National Consumer Disputes Redressal
M/S. Foresquare Developers vs Dahisar Saraswati Co-Operative ... on 29 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 738
OF 2012
(From the order dated 17.11.2011 in Appeal
No.1419/2009
of the State
Commission, Mumbai, Maharashtra)
1. a) M/s. Foresquare
Developers,
Kantilal House, 14
Mama Paramanand Marg,
Mumbai 400 004.
b) Smt. Nalini
Himmatlal
c) Mukesh
Himmatlal
d) Smt. Hiral
Rajesh
e)
Wonder Estate Developers Pvt. Ltd.
Kantilal House, 14 Mama Parmanand
Marg,
Mumbai 400 004
Petitioners
Versus
1. Dahisar Saraswati Co-operative Housing Society Ltd.
C.S.T. Road No. 4,
Dahisar
(West), Mumbai- 400 068
Through Member/Secretary Shri. Dixit P. Mehta
2. a)
Keshav Arjun
Raut
(Dahisar
Wale), At & Post Waliv,
Taluka
Vasai (East), Dist. Thane
b)
Mayur Keshav
Raut
c)
Smt. Malati Keshav
Raut
d)
Smt. Prema Arjun
Mhatre
e)
Bharat Keshav Raut
f) Miss Hema Keshav Raut
g) Smt. Sushila
Jagannath Raut
h)
Padmakar
Jagannath Raut
i) Miss. Devayani
Jagannath Raut
j) Miss Hira
Jagannath Raut
k) Parshuram
Arjun Raut
l) Jayendra Parsuram Raut
m) Miss Manda
Parshuram Raut
n) Miss Nandini
Parshuram Raut
o) Vijay Parshuram
Raut
p) Smt. Anusaya
Parshuram Raut
q) Smt. Thumabai
Atmaram Dhumal
r) Hiraji Atmaram Dhumal
s)
Miss. Hansa
Atmaram Dhumal
t)
Jayashri Bhalchandra
Sutar
u)
Miss. Suman Atmaram
Dhumal
v)
Smt. Anandi Gajanan
Bhoir
Dahisar
Gaothan, Ramchandra
Pawaskar Road,
Raut
Galli, Dahisar
(West),
Mumbai 400 058
...........Respondent(s)
BEFORE:
HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HONBLE MRS. REKHA GUPTA, MEMBER
For the Petitioners :
Mr. S.B. Prabhavalkar,
Advocate
Pronounced on : 29th May, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER In this revision petition there is challenge to order dated 17.11.2011 passed by State Consumer Disputes Redressal Commission, Mumbai, Maharashtra (for short, State Commission).
2. Brief facts are that Complainant/respondent no.1 is a Co-operative Housing Society. Petitioners/opponent no.1 are developer and respondent no.2/opponent no.2 are original Landlord. Petitioners had taken development rights of Survey No.340 Hissa No.4, City Survey No.1515 admeasuring 8166.8 sq.mtrs. of which an area admeasuring 539.25 sq.mtrs. was situated in No Development Zone and remaining area admeasuring 7627.55 sq.mtrs. was situated in a Residential Zone and accordingly, the Corporation has sanctioned a plan taking into consideration an area in Residential Zone. Hence, petitioner has constructed 160 flats as per the sanctioned plan. Further, petitioner executed tripartite agreement with intending flat purchasers.
The construction was completed in the year 1994. The petitioner registered the Housing Society of the flat purchasers on 08/09/2000.
Despite registration of Society, petitioner has not conveyed the land and building in the name of Housing Society and has not handed over the accounts to the Society. Therefore, respondent no.1-Co-operative Society filed consumer complaint praying for following reliefs :-
a) To hold and declare both the opposite parties for the guilty of deficiency in service as per provisions of said Act.
b) The opposite parties, their servants, agents, assignees, representatives and all the persons claiming through them, jointly and severally be ordered and directed to convey the said land (as specified at Exhibit A) and the building/structure standing thereupon in favour of the complainant-Society by completing all necessary/requisite formalities on their own and also to do all such acts, deeds and things as are necessary for effectually conveying and vesting the said property (land and building) in favour of the complainant-Society, without demanding any remuneration from the complainant no.1for the same.
c) In failure to comply with the prayer (b) above, the opposite parties be directed to pay penalty jointly and severally to the complainant for each day of delay from the date of passing of the order by this Honble Forum.
