State Consumer Disputes Redressal Commission
Rita Prakash Swaminarayan vs M/S Rohan Developers Pvt Ltd on 27 March, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.FA/16/1024
(Arisen out of Judgment and order dated 28/6/2016 passed by Ld.South
Mumbai District Forum in consumer complaint No.314 of 2007)
Rita Prakash Swaminarayan
Flat No.2201, 22nd floor,
Ramkrupta Building,
Dr.Parekh Street, Prathan Samaj,
Mumbai 400 004. Appellant(s)
Versus
1.M/s.Rohan Developers Pvt.Ltd.
Old name (M/s.Angaarika Investment
& Finance Pvt.Ltd.)
Heera Bhuvan, opp.Harkishandas
Hospital, Dr.Parekh Street,
Prathan Samaj,
Mumbai 400 007.
2.Mr.Haresh Mehta
(Promoter/Director of respondent No.1)
Heera Bhuvan, opp.Harkishandas
Hospital, Dr.Parekh Street,
Prathan Samaj,
Mumbai 400 007.
3.Ramkripa Co.Operative Housing
Society Ltd.
Building No.34,
Dr.Parekh Street, Prathan Samaj,
Mumbai 400 004.
4.Shri.Lakhubhai V.Merchant
Secretary of Respondent No.3
Flat No.901 and 902,
Ramkripa building,
Dr.Parekh Street, Prathan Samaj,
Mumbai 400 004. Respondent(s)
BEFORE:
Hon'ble Mr.Justice A.P.Bhangale, President
Hon'ble Smt.Usha S.Thakare, Judicial Member
PRESENT:
For the
Appellant(s): Advocate Shri.Ajay Pawar
[FA/16/1024] 2
For the Advocate Shri.Surin Usgaonkar a/w Milind Nar
Respondent(s): for respondent Nos.1 and 2
None present for respondent Nos.3 and 4.
ORDER
Per: Hon'ble Mr.Justice A.P.Bhangale, President
[1] Heard. By this appeal appellant(complainant) has questioned validity and legality of the impugned order passed in consumer complaint No.314 of 2007 whereby the complaint was dismissed. According to the Ld.Advocate for complainant, the complainant had entered into an agreement with the promoter and builder to purchase a flat for consideration of Rs.21,60,000/- in the year 2001 and the agreement was duly executed. The complainant was also required to pay sum of Rs.Three lakhs towards floor rise as flat No.2201 is on 22nd floor. Though the complainant was given possession and was placed in physical occupation, the opponent as builder/promoter failed to abide by their statutory obligation as contemplated under the Maharashtra Ownership of Flats Act, 1963. The promoter/builder did not bother to obtain occupancy certificate in respect of the flat purchased by the complainant. The opponent had taken steps to form a Co-operative Housing Society of the flat purchasers in the building. However, the said Co- operative Housing Society did not insist upon the builder/promoter to convey the right, title and interest in the land and the building in favour of the Co-operative Housing Society. It also remained silent when the builder had started a multi storied building consisting of 38 floors in the close by land in the vicinity of the building in possession of the Co-operative Housing Society affecting light, air etc. enjoyment of the flat by the complainant. It is contended that Ld.District Forum instead of addressing itself on merits of the complaint, went on to dismiss the complaint on the ground that it is barred by limitation which could not have done considering the continuing nature of cause of action as the opponent in their capacity as promoter and builder were responsible and under statutory obligation to construct a building in accordance with the sanctioned plan, take steps to [FA/16/1024] 3 complete the building in accordance with the sanctioned plan and building regulations which are prevalent and to complete the tile in the building alongwith right, title and interest in the land so as to convey the same in favour of the Co-operative Housing Society of the flat purchasers. Since the builder/promoter had failed in its duty the flat purchasers were entitled to compensation including the complainant. Ld.District Forum though there was no Civil suit pending made an observation that civil suit is pending which is contrary to record. According to the complainant one writ petition no.3298 of 2004 was filed by the complainant. However, it was withdrawn with liberty to obtain the relief of claiming compensation etc. from the appropriate Forum. One complaint was filed against Co-operative Housing Society regarding its failure to insist upon performance of obligation the under the Maharashtra Ownership of Flats Act, 1963 and conveyance etc. from the builder/promoter. It appears that owner of the land was one Babubhai Raoji who assigned the interest in the land to Taraben Motashi which appears recorded in the agreement between the complainant and opponent. The original promoter was Angarika investment and finance Pvt. Ltd. However, according to the complainant now it is M/s.Rohan Developers Pvt. Ltd. As such amendment was made in the complaint in the title of the same. Be that as it may, promoter/builder or successor in title in respect of the building 'Ramkrupa' were under statutory obligation as referred by us above and to convey the right, title and interest in favour of the Co-operative Housing Society of the flat purchasers and to obtain occupancy certificate in respect of the flat in question so as to transfer the flat with clear title in favour of the complainant. That being so, in our view, Ld.District Forum could not have dismissed the complaint on the ground that it is barred by law of limitation particularly when there was continuing cause of action as the occupancy certificate was not yet obtained and when there was no conveyance in favour of the Co-operative Housing Society. We do not have benefit of perusing Sanction Plan before us, as though queried Ld.Advocate for respondent regretted that Sanction Plan is not in its [FA/16/1024] 4 custody. Under these circumstances, in our view Ld.District Forum ought to address itself on merits of the case to determine to record findings regarding ownership, right, title and interest in respect of the flat and its building in question and to record findings whether building was constructed in accordance with the Sanction Plan and Building Regulations then prevalent and whether builder had taken steps to complete the building and to obtain occupancy certificate in respect of the building and the flat from competent authority. We therefore set aside impugned judgment and order passed in Consumer Complaint bearing No. 314 of 2007 and direct the Ld.District Forum to decide the complaint on merits according to law as early as possible and to record findings as to compensation etc. Parties are directed to approach Ld.District Forum on 27/04/2018 at 10.30 a.m. Appeal is partly allowed accordingly. No order as to costs of appeal.
Certified copy of this order be supplied to both the parties. Pronounced on 27th March, 2018.
[JUSTICE A.P.BHANGALE] PRESIDENT [USHA S.THAKARE] JUDICIAL MEMBER rsc