National Consumer Disputes Redressal
Moraya Co. Op. Hsg. Society Ltd. vs M/S. Orchid Associates & 2 Ors. on 21 April, 2026
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
JUDGMENT RESERVED ON: 09/01/2026
JUDGMENT PRONOUNCED ON: 21 /04/2026
CONSUMER COMPLAINT NO. 21 OF 2022
With
1A/5501/2022 (Dismissal Of Complaint)
IA/5497/2022 (Extension Of Time)
Moraya Co. Op. Hsg. Society Ltd., Through its Chairman, Sh. Shripad Prabhakar
Khedkar, S.No. 14, Hissa No. 3/32+15/1/47 (Part), Plot No. 1, Village Mauje
Katraj, Rajas Society Road, Taluka Haveli, Pune -411046
Complainant
Versus
1. M/s. Orchid Associates, Rep. Through its Partner, Sh. Malav Jayant Shah, Office
at A-1, Success Chambers, 1232, Apte Road, Deccan Gymkhana, Pune - 411004
2. M/s Jairaj Developers, Office at A-1, Success Chambers, 1232, Apte Road,
Deccan Gymkhana, Pune - 411004
3. Majestic Towers Co. Op. HSG. Society ltd., Through its Chairman/Secretary, Reg.
Add. at S.No. 14, Hissa No. 3/32+15/1/47, Plot No. 2, Near Lake Town, Katraj,
Pune-411046
Opposite Parties
BEFORE :
HON'BLE MR. JUSTICE A.P SAHI, PRESIDENT
HON'BLE MR. BHARATKUMAR PANDYA, MEMBER
For The Complainant : Mr. Dnyanaraj G. Sant, Advocate
For The Opposite Party : Mr. Rahul S. Gandhi, Advocate for OP-1
Mr. Rohit Lanke and Mr. Y.A.Shelgaonkar,
Advocate for OP-2
Mr. S. D. Palsande, Advocate for OP-3
JUDGEMENT
PER HON'BLE MR. BHARATKUMAR PANDYA, MEMBER
1. The Complainant, Moraya Co-operative Housing Society Ltd., is a duly registered co-operative housing society formed by the purchasers of flats in the residential project known as "Moraya". The project was launched in the year 2012 by OP No.1 - M/s Orchid Associates, who accepted booking amounts and executed registered agreements for sale in favour of purchasers of 136 residential flats. The part Occupancy Certificate was obtained on 26.06.2013, and handing over of the possession started thereafter. Thereafter, the final Occupancy Certificate was received on 29.10.2014 from Pune Municipal Corporation (Page No. 71). Despite handing over possession, several promised amenities and statutory compliances Page 1 of 22 were allegedly not completed. The complainant society was subsequently formed and registered on 20.02.2016, (Page No. 31-32), and a formal Resolution authorizing filing of the present complaint, as averred, was passed on 06.03.2020 (Page No. 33-44). It is the allegation that despite completion certificates and possession, OP No.1 failed to execute and register the Deed of Conveyance in favour of the complainant society as mandated under the Maharashtra Ownership of Flats Act, 1963 (MOFA). The draft conveyance shared by the OP allegedly contained serious deviations from the sanctioned layout and failed to correctly allocate common areas and amenity spaces. The complainant asserts that repeated oral and written follow-ups were made requesting for proper conveyance, provision of amenities, and rectification of defects, but the OP failed to act. The society has relied upon extensive correspondence and communications (E-mail correspondence at Page No. 168-232, Letters dated 01.10.2021 at Page No. 129-131, 04.10.2021 at Page No. 136-143, 07.10.2021 notice reply at Page No. 144-151 and reply dated 16.10.2021 at Page No. 152-167) to demonstrate continuous demands and non-compliance. The complainant contends that this failure amounts to statutory breach, deficiency in service, and unfair trade practice.
2. The complainant further alleges that OP No.1 collected a total amount of ?1,12,14,400/- from the flat purchasers under the head "Corpus Fund." It is pleaded that the OP was legally obligated to transfer the said corpus fund along with accrued interest to the complainant society upon its formation, but has illegally retained the same till date without justification. The complainant asserts that such retention is arbitrary, unlawful, and violative of MOFA. Additionally, the complainant society was compelled to incur ?1,00,000/- towards installation of the East Side gate and boundary fencing, which, according to the complainant, was the responsibility of the developer. Hence refund of the said amount with 18% interest per annum from the date of expenditure till realization has been sought.
2.1 The complaint also alleges regarding common amenities and shared facilities between Moraya Society and Majestic Towers Co-operative Housing Society Ltd. (OP No.3), formed on 25.05.2017 for a separate building constructed by OP No.2 - M/s Jairaj Developers. The complainant contends that several facilities including basement parking beneath "C" building, internal roads, open spaces, electricity meters, transformer area, and STP are common and ought to be proportionately Page 2 of 22 conveyed. It is alleged that only four common parking spaces were handed over to Moraya Society while other spaces were allotted to Majestic Towers. The complainant further alleges wrongful installation of a common electricity meter behind Majestic Towers, under which Moraya Society has been charged 50% electricity expenses, although the consumption allegedly pertains substantially only to Majestic Towers. It is pleaded that the Sewage Treatment Plant (STR) is common to both societies, yet maintenance expenses are not equitably shared, causing financial burden to the complainant society.
2.2 The complainant appointed Mr. Pramod Belsare, Chartered Engineer and Government Registered Valuer, who conducted inspection and prepared a Site Visit Report dated 08.02.2021 (Page No. 80-96). The report examined the sanctioned layout covering total land admeasuring 18,900 sq. meters, subdivided into Plot No.1 (6000 sq.m.), Plot No.2 (6400 sq.m.), Plot No.3 (150 sq.m.), Amenity Space (2835 sq.m.), Internal Roads (1387 sq.m.), and Transformer area (238 sq.m.). The report notes discrepancies between sanctioned plans and actual area of development, issues concerning allocation of amenity space, proportionate conveyance of common areas, and structural observations relating to cracks, waterproofing deficiencies, incomplete compound walls, and other construction irregularities. The complainant relies heavily on this technical report to establish deviations from sanctioned plan and continuing defects. The complainant issued a detailed legal notice dated 25.08.2021 to all OPs (Page No. 97-128), calling upon them to rectify defects, execute conveyance, transfer corpus fund, and regularize common amenities in accordance with law. OP Nos.1 and 2 did not reply, and OP No.3 allegedly sent a vague response dated 07.10.2021 (Page No.144). The complainant thereafter exchanged further correspondence (Page No. 129-167) but received no effective redressal. Left with no alternative remedy, the complainant has approached this Commission praying for execution of conveyance deed, transfer of corpus fund amounting to ?1,12,14,400/- with interest, ?10 crore for mental agony, Rs.5 crore u/s 39(d), Rs.10 lakh, rectification of construction defects as per Site Visit Report, equitable division of common amenities, reimbursement of electricity charges wrongly recovered, and grant of compensation for continuous deficiency in service and statutory violations committed by the OPs.
