State Consumer Disputes Redressal Commission
Dilip Madhukar Sangvikar, vs Nagpal Builders, on 20 April, 2012
1 F.A.No.:1887 to 1889/2006
Date of filing :20.09.2006
Date of order :20.04.2012
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
1) FIRST APPEAL NO. :1887 OF 2006
IN COMPLAINT CASE NO.: 222 OF 2001
DISTRICT CONSUMER FORUM : AURANGABAD.
Ganesh Keshav Kamat,
Rose Garden, Shreynagar,
Aurangabad 431 005. ...APPELLANT
(Org.Complainant )
VERSUS
Nagpal Builders,
Kanchanjunga, Padampura,
Statioin-CBS Road,
Aurangabad. ...RESPONDENT
(Org.Opponent )
2) FIRST APPEAL NO. :1888 OF 2006
IN COMPLAINT CASE NO.: 223 OF 2001
DISTRICT CONSUMER FORUM : AURANGABAD.
Dilip Madhukar Sangvikar,
Rose Garden, Shreynagar,
Aurangabad 431 005. ...APPELLANT
(Org.Complainant )
VERSUS
Nagpal Builders,
Kanchanjunga, Padampura,
Statioin-CBS Road,
Aurangabad. ...RESPONDENT
(Org.Opponent )
2 F.A.No.:1887 to 1889/2006
3) FIRST APPEAL NO. :1889 OF 2006
IN COMPLAINT CASE NO.: 224 OF 2001
DISTRICT CONSUMER FORUM : AURANGABAD.
Vinayak Narayan Upadhye,
Rose Garden, Shreynagar,
Aurangabad 431 005. ...APPELLANT
(Org.Complainant )
VERSUS
Nagpal Builders,
Kanchanjunga, Padampura,
Statioin-CBS Road,
Aurangabad. ...RESPONDENT
(Org.Opponent )
CORAM : Mr.D.N.Admane, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.Vinayak Upadhye for appellans, Adv.Shri.Dinesh Vakil for respondent.
O R A L O R D E R Per Mr.K.B.Gawali, Hon`ble Member.
1. All these appeals have been filed by original complainant challenging judgment and order dated 16.08.2006 passed by Dist.Forum Aurangabad in c.c.No.222/2001, 223/2001, 221/2001 respectively. Respondent in all these appeals is original opponent who is builder and developer. Issue involved in all these appeals being the same we have decided to dispose all these appeals by way of common judgment and order.
2. The facts leading to these appeals are briefed as under.
3 F.A.No.:1887 to 1889/2006That, each of the appellant/complainant has purchased a flat from respondent as constructed on the land bearing NO.C.T.S.No.14813/104 of Aurangabad and the said scheme is known as "Rose Garden Apartment". It was submitted that the possession of respective flat was given in the year 1992 and sale deed was executed on 8.1.2001 in response to the earlier order passed by Dist.Forum. It was contended that at the time of giving possession of the flat each of the complainant had deposited Rs.2500/- towards share money and Rs.2000/- in proportionate share of taxes and other charges. It was further contended that by virtue of declaration executed by respondent on 15.11.1993 under registration No.2100, an Association of apartment owners by name "Rose Garden Apartment Condominium" had been formed. But till the date of complaint i.e. 16.10.2011 respondent had not transferred the said amount to the account of association. The other grievances as expressed was that the southern portion of the plot of the proposed building, as per map annexed with the agreement of sale was shown as handed over to the Municipal Corporation at the time of execution of sale deed without the consent of complainants, thereby reducing the area of "common area facilities". Complainants therefore alleged that respondent has committed deficiency in service and also violation of the Section 4 & 7 of Maharashtra Ownership Flats(Regulation of promotion of Construction, Sale, Management and Transfer) Act 1963 and filed complaint before the Dist.Forum seeking direction to the respondent to remit above said amount to the account of association alongwith interest @18% p.a. from the date of deposit till it`s realisation. Secondly, to refund the price in respect of reduction in common area or to hand over southern portion of the land to the association of flat owners. In addition the directions were also sought to return original documents or flats and other related documents.
