State Consumer Disputes Redressal Commission
M/S.Gariba Construction Co vs Malad Dipti Apartments Co-Op. Housing ... on 30 April, 2015
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First
Appeal No. FA/08/537
Arisen out of Order Dated 17/05/2007 in Complaint
Case No. 243/2006 of District South Mumbai)
M/s.GARIBA CONSTRUCTION
CO.,
13, Ashmuko Bldg.,
395/97, Narsi Natha Street,
Mumbai 400 003.
...........Appellant(s)
Versus
MALAD DIPTI APARTMENTS CO-OP. HOUSING SOCIETYLIMITED,
Khoti Village Malad,
Mamlatdarwadi Road No.5, Malad West,
Mumbai 400 064.
............Respondent(s)
BEFORE:
Shashikant A.
Kulkarni, PRESIDING MEMBER
Dhanraj Khamatkar,
Member
Present: Advocate Ms.Nilanjana Shah a/w Ms.Dipti Mahimtura,
Representative
of the Appellant.
Mr.P.M. Shah, Advocate along
with Mr.M.K. Tanna, Advocate present
for the respondent.
ORDER
Per Mr.Dhanraj Khamatkar Member:
1) This appeal takes an exception to an order dated 17th May, 2007, passed by the District Consumer Disputes Redressal Forum, South Mumbai in Consumer Complaint No.243/2006.
2) Facts leading to this appeal can be summarized as under:
The complainant society had filed a consumer complaint alleging deficiency in service against the opponent praying the reliefs as contained in the prayer clause, which is at page no.31 of the appeal compilation. It is contended by the complainant society that the individual flat purchasers had entered into in agreement with the opponent and accordingly, they have been handed over possession. According to complainants it was the statutory obligation of the opponent to form the society. However, the complainants themselves have formed the registered society on 24.10.1996. It is contended that after registration of the society it was the statutory obligation of the opponent to execute conveyance deed of the land and building in the name of the society. However, the opponent has not discharged its statutory obligation. As the opponent failed to execute conveyance and obtain occupancy certificate the society has filed the consumer complaint.
3) The opponent had contested the complaint by filing written version contending therein that the complaint is filed on 16.04.2006. In fact, the society was registered on 24.10.1996 and as per the provisions of Maharashstra Ownership of Flats Act, 1963 (MOFA in short), the cause of action accrued after the four months from the formation of the society and hence, the complaint filed is not within a time limit. The opponent further stated that the opponent has entered into agreement with the flat purchasers individually. However, the complaint is filed by the society and hence, the complaint is not maintainable as there is no privity of contract between the society and the opponent and the society has also not availed services of the opponent.
The opponent further submitted that for filing the present complaint there is no authorization from the society to the person who has filed the complaint on behalf of the Society. The opponent, therefore, prayed that as the complaint itself is not maintainable under the law it may please be dismissed.
4) The District Forum after going through the complaint, written version filed by the opponent, evidence filed by the complainant society on affidavit came to the conclusion that there is deficiency in service on the part of the opponent and hence, the complaint is allowed, directing the opponent to convey the land and building by executing conveyance deed in the name of the complainant society, to obtain the occupancy certificate and handover the same to the complainant society and to be costs of Rs.15,000/-.
5) Aggrieved by the said order the opponent had filed appeal before the State Commission which was dismissed by the State Commission by its order dated 21.06.2008. Aggrieved by the said order the opponent has filed revision petition no.3303/2008 before the Honble National Commission and the Honble National Commission by order dated 09.2013 set aside the order of the State Commission and remanded the case back to this Commission.
6) We have heard Advocate Ms.Dipti Mahimtura, Representative of the appellant and Mr.M.K. Tanna Advocate i/b P.M. Shah, Advocate for the respondent and gone through the appeal compilation and written arguments filed by the parties.
7) In the order passed the Honble National Commission has observed that appellant court while deciding an appeal is required to deal all the points raised by the appellant in memo of appeal and as in the impugned order on all the points has not been dealt with, it would be proper to remand the matter back to Ld.State Commission for disposal by speaking order after dealing with all the contentions raised in the memo of appeal
8) At page nos.105 to 109 there is an appeal memo.
