State Consumer Disputes Redressal Commission
Nilgiri Gardens Co-Operative Housing ... vs M/S. Kailash Nath & Associates, & Ors. on 15 January, 2014
C-3-2012
BEFORE THE HON'BLE STATE
CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/12/3
Nilgiri
Gardens Co-operative Housing Society Limited,
Sector - 24, Amra Marg, C.B.D. Belapur,
Navi
Mumbai 400 614, through its Chairman and Secretary V.S. Gopakumar
& Hemant Bhardwaj.
MAHARASHTRA
...........Complainant(s)
Versus
1.M/s.
Kailash Nath & Associates,
A
partnership firm.
Office
at 1006, Kanchenjungal,
18,
Barakhanba Road, New Delhi 110 001 and
Other
offices at Gauri Commercial Complex, Ground Floor, Plot No.19, Sector
11, CBD Belapur, Navi Mumbai and
C-2,
Mittal Court, A Wing,
Nariman
Point, Mumbai 400 021 Through its partners:
(a)
Mr.Prakash Nath,
Having office at 1006,
Kanchenjungal,
18, Barakhanba Road, New Delhi
110 001.
(b)
Mr.Ravi Khanna
Having office at 1006,
Kanchenjungal,
18, Barakhanba Road, New Delhi
110 001.
(c)
Mr.Sandeep Khanna
Having office at 1006,
Kanchenjungal,
18, Barakhanba Road, New Delhi
110 001.
(d)
Mr.Sanjay Khanna
Having office at 1006,
Kanchenjungal,
18, Barakhanba Road, New Delhi
110 001.
2.
City and Industrial Development Corporation of Maharashtra Ltd.,
Regd.
Office at Nirmal, 2nd Floor,
Nariman
Point, Mumbai 400 021 and
Head
Office at CIDCO Bhavan, CBD Belapur,
Navi
Mumbai 400 614,
Through
(a)
Shri Pramod Hindurao, Chairman
City
and Industrial Development Corporation of Maharashtra Ltd.,
Having
its office at
Nirmal
2nd Floor, Nariman Point,
Mumbai
400 021.
(b)
Shri Tanaji Satre, Vice-Chairman and
Incharge Managing Director,
City
and Industrial Development Corporation of Maharashtra Ltd.,
Having
its office at
CIDCO
Bhavan, CBD Belapur,
Navi
Mumbai 400 614.
(c)
Shri T.C. Benjamin, Director
City
and Industrial Development Corporation of Maharashtra Ltd.,
Having
office at
Nirmal
2nd Floor, Nariman Point,
Mumbai
400 021.
And
also having at
Principal
Secretary (UD-1)
Urban
Development Department,
Mantralaya, Mumbai 400 032.
(d)
Shri M.K. Srivastava, Director
City
and Industrial Development Corporation of Maharashtra Ltd.,
Having
office at
Nirmal
2nd Floor, Nariman Point,
Mumbai
400 021.
And
also having at
Principal
Secretary (UD-2)
Urban
Development Department,
Mantralaya, Mumbai 400 032.
(e)
Shri L. Radhakrishnan, Director
City
and Industrial Development Corporation of Maharashtra Ltd.,
Having
office at
Nirmal
2nd Floor, Nariman Point,
Mumbai
400 021.
And
also having at
Chairman,
Jawaharlal Nehru Port Trust,
Administration
Buyilding, Sheva,
Navi
Mumbai 400 707.
(f)
Shri Rahul Asthana, Director
City
and Industrial Development Corporation of Maharashtra Ltd.,
Having
office at
Nirmal
2nd Floor, Nariman Point,
Mumbai
400 021.
And
also having at
Metropolitan
Commissioner,
MMRDA
Building, Bandra Kurla Complex,
Bandra
East, Mumbai 400 051.
(g)
Shri S.S. Sandhu, Director
City
and Industrial Development Corporation of Maharashtra Ltd.,
Having
office at
Nirmal
2nd Floor, Nariman Point,
Mumbai
400 021.
And
also having at
Divisional
Commissioner,
Konkan
Division, Opp. Jahangir Art Gallery,
Old
Secretariat, Fort, Mumbai 400 032.
(h)
Shri Bhaskar Wankhede, Director
City
and Industrial Development Corporation of Maharashtra Ltd.,
Having
office at
Nirmal
2nd Floor, Nariman Point,
Mumbai
400 021.
And
also having at
Municipal
Commissioner,
Navi
Mumbai Municipal Corporation,
CBD
Belapur, Navi Mumbai 400 614.
(i)
Shri Namdeo R. Bhagat, Director
City
and Industrial Development Corporation of Maharashtra Ltd.,
Having
office at
Nirmal
2nd Floor, Nariman Point,
Mumbai
400 021.
(j)
Shri Vasant M. Bhoir, Director
City
and Industrial Development Corporation of Maharashtra Ltd.,
Having
office at
Nirmal
2nd Floor, Nariman Point,
Mumbai
400 021.
............Opp.Party(s)
BEFORE:
HON'ABLE
MRS. Usha S.Thakare PRESIDING MEMBER
HON'ABLE MR. Narendra Kawde MEMBER PRESENT:
Mr.L.S. Deshmukh, Advocate for the Complainant Society.
