State Consumer Disputes Redressal Commission
M/S.Sharwari Construction & Ors. vs Sanskriti Co-Op. Hsg. Soc. Ltd. & Ors. on 29 October, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO. 828 OF 2009 Date of filing : 09/06/2009 @ MISC. APPL. NO. 943 OF 2009 Date of order : 29/10/2009 IN CONSUMER COMPLAINT NO. 667 OF 2006 DISTRICT CONSUMER FORUM : THANE 1. M/s.Sharwari Construction At Shop No.3, Behind Water Tank, Kharodi Naka, Bolinj, Virar (W), Tal. Vasai, Dist. Thane 401 303. Thru its Partners 2. Mr.Dilip Raghunath Naik 3. Mr.Nitin Anant Naik Both at Shop No.3, Behind Water Tank, Kharodi Naka, Bolinj, Virar (W), Tal. Vasai, Dist. Thane 401 303. Appellants/org. O.P.Nos.1to3 V/s. 1. Sanskriti Co-op. Hsg. Soc. Ltd. At S.No.211, Hissa No.11/1(P), Kharodi Naka, Bolinj, Virar (W), Tal. Vasai, Dist. Thane 401 303. Respondent/org. complainant 2. Mr.Anant Ramchandra Naik 3. Mr.Mahadev Sankhe Both at Sugandhi Vihar, Shop No.3, Behind Water Tank, Kharodi Naka, Bolinj, Virar (W), Tal. Vasai, Dist. Thane 401 303. Respondents/org. O.P.Nos.4&5 Corum : Shri P.N. Kashalkar, Honble Presiding Judicial Member
Shri S.R. Khanzode, Honble Judicial Member Present: Mr.Jasbeer Joshi, Advocate for the appellants.
Mr.Uday Warunjikar, Advocate for the respondent No.1.
- : ORDER :-
Per Shri S.R. Khanzode, Honble Judicial Member This appeal arises out of order/award dated 17/01/2009 passed in consumer complaint No.667/2006, M/s.Sanskriti Co-op. Hsg. Soc. Ltd. V/s. M/s.Sharwari Construction and Ors. by District Consumer Forum Thane (Forum below in short).
It is the case of complainant-Society that its members (32 in numbers) had purchased flats from developer and builder-M/s.Sharwari Construction (hereinafter referred as builder). O.P.No.2-Mr.Dilip Raghunath Naik, O.P.No.3-Mr.Nitin Anant Naik are Partners of the builder-firm. Original O.P.No.4-Mr.Anant Ramchandra Naik and O.P.No.5-Mr.Mahadev Sankhe were also shown as Partners of builder-firm, but subsequently deleted since they were not partners of the said firm. Builder and the partners-Mr.Dilip Raghunath Naik and Mr.Nitin Anant Naik have preferred this appeal. (In the appeal, initially, deleted partners original O.P.No.4-Mr.Anant Ramchandra Naik and O.P.No.5-Mr.Mahadev Sankhe were also shown as respondents, but wrongly since their names were already deleted from the original consumer complaint).
It is the case of respondent-Society (original complainant) [hereinafter referred as Society] that its members have paid all the amount as demanded by the builder in terms of their respective agreements, builder has committed deficiency in service/unfair trade practice by not obtaining completion certificate and occupation certificate, failed to return the deposited amounts towards society formation charges since society was formed by the flat purchasers on their own, illegally collected development charges at the rate of Rs.7,000/- per member, but failed to carry any development, illegally collected advance maintenance charges at the rate of Rs.7,200/- from each member, but no maintenance is provided, failed to pay maintenance charges towards unsold flats to the Society, illegal disconnection of water supply from 12/02/2006, failure to provide drainage system. It is further alleged by the Society that since 15/11/2002 to 02/01/2006 they addressed several letters to complete above referred deficiencies to the builder, but in vain and hence, ultimately they have to file this consumer complaint, which they filed on 27/12/2006. They made following claims by way of compensation:-
a) The loss due to deficiency of services as per Rs.1,63,000/-
Architect Certificate
b) Amount collected for formation and Rs.1,36,320/-
registration of the Society but the Society was not formed by the Opposite Parties (Rs.4260/- x 32)
c) Development Charges collected by Rs.2,24,000/-
Opposite Parties (Rs.7000/- x 32)
d) Advance Maintenance charges collected Rs.2,30,400/-
by Opposite Parties (Rs.7200/- x 32)
e) Water charges incurred by complainant Rs.2,04,000/-
Society Rs.1200/- per day from 12/02/2006 to 31/07/2006 (for 170 days) (approximately)
f) Maintenance charges incurred by the Rs.70,150/-
Complainant-Society for 12 flats each from 01/11/2003 to 30/08/2006
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TOTAL :
Rs.10,27,870/-
In addition to it, they also claimed direction to the builder to give accounts of the amounts collected towards shares of taxes and to reimburse the water charges to the extent of Rs.2,19,000/-. They further claimed Rs.5 Lakhs towards mental agony and Rs.50,000/- as expenditure for incidental expenses.