Points raised in the appeal memo are:
9) The District Forum has allowed the complaint without having jurisdiction and the complainant is not a consumer u/sec 2(1)(d) of the Consumer Protection Act, 1986. There is no contract between the parties, the complaint was barred by limitation, the appellant has not filed evidence on affidavit as the District Forum has not given reasonable opportunity to file the same, however, the appellant had filed written arguments, the complainant should have approached the Civil Court for specific performance of the contract when the complainant society has not performed their part of the contract i.e. payment of balance consideration.
The complainant society has not produced all the agreements executed with its members.
10) The appeal has a chequered history. In the present case, though the Society is registered in the year 1996 and the deed of conveyance of the land and building has to be executed within the period of four months from the date of formation of the society, the appellant has not executed the conveyance deed in favour of the society. Admittedly the individual member of the society has purchased the flat by individually entering into the agreement with the appellant. Accordingly the appellant has constructed the flats and handed over the possession to the individual members. As per the MOFA, it is the statutory obligation of the opponent to form the society. However, the individual owners themselves have formed the society in the year 1996 and thereafter, they have requested to the appellant from time to time to handover the papers, to obtain occupancy certificate from the Urban Development Authority and to execute the conveyance deed. In fact, as per the MOFA, the appellant is statutorily required to convey the land and building within a period of four months in favour of the respondent society. However, the appellant miserably failed to discharge its statutory obligation.
11) As regards the maintainability of the complaint, as per Section 2(1)(d)(i) and
(ii) the respondent society is a consumer and the appellant is a service provider.
12) As regards the privity of contract, it is a fact that the individual flat purchasers have entered into the agreement with the appellant and after handing over the possession to the individual flat purchasers they have formed the co-operative housing society. With the formation of the co-operative housing society the rights and interests of the individual members are merged in the respondent society and as the interest of individual members are merged in the housing society the society becomes a legal entity representing the interest of the individual members. As regards the limitation, since executing the conveyance deed and obtaining the occupancy certificate are the statutory obligations, the cause of action is continuous and the complaint filed by the respondent is not barred by limitation.
The contention of the Ld.Counsel that the respondent should have approached the Civil Court for specific performance of the contract, does not hold good in view of the fact that, when there is deficiency in service the consumer can approach to the consumer forum and this is a case of deficiency in service on the part of the appellant. As regards the contention of the Ld.Counsel that the members of the respondent society have not performed their part of contract by paying the balance payment, the appellant miserably failed to lead any evidence that the individual members of the society have not paid the balance amount of consideration.
13) During the course of arguments, the Ld.Counsel for the appellant has pointed out to us that the complaint is decided by the South Mumbai District Consumer Disputes Redressal Forum, when the jurisdiction vests in a Additional District Consumer Disputes Redressal Forum, Mumbai Suburban. The Ld.Counsel for the respondent has pointed out that the State Commission has transferred the cases to the South Mumbai District Forum as there was heavy pendency in Additional District Forum, Mumbai Suburban and when the jurisdiction has been entrusted by the by the order of the State Commission, the question of territorial jurisdiction will not arise.
14) Ld.Counsel for the appellant further pointed out that, there is an observation of the District Forum that the appellant has not filed evidence on affidavit before the District Forum and stated that they have not been given reasonable opportunity by the Forum to file the evidence on affidavit. However, the appellant has not filed any evidence to prove that the District Forum has not given reasonable opportunity to file the evidence on affidavit.
15) Ld.Counsel for the appellant has admitted that they have obtained occupancy certificate from the Urban Development Authority and handed over the same to the respondent society. However, the order passed by the District Forum has not been complied by the appellant. The District Forum has passed the order taking into consideration the facts of the case and the legal position. We do not find any reason to interfere in the same. We hold accordingly and pass the following order:
ORDER
i) Appeal is dismissed.
ii) Appellant shall pay costs quantified to Rs.25,000/- (Rupees Twenty Five Thousand only) to the respondent/org.Complainant and bear its own costs.
iii) One set of appeal compilation be kept for our record and rest of the sets be returned to the appellant.
Pronounced on 30th April, 2015 [ Shashikant A. Kulkarni] PRESIDING MEMBER [ Dhanraj Khamatkar] MEMBER ep