3. The Written Statement of OP No.1, M/s Orchid Associates filed on 29.06.2022 (Pages 1-51 of Vol.ll), begins with preliminary objections challenging the Page 3 of 22 very maintainability of the complaint. OP-1 categorically denies all allegations made in the complaint and asserts that the Complainant Society has not approached the Commission with clean hands and has suppressed material facts (Pages 1-3). It is contended that the complaint is hopelessly barred by limitation, since the first draft of the Deed of Conveyance was shared with the Society on 25.10.2016, and yet the present complaint has been filed in 2022 without any application for condonation of delay and further that there is no continuing cause of action. It is further stated that there is no consumer-service provider relationship between the Complainant Society and OP-1, as individual Agreements for Sale were executed with flat purchasers and not with the Society, and therefore the Society cannot be termed a "consumer" under the Consumer Protection Act, 2019. OP-1 also objects to the pecuniary jurisdiction of this Commission and it is further also averred that the allegations of cheating, fraud and unfair trade practice are termed as serious accusations which cannot be adjudicated in summary consumer proceedings.
3.1 In its para-wise reply, OP-1 admits certain foundational facts, namely that the first part Occupancy Certificate was received on 26.06.2013, and the final Occupancy Certificate was issued by PMC on 29.10.2014, and that possessions were handed over thereafter (Page 4). It is denied that any common amenities were left incomplete and states that no brochure or agreement relied upon by the Complainant has been produced on record making these allegations palpably baseless. It is asserted that it has complied with all the statutory obligations under MOFA, 1963, including formation of the Society, which was registered on 20.02.2016 (Page 27). It further states that the draft of the Deed of Conveyance was shared promptly on 25.10.2016 (Page 27-28). OP-1 specifically denies failure to execute conveyance and maintains that the delay was attributable to the Society's repeated demands and shifting positions (Pages 6-12). It is explained that it acquired land admeasuring 18,900 sq. meters, and that the layout and progress was approved by PMC from time to time, including Commencement Certificate No. CC/1556/13 dated 19.08.2013 (Page 24). As such, the, as per approved layout, land was subdivided as Plot No.1 (6000 sq.m.), Plot No.2 (6400 sq.m.), Plot No.3 (150 sq.m.), Amenity Space (2835 sq.m.), Open Space (1890 sq.m.), Internal Roads (1387 sq.m.), and Transformer Area (238 sq.m.) (Page 24). A demarcation plan vide M.R. No.816/2013 dated 16.05.2013 is relied upon (Page 25). Construction of Buildings C, D and E Page 4 of 22 comprising 136 units was carried out pursuant to Commencement Certificate No. CC/0050/12 dated 07.04.2012 (Page 25). Part Completion Certificates were issued bearing No. OCC/0488/13 dated 26.06.2013 for 60 units, OCC/0143/14 dated 06.05.2014 for 66 units, and final Completion Certificate No. OCC/0987/2014 dated 29.10.2014 (Pages 25-26). The possession was completed by 2014 and within the promised timeline of November 2014 (Page 26).
3.2 OP-1 admits collecting ?1,12,14,400/- towards OTM corpus (Page 44). It, however, is stated that it incurred expenditure of ?86,09,575/- towards maintenance from 2014 to June 2018 (Page 44), leaving a balance of ?26,04,825/- plus interest payable to the Society. During negotiations in February 2017 (Page 28-29), OP-1 offered a lump sum of ?72,00,000/-, which the Society allegedly agreed to via email dated 27.02.2017 (Page 29). Subsequently, by email dated 22.10.2018, the Society agreed to accept ?63,00,000/- after adjustment of expenses (Page 35). Ultimately, OP-1 transferred ?64,70,451/- by RTGS on 12.05.2022 (Page 40) and denies any liability for any additional amount and alleges that the Society repeatedly demanded amount of corpus beyond agreement or what was due. Regarding the compound wall and gates, it is denied that the compound wall was incomplete and states that three gates were installed, including a large gate near Building-C, adequate for fire engine access. It contends that PMC granted completion certificate in 2014 which is the ultimate and final proof that the construction of the project including all the common areas and amenities has been completed as per approved plan, and that the Complainant itself has blocked one gate with corrugated sheets to save security costs (Page 9). A photograph of the compound wall and gate dated 20.06.2022 is annexed (Annexure A, Page 54). As regards alleged structural cracks and waterproofing defects (Pages 10-11), OP-1 states that corrective steps were taken in 2014, denies structural damage, and argues that no independent expert report in this behalf has been produced. It further challenges the Site Visit Report relied upon by the Complainant, asserting that the Architect was appointed unilaterally without information or notice to OP-1 and that such one-sided report, prepared without the OP's participation, that too after more than 6-7 years of handing over the possession, cannot be relied upon. In relation to parking spaces and common amenities it is maintained that the parking allocation was as per sanctioned plan and agreements with individual flat purchasers. The common amenities shared with Plot No.2 (developed by M/s Jairaj Developers) were in tune with the approved plan and Page 5 of 22 such arrangement were duly understood and accepted by the purchasers from the beginning. The podium garden belongs to OP No.3 while Complainant members have access only to the garden/play area. OP-3 denies any illegal diversion of side margins and states that the 6-meter side margin of Building-C was maintained as per sanctioned plan.
4. The Written Version also narrates a detailed chronology of correspondence between 2016 and 2022 (Pages 27-42). Emails dated 28.10.2016, 02.11.2016, 27.02.2017, 08.03.2017, 14.03.2017, 15.03.2017, 30.03.2017, 13.06.2017, 27.06.2018, 06.07.2018, 10.07.2018, 22.10.2018, 01.03.2019, 08.07.2019, 16.07.2019, 28.07.2019, 22.10.2019, and 18.05.2022 are relied upon (Annexures E to Y, Pages 58-84). It is averred that the complainant-society repeatedly postponed execution of conveyance by raising fresh objections/demands such as shifting of gate, constructing additional compound wall, and refund of OTM corpus. OP-1 admits receipt of legal notice dated 25.08.2021 (Pages 38-39; Complainant's compilation pp. 97-112) but states that it refrained from sending a written reply in order to continue settlement discussions. It further alleges that during meeting dated 22.05.2022, the Society's office bearers also indicated that the complaint was filed merely to safeguard limitation and to counter steps taken by OP No.3 (Page 41-42). OP-1 denies each of the reliefs claimed in paragraph 19 of the complaint (Pages 20-24). It challenges the claim of ^1,12,14,400/-, the compensation claim of ?10,00,00,000, the punitive damages claim of ?5,00,00,000/-, and litigation costs of ?10,00,000/-, on the ground that no particulars or basis have been provided (Pages 22-23). It reiterates that there has been no deficiency in service, no unfair trade practice, no violation of MOFA, and no intentional delay in executing conveyance. The Written Version is supported by an Affidavit dated 27.06.2022 (Pages 52-53) and annexures including layout approval (Page 56), demarcation map (Page 57), Agreement Index II (Pages 58-62), correspondence (Pages 63-84), NOC dated 13.06.2022 (Page 55), photographs (Pages 54 and 85), and tentative layout map (Page 86). OP-1 praying for dismissal of the complaint with cost.
5. The Written Version of OP No.2, Jairaj Developers, who is the developer of Plot No.2 and the allottees whereof have formed themselves into Majestic Towers CHS Ltd, dated 29.06.2022 raises a preliminary objection that it has been unnecessarily and wrongly impleaded in the present complaint. It is contended that it has absolutely no connection at all with the property or dispute which forms the Page 6 of 22 subject matter of the complaint. It states that it is a "mystery" as to why it has been arrayed as a party and submits that it has been unnecessarily added in the present proceedings. It is categorically asserted that it has no concern, no relation, and no involvement whatsoever with the property in question and has neither developed the subject property nor has any relation contractual or otherwise with the complainant society or its members. It further states that there are no specific reliefs claimed against it in the complaint and that it has never entered into any transaction either with the Complainant Society. In its prayer, it requests that its name be deleted from the array of parties and that the complaint against it be dismissed with exemplary costs.
6. OP No.3, Majestic Towers Co-operative Housing Society Ltd., has filed its Reply dated 15.06.2022. The allegations are denied. It is clarified that Majestic Towers CHSL is constructed on Plot No.2, and noton Plot No.1, and presently bears Survey No. 14/3 A/2, which has been separately recorded in revenue records by the competent authority. It denies that all amenities are common between the Complainant Society and OP No.3, except for certain facilities such as Club House, Basket Ball Court, STP and OWC Plant. It further states that disputes raised in Paras 4, 5 and 6 of the complaint are essentially between OP No.1 (Developer) and the Complainant Society, and OP No.3 has no concern with the same. With respect to allegations with regard to parking spaces (Para 7(b) and 7(c) of the complaint), OP No.3 denies that parking beneath common amenity space was illegally allotted to it. It specifically denies that a 6 meter side margin of Building lC' of the Complainant Society was converted into parking and illegally allotted to Majestic Society. It asserts that parking allotted to it is legal and valid, reflected in the Deed of Conveyance executed by OP No.2 in its favour. It emphasizes that the developers of the two societies are different, and therefore the allegation that OP No.1 sold common parking to Majestic Society is incorrect and legally untenable. It asserts that common parking of Moraya Society is situated on Plot No.1, and common parking of Majestic Society is on Plot No.2, and therefore the Complainant cannot claim parking rights over Plot No.2. Regarding STP and OWC (Organic Waste Converter) Plant (Para 7(e)), and related charges, it is stated that initially it bore the entire expense of running the plants, but when monthly expenses exceeded ?1,00,000/-, it became financially burdensome. It alleges that the Complainant Society was not ready and willing to pay 50% share of expenses. It refers to a letter dated 16/06/2020, wherein Page 7 of 22 it informed the Complainant that since they were not using the OWC plant, they were not liable to pay electricity charges, and that expenses could be settled mutually. It further states that the OWC plant capacity was insufficient for both societies and therefore was used only by the Complainant Society. As regards the East Side Gate of Building 'C' (Para 7(i)), it is asserted that the gate was constructed by OP No.1 and the expenses were borne by OP No.1, not by the Complainant Society. It further alleges that although the gate was meant for use by both societies, the Complainant Society illegally locked it. Concerning electricity charges (Para 7(l)), it is stated that the electricity meter is in the name of the Complainant Society because it was formed earlier, but facilities such as street lights, clubhouse, basketball court, STP and OWC are common and hence electricity charges are shared equally (50% each). It denies that Majestic Society's CCTV or light poles are supplied from a common meter and asserts that the entrance gate electricity of Majestic Society is from its own separate meter. It accuses the Complainant of suppressing material facts and falsely claiming that it came to know about electricity arrangements only on 27.09.2021 for by-passing limitation hurdle. OP No.3 also asserts that the garden situated on Plot No.2 exclusively belongs to Majestic Society and cannot be claimed as common. It states that a Conveyance Deed has already been executed in favour of Majestic Society for Plot No.2. It further contends that as per Clause C on Page 12 of the Conveyance Deed, the Complainant Society has right to use certain specific facilities like internal roads, pathways, open spaces, transformer area, STP and OWC area, but has no ownership or enjoyment rights over Plot No.2. Therefore, it cannot install digital signboards or claim rights over the entrance gate on Babar Dairy side. It denies all allegations in Paras 7(m) to 7(p) and denies any liability alleged on the basis of Mr. Belsare's Site Visit Report, stating that it was conducted without notice to OP No.3 and is unilateral, one-sided and not binding upon it. In Paragraph 21, OP No.3 raises a specific plea of limitation. It states that the Builder had issued a letter dated 25.10.2016 enclosing draft Deed of Conveyance and Indemnity Bond, expressing readiness to execute conveyance. It relies on an email dated 08.03.2017 (Page 216 of Complaint compilation) to contend that the cause of action arose in 2016-2017. Since the complaint has been filed in 2022, it is barred by limitation as provided under Section 69 of the Consumer Protection Act, 2019. It points out that no application for condonation of delay has been filed. It has separately filed an Interim Application (Pages 13-14) seeking dismissal of the Page 8 of 22 complaint as time-barred. In its prayer, OP No.3 seeks dismissal of the complaint with costs and specifically claims ?5,00,000/- as costs against the Complainant.
