National Consumer Disputes Redressal
Marathon Realty Limited vs M/S. The Monte Vista Residence Welfare ... on 24 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 726 OF 2015 (Against the Order dated 11/08/2015 in Complaint No. 207/2015 of the State Commission Maharastra) 1. MARATHON REALTY LIMITED HAVING ITS OFFICE AT 702, MARATHON MAX, MULUND-GOREGAON LINK ROAD, MULUND (W) MUMBAI-400080 ...........Appellant(s) Versus 1. M/S. THE MONTE VISTA RESIDENCE WELFARE ASSOCIATION & ANR. THROUGH ITS SECRETARY, MR. CHANDULAL S. THAKKAR, HAVING ITS ADDRESS AT 2802, MONTE VISTA, MADAN MOHAN MALVIYA ROAD, MULUND (W) MUMBAI-400080 MAHARASHTRA 2. MONTE VSITA CO-OPERATIVE HOUSING SOCIETY LIMITED, (PROPOSED) THROUGH ITS SECRETARY, MR. CHANDULAL S. THAKKAR, HAVING ITS ADDRESS AT 2802, MONTE VISTA, MADAN MOHAN MALVIYA ROAD, MULUND (W) MUMBAI-400080 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : Mr. Kunal Vajani & Mr. Shubham
Kulshreshtha, Advocates
For M/s Wadia Ghandy & Co. For the Respondent :
Dated : 24 Sep 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against the order dated 11-08-2015 passed by the learned State Commission in Complaint No. 15/207 - M/s. Monte Vista Residence Welfare Association Vs. Marathon Realty Ltd. by which complaint was admitted.
2. Brief facts of the case are that the complainant no. 1/respondent no. 1 is registered welfare Association of the flat owners and complainant no.2/respondent no. 2 is proposed society of flat purchasers who have purchased flats from opposite party no. 1 / appellant no. 1. Opposite party advertised for sale of flats in five buildings as per draft plan made in land formed out of CTS No. 551/13 of Village Nahur, Taluka Kurla, situated at Madan Mohan Malviya Road, Mulund (W), Greater Mumbai. Complainants purchased flats in one of the building called 'Monte Vista' and opposite party no. 1 executed agreements with individual flat purchasers. Opposite party agreed to provide parking space in the basement of the building but opposite party no. 1 failed to give access to the basement. It was further submitted that opposite party did not hand over possession of flat as promised but in September, 2013 flats were handed over for fit outs to the flat purchasers who booked flats in March, 2009. On 29-03-2014 full occupancy certificate was received by opposite party wherein parking space for the flat owners have been provided in three basements below the building though no access to the basement 2nd and 3rd have been given to the flat owners. It was further submitted that in April, 2014 construction of basements beneath the proposed recreation ground commenced. Complainants apprehended that opposite party may create third party interest in basements and opposite party has started illegal construction against the lay out plan approved by BMC and contrary to site kept for open garden as shown at the time of booking of the flats. Opposite party has not taken any consent/permission from flat purchasers for changing lay out plan which is mandatory under Section 7 of MOFA which will affect light and air of the flat owners and open garden/playground of the members of flat owners. Alleging deficiency on the part of OPs, complainant filed complaint before State Commission with a prayer to provide all facilities as agreed and to pay compensation.
3. Learned State Commission after hearing parties vide impugned order admitted complaint against which, this appeal has been filed.
4. Learned Counsel for the appellant submitted that no reasons have been assigned while admitting complaint and this Commission has already allowed appeal and set aside order of interim injunction granted by the learned State Commission; hence, appeal be admitted.
5. Perusal of impugned order reveals that by this order, learned State Commission observed that complainant has made out case for admission of complaint and complaint was admitted. While admitting complaint, no speaking order is required to be passed. Learned Counsel for the appellant submitted that speaking order was required to be passed while admitting or dismissing complaint. This argument is devoid of force because while admitting complaint, no speaking order is required and complaint can be admitted if prima facie deficiency of service is pointed out and complaint is within limitation. Complainant has pleaded deficiency of service on the part of OP; complaint is prima facie within limitation. In such circumstances, learned State Commission has not committed any error in admitting complaint.
6. Merely because temporary injunction granted by learned State Commission has been set aside by this Commission in F.A. No. 492 of 2015, it cannot be held that complaint was not fit for admission. Appeal was allowed because temporary injunction was issued by learned State Commission even before admission of complaint and it was observed that learned State Commission even did not consider balance of convenience and irreparable loss while granting temporary injunction. Merely because complainant was not held entitled for grant of temporary injunction, complaint cannot be dismissed at the initial stage. Appellant is free to raise all legal and factual questions in written statement to be filed before learned State Commission and learned State Commission is supposed to decide all those issues while deciding complaint and appeal is liable to be dismissed in limine.
7. Consequently, appeal filed by the appellant is dismissed in limine with no order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER