National Consumer Disputes Redressal
Pushpa Heritage Chs Ltd. vs M/S. Conwood Agencies Pvt. Ltd. & 3 Ors. on 17 April, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2441 OF 2014 (Against the Order dated 12/02/2014 in Appeal No. 239/2011 of the State Commission Maharashtra) 1. PUSHPA HERITAGE CHS LTD. HOUSING SOCIETY LTD. THROUGHITS HONORARY SECRETARY, SURVEY NO-163,(PT) CDT NO-128, MAHAVIR NAGAR,DAHANUKAR WADI, KANDIVALI(WEST) MUMBAI MAHARASHTRA ...........Petitioner(s) Versus 1. M/S. CONWOOD AGENCIES PVT. LTD. & 3 ORS. DYNAMIX HOUSE,YASHODHAM GEN, A.KVADIYA MARG, GOREGAON(E) MUMBAI MAHARHSTRA 2. M/S DWELLING HOUSE CONSTRUCTION CO. 34 MALANI ESTATE, S.V ROAD, BORIVALI(WEST) MUMBAI MAHARASHTRA 3. MR.SANJAY B.SHAH, ARCHITECT, 2A & 3 PANCHAVATI 1ST FLOOR, S.V ROAD, KANDIVALI (W) MUMBAI MAHARASHTRA 4. MUNICIPAL CORPORATION OF GREATER MUMBAI, OFFICE OF THE EXECUTIVE ENGINEER, BUILDING PROPOSAL(W/S) 'R' WARD, DR.BABASAHEB AMBEDKAR MARKET,BUILDING MUMBAI MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER
For the Petitioner : Mr. R.S. Hegde, Advocate
Alongwtih Mr. Krishna Mohan Nair, Adv. For the Respondent : For the Resp. No.1 : Mr. Ehtesham Hashmi, Advocate
For the Resp. No.2 : Ex-Parte
For the Resp. No.3 : Name Deleted
For the Resp. No.4 : Mr. R.P. Bhatt, Sr. Advocate
Assisted by Mr. Anand Sukumar, Advocate
Dated : 17 Apr 2018 ORDER
1. This revision is directed against the order of the State Commission, Maharashtra dated 12.02.2014 whereby State Commission accepted the appeal filed by M/s Conwood Agencies Private Limited / respondent no.1 (OP No.2 in the District Forum) and restricted the liability under the order of the District Forum to OP No.1, namely, Dwelling House Construction Company.
2. Relevant facts for the disposal of the revision petition are as under:
3. Complainant / petitioner is a registered Cooperative Society consisting of 168 members. Opposite parties no. 1, 2 and 3 in the complaint are stated to be the sub-developer, developer and architect respectively of the construction project 'Pushpa Heritage'.
4. The petitioner-Society filed a consumer complainant on behalf of its members alleging unfair trade practice on the part of the opposite parties, promoters-cum-developer-sub developer and architect of the aforesaid project. It is alleged that members of the petitioner Society entered into respective Builder-Buyer Agreements with the Dwelling Housing Construction Co. (opposite party no.1), pursuant to which they have been given possession of their respective flats. It is alleged that opposite parties, however, have failed to obtain the occupation certificate from the municipal authorities. Consequently, the members of the complainant-Society are charged higher for water & municipal taxes. The petitioner - Society requested the respondents / opposite parties to obtain occupation certificate from the municipal authorities, but in vain. Being aggrieved, the petitioner - Society filed a consumer complaint seeking various reliefs including compensation.
5. OP No.1, namely, Dwelling House Construction Company on being served with the notice of the complaint filed written statement alleging that opposite party no.1 was a sub developer of the property and it had acquired sub development rights only from respondent no.1 / opposite party no.2 M/s Conwood Agencies Private Limited. Opposite Party no.1 further alleged that it has completed his job by duly constructing the buildings but the occupation certificate could not be obtained due to some technical reasons.
6. Opposite party no.2 in its written statement took the plea that it had given development rights of the project to opposite party no.1 under a sub-development agreement dated 20.04.1992 and it was the sub developer - opposite party no. 1 with whom the members of the petitioner - Society had entered into Builder Buyer agreements. Opposite party no.2 thus pleaded that there is no privity of contract between him and the complainant and it is the opposite party no.1 who has liability towards the members of the petitioner - Society. Op No.2 thus prays for dismissal of complaint against it.