7. The I.A. No. 5501/2022 was filed by OP-3 seeking dismissal of the complaint on the ground that it is barred by limitation and their Reply to I.A. 5501/2022 on 24.04.2023 (Pages 336-341), filed by complainant categorically denies all allegations made by OP No.3 and states that the said application seeking dismissal on the ground of limitation is frivolous, devoid of merit, and filed only to harass and delay the proceedings. The Complainant asserts that the draft conveyance allegedly shared by OP No.1 was not as per sanctioned plans or MOFA requirements and contained illegal and improper property description. Therefore, the cause of action is continuous and recurring, and the complaint is within limitation. It is specifically contended that unless a proper conveyance deed strictly in accordance with sanctioned layout and statutory format is tendered, limitation cannot begin to run. The Complainant therefore prays for rejection of I.A. 5501/2022.
8. In the detailed Rejoinder filed on 24.04.2023 on (Pages 342-349), the Complainant Society denies the written statements of OP Nos. 1 and 3 in toto. It reiterates that OP No.1 has caused deficiency in service by failing to hand over open spaces and amenities and asserts that majority of Open Space Nos. 1, 2 and 3 are occupied by Majestic Towers (OP-3), and that OP-1 has illegally sold open space as parking space to flat holders of Majestic Towers. It further alleges that after filing of the complaint, OP-3 unilaterally marked portions of open space, which is illegal while the matter is sub judice. Regarding society formation, it denies OP-Ts claim and states that the core committee of Moraya Society had pursued formation till 2016, after which the promoter initiated the process. It admits that T64,70,451/- was transferred on 12-05-2022 by OP-1, but asserts that this was done unilaterally and without consent, and the amount was accepted "under protest and without prejudice." It further alleges that Mr. Nilesh Toshniwal visited the society office and attempted to pressurize committee members including Chairman Shripad Khedkar, Devang Gandhi, Yuvraj Bhosale, Shrikant Bhutada and Atul Kale to withdraw the complaint. The Rejoinder also refers to "Sarkari Mojani" (Government measurement) showing discrepancies in plot area as per draft conveyance draft vis-a-vis that in the sanctioned plan, and states that historic Google Maps images till 2015 show Majestic Towers construction ongoing. The Complainant questions how Occupancy and Completion Certificates were issued by PMC despite deviations.
Page 9 of 229. The Complainant filed its evidence by way of affidavit on 24.04.2023. OP-1 filed its evidence by way of affidavit on 01.06.2023 and OP-3 filed its evidence by way of affidavit on 01.06.2023. OP-2 has not filed evidence by way of affidavit.
10. Mr. Sant, on behalf of the complainant commenced his arguments by mentioning and briefly explaining the grievances and deficiencies as alleged in the complaint. The prime concerns/grievances are stated to be (a) non-execution of the conveyance deed in favour of the society and (b) the transfer of OTM deposit. By elaborate reading of para 7 on wards of the complaint and also from the report of Mr. Belsare, the other grievances/deficiencies as detailed in the complaint, particularly relating to (i) unfair allotment of parking spaces in/below common areas to OP-3 and sale of such parkings (ii) Boundary wall/gate and illegal constructions (iii) Access to common areas in Plot No.2 (Majestic Society), (iv) electricity charges for common amenities not paid by Majestic (iv etc. have been emphasized. The specific relief/compensation, however, in the complaint is claimed with regard to alleged deficiencies qua grievances at (a) and (b) only while with regard to other grievances, only lump sum compensations are claimed. The main reliance is placed on the report of Mr. Belsare dated 08.02.2021 and the e-mail exchanges between the parties. It is contended that non-execution of the conveyance deed, which is a continuing cause of action, is admitted by the OP. Similarly, the merit of outstanding issue of OTM Deposit also stands admitted in view of unilateral payment of Rs.64,70,451/- by the OP-1 after filing of the complaint on 12.05.2022. Mr. Gandhi, on behalf of OP-1, firstly stressed that the complaint is hopelessly time-barred in view of the fact that the project was not only competed timely, the final occupancy certificate was received as early as on 19.10.2014 after which the possessions were handed over and the sale deeds in favour of the allottees were executed and even the complainant society was formed as early as on 20.02.2016. This complaint, filed in January 2022, is thus patently time-barred. Further, both OP-2, and OP-3 have neither provided any service to the complainant society or its members nor have they any contractual or other relationship with them, nor any relief has been claimed against them, and therefore, they have been wrongly and vexatiously impleaded in this complaint and therefore the complaint deserves to be dismissed for misjoinder. On merits, it has been submitted that the draft conveyance deed was admittedly sent by the OP as early as on 25.10.2016 as further re-conveyed in mail dated 08.03.2017(pg. 216), and thereafter, raising repeated issues not directly relatable to the execution of the Page 10 of 22 deed, the complainant society itself has been delaying the execution of conveyance. A detailed mail clarifying the position was sent as early as on 08.03.2017. Further, the maintenance of the common areas and amenities has already been taken over by the society after which the readiness to accept the amount of Rs. 63 lacs was shown by the society vide mail dated 22.10.2018 after which only two "minor issues"
of (i) "illegal constructions being raised" and (ii) "maximum possible allocation for common parking over areas of common amenities". With regard to the technical report of Mr. Belsare dated 08.02.2021, it is stated that not only the report has been obtained at the back of the OP-1, the same is admittedly obtained nearly 5 years after the maintenance has been undertaken by the Society. Apart from this, no aspersions can be made against the final occupancy/completion certificate issued by the statutory authorities by taking so called one-sided physical measurements, particularly so, when no affidavit of Mr. Belsare has been filed by the complainant. The whole of the layout comprising 14440 sq ft has in fact been developed by OP-1 and OP-2 together with some common amenities between the allottees of the complainant society and of Majestic Society (OP-3) and and after respective due verifications thereof, the OCs can be and have been granted by the authorities. Some amenities and open spaces are common between the complainant and the Majestic Society as per agreements with the individual flat-owners. No valid grievance as to encroachment of polt No.1 by Plot No.2 or of "other encroachments"
