State Consumer Disputes Redressal Commission
Santacruz Anu Chs Ltd, The Secretary vs M/S Gundaha Builders on 28 September, 2017
1 (CC/2014/265)
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Consumer Complaint No. CC/14/265
The Secretary,
Santa-Cruz-ANU CHS Ltd.,
Plot No. 33, CTS 1603-10,
Milan Subway Road,
Santa ruz (W),
Mumbai - 54 .....Complainant
Versus
1. M/S Gundeha Builders
& its Partners/Promoters,
2. Ms. Poonam P. Gundecha
3. Shri. Paras Devraj Gundecha
4. Shri. Deepak P. Gundecha
5. Shri. H. D. Jain
6. Shri. Navinchandra Majithia
7. Shri. Surajmal B. Mehta
8. Shri. Tarachand Surajmal Mehta
All @ : 801, Hub Town Solaris,
NS Phadke Marg, Off Teli Galli,
Andheri (E), Mumbai - 69 .....Opponents
BEFORE:
P. B. Joshi : PRESIDING JUDICIAL MEMBER
D.R. Shirasao : JUDICIAL MEMBER
For the Advocate Ms. Nanda Singh
Complainant :
For the Advocate Mr. S. B. Prabhawalkar
Opponent nos.
1 to 4 :
2 (CC/2014/265)
ORDER
Per Shri D. R. Shirasao, Hon'ble Judicial Member [1] The complainant is a registered housing society, registered under the provisions of Co-operative Society's Act bearing registration no.BOM/HSG/6192. The same is registered since from 17/11/1980. The society is of 68 members including 52 residential flat owners and 16 shop owners. The opponent nos. 1 to 4 had purchased land bearing plot no. 33, CTS 1603-1610, admeasuring 4109 sq. yards = 36,981 sq. ft. on 13/06/1978 from Shri. Navinchandra Majithia, who had purchased the said land from the opponent nos. 7 and 8, Shri. Surajmal Bhojmal Mehta & Shri. Tarachand Surajmal Mehta. Thus the opponent nos. 1 to 4 had become promoter, builder and developer of that land for construction of housing project on that land. The opponent nos. 1 to 4 had given application on 01/11/1978 to the Development Authorities of BMC and obtained permission as per IOD in respect of the development that land. Accordingly the opponent nos. 1 to 4 had constructed housing project on that land consisting of 52 flats on ground + 4 upper storeys in 4 wings [A to D]. The opponent no.1 to 4 had executed agreement of sale in respect of the flats and the shops on ownership basis and had given possession of the same to them. The complainant submitted that although oponentno.1 to 4 collected amount from the flat purchasers in respect of formation of the society, they had not formed the same. Hence, the flat owners had come together and formed a co-operative housing society and got it registered as per the 3 (CC/2014/265) provisions of the Co-operative Societies Act since from 17/11/1980. The complainant has submitted that although the opponent nos. 1 to 4 had given possession of the flats and shops to the members of the society, they had not fulfilled their obligations in respect of sections 3, 5, 7, 11 and 13 of the Maharashtra Ownership Flats Act, 1963. The complainant submitted that the building has became old by 33 years and with the passage of time the condition of the buildings is deteriorating and calls for massive repairs. The complainant submitted that as per the circular of the BMC, complainant had carried out structural audit of those buildings, which shows that amount of Rs.61,90,800/- is required for repairs of those buildings. In view of the same complainant has filed this complaint against the opponents for carrying out repairs to the buildings or to give amount of Rs. 61,90,800/- for repairs of those buildings. The complainant has prayed for directing the opponents to handover all the original necessary documents in favour of the society and return back the amount collected from the members of the society. The complainant has also prayed for getting compensation of Rs. 33,00,000/- from the opponents. The complainant also prayed for filing FIR against the opponents for non compliance of the provisions of Maharashtra Ownership Flat Act, 1963 by the opponents.
[2] The complaint is abated against the opponent no. 5 and it proceeded ex-parte against the opponent nos. 6, 7 and 8. The complaint is contested only by the opponent nos. 1 to 4 by filing their written version on record. They submitted that 4 (CC/2014/265) the society is not the 'consumer' within the meaning of section 2(1)(d) of the Consumer Protection At, 1986. They submitted that in respect of handing over possession of flats and shops, agreement had taken place in between opponent nos.1 to 4 and the individual flat and shop owners. It had not taken place with the complainant society. Hence, complainant society has no right to file this complaint without impleading their members as party to the complaint. They submitted that the opponent nos. 7 and 8 were the owners of plot no.33 admeasuring 4109 sq. yards situated at Santacruz. The said original owners along with the opponent no 6 had executed agreement in favour of the opponent no.1 on 13/06/1978 and had given that land to the opponent no. 1 for development. As per that agreement the opponent no.1 got the development rights in respect of that land from owner and obtained IOD and commencement certificate for development of that land from BMC. After getting that permission, the opponent no.1 constructed a housing project on that land and by executing agreements in favour of flat and shop owners, had give possession of the same to them, after obtaining occupation certificate on 12/06/1979. The opponent nos.1 to 4 had also obtained completion certificate from BMC on 13/11/1979. They specifically denied that they had not formed the society. On the contrary they submitted that the opponent no.1 had formed the society of flats and shops owners and got it registered on 17/11/1980. They submitted that the possession of the flats and shops were given to the members of the society before formation of the society. They submitted that hence in respect of non compliance of the statutory requirements, the complainant society ought to 5 (CC/2014/265) have file complaint within three years. Hence, they submitted that although the society was registered in the year 1980, the complaint was filed in the 2014. It was also not filed within three years after enactment of the Consumer Protection Act, 1986. Hence, they submitted that the complaint filed by the complainant is barred by limitation. They also submitted that the monetary claim made by the complainant is also out of limitation. They also submitted that the opponent no. 5 had already died on 27/9/1987 before filing of the complaint and hence complaint was not tenable against him. Moreover, opponent nos. 2 and 3 were not partners of the opponent no. 1 at the time of formation and registration of the society. They recently joined as the partners of the opponent no. 1. Hence, they cannot be impleaded as a party to the complaint. They submitted that for non compliance of the provisions of Maharashtra Ownership Flat Act, the complaint filed by the complainant is not tenable and in that respect complainant has to file civil suit in the Civil Court. They also submitted that the relief claimed by the complainant is outside the purview of section 14(1)(e) of the Consumer Protection Act, 1986. They submitted that in respect of defects in the construction of the building and repairs about the same, complaint filed by the complainant is out of limitation. For all these reasons they submitted that the complaint filed by the complainant is not tenable. In respect of execution of the conveyance deed, they submitted that they had already given instructions to their solicitor M/S Lilani Shah & Company to prepare the draft of conveyance and requested the complainant society to go through the same and finalize the same. They submitted that in that respect, 6 (CC/2014/265) solicitor of the opponent no. 1 to 4 had given repeated letters to the society. However, as the litigation was pending in between the original owner and the society in court, the society had not taken steps to get the conveyance deed executed. Hence, they submitted that for non executing conveyance in favour of the complainant cannot be considered that the opponent nos. 1 to 4 had given deficiency in service to the complainant. Hence, they submitted that the complaint filed by the complainant be dismissed.
[3] Considering the rival contentions of the parties, considering the record and keeping in view the scope of the complaint, following points arise for our determination and our findings thereon are noted for the reasons as below :-
Sr.No. Points Finding
1. Whether complaint is a 'consumer' of the Yes
opponents?
2. Whether opponents had given deficiency Yes
in service to the complainant?
Whether the complainant is entitled to
3. get reliefs as claimed from the As per final order
opponents?
4. What order? As per final order
REASONS :-
AS TO POINT NO. 1 AND 2
[4] Heard learned Advocate appearing for the complainant. He submitted that
the opponent nos. 1 to 4 had developed that land and constructed a housing project 7 (CC/2014/265) on that land including 52 flats and 16 shops on it. In respect of flats and shops, opponent nos. 1 to 4 executed agreements and had given possession of the flats and shops to them. He submitted that, however the opponent no. 1 to 4 had not executed the conveyance in respect of those flats and shops in favour of flat and shop purchasers. He submitted that the opponent nos. 1 to 4 was required to form society of the flat and shop owners. However, they had not formed the same. Hence, all the flat and shop owners joined together and formed the complainant society and got it registered under the provisions of Maharashtra Co-operative Societies Act. He submitted that as society is formed by all the flat and shop owners, the complainant society has every right to file this complaint for the benefit of the flat and shop owners and hence complaint filed by the complainant is tenable. He also submitted that although the opponent nos. 1 to 4 had given possession of flats and shops to the respective flat and shop holders since before 33 years, they had not executed conveyance in favour of the society. The opponent nos. 1 to 4 had also not repaired those buildings. He submitted that during span of time buildings required massive repairs and as per the structural audit carried out by the complainant, an amount of Rs. 61,90,800/- is required for those repairs. Till execution of conveyance, the opponent nos. 1 to 4 is required to bear the same. He submitted that the opponent nos. 1 to 4 has also not given original documents to the society and had not returned back amount to the society, which was collected by them from different flat and shop purchasers for different purposes. Hence, he submitted that for getting all these reliefs, complainant has filed this complaint 8 (CC/2014/265) against the opponents. The complainant is entitled to get all these reliefs from the opponents. Hence, he submitted that the complaint filed by the complainant be allowed and necessary directions in that respect be given to the opponents. [5] Heard learned Advocate appearing for the opponent nos. 1 to 4. He submitted that in respect of handing over possession of flats and shops, agreements of opponent nos. 1 to 4 had taken place with individual flat and shop owners. In that respect society has no right to file the complaint. He submitted that when society has filed this complaint for common cause of the flat and shop owners, total consideration of flats along with cost of repairs along with compensation claimed is required to the considered. If the same is considered, the complaint is beyond the pecuniary jurisdiction of this Commission. He submitted that the opponent nos. 1 to 4 had already given possession of flats and shops to the different flat and shop owners before 33 years. Since then, they had not made any complaint in respect of the consideration of the building. He submitted that the society was formed in 1980 before enactment of the Consumer Protection Act, 1986. However in respect of those repairs, society had not made claim within a period of three years after registration of the society or after enactment of the Consumer Protection Act, 1986. Hence, claim of the society in respect of the repairs of the building or getting mount for damages for the same is barred by limitation. He submitted that in respect of execution of conveyance deed, opponent nos. 1 to 4 had already taken steps and got the draft of conveyance deed 9 (CC/2014/265) prepared from their solicitor. However, complainant had not accepted the same, as litigation was pending in between them and the original land owners. Hence, he submitted that the opponent nos. 1 to 4 cannot be held responsible for non executing conveyance deed of that building in favour of the complainant society. Hence, he submitted that the complaint filed by the complainant is not tenable and hence the same be dismissed.
[6] On perusal of record it has become clear that the land bearing plot no. 33, CTS 1603-10, admeasuring 4109 sq. yards = 36,981 sq. ft. was originally owned by Shri. Surajmal Bhojmal Mehta & Shri. Tarachand Surajmal Mehta, the opponent no. 7 and 8. Mr. Navinchandra Majithia had purchased the same from them and as per the agreement dated 13/06/1978, the opponent nos. 1 to 4 had purchased that land for development from Mr. Navinchandra Majithia. On 1/11/78, the opponent nos. 1 to 4 applied to BMC for getting permission for development of that land and as per permission granted by BMC, the opponent nos. 1 to 4 had constructed housing project on that land of 52 flats on ground floor + 4 upper storeys in 4 wings (A to D). It appears that after construction of that housing project, the opponent nos. 1 to 4 had sold flats and shops to different flat and shop owners on ownership basis and in that respect executed agreement individually with them. It appears that the opponent nos. 1 to 4 after obtaining occupancy certificate on 12/06/1979 handed over possession of the flats and shops to the flat and shop owners and obtained building completion certificate from 10 (CC/2014/265) BMC on 13/11/1979. It appears that thereafter flat and shop purchasers had formed society and got it registered as per the provisions of Co-operative Societies Act from 17/11/1980.