Mr.Chetan Raithatha, Advocate for Opponent Nos.1, 1(c) and 1(d).
Mr.Prakash Kadam, Advocate for opponent No.2.
O R D E R Per Honble Mr.Narendra Kawde Member:
1. Complainant is a Co-operative Housing Society who has filed this consumer complaint through its Authorised Representatives, (1) Mr.V.S. Gopakumar and (2) Mr.Hemand Bhardwaj, alleging deficiency of service against the Opponents as Lease Deed has not been executed in favour of the Complainant Society though all the prerequisite conditions have been fulfilled. Complainant prayed for directions to Opponents to execute Lease Deed of land admeasuring 27090.29 sq. meters situated at Sector 23/24, CBD Belapur Road, Navi Mumbai. Complainant Society also prayed for compensation of `89,52,148/-
and further `10,00,000/-
for mental agony together with interest @18% per annum on the amount of compensation claimed.
2. During the process of adjudication it was brought to the notice of this Commission that Opponent Nos.1(a) and 1(b) had expired. Therefore, complaint as against these Opponents stand abated.
Complainant made Chairman ,Vice Chairman and all the Directors of the Opponent by name as parties i.e. Opponent Nos.2(a) to 2(j). However they have failed to explain how these Opponents who are Government Officers and with transferable service are service providers. In view of this the complaint will not be tenable against them in their individual capacity. It is misjoinder of the parties, there is no need to proceed against these Opponents.
Therefore, the complaint will proceed only against Opponent Nos.1 M/s.Kailash Nath & Associates, 1(c) Mr.Sandeep Khanna, 1(d) Mr.Sanjay Khanna and Opponent No.2 CIDCO only.
3. Opponent No.1 M/s.Kailash Nath & Associates is a Developer who is a Lessee of the plot of land leased out by Opponent No.2 CIDCO for construction of the housing scheme. Opponent No.1 constructed the flats, bungalows and sold to the members of the Complainant Society Nilgiri Gardens Co-operative Housing Society Ltd. The flats built up units were sold by registered agreement between period 22nd January, 1987 to 2nd September, 1992. It is the grievance of the Complainant Society that despite of constant efforts for transferring the upper tenant land and building by execution of Lease Deed in favour of the Complainant Society, the Opponents have been passing the buck with each other and failed to execute the Lease Deed. All the efforts have been proved futile and therefore, they were constrained to file this consumer complaint.
4. Short issue involved in this complaint is execution of lease deed by the CIDCO i.e. Opponent No.2 in favour of the Complainant Society, for which the Opponent No.1(c) and 1(d) has to be conforming party.
5. Opponent Nos.1, 1(c) and 1(d) have filed a common written versions stating that irrevocable power of attorney has already been executed by them in favour of the Complainant Society. Opponent No.1 are willing and have already consented to execute the Lease deed as prayed for by the Complainant Society. Opponents have not opposed to the prayer of the execution of the Lease Deed.
However, the monetary claim made out by the Complainant Society is not tenable as stated in the written version as there is no failure on the part of the opponent developer whatsoever nor there is any obstruction at any point of time for transferring the interest of the property by way of executing Lease Deed.
6. Opponent No.2 CIDCO has appeared and filed written version for Opponent Nos.2(a) to 2(h),stating that certain conditions were incorporated while leasing out the land to Opponent No.1 and upon performance and observance of the terms and conditions contained in the lease Deed of Lease was to be executed.
Most important condition imposed was that Opponent No.1 and the Complainant Society were under obligations to provide access from their plots to the neighbourhood Society, i.e. Parsik Paradise CHS Ltd. This condition has not been fulfilled as there is a stiff opposition from the Complainant Society. Therefore, due to opposition from the Complainant and Opponent No.1 for providing access from their plots as undertaken, Lease Deed could not be executed.
Beyond this, there is no other ground taken out by the Opponent No.2 CIDCO.
7. Heard Mr.L.S. Deshmukh, Advocate for the Complainant Society. Mr.Chetan Raithatha, Advocate for Opponent Nos.1, 1(c) and 1(d).
Mr.Prakash Kadam, Advocate for opponent No.2.
8. Admittedly, the position on record is that the Opponent No.1 is a Lessee of the Plots (three plots) leased out for the construction of housing construction by CIDCO, the Opponent No.2. The members of the Complainant Society are flat buyers who formed the housing Society.
Housing Society is registered and there is authorization to file this consumer complaint through its Chairman and Secretary. There is irrevocable power of attorney executed by the Opponent No.1 i.e. builder developer in favour of the Complainant Society, inter alia irrevocable power of attorney authorizes the Complainant Society to deal with day-to-day matter of maintenance of the Society, undertakes repairs and maintenance and to obtain no objection certificate for conveyance of land and building in favour of the Society by approaching the Opponent No.2 - In addition to that, we find from the record shows that all the requirements such as, issue of NIL balance certificate of service charges, details of transfer of shares to the members, payment of transfer charges etc. were duly complied with by the Opponent No.1 developer. The Complainant Society has remitted an amount of `1,32,56,000/- to the CIDCO on account of transfer charges on 13.10.2008.