3. Respondent builder and developer appeared before the Forum and resisted the claim through the written version dated 07.06.2002.
4 F.A.No.:1887 to 1889/2006At the outset, respondent contended that complaint was hit by the principle of non-joinder of the necessary party i.e. 'Association of Rose Garden Apartment'. It was further contended that appellant/complainant`s claim towards reduction in common area was baseless, as he had not charged anything for common areas supplied to the flat holders and secondly he had not modified the structure as approved by the competent authority so also the plan approved by the purchasers of the flat. It was also submitted that respondent had not charged any amount against common area, area pertinent to the premises and open space surrounding the building. It was also stated that he had also obtained occupancy certificate from the competent authority i.e. Municipal Corporation, Aurangabad vide letter dated 21.5.1992 and then deed of declaration was executed on 09.12.1993. It was therefore contended that there was no violation in the Act and Rule. Respondent further contended that the complainant had inspected all the documents prior to the execution of agreement of sale deed. It was further submitted that he had made available details of account to the purchaser as and when demanded and they were placed in general body meeting. He also contended that appellants/complainants were not member of association at the time of first meeting on 20.7.1998 and as per resolution passed by association, the share money amount is deposited in the Co-operative Bank, Hingoli Branch in favour of association. It was also averred that the appellants were defaulters of association and hence with the common voice of the valid members the share amount deposited by appellant/complainant was not deposited and kept in abeyance and same would be deposited as soon as complainant has cleared the outstanding dues against them. As regards the original documents/record the same was stated to have been handed over to the complainants on 16.8.1998. Lastly on the above said ground it was contended that complaints were false and baseless and hence be dismissed.
5 F.A.No.:1887 to 1889/20064. Dist.Forum after going through the record and hearing the parties has by way of impugned judgment and order partly allowed the complaint and directed respondent to transfer the amount to "Rose Garden Flat Owners Association" alongwith interest @ 6% p.a.
5. (i) Aggrieved and dissatisfied with the said judgment and order present appeal is filed by original complainants. Notices were served on the respondents. These appeals were finally heard on 6.3.2012. Adv.Shri.V.N.Upadhye was present for appellant whereas Aedv.Shri.D.L.Vakil was present for respondent. We heard both the counsels at length and matter was closed for orders.
(ii) Learned counsel Shri.V.N.Upadhye submitted that the Dist.Forum did not consider the fact of deduction in open space surrounding the building as shown in declaration deed when compared with the same as shown agreement to sale deed. He further contended that the said change in the plan and also handing over the open space to the Municipal Corporation never informed to the complainants. It was further contended by the learned counsel Shri.Upadhye that the interest on the amount of share which is lying with the respondent is granted only @ 6% instead of 18% as is charged by respondent to the flat owners in case of defaulter. On all these points he requested to quash and set aside the order under appeal and grant relief as prayed for in the original complaint.
(iii) On the other hand, learned counsel for respondent Shri.Dinesh Vakil argued that appellants have misconvinced the facts of so called 'open space'. He submitted that portion of open land which was handed over to the Municipal Corporation was never the part of open space containing the Rose Garden Apartment. To substantiate his contention that he called our attention to the description of boundaries of the plot as mentioned in the first schedule attached to the agreement to sale in which the "Rose Garden Apartment" have 6 F.A.No.:1887 to 1889/2006 been constructed. Southern boundary is described as "plot bearing C.T.No.14813/104" which means balance land of C.T.S.No.14813/104 in which this apartment is constructed. He also sought our attention to the first para of second schedule of the said agreement at the end of which there is a mention that "boundary walls of the building compound etc." as the common asset. He therefore contended that apartment building had compound wall and Association of Rose Garden Apartment has right to property which is lying only within that compound wall. Learned counsel Shri.Vakil also submitted two documents i.e. P.R.Card and map of said city survey number as prepared by City Survey Department. Submission of this document was objected by learned counsel Shri.Upadhye for appellant, stating that same were not produced before the Forum though there was an opportunity. However since these documents were material to arrive at proper conclusion they were allowed to be brought on record. On the basis of these documents learned counsel for the respondent contended that southern portion of land from the said C.T.survey No.14813/104 is outside the "Rose Garden Apartment". As regards non-deposition of the share amount with association he contended that complainants were defaulter in respect of society dues and therefore the said amount was kept in abeyance. He also submitted that on clearing outstanding dues the share money would be deposited with the association. He thus submitted that there is no substance in these appeals and they may be dismissed.