OR Some fit and proper person be appointed by this Honble Forum to execute the deed of conveyance and complete all the formalities on behalf of the opposite parties.
d) Opposite Party No.1 be directed to transfer Rs.4.00,000/- ( Rupees Four lakhs only) in favour of the complainant-Society which it has collected towards deposit of water meter, electric meter, etc.
e) Opposite Party No.1 be directed to render true, complete and faithful accounts of Rs.10,000/- collected by them from each members of the complainant-Society as an interest free deposit and refund the balance amount along with interest if there is any.
f) Opposite Party No.1 be directed to give the account of Rs.10,000/- collected in cash from each of the members of the complainant-Society towards the payment of the development charges and also produce the receipt of such payment, if made.
g) Opposite Parties be directed to demolish/remove all illegal and unauthorized structures constructed after receiving the building completion certificate and restore the premises to the original plan approved by BMC and shown to various purchasers of the complainant-Society.
h) Opposite Parties be directed jointly and severally to pay to the complainant compensation towards cost, expenses and professional charges towards filing of this complaint.
i) For such other and further reliefs this Honble Forum may deem fit and proper in the nature and circumstances of the case.
3. Petitioner contested the complaint by filing its written version. It is stated that complaint is not maintainable as respondent no.1 had filed a civil suit as well as dispute before the Co-operative Court for the similar and identical cause of action.
Hence, complaint is barred by the doctrine of res judicata. It is further stated that complaint filed is frivolous and vexatious, as respondent no.1 has failed to prove the cause of action. Further, respondent no.1 admits that construction commenced in the year 1991 and building was completed in the year 1994. The flat purchasers agreed to pay an amount of Rs.10,000/- to be paid to BMC towards the Development Charges.
4. It is further stated that in the meeting called on 23/04/1995, the accounts for the deposits/payments made were handed over to the Society. The first General Body meeting of the society was held on 03/12/2000 and accounts were placed before the General Body which accepted the accounts vide Resolution No.7.
5. It is further stated that there were two plots i.e. 1515 and 1516 and both plots were amalgamated. However, some area was declared as No Development Zone, by the BMC, as per the orders of the Honble Supreme Court under the Coastal Regulation Zone. Hence, petitioner has done construction of existing building by using available Floor Space Index (FSI). Thereafter, petitioner had converted stilt portion of the building into 8 residential flats, two under each wing of the building and said construction has been approved by respondent no.1, vide letter dated 20/09/1999. Thus, complainant-Society is estopped from opposing the said construction.
6. It is further stated that since the CRZ and the surrounding mangroves, came under the scrutiny of the Environmentalist and the Committee appointed by the Honble Supreme Court, the BMC has raised an objection about the compliance of the DC rules on the issue of the height of the flat, in the said stilt portion and therefore, not granted Occupancy Certificate to the said 8 new flats. Further, matter is being contested with regard to applicability and interpretation of the scope of DC Rules and appeal is pending before Government of Maharashtra under the Regional and Town Planning Act, Maharashtra Region. Therefore, until such time there would remain a statutory bar to the conveyance.
7. Further, in its written version petitioner admits that land has been transferred in its name by respondent no.2. It is further stated that as per clause No.14 of the Agreement date 17/12/1990, it is made clear that conveyance inter-alia will be executed by respondent no.2. Petitioner has relied upon clause 36 of the Agreement made between the parties stating that this clause has to be read and conjured with the undertaking -cum-declaration executed by each individual purchaser with regard to the permission given for the development and construction on the balance FSI or by TDR.
Said undertaking has been taken separately because it was well and sufficiently understood and agreed to by the purchasers that the construction project was not complete and hence purchasers cannot demand the conveyance. Further, original documents cannot be handed over until the disposal of the civil suit pending before City Civil Court against the BMC. It is further contended that unless respondent no.1 pays the consideration for getting conveyance of the flats, they cannot be said to be consumers.
8. On the other hand, respondent no.2 in its written statement has stated that petitioner has cheated them by giving less amount than agreed and they are not directly connected with the complainants. They have only entered into agreement with petitioner. Therefore, conveyance can be made only in favour of petitioner as per contract. Further, it is an obligation and liability of petitioner to transfer their rights in favour of the Complainant-Society.
9. District Consumer Disputes Redressal Forum, Mumbai Suburban (for short, District Forum) partly allowed the complaint, directing petitioner to transfer the land and building in the name of complainant-Society by executing proper conveyance within a period of six months failing which, petitioner will have to pay Rs.50/- per day. The petitioner shall hand over the receipts of the payments of Rs.10,000/- collected from each member of the complainant-Society.