or of deviation from the sanctioned plan can be raised by the society after nearly 7 years of individual flat registrations, nearly 6 years of society formation and nearly 4 years after taking over the maintenance and security of the society premises when the statutory OCs have also been obtained before the possessions were handed over. Moreover, the issues of size of the plot or the alleged encroachment was not at all ever raised by the society in past correspondence till it decided to obtain one-sided report from Mr. Belsare. Therefore also the issue is barred by limitation. Mr. Gandhi also drew our attention to pages 26-27 to emphasize the receipt of OC as also page 47 para 4 of the reply to contend that the statutorily granted OCs through which the construction and amenities in the project and layout as per approved building plans got approved and certified after due inspection, cannot be simply questioned by one-sided expert report obtained at the back of the Developer particularly when his affidavit has not been filed. Mr. Lanke for OP-2 and Mr. Palsande, on behalf of OP-3 have reiterated the averments in the reply and while Page 11 of 22 supporting the contentions raised by Mr. Gandhi, urged to dismiss the complaint against them as there is no service provisioning by them to the complainant and there is no relief claimed against them in the complaint. In rejoinder, Mr. Sant has pointed out that the amount of OTM was refunded after filing of the complaint, and as such, falls short of the claim and interest as prayed in the complaint. As to Mr. Belsare's report, it is stated that the expert is not only a government approved valuer, his factual observations have not at all been countered by way of a contrary expert report, and hence the facts pointed out by him with regard to actual area of plot no.1 for the complainant not matching with the approved plan has to be accepted. Other deficiencies as agitated in the complaint also entitle the complainant for compensation as claimed.
11. We firstly deal with the preliminaries. The complaint is filed by the society formed under MOFA alleging deficiency, inter alia, of non-execution of conveyance deed by the OP-1 Developer. While it is a fact that the complaint of deficient service has been filed after almost 7 years from the dates of taking over the possession and individual allottee's registration of sale-deeds, and nearly it equally is a fact that the conveyance deed in favour of the Society as mandated by MOFA has not yet been executed. The allegation of deficient service qua the refund of OTM deposit to the society as per the admitted terms of the individual agreements with the allottees also stands admitted by the OP-1 by way of payment during the pendency of the complaint. Both these causes of actions, in the circumstances of the case in our opinion, are continuing ones for the Society who may maintain a consumer complaint under its own statutory entitlement, as held by the Supreme Court in Samruddhi Cooperative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. (2022) 4 SCC 103 and by this Commission in C.C. No. 1 of 2022 Adriatica Cooperative Housing Society Ltd. Vs. Macrotech Developers Ltd. & Anr. dated 30.01.2024. Therefore, the complaint as a whole is not barred by limitation. At the same time, however, we have noted that the possessions by individual allottees were obtained by end-2014 after the OP-1 obtained the requisite OCs, which is nearly 7 years before the filing of the complaint. The society itself was also formed as early as in 2016. Though there are various e-mail communications between the parties i.e. between the complainant and the OP-1 (copies of emails purportedly sent to OP-2 and OP-3 remained consistently undelivered) during the period 2016 to 2021 are on record, interestingly, the last meaningful e-mail exchanges, sent by OP-1 dated Page 12 of 22 08.03.2017 and by the complainant dated 22.10.2018 and 38.07.2019 together indicate resolution of whatever small irritants remained for the society excepting the execution of the conveyance deed and the OTM deposit transfer. OP's letter:
Thus as on date the aforesaid amount of Rs. 39,18,819/- is the balance amount remaining in our hands which wdl be transferredvide demand draft drawn in favour of Moraya CHS Ltd. Till date for your convenience we have been conducnng rhe task of maintaining the society premises as well as the common amenibes and facilities therein, on your eh If a t y0Ur cost. However, since the project'Moraya'is completed In all ^^asailthefiMs^n^^ we shall be closing our operations at site and therefore we hereby request you to take charge of conducing the day-to-day amenities and facilities therein on or before affairs and maintenance activities of the society premises and common l--------- 31/03/2017.
B1 withrespecttoissueof Deed of Conveyance, we had already provided the copy of appropriate draft as prepared by our Advocate on 25/10/2016. The file containing all title documents inclusive of revenue record, approved bu ding p ans commencements cerfificates, occupafion certificates has already been provided to you for your recently requested by you find attached herewith a draft copy of Deed of Conveyance rn word format. The changes suggest in the draft by your advocate may be adopted in full or in part or may also be denied ,n full as may be> advise o us oy u Advocate/legal Advisor. We are ready and willing to execute and register the Deed of Conveyance m favour of Mora,a C. Ltd.
C) With respect to the Civil Suit filed by Smt. Rajeshirke, we have already provided you the draft of indemnity bond which
we intend to execute in favour of Moraya CHS Ltd. ■ •,
D| With respect to the access road from Bahar Dairy, we are of the opinion that the said access road is in usage by
residents of both Moraya CHS ltd. and Majestic Towers and there is no hindrance from any one as to the usage of the same.
E) With respect to the issue as to erection of gate near building 'C, we are of the opinion that the gate has been erected at an appropriate and convenient location near the eastern boundary so as to provide enough and optimum security to the residents of Moraya CHS Ltd.
F) With respect to issue of compound wall near pickle factory, we wish to mention that, the plot of pickle factory is situated exactly adjacent to the southern portion of our plot and on the edge of the internal road between building 'C and building 'D'. And since the walls of the said factory are constructed exactly on the common boundary line, there is no sense in or need of erecting any compound wall adjacent to the wall of pickle factory on that portion of our plot which may also give rise to issue of ventilation from the pickle factory owner.
It will be appreciated if the management committee of Moraya CHS Ltd. starts conducting the day-to-day affairs of maintenance as soon as possible, which shall also enable us to transfer the aforementioned balance amount of maintenance corpus to you immediately.