The builder and its partners opposed the complaint, denied all the allegations in toto and further submitted that they have to recover Rs.9,45,866/- from the members of the Society and which they failed to pay in spite of repeated demands since from the year 2002. Possession of the respective flats were delivered to the members of the Society considering their requests and requirements. Occupation Certificate will be obtained only after completion of entire construction, particularly of C wing. Bolinj Gram Panchayat had issued completion certificate for part of Wing A & B. They have also raised a ground about limitation and with this asked to dismiss the complaint.
Forum below partly allowed complaint and feeling aggrieved thereby, builder and its partners preferred this appeal.
We heard Mr.Jasbeer Joshi, Advocate for the appellants and Mr.Uday Warunjikar, Advocate for the respondent No.1. Perused the record.
In the instant case, Forum below failed to appreciate tendered evidence in a proper perspective and considered the evidence which is not at all tendered in evidence and come to an erroneous conclusion, particularly in respect of granting relief on the basis of alleged certificate of Architect Mr.Sunil Apte or alternatively directing to pay Rs.1,63,000/- as assessed by said Architect, wrongly taken into consideration the bank statements, which are only Xerox copies and not the certified account statements and also did not consider properly the evidence and pleadings on record and erroneously directed to pay Rs.2,04,000/- as damages due to stoppage of water supply and also did not consider the aspects as to the amounts due from the members of the Society and on the contrary observed that builder ought to have take legal steps to recover dues . It did not consider the effects of non-payment of dues vis--vis maintainability of the consumer complaint. It also did not consider the aspects as to the limitation and also requirement as to the compliance of Section 12(1)(c) of Consumer Protection Act, 1986 (hereinafter referred as the Act for brevity).
This complaint is filed by the Society for its 32 members. The cause of action if any arises in favour of individual members-flat purchasers. If the Society as a person within the meaning of the Act, represents them and they want to file a collective complaint, then it ought to have obtained permission from the District Consumer Forum as required under Section 12 (1)(c) of the Act, which is not done in the instant case and therefore, complaint itself is not maintainable. For sake of arguments, even if we assume that said complaint is maintainable, still for the reasons mentioned, infra, we find the complainant-Society failed to establish deficiency of service on the part of builder.
Considering the facts that possession of the respective flats were received by each flat purchaser prior to 2002 and that on their own the Society was formed with promoter members on 08/07/2003 and registered on 08/07/2003, there is no deficiency in service as far as formation of Society is concerned. About refund of alleged deposit collected as Society formation charges, since accounts are yet to be settled between members and the builder, no such deficiency in service could be alleged on the part of the builder.
There is no rebuttal of the facts that since from the year 2003 builder specifying dues from the members-flat purchasers, demanded the same from them, mere denial of such dues is of no use to the flat purchasers, they ought to have established that they made full payment as pleaded by them. After formation of the Society in the year 2003, maintenance including payment of charges for supply of water is the responsibility of the Society. If for non-payment of any dues for water charges, water supply is discontinued, then builder cannot be held responsible. It is not hired service within meaning of the Act.
Issue as to the non-payment of maintenance charges for the flats which are in possession of the builder, since unsold is altogether a different issue and is not a part of hired services within meaning of the Act and therefore, no consumer complaint would lie in that respect.
As far as alleged assessment made by Architect Mr.Sunil Apte towards incomplete work or saving expenditure for example instead of concealed wiring, surface wiring is provided and as to the alleged deficiency for not providing decorative main door, the consumer complaint is hopelessly time-barred considering the date of possession prior to 2002 and date of filing the consumer complaint is by the end of the year 2006. Further, there is no affidavit of Architect Mr.Sunil Apte to prove estimated expenditure to remove alleged deficiencies. Therefore, to grant any relief on this basis is quite erroneous. No other evidence is adduced to establish the alleged deficiency based upon the report of Architect Mr.Sunil Apte. The impugned order/award is erroneous to that effect.
It is alleged that development charges were collected, but no development is made. Society failed to establish any claim to that effect. Same is the case about advanced maintenance charges. The accounts are yet to be settled and they are not settled since legitimate dues payable by each member are perhaps yet not paid. In any case since Society entered into correspondence alleging those deficiencies since from 15/11/2002, complaint in that respect is hopelessly time-barred. Cause of action arises in those respect when it was clear to the Society that such deficiencies are there and they are asked the builder to make good thereof.
Since the accounts are yet to be settled, supra, no deficiency in service for not giving possession letter could be alleged.
For the reasons stated above, we find the impugned order/award cannot be supported in the eyes of law. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal is allowed.
2. The impugned order/award dated 17/01/2009 is set aside. In the result, consumer complaint stands dismissed.
3. In the given circumstances, both parties to bear their own costs.
4. Misc. Appl. No.943/2009 which is for stay stands disposed of as infructuous.
5. Copies of the order be furnished to the parties.
(S. R. Khanzode) (P.N. Kashalkar) Judicial Member Presiding Judicial Member dd.