S.R. Khanzode, Presiding Judicial Member:
1. This consumer complaint pertains to alleged deficiency in service on the part of builder /developer -Saikripa Developers (herein after referred as âbuilder) by the Co-operative Housing society viz. complainant- âMayuresh Park Jasmine I, J and K Co-op. Housing Society Ltd. (herein after referred as âcomplainant society). Opponent no.1âSaikripa Developers is the builder, while opponent no.2-Mr.Shreegopal Barasia is described as Chairman and Managing Director, while opponent no.3-Mr.Harisingh Gogavat is described as Chief Promoter and Authorized signatory of the firm company which is registered under the Indian Partnership Act, 1958. At the outset, it may be mentioned that if opponent builder firm is registered under the Indian Partnership Act, then it will have only partners and not Chairman and Managing Director which has a character akin to the company registered under the Companies Act.
2. It is the grievance of the complainant society that the builder which has constructed Housing complex Mayuresh Park at Bhandup (West) consists of 14 buildings. Amongst those buildings, building nos.I, J, K or wings I, J, K fall under the operational area of complainant society. There are in all five housing societies of those 14 buildings and their Federation of the society is described as âapex body.
3. Complainant society had membership of 172 flat purchasers for residential use and 7 members who are purchasers of the shop premises and their list is given as Annexure B to the complaint. The particulars of claim are mentioned in Exhibit O annexed to the complaint and it reads as under:-
âPARTICULARS OF CLAIMS
1.Â Money paid by 172 members of the Society towards Club House and Swimming pool charges to opponent no.1 Rs. 42,57,000/-
2.Â Electricity outstanding paid on behalf of opponent no.1 to MSEDC and NA Taxes upto the period 31/05/2008 Rs. 3,06,266/-
3.Â Property tax arrears for the period 2006-07 and Â 2007-08. Rs. 6,65,708/-
4.Â Quotation for repairs of Terrace and external wall Of Society Building Rs. 28,87,500/-
5.Â Mental agony and damages @ Rs. 10,000/- to 172 members of the society.Rs. 17,20,000/Â Â Â .Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â --------------Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Rs. 98,36,474/-â
4.Â Prayer clause of the complaint reads as under:-
âa) This Honble Commission be pleased to declare that the opponents have failed and neglected to comply the terms and conditions contained in the Flat Purchase Agreements with the members of the complainant and that the services provided by the opponents as âPromoterâ as per the provisions of Maharashtra Ownership Flats Act are defective, deficient and unfair trade practices towards the members of the complainants;
b) This Honble Commission be further pleased to direct the opponents to pay compensation to the complainants for a sum of Rs. 98,36,474/- as per Particulars of Claim of the complainants annexed at Exhibit N to the complaint;
c) This Honble Court be further pleased to direct the opponents to provide fully equipped Club House to the complainant Society and also start functioning of the Swimming Pool as agreed at Schedule VI to the individual Agreement entered into with the members of the Complainant Society;
d) This Honble Court be further pleased to direct the opponents to execute and register Conveyance in favour of the complainant society of the property over which the buildings of the complainant society being I, J and K wing in the said Mayuresh Park Society are situated;
e) Cost of the complaint along with the Legal Costs be provided for;
f) Â Such other and further reliefs as the nature and circumstances of the case may required be granted;â
5. It may be mentioned that in the prayer clauses a reference is made to Exhibit N but in fact it is Exhibit O though the complainant did not take any care to correct the description but made only oral submission to that effect at the time of arguments.
6. Complainant society is registered on 08/02/2008 and the names of the members of their society are mentioned in Exhibit B which is annexed to the complaint.
7. It is the grievance of the complainant society that the amenities such as Club House, Swimming pool are yet to be made available to its members, though the same were agreed as per the respective agreements with those flat/shop purchasers by the builder. It also claimed conveyance in their favour.
8. It also referred to one Memo of Understanding (MOU in short) dated 19/03/2009 entered into between the Society and the builder and whereby builder agreed to execute the conveyance within 4 months there from and also referred to the fact that Bombay Municipal Corporation (local body) by notice dated 25/03/2011 attached the buildings of the complainant society for default of payment of taxes which in fact were for the period prior to taking possession of their respective members and, therefore, relief claimed to that extent is within limitation.
9. Builder and the opponent nos.2 and 3 by their common written version denied the allegations in toto. They claimed that the complaint is barred by limitation. It is a false and mischievous complaint. They have denied the case, as pleaded by the complainant society to provide amenities of Club House and the Swimming Pool. They further deny that an amount of Rs. 24,750/- from each one of the members of the society was received by it. About the MOU, it is submitted that they have tried to fulfill their obligation as per the said MOU. As far as conveyance is concerned, the draft conveyance was submitted to the complainant society but the society is yet to approve the same in spite of reminders dated 08/10/2009, 26/10/2009, 05/11/2009, 09/11/2009, 03/12/2011 and 20/12/2011. They also showed their readiness and willingness to execute the conveyance as agreed in favour of the Apex Body, which includes the complainant society. It is also submitted that the maintenance of all the buildings of the complainant society was handed over to the said society long back and much prior to three years before filing of the complaint and, as such, the builder is not responsible for the maintenance (