Page 13 of 22Chairman/Secretary Moraya Society <[email protected]> Mon, Oct 22, 2018 at 10:01 PM To: Vishal Dhumal <[email protected]> Cc: nilesh j <[email protected] > Note: this email is sent by Moraya Regular Managing Committee, if you are seeing this email coming from ex- chairmen, it is because your mailbox has previously saved this id in name of Mr. Todkar Hi Vishal D; Nilesh T, As stated in our previous email - this is to inform you that AGBM for Moraya Co-Op Hsg Soc, was conducted on 30th September 2018.
We also discussed therein the issues related to OTM and Conveyance Deed with the General Body.
WRT OTM - We got a steer from the General body to convey to you the amount of 63,60,000. (63Lacs) post deducting the 5 months (~9 tolOlacs) expenses of running the society from the amount then committed by Mr. Nilesh Toshmwal of 72,00,000 (72lacs).
We humbly urge you to respect the decision of general body as we all trust and respect your goodwill.
WRT Conveyance Deed -
1) There are some minor issues like illegal constructions being raised connecting to the boundary walls of the society tha we suspect are not legal, as discussed during our meeting, we've lodged complaint with the PMC and they are looking into the matter. We will require some support from you if required.
2) Also discussed during the meeting - Moraya Society has got very limited visitor parkings. You have allocated all the parkings from the undivisible area below the garden area to Majestic tenements. We request you to officially allocate maximum possible parkings in other common area on the Majestic side to Moraya Society and matchup as much as possible for the loss of parkings to Moraya Society. Parkings near basketball court and the generator can be easily allocated to Moraya Society.
Above is the summary of our discussions surrounding the two important topics with general body. Based on the positive discussion we had last time, we are hopeful to solve these issues in sorted manner with yourself.
Best Regards, Moraya Co-Op Hsg Soc.
Complainant's e-mail dated 28.07.2019:
1) The issues surveyed by Mr. Sachidanand Dhumal and team on site.
■2) Gate near pickle factory has been fixed.
3) Rain water harvesting - provisioning done.
4) Draft of Conveyance shared as per discussion.
Following aspects are open to take conveyance deed to closure:
1) Review and sign-off on the conveyance deed by Moraya committee members (In progress, target date (2nd August)
2) Extension of the boundary and Gate on East side of C wing - Surveyed by Mr. S Dhumal, work yet to start.
3) WalVFence to stop the pickle factory access the small gate near the temple for inventory/stock movement.
Though the initial target date of 31st July looks unlikely to be met, we are happy that things are progressing on the right direction. Hopeful of bringing the conveyance deed to completion ASAP. Thanks for your support.
12. Perusal of these exchanges make it absolutely clear to us that the deficiencies excepting those related to execution of the conveyance deed and the OTM deposit, including those based on Mr. Belsare's report as alleged in this Page 14 of 22 complaint filed in the year 2022 after such satisfaction in the year 2018 as reiterated in 2019 are afterthoughts and are all hopelessly barred by limitation in terms of section 69 of the Act. As such, the whole complaint is based merely on the evidentiary strength of e-mail exchanges and on Mr. Belsare's report. The complainant has neither cared to file and not even attempted to find support for the allegations in the complaint from any contract or from any representation of the OPs, or even from any communication of the OP, the violation of which, or deviation from which, might, if at all, give rise to any deficiency. The non-execution of the conveyance deed is of course a continuing cause of action but that in no way entitles the complainant to piggyback in such a complaint any further unfounded allegations of hopelessly time-barred, imaginary and laboriously discovered grievances after 7 years from obtaining the possession by the allottees and after 6 years from the formation of the society, which palpably otherwise also were either never earlier raised or which substantially stood resolved much before filing of the complaint. Therefore, we hold that excepting the issues of execution of the Conveyance Deed and the transfer of OTM, all other issues raised in the complaint are barred by limitation and in any case stood resolved before filing of the complaint. Otherwise also, the society gets its statutory entitlement and locus standi to file the complaint in its own right based only on the agreements entered into by the individual allottees and the representations or pre-agreement promises with regard to entitlements of the allottees made by the OP builder if any. The complainant has opted to make only general claims of entitlements which are not demonstrated or established before us to have been arising from any such promise by the OP so as to satisfy us that the claims are in fact arising from any deficiency in service of the OP.
13. It is an admitted position that the conveyance deed as required under section 11 of the MOFA has not been executed between the parties till date. While the OP-1 admits the non-execution of the conveyance deed, it is vehemently contended that it is the society's persistent failure and repeated raising of unrelated and irrelevant issues after the draft conveyance-deed was shared way back in 2016 that the execution of the deed is delayed. The issue of the difference in ground reality vis-a-vis the sanctioned lay-out appears to have arisen and taken up for the first time by the "new committee" of the society by an mail dated 27.06.2018:
Page 15 of 22Chairman/ Secretary Moraya Society <[email protected]> Wed, Jun 27, 2018 at 11:36 AM To: Vishal Dhumal <[email protected]>, [email protected], nilesh j <[email protected]>, Malav Shah <[email protected]> Hi Vishal D, Nilesh T, Mala S,.
The newly elected committee of Moraya Society, has reviewed the latest draft of the conveyance deed shared by you.
Prima Facie, we have some observations, that we feel can be closed quickly after having a face to face discussion with you.
There are some minor points WRT the wordings mentioned In the draft, whilst most are connected to the layout diagram shared by you.
We have also received a sanctioned copy of the plan from Corporation (attached) and have compared it to the layout design that was shared by you (attached).
We will want to baseline our discussion with you and cover these 2 points. Kindly let us know a good time when we can discuss this across the table, please refer back to this email accordingly. Thanks.