6. We have perused the record as well as carefully considered the oral submission as advanced by both the learned counsels. On perusal of record it reveals that there are two major grievances of appellant/complainant on the basis of which they have alleged respondent to have committed deficiency in service; i) first ground is that reduction of common space area which has been handed over to the Municipal Corporation. It appears that appellant/complainant on the basis of plan of the said apartment as attached to the agreement 7 F.A.No.:1887 to 1889/2006 have misunderstood that the entire land pertain to their apartment building. Although the said plan attached to the agreement does not specify about the status of southern portion of the land the first and second schedule attached does make it abundantly clear, that the said portion of the land though is the part of same C.T.survey number, is outside the area comprised by " Rose Garden Apartment". As pointed out by learned counsel for the respondent the description of the boundaries of the plot of "Rose Garden Apartment" shows the boundary from southern side as plot bearing CTS No.14813/104 which widely make it clear that it is different plot and has nothing to do with the plot of Rose Garden Apartment. This fact further made clear by the city survey record i.e. P.R.Card and map of CTS No.14813/104. Perusal of the P.R.card shows that the land admeasuring 1200 sq.mtr. is deleted vide Govt. notification dated 14.6.1988 from reservation and same area has been shown in the ownership of Mrs.Jyoti Nagpal who is a proprietor of Nagpal Builder i.e. respondent. The total area of Rose Garden Apartment as shown in the declaration deed dated 9.12.1993 is also given as 1200 sq.mtr. As per the second schedule of the agreement it also appears that the compound around the " Rose Garden Apartment" has been constructed. Thus southern portion of said city survey number which is still under reservation has been handed over to the Municipal Corporation which has no concern with the land of Rose Garden Apartment. Hence the claim of complainant that there is reduction of common open space is totally false & baseless, hence not acceptable.
iii) As regards the amount of share money as deposited by appellant/complainant as lying with the respondent, it is observed that the same is not denied by the respondent. However respondent has given reason that these appellants/complainants were in default of dues of the society and therefore the said amount was kept in abeyance. In fact this explanation for holding the said amount with the respondent does not appear to be logical and hence not acceptable but rather superficial and trifling ground. It is therefore clear that to 8 F.A.No.:1887 to 1889/2006 the extent of non deposition of the said amount with the association there is a deficiency in service on the part of respondent. Dist.Forum has therefore rightly considered this aspect and rightly held respondent as liable. Appellant however have challenged the rate of interest as awarded @ 6% p.a. by Dist.Forum on the said amount and have demanded 18% on the ground that respondent also charged the same rate as per agreement to the flat purchaser on delayed payments. This analogy of the appellant is not acceptable. Respondent has charged the rate of interest @ 18% on the default amount on the basis of specific terms of the agreement. There is however no such condition in the agreement to pay 18% interest as claimed by appellant/complainant. Hence we do not accept the claim of the enhancement in the rate of interest as we found the rate awarded by Dist.Forum as reasonable. In the result we pass the following order.
O R D E R
1. All the three appeals bearing No. 1887/06, 1888/06 & 1889/06 are dismissed.
2. No order as to cost.
3. 'Record and proceedings' be sent back to the Dist.Forum.
4. Copies of the judgment be issued to both the parties.
K.B.Gawali, D.N.Admane Member Presiding Judicial Member Mane