10. Being aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission which dismissed the same and order of the District Forum was affirmed.
11. Hence, the present petition.
12. We have heard learned counsel for the petitioner and gone through the record.
13. It has been contended by learned counsel for the petitioners that there was no privity of contract between the petitioners and respondent no.1, in as much as respondent no.1 had not engaged or availed the services of the petitioner for any consideration. Further, respondent no.1-Society was formed on 8.9.2000 and as per Rule 9 of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964, the conveyance was to be executed within the period of four months from the date of formation of the society. Thus, cause of action for seeking conveyance accrued in favour of respondent no.1 on 7.7.2001 and as such the complaint ought to have been filed before 7.1.2003. However, the complaint was filed on 30.4.2004 and that too without filing any application seeking condonation of delay of more than 600 days. Other contention made by learned counsel for the petitioner is that, as per terms and conditions of the Flat Purchaser Agreement, it was the duty of the flat purchaser to contribute towards the stamp duty and registration charges for the execution of conveyance. However, both fora below have overlooked this aspect.
14. District Forum in its order has held;
As stated in the complaint application, the registration of Society had been made on 8/9/2000 and in terms of section 11 of the MOFA, it was legal obligation on the part of opposite party to convey the plot/land on which Society building is situated, in the name of Complainant Society. This duty/obligation having not been discharged by the opposite party. It go to establish that there is a deficiency of service on part of the opposite party. Hence, it was a bounden duty of the opposite party no.1 to convey the said land to the Complainant Society within the period of 4 months of registration of the Society which duty had not been discharged by the said opposite party. This act on part of the opposite party is unlawful.
District Forum further held;
7) The Opposite party No.1 had collected a sum of Rs.10,000/- each from the members of Society towards development of the building of Society. Receipts in lieu of the said amount having not been issued to the members of Complainant Society. In the written statement, the Opposite party has stated that the sum of Rs.10,000/- collected from each member, had been utilized for the development of the Society building. Its written details of account had been submitted to the Managing Committee Meeting of the Society, held on 23/4/95 which had been accepted. The said written details had also been placed before the General Body Meeting of the Society. In brief, it is admitted position that the Opposite party no.1 had accepted that the said amount having been deposited. However, the prayer of the complainant is that the receipt of said amount having not been given which act on part of said Opposite party is wrong. Hence, it will be proper on part of the Opposite party no.1 to issue receipt of the same.
15. The State Commission while affirming the order of District Forum observed;
22. The case has chequered history. This matter is a best example how the process of law can be abused.
The construction of building started in the year 1988 and the possession of the flats were handed over in the year 1994.
The land admeasures 8166.80 sq.mtrs. However, at the relevant time, land admeasuring 7627.55 sq.mtrs.
was in residential zone and remaining land of 539.25 sq.mtrs. was in no development zone. Hence, the Development Authority sanctioned the building plan on 7627.55 sq.mtrs and as per the sanctioned plan, four wings i.e. A, B, C & D consisting of six floors were constructed.
Subsequently, the area under no development zone was converted into residential zone. The structure of the building was not in a position to bear the load of additional flats and hence, the appellants submitted a plan to the BMC for converting the stilt parking area into flats. However, BMC had not sanctioned the plan. The appellants at Page-4 Para 3g of the written version, had admitted that since the CRZ and the surrounding mangroves came under the scrutiny of the environmentalist and the committee appointed by Honble Supreme Court, the BMC has raised an objection about the compliance of the DC rules, on the issue of height of the flat in the said stilt portion and therefore, not granted occupancy to the said eights new flats.
For this unauthorized construction, Learned Counsel tried to argue that the appellants had taken undertaking from the members of the respondent/Society and the Society had given permission for this unauthorized construction. The Learned Counsel for the appellants relied on letter dated 20/09/1999 at page-174 on the letterhead of the Society. The letter reads as under:-
This has reference to your letter Ref. Nodt we have no objection for construction of the flats in the stilt area of wing A,B,C&D of Saraswati Apartment bearing flat No.CTS 1515 of Village Dahisar, Talukar Borivali, Mumbai Suburban District as per BMC Rules & Procedures. Reference No. and date is blank.
23. The Society was not registered on 20/09/1999. It is the contention of the Learned Counsel for the respondent that one of the appellants was a promoter. Thereafter, the BMC had issued a notice under Section 354A of the BMC Act.
