was appointed to measure the carpet area for all the flats and a shortfall in area of flats has been found. The appellants have not objected to this report. Once, there is an agreement for a specific area of the flat, the developer is duty bound and is responsible to give the flat of the agreed area. However, on the basis of the report of the Architect of the project that the difference in area might occur due to thickness of walls, tiles and plastering etc. and approximate area mentioned in agreement, some allowance can be given for such shortfall in the carpet area. It is thus clear that the appellants have been deficient in making the flats as per the agreed area and the less area to some extent must be compensated to the complainant. Giving allowance for the possible reasons for shortfall in the carpet area as mentioned in the report of the Architect of the project, we deem it appropriate to allow only upto 50% as the actual shortfall in carpet area attributable to the deficiency on the part of the appellants. Accordingly, we allow 50% of Rs.33,65,723/- i.e. Rs. 16,82,862/- as compensation for less carpet area.
23. Based on the above discussion, the appeal is partly allowed and we set aside the order dated 11.4.2014 of the State Commission so far as it relates to the entitlement of the complainant for an amount of Rs.1,27,040/- from the opponents on account of excess water charges paid by the complainant and Rs.10,43,973/- for excess property taxes paid by the complainant. The order of the State Commission relating to the compensation for less carpet area is also modified to the extent that the appellants would be liable to pay only Rs. 16,82,862/- (Rupees Sixteen lakhs eighty two thousand eight hundred sixty two only) instead of Rs.33,65,723/- as awarded by the State Commission. The rest of the order dated 11.4.2014 of the State Commission is upheld. No order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER ...................... PREM NARAIN MEMBER