7. Opposite party no.3 chose to remain absent despite service of notice. He was, therefore, proceeded ex parte.
8. Learned District Forum on consideration of the pleadings, evidence and also the submissions made on behalf of the parties, allowed the complaint partly and ordered thus:
"The opposite parties Nos. 1 & 2 shall jointly & severally pay to the complainant society, an amount in sum of Rs.5,00,000/- towards compensation within a period of twelve weeks from the date of receipt of copy of this order failing which, they shall also be liable to pay to the complainant society interest on the said amount @ 9% p.a. as from the date of expiry of stipulated period of twelve weeks till realization of entire amount by the complainant society.
The opposite parties Nos. 1 & 2 are jointly & severally directed to obtain occupation certificate from the competent municipal authorities in respect of wings- 'A', 'B' & 'C' of the complainant society, within a period of twelve weeks from the date of receipt of copy of this order failing which they shall also be liable to pay to the complainant society penalty in sum of Rs.1,000/- per day as from the date of expiry of stipulated period of twelve weeks till occupation certificate is obtained.
The opposite parties Nos. 1 & 2 shall also jointly & severally pay to the complainant society, an amount in sum of Rs.5,000/- towards costs.
Complaint as against the opposite parties Nos. 3 & 4 stands dismissed."
9. Respondent no.1 / opposite party no.2 being aggrieved of the order of the District Forum approached the State Commission in Appeal. The State Commission Maharashtra on re-appreciation of evidence came to the conclusion that there is no privity of contract between the petitioner - complainant and opposite party no.2 and set aside the order of the District Forum so far as it related to opposite party no.2 and restricted the liability under the order of the District Forum upon opposite party no.1
10. Being aggrieved of the order of the State Commission, the petitioner - Society has filed the instant revision petition i.e. RP No.2441/2014.
11. The said revision petition was allowed by the then Bench vide order dated 21.01.2015, whereby this Commission set aside order of the State Commission and restored the order of the District Forum referred above.
12. The petitioner -Cooperative Society, thereafter, filed review application no. 40 of 2015 seeking review of the above noted order dated 21.01.2015. The then bench vide its order dated 27.02.2015 dismissed the review petition.
13. Being aggrieved of the above noted order on revision petition and dismissal of the review petition, the petitioner ( OP No.2) approached the State Commission. The Hon'ble Supreme Court in Civil Appeals no. 6279-6280 of 2015 arising out of SLP (c) Nos. 14154-14155 set aside the above noted orders of this Commission and remanded the matter back to this Commission with the direction to decide the revision petition on merits.
14. Learned counsel for the petitioner has contended that the State Commission has committed error in allowing the appeal of respondent No.1 developer only on the basis of clause 13 of the development agreement executed between the developer and the sub-developer. It is contended that the State Commission has ignored the sub-development agreement as well as the sample builder agreement executed between the sub-developer and the members of the society. It is argued that a conjoint reading of the aforesaid two documents and the correspondence exchanged by the developer with the municipal authorities would show that the developer had a role to play in the entire episode and the consumers would not get a clear title under the builder buyer agreement without the participation of the developer. It is further contended that sub-development agreement would show that the sub-developer was an attorney of the developer. Therefore, the developer is the main service provider on whose behalf sub-developer was acting.
15. Counsel for respondent no.1 on the contrary has argued in support of the impugned order. It is contended that State Commission has rightly appreciated the evidence and concluded that there was no privity of contract between respondent no.1 and the petitioner Cooperative Society, therefore, the State Commission rightly accepted the appeal and dismissed the complaint qua respondent no.1.
16. Counsel for respondent no.4 has contended that respondent no.4 is the municipal authority and it has nothing to do with the builder-buyer agreement between the parties. It is argued that respondent no.4 is bound by rules regarding grant of occupation certificate.
17. I have considered the rival submissions and gone through the material on record. Only question that arises for consideration is whether the respondent No.1 Conwood Agencies Pvt. Ltd. (OP-2) can be termed as a service provider qua the members of the complainant society and held liable for deficiency in service, if any?