[7] From the above facts, it has become clear that the opponent nos. 1 to 4 had given possession of the flats and shops to different flat and shop owners before formation of the society. Hence, the opponent nos. 1 to 4 have mainly taken objection on the ground that complainant society has no right to file this complaint on behalf of the flat and shop owners without impleading them as party to the proceeding. However, we are of the opinion that the contention of learned Advocate appearing for opponent nos. 1 to 4 in this respect cannot be accepted. Although opponent nos. 1 to 4 had sold flats and shops to the different flat and shop owners, but when they had formed society, society can file a complaint for the common cause of the flat and shop owners. Hence, we are of the opinion that the complaint filed by the complainant on behalf of their members is tenable. [8] The learned Advocate appearing for opponent nos. 1 to 4 has mainly taken objection on the ground that the complaint is not within the pecuniary jurisdiction of this Commission. He submitted that as per judgment of Hon'ble National Commission in case of "Ambarish Kumar Shukla" consideration of flats along with cost of repairs along with compensation claimed is to be considered for deciding pecuniary jurisdiction of the complaint. We had gone through the 11 (CC/2014/265) judgment of Hon'ble National Commission in case of "Ambarish Kumar Shukla". However, from the observation made in that judgment in para 14, it has become clear that the cost of repairing is not required to be considered. Consideration of flats is required to be considered along with compensation claimed. In this case, flats and shops were sold before 33 years and hence total consideration of each flat was very less, hence the total consideration of all flats and shops is also less than amount of repairs claimed by the complainant. As per the observations made in the judgment of "Ambarish Kumar Shukla", total consideration along with compensation claimed only is required to be considered. If the total consideration of the flats including compensation is considered, the complaint is within pecuniary jurisdiction of this Commission. Hence, we are of the opinion that the complaint filed by the complainant is within the pecuniary jurisdiction of this Commission .
[9] The complainant Co-operative housing society has filed this complaint, as the opponent nos. 1 to 4 have not complied the provisions of MOFA and have not executed conveyance of that property in favour of the society and have not made repairs to the building. As all the flat and shop owners have formed society, society has become 'consumer' of the opponent nos. 1 to 4 and society has right to file this complaint against the opponent nos. 1 to 4. From the facts and the circumstances of the case, it has become clear that opponent nos. 1 to 4 have not executed conveyance in respect of that property in favour of the complainant and 12 (CC/2014/265) had not handed over original documents to the society and amount collected from the flat and shop owners not refunded to the society. Hence, in that respect complainant society has made prayer in this complaint. Hence, we are of the opinion that the opponents have given deficiency in service in that respect to the complainant. Hence, we answer point no. 1 and 2 as affirmative. AS TO POINT NO. 3 [10] In this case, it is admitted fact that after construction of housing project on the land, opponent nos. 1 to 4 by executing agrements in favour of individual persons had given flats and shops to them. As per the contention of opponent nos. 1 to 4, after obtaining occupation certificate on 12/06/1979, they had handed over possession to different flat and shop owners. Hence, it has become clear that all the members of the society had received possession of the flats and shops before enactment of the Consumer Protection Act, 1986. From the facts and the circumstances of the case, it has become clear that thereafter society was formed and registered on 17/11/1980. It is the contention of the complainant that due to passage of time all the buildings have been deteriorated and they required massive repairs. It is the contention of the complainant that the opponent nos. 1 to 4 is responsible for making repairs of those buildings, as they had not executed conveyance of that building in favour of complainant society. However, we are of the opinion that the complainant should have filed complaint in that respect either within three years after formation of the society or within two years after 13 (CC/2014/265) enactment of the Consumer Protection Act, 1986. Their claim in that respect by filing this complaint in the year 2014 cannot be taken into consideration, as the same is not within the limitation. The complainant has also made claim of Rs. 61,90,800/- for carrying out those repairs. That monetary claim is also not made by the society within the period of three years after formation of the society or enactment of the Consumer Protection Act, 1986. Hence, monetary claim made by the society in respect of the repairs of the flats after a long period of time in the year 2014 by filing this complaint is also not within limitation. Hence, we are of the opinion that the prayer made by the complainant in respect of repairs of the building and in respect of directing the opponent nos. 1 to 4 to pay an amount of Rs. 61,90,800/- for repairs of the building cannot be considered, as the claim is out of limitation.
[11] It is the contention of the complainant that the opponent nos. 1 to 4 has not executed conveyance of that property in favour of the complainant. They have also not complied with the provisions of MOFA. They had collected amounts on different counts from the members of the society and had not complied that work, hence society is entitled to get that amount from opponent nos. 1 to 4. It is the contention of the opponent nos. 1 to 4 that they were always ready and willing to execute the conveyance of the building in favour of the society. They had also engaged solicitors M/S Lilani Shah & Co., who had prepared draft of conveyance and repeatedly requested the complainant to send their representative to finalize the 14 (CC/2014/265) same. They submitted that as the litigation was pending in between the society and original land owner, the society avoided finalizing the draft of the conveyance and hence conveyance deed is not executed. Hence, the opponent nos. 1 to 4 submitted that for that purpose, they cannot be held responsible and on that count they are not liable to pay any compensation to the complainant. On perusal of the record, it has become clear that in respect of execution of conveyance, opponent nos. 1 to 4 had already prepared draft of conveyance through their solicitor M/S Lilani Shah & Co., who had given repeated letters to the complainant and have sent draft of conveyance for verification and finalizing the same. However, it appears that the society had not taken prompt decision on their part in respect of finalizing the draft of conveyance. Hence, it appears that the opponent nos. 1 to 4 could not execute the conveyance deed in favour of the complainant society. However, it is the statutory duty of the opponent nos. 1 to 4 to execute conveyance in favour of the complainant society and hand over documents in respect of that property to the society. The opponent nos. 1 to 4 also required to give all the accounts in respect of that property to the society and return back any amount recovered from the members of the society to the society. Hence, we are of the opinion that in that respect necessary directions can be given to the opponent nos. 1 to 4 and complaint can be allowed only in that respect against the opponent nos. 1 to 4. Hence, we answer point no. 3 accordingly and proceed to pass the following order:-
ORDER
1. Complaint is hereby partly allowed.
15 (CC/2014/265)
2. Opponents are hereby directed to execute the Conveyance Deed in respect of plot no.33 CTS no.1603-1610 admeasuring 36,981 sq.ft. which is subject matter of this consumer complaint along with Housing Project constructed on it including 52 residential flats and 16 shops in ground plus 4 upper stories in 4 wings A-D in favour of complainant society within a period of three months from the date of passing of this order. Otherwise, opponents will have to pay damages of Rs.500/- per day to the complainant society from the date of passing of this order till execution of conveyance deed in favour of complainant.
3. Complainant is also hereby directed to co-operate opponents to get conveyance deed executed from them.
4. Opponents are hereby directed to hand over all the documents as claimed by complainant to them.
5. Opponents are hereby directed to give litigation costs of Rs.10,000/- to the complainant of this consumer complaint.
6. Copies of this order be furnished to the parties.
Pronounced on 28th September 2017 [P.B.JOSHI] PRESIDING JUDICIAL MEMBER [D.R.SHIRASAO] JUDICIAL MEMBER kk