The appellants filed a Civil Suit bearing No.5964 of 1999 for declaration of notice under Section 354A as illegal and bad in law. When the BMC noticed that the appellants had already converted the stilt area into flats, they have issued a notice under Section 488 of the BMC Act. Hence, the appellants had withdrawn Civil Suit No.5964 of 1999 and filed a Suit No.7004 of 2000. Subsequently, the appellants filed appeal under Section 47 of MRTP Act, 1966 before the Minister of State for Urban Development, Government of Maharashtra, Mantralaya and filed a Notice of Motion No.5859/2000 and the Learned Judge of City Civil Court observed that It appears clearly that Appeal is pending with the Government and in such a situation, it is not correct to take action. Since the regularization is still pending and no order is passed by the Urban Development Minister, it would be too early to say that the structure is unauthorized and deserves to be demolished and therefore, Notice of Motion was made absolute.
In fact, there is no stay given by the Minister in the appeal filed by the appellants and the matter is still pending.
24. Again, it is interesting to note that the respondent filed Criminal Complaint C.C. No.429/SS/2004 for issuing a process under Section 4, 5, 6 & 11 read with Section 13 & 14 of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 in the Metropolitan Magistrate, 26th Court, Borivali, wherein the Learned Magistrate Court passed issue process order dated 16/12/2004. Against this order, the appellants had filed Revision Application No.484 of 2005 in the Sessions Court, Greater Mumbai. Learned Sessions Court dismissed the Revision Application vide order dated 28/03/2006. Against the said order, the appellants filed Writ Petition No.982/2006 in the High Court, Bombay and the same is also dismissed. Thus, this matter is best example of abuse of process of law.
25. The Learned Counsel had argued that as per the agreement clause 14, the conveyance is to be executed by the org. opponent No.2 and present respondent No.2. However, District Consumer Disputes Redressal Forum had ordered that appellants should execute conveyance. In the written version, there is a specific admission by the appellants that property is transferred in the name of appellant No.1 and now appellants being the land owners and developers, it is their legal responsibility to convey the land and building in the name of respondent-Society. We do not find any substance in the appeal filed by the appellants. Looking to the facts and circumstances of the case and the conduct of the appellants, we hold that the order passed by the District Consumer Disputes Redressal Forum is just and proper. Hence, we pass the following order:-
-: ORDER :-
1. Appeal is dismissed.
2. The order passed by the District Consumer Disputes Redressal Forum is hereby confirmed.
3. Appellants to pay Rs.25,000/- as costs to respondent No.1/Society and to bear their own costs.
16. The first point which arise for consideration is as to whether the complaint filed by respondent no.1 was barred by limitation or not. Clause (4) of the Model Agreement prescribed under the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and rules made thereunder incorporates the statutory obligation and the promoter is required to declare to the flat takers the FSI available in respect of the land in square metres and the FSI which the promoter has utilized. In case the promoter has utilized FSI of any other land or property as floating FSI, he is required to disclose the same to the flat takers. Thus, conveyance is a statutory obligation of the builder-developer and cause of action is a continuous one. Therefore, the complaint filed by respondent no.1-Society is within the period of limitation.
17. Secondly, there is specific admission made by the petitioner in its written version that the property has been transferred in its name and now they are the land owner and developers. Being the land owner and developer, it is the legal responsibility of the petitioner to convey the land and building in the name of respondent no.1. We fully concur with the findings and reasoning given by the State Commission that petitioner has not performed its statutory obligation.
18. Present revision petition has been filed under Section 21(b) of the Act. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.
19. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
20. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since, two fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.
21. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras. Time and again Courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. Unscrupulous builders like petitioner who after taking entire costs of the building do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of builders that this Commission is not helpless in such type of matters.
22. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;
Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.
23. Now the question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioners for dragging the respondents upto this fora when petitioners had no case at all. It is not that every order passed by the judicial fora is to be challenged by the litigants even if the same are based on sound reasonings.
24. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;
45. We are clearly of the view that unless we ensure that wrong doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that courts otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
25. Thus, in our opinion, present revision petition is nothing but a gross abuse of process of law and the same is totally meritless and having no legal force is required to be dismissed with punitive costs.
26. Accordingly, we dismiss the present petition with cost of Rs.25,000/- (Rupees Twenty Five Thousand only). Cost be directly remitted to respondent no.1 by way of demand draft by the petitioner, within eight weeks from today, failing which petitioner shall be liable to pay interest @ 9% per annum, till realization.
27. List for compliance on 2.8.2013.
...J (V.B. GUPTA) PRESIDING MEMBER ..
(REKHA GUPTA) MEMBER Sg/