18. It is not in dispute that prior to the members of the appellant society entering into buyers agreement with respondent No.2, namely, M/s Dwelling House Construction Co., Respondent No.1 had entered into a sub-development agreement with respondent No.2 M/s Dwelling House Construction Co. Clause 13 of the said agreement provides as under: -
"The Development of the said Smaller Property shall be for and on account of the Sub-developer and the Owners and/or the Developer shall have no right or interest in the development of the said Smaller Property. The Sub-Developer shall develop the said Smaller Property in its own name and at its own costs and shall alone be responsible and liable to the Government, Municipal and other authorities and to the purchasers of tenements for the development of the said Smaller Property and shall alone be liable for the loss, if any, or for any claim arising from the development of the said Smaller Property and shall indemnify and keep indemnified the Owners and the Developer and their estates against and in respect of all actions, proceedings, demands, claims, costs, charges, expenses, losses, damages, and/or penalties of any sort or nature whatsoever which the Owners and/or the Developer may be put to, sustain or incur due to and/or arising out of or in connection with the development of the said Smaller Property by the Sub-Developer or any other act, default or failure or breach of any of the terms and conditions of the said Exemption Order and/or any other permission and/or sanction under the ULC Act and/or other acts or of the Municipal and other authorities by the Sub-Developer. The agreements to be entered into by the Sub-Developer for the allotment and/or sale of tenements shall specifically provided that the development of the said Smaller Property is for and on account of the Sub-Developer and the Owners and/or the Developer are in no way liable to any person or persons including the purchasers of the said tenements for any claim arising from the development of the said Smaller Property or from any other act, default or failure of or breach of contract by the Sub-Developer or breach of the terms and conditions of the said Exemption Order permission and/or sanction by the Sub-Developer."
19. On reading of the sub-development agreement, including clause 13 it is evident that under the said agreement respondent No.1 M/s Conwood Agencies Pvt. Ltd. has given absolute right of development of smaller chunk of property on which subject flats are constructed, to respondent No.2.There is specific clarification in clause 13 of the development agreement that respondent No.1 shall not bear any liability towards the consumers entering into agreement with the respondent No.2 M/s Dwelling House Construction Co. and the entire responsibility under such contract would be of the respondent No.2.
20. Respondent No.1 has placed on record the copy of the agreement of sale executed between one of the members of the complainant society Mr. Abhay Madan Urankar and the respondent No.2 Dwelling House Construction Co. On perusal of the agreement of sale it is clear that respondent No.1 M/s Conwood Agencies Pvt. Ltd. is not a party to the aforesaid agreement. Even in the terms and conditions of the agreement of sale, there is no stipulation which would show that respondent No.1 directly or by implication had given the impression that in the event of failure of respondent No.2 to fulfil his part of promise, respondent No.1 shall be liable for the violation of contract/deficiency in service. On the contrary clause XI & XII of the above-noted agreement for sale records as under: -
"(xi) At the instructions of the Promoter M/s Mahimtura & Co., Advocates have investigated the title of the Owners and/or Developer to the small property, the said Advocates by their title certificate dated 21.10.1972 opined that the title of the Owners/Developer Promoter to the small property is marketable and further that the promoter is authorized to develop the said property. The copy of the said title certificate is also annexed hereto and marked as Annexure 'C'.
(xii) That the purchaser demanded from the promoter and the promoter has given inspection to the purchases of all documents of title relating to the said plans, designs and specifications prepared by the promoter's architects, the certificate of the title, revenue records and such other documents as specified under the Maharashtra Ownership Flats (Regulation of the Promoters of Constructions, Sale Manager and Transfer) Act, 1963 (hereinafter referred to as the "said M.O.F. Act') the rule made hereunder."
21. On bare reading of the above, it is clear that Members of the petitioner cooperative society before executing the agreement of sale with the respondent No.2 M/s Dwelling House Construction Co. were aware of all the necessary facts and they even got the due diligence done in respect of the documents of title relating to the project, designs and specifications prepared by respondent No.2 as specified under Maharashtra Ownership Flats (Regulation of the Promoters of Constructions, Sale Manager and Transfer) Act, 1963. It is clear from the agreement that despite knowledge of the fact that respondent No.1 had given absolute right of development of the project on the smaller chunk of the property to respondent No.2, without any liability towards the consumers entering into agreement with respondent No.2, the complainants signed the agreement of sale to which respondent No.1 is not a party. Therefore, I do not find any infirmity in the impugned order holding that there no privity of contract between the members of the petitioner society and the respondent No.1.
22. In view of the above discussed circumstances, I do not find any infirmity/error in the impugned order of the State Commission which may call for interference in exercise of the revisional jurisdiction. Revision petition is therefore dismissed with no order as to cost.
......................J AJIT BHARIHOKE PRESIDING MEMBER