Even though all the perquisites are complied with, the CIDCO i.e. Opponent No.2 failed to execute the Lease Deed in favour of the Society.
9. The Ld.Advocate of the Complainant brought to our notice that due to bickering between the Opponent Nos.1 and 2 there is an abnormal delay caused to execute Lease Deed.
The Society has duly paid enormous amount of `1,32,56,000/- to the Opponent No.2 as transfer fees on 13.10.2008. The condition imposed to provide access from the premises of the Complainant Society to the neighbouring Co-operative Housing society has not yet been resolved amicably. The Ld.Advocate of the CIDCO i.e. Opponent No.2 failed to make any statement about what efforts have been made to sort out this issue and there is no convincing argument coming forward as to why the Complainant Society should await for indefinite time for fulfillment of their statutory right. The Ld.Advocate of the Opponent No.1 made argument that there is no compliance of the transfer remained to be fulfilled on their part.
The issue of access from the Complainant Society can be sorted out by the Opponent No.2 CIDCO and this cannot be a potential reason to delay execution of Lease Deed for which the Opponent No.1 has always shown readiness.
10. Letter dated 4th May, 2010 placed on record addressed by the Opponent No.2 to Opponent No.1 says that Opponent No.1 has developed all the three allotted plots leaving balance area admeasuring 7276.937 sq. meters. This balance plot has been developed separately by the Opponent No.1. All the three plots for which Lease Deed is sought for by the Complainant are in actual possession of the Complainant Society.
The left over area of 7276.937 as presumed to be developed separately. However, the reference is also made to the left over plot as a separate fourth Plot. We do not find any separate City Survey number assigned by the authorities to this plot as the dispute regarding access to this fourth Plot seems to have not been resolved as yet and the matter is pending before the Honble High Court, Bombay in Writ Petition No.5313 of 2012. The Honble High Court in the Writ Petition confirmed the relief of granting access to the residents of the fourth Plot by the Civil Court, Thane in the appeal.
None of the parties have submitted the current status of the pending Writ Petition. Issue before us is, whether the statutory obligation of executing Lease Deed by the Opponent No.2 CIDCO has been discharged even though the hefty amount of `1,32,56,000/- has been received by them on 13.10.2008.
As argued on behalf of the Complainant Society that the additional allotment of fourth Plot to provide access from the Complainants plots has not been complied with by the Opponent No.1, 1(c) and 1(d). As instrumentality of the State Government it is incumbent on the part of the Opponent No.2 - CIDCO to resolve this issue of access and execute Lease Deed in favour of the Complainant Society along with Opponent No1, 1(c) and 1(d) as conforming parties thereto. The Complainants have succeeded in establishing deficiency in service against the Opponents, especially when all the prerequisites including payment of transfer fees of `1,32,56,000/- was paid by the Complainant Society and Opponents failed to execute Lease Deed by incurring deficiency in service.
Record does not demonstrate any prompt action whatsoever initiated by the Opponent No.2 CIDCO. However, since the receipt of hefty sum of transfer fees in 2008, it is also expected that the Complainant reconcile with the possession on the ground about resolving issue of access. The Opponent No.2 CIDCO after having received all the required documents and the fees cannot be blissfully ignorant to discharge statutory obligation of executing Lease Deed as provided in Section 11 of Maharashtra Ownership of Flats Act, 1986. Therefore, direction to both the parties to execute Lease Deed and pay nominal compensation of amount to the Complainant for abnormal delay on the part of the Opponents will meet the ends of justice. We hold accordingly and pass the following order:
ORDER
1. Opponent No.2 CIDCO, is hereby directed to execute Lease Deed of the land admeasuring 27,090.29 square meters situated at Sector 23/24, C.B.D. Belapur, Navi Mumbai in favour of Complainant Society and Opponent Nos.1 M/s.Kailash Nath & Associates, 1(c) Mr.Sandeep Khanna and 1(d) Mr.Sanjay Khanna to join for execution of Lease Deed as conforming parties.
2. Opponent Nos.1 M/s.Kailash Nath & Associates, 1(c) Mr.Sandeep Khanna and 1(d) Mr.Sanjay Khanna are directed to pay jointly and severally to the Complainant compensation of `2,00,000/- and Opponent No.2 CIDCO is directed to pay compensation of `3,00,000/-
to the Complainant Society.
3. The Opponents are directed to comply this order within a period of 60 days from the date of this order.
4. Complaint against Opponent Nos.2(a) to 2(j) stands dismissed.
5. Rest of the prayers of the Complainant Society stand rejected as not specifically granted.
6. Non-compliance of this order will attract provisions of Section 27(2) and 27(3) of the Consumer Protection Act, 1986 for action against the Opponents. Complainant Society is at liberty to bring out to the notice of this Commission non-compliance within stipulated time, if any.
Pronounced on 15th January, 2014.
[HON'ABLE MRS. Usha S.Thakare] PRESIDING MEMBER [HON'ABLE MR. Narendra Kawde] MEMBER ep