13.1 The issue raised, it seems, also got resolved by 22.10.2018 (mail, supra) when only "two minor issues remained". One was "illegal construction being raised connecting the boundary wall" wherein the matter is taken up with PMC and "support of the OP-1 may be required", and the second was the visitor parking space wherein request was made to the OP-1 to "allocate maximum possible parking spaces", which request is not made on the basis of allottee agreements. Mr. Belsare, whose affidavit has not been placed on record, in his report prepared without any intimation to or participation by the OP-1, as late as on 08.02.2021, concludes as under while also observing in para 4 of the report that some minor deviations from the plan while executing the project is natural and cannot be ruled out, adding that it is the prerogative of the developer to decide as to how the available FSI shall be utilised and apportioned between the different plots in the layout. It is also the categorical observation of Mr. Belsare in the table below that the Plot No.1 of 6000 sq ft, referable to the complainant, has been allocated FSI of 6756 sq ft, the other plot of 6400 sq ft in the layout has been allocated much higher FSI of 9541 sq ft:
CONCLUSIONS: Ttie draft conveyance deed regarding plot No.l of Moraya co-op hsg society Ltd has many discrepancies regarding the areas of plot, open spaces and internal road as elaborated above. Actual condition of site do not match with the documents & sanctioned layout. The layout ought to have revised as per actual site conditions and in that case the developers would have to loose on some of the FSI. In order to prevent this loss the developers have managed to obtain occupancy certificates of this faulty layout.Page 16 of 22
4) It is the prerogative of the developer to decide about utilization of FSI received for the amenity space, internal roads and transformer space. He is free to utilize it proportionately on each plot or utilize as per his convenience and planning. Accordingly the developer has decided to use the FSI as per following TABLE NO.2 Plot Plot Plot Open Unutilised Total No.l No.2 No.3 Space 6400 150 1890 14440 Basic Plot 6000 1952 0 563 2835 Amenity 320 951 0 1387 Internal Road 430 238 0 238 Transformer 0 9541 150 18900 6756 Plot No. 2 along with right to utilize FSI as per above table was sold to M/s. Jairaj Developers unit 5. M/s. Jairaj Developers constructed a building named "Majestic towers" having 118 flats by utilizing 9541 sqmt PSI and Plot No. 1 was developed by M/s. Orchid Associates by consuming 6756 sqmt PSI having 136 residential flats in 3 buildings.
Both the developers have obtained the occupancy certificates for all the buildings.
M/s. Orchid Associates and M/s. Jairaj Developers unit 5 have jointly developed the recreational open space, constructed a club house and other facilities. The building plan for the said club house building was approved by the Pune Municipal Corporation, Pune vide Commencement Certificate No. CC/3459/12 dated 08/02/2013 and also obtained the occupancy certificate for the same on 14/01/2016.
13.2 After having gone through the entire relevant material on record, we have come to the considered conclusion that the non-execution of the conveyance deed is primarily attributable to the complainant society. When the 0P-1 has offered to execute the deed in 2016, when all respective papers and files were made available regarding which also there is no grievance by the complainant, and when by October 2018, only minor issues, wholly unconnected with the Execution and content of the conveyance deed remained outstanding, it is not understood why the society has not promptly thereafter moved forward in this behalf till date. As such, there is more than Page 17 of 22 2 years gap thereafter before Mr. Belsare's report has surfaced. In any case, the final OC was received in 2014 and possession was received by the allottees in or around the same year and the complainant society was also formed in 2016 and somewhere in 2017 even the maintenance of common amenities was also taken over by the society. While reference is being made by the Belsare report to the sanctioned plans, it is a fact that the whole sanctioned layout comprises area of 14440 sq mt as against the area of only 6000 sq mt of plot no 1 wherein the FSI on plot no. 1 is lower than the other area of the layout as tabulated above. In view of these facts and also the fact that the final OC is received nearly 7 years before the complaint, and the allottees and the society have seen with open eyes the already concluded conveyance deed between the OP-2 and OP-3 long before the filing of the complaint, we decline to either go into or comment on the issues of lesser actual area of the plot No 1, or some encroachments, or the ground reality not being in tune with the sanctioned plans, or disproportionate parking spaces, or any other allegations based on Mr. Belsare's report. We therefore deem it proper to direct the OP-1 only to the extent that it will ensure to execute the conveyance deed in terms of and in full compliance with section 11 of the MOFA within a period of 6 months from the date of this order.
14. With respect to the transfer of OTM deposit, the OP has already and admittedly transferred some amount after the complaint was filed. Though OP-Ts emails dated 08.03.2017 (Rs. 38.18 lacs, pg 221) and dated 06.07.2018 (Rs. 44.99 lacs, pg 224) mentions lesser amounts payable after adjusting the expenses incurred and interest earned on the deposit, however, after noting the facts of (a) the complainant's satisfaction in e-mail dated 22.10.2018 (supra) about refund of Rs. 63 lacs after the OP had offered Rs. 72 lacs before such satisfaction, as under, WRT OTM - We got a steer from the General body to convey to you the amount of 63,00,000. (63Lacs) post deducting the 5 months (-9 to1 Olacs) expenses of running the society from the amount then committed by Mr. Nflesh Toshniwal of 72,00,000 (72lacs).
and (b) The OP's admission in para 2(o)(xiii) on page 28 of the reply that the amount of Rs. 72 lacs in fact was offered before 2017, we are inclined to accept the amount payable by OP-1 at Rs. 63 lacs as agreed between the parties as in February 2017 and as further confirmed in mail dated 22.10.2018 supra. This is further because the complainant's contemporaneous email categorically mentions the amount of Rs. 72 lacs as committed by Mr. Toshnival on behalf of the OP-1 and the issue regarding Page 18 of 22 excessiveness of the claim of Rs. 63 or the fact of Mr. Toshnival having committed the amount of Rs. 72 lacs, is not shown to have been contemporaneously or otherwise disputed by OP. We find the claim of the complainant in the said email also credible and reliable after further noting the reasonableness and fairness of the complainant in suo motu and reasonably reducing Rs. 9 lacs from the said claim/demand due to expenses incurred by the OP after the commitment by Mr. Toshnival, as evidenced in the said e-mail. Though in the complaint the complainant has claimed, wholly irrationally and unreasonably, the whole deposit amount of Rs 112 lacs, the OP also in the written version on page 44, while disputing and denying such claim, has not categorically disputed the email dated 22.10.2018 or placed any document on record to doubt the credibility of the amount stated therein, or, while referring to the payment of Rs. 6470451/-, has not elaborated on the same or has substantiated the calculation of the payment so made on 12.05.2022 in light of such commitment of Rs. 72 lacs by Mr. Toshnival in 2017-18. We therefore deem it proper to hold that the complainant was and shall stand entitled for the amount of Rs. 63 lacs with effect from 22.10.2018. As a corollary, we also hold that the complainant shall be entitled, and OP-1 shall be liable, for further reasonable compensatory interest for the period 22.10.2018 onwards subject to adjustment of the amount of Rs. 64,70,451/- paid by the OP-1 on 12.05.2022. While arriving at the rate of interest, we note that though the OP-1 has indisputably sent the draft of the conveyance deed and relevant other documents as early as on 25.10.2016 as per the letter dated 08.03.2017 and as acknowledged by the complainant on 27.02.2017 (supra), and also again sent such draft in the MS-word format as desired by the complainant, the complainant itself has not made it clear or filed any document on record to explain or to establish as to what and when the counter-draft, if any, was shared with the OP. Perusal of the emails indicate that the complainant has evidently, in our opinion, unduly and unreasonably raised some minor issues which have no necessary connection with the execution of the conveyance deed or with the refund of the OTM deposit. In other words, though the OP-1 developer is obliged to execute the conveyance-deed expeditiously after formation of the society, once such offer and draft was shared by the OP with necessary documents, it is the complainant society and not the OP-1 thereafter who, in our opinion, should have moved expeditiously and who have thus unreasonably and inexplicably delayed the execution of the conveyance deed. Therefore, after considering the totality of the Page 19 of 22 circumstances, we hold that the amount of Rs. 63 lacs payable by the OP needed to be paid with 6% simple interest for the period 22.10.2018 (when amount got crystallised inclusive of interest) till 12.05.2022 (when the unilateral payment was made by the OP). However, such full payment not having been done by the OP-1 on that date, we further hold that the OP-1 shall also be liable to pay interest on the amount having remained unpaid on 22.20.2018 at a higher simple interest rate of 9% from that date till the date of further payment of compensatory interest now to be made within 3 months from today. We therefore deem it proper to direct the OP-1 that the OP-1 shall compute such amount payable, and accordingly pay to the complainant-society through a bank-draft alongwith providing such computation, to the complainant, a further amount to be computed by arriving at (a) the total amount of interest at 6% on Rs. 63 lacs for the period 22.10.2018 to 12.05.2022, i.e. "A", and
(b) the total amount payable as on 12.05.2022, i.e. B=A+63 Lacs, and (c) arriving at the new principal amount "C" as on 12.05.2022 after payment, i.e. C=B /ess 64,70,451, and (d) Amount "C" alongwith 9% simple interest on amount "C" for the period 12.05.2022 till the date of actual payment, shall be paid withing 3 months from the date of this order, failing which, the interest on such balance payable amount remaining outstanding after 3 months, shall be 12% on such outstanding amount.
15. Before we conclude, we have to observe that no consideration towards any services has been paid by the complainant society or its allottee-members to OP-2 and OP-3, and also there is no statutory or contractual relationship between the complainant society on one hand and the OP-2 and OP-3 on the other hand though the complainant and the OP-3 share some common amenities and spaces. No relief is also claimed in the complaint, or is claimable in this consumer complaint, against OP-2 and OP-3, because no service has been provided to the complainant by them. In that scenario, both OP-2 and OP-3, as rightly contended by them, have been wrongly and unduly implicated and impleaded in the present complaint. As such, when seen in the background that there emerged some dispute and altercation between the office bearers of the complainant and of OP-3 as evidenced by letter dated 01.10.2021 at page 130 and subsequent exchanges, the unnecessary impleadment of OP-2 and OP-3 appears to be vexatious. Further, as seen from the complainant's detailed letter to the Majestic Society dated 16.10.2021 (pg.152), there are inter-se outstanding issues or disputes between the two societies with regard to the common areas, amenities and alleged encroachment by OP-3 society allegedly Page 20 of 22 in violation of the conveyance deed executed between OP-2 and OP-3, and some other behavioural issues as under:
4) We urge You to kindly study the conveyance deed that You (Majestic) have registered with the Builder (Jairaj Group) with a special emphasis on section 'C' that clearly states the remit and ownership of Majestic and Moraya society. We also strongly urge You to not do any encroachment on common premises and hamper the rights of Moraya members, without any formal consent from Moraya society. As this matter will be further discussed in court, we will hold any further thoughts on4his topic for now. Any encroachments and liligatiorys/confiicts arising there out of, Majestic will be solely responsible for any financial expenses that Moraya has to make lo get legal resolutions.
l. : ; ;
ij® j:7e^ere^ ca^ uPon to® Majestic committee to render an unconditional apology in ::iL J writing within'7 catondar days of feceiol of this teiiAf for 'j'ji ■ a)
a) Takinq one SidSd Taking 0n6 decisions WRT sided decisions common amnnilioc:
WRT common space Ohic.ie
and snare
amenities and nni
(this-is not
the first incident when Majestic has done this, previously as well Majestic has :• ? ; .. erected gate within Garden area, stopped children of Moraya society from playing in the common area)' "ii i ; b) Use of derogatory-statements by Mr. Yatiraj Kale, this lime. Last time as well Majestic has opted for unpalatable and abusive language while referring to.
kids from Moraya (this is captured as a backend'commentaiy when the video ■ i: • clip,was shared by Majestic committee). Il is really hard lo .believe, how could s ■ mernbers who are having children and grandchildren themselves, use such language towards other children. We do not socialize such topics to the U l.> ger^ral body members within, the society lo maintain harmony, failing the above we are forced to take necessary legal action both civil (already in ■process) as well as criminal against the respective society members from Majestic at' ; pur cost and consequences.
15.1 Perusal of the averments of pre-complaint events and issues in the said mail clearly indicates to us that the impleadment of OP-2 and OP-3 in the complaint, against whom neither any relief is claimed nor any valid allegations of any deficient service is made, is primarily to drag them unreasonably to this Commission when such disputes, obviously are not pertaining to rendering of any service to the complainant by OP-2 and OP-3, and they rightly belong to the Civil Courts and not to this Commission. The dispute also has nothing to do with the deficiency in service of Page 21 of 22 the OP-1. The Complaint against OP-2 and OP-3 therefore needs to be and is accordingly dismissed.
16. In the result, the complaint is partly allowed in terms of the discussion and directions to the OP-1 as contained in paras 13.2 and 14 of this order.
Sd/-
( A.P. SAHI, J.) PRESIDENT Sd/-
( BHARATKUMAR PANDYA) MEMBER Pawan/aj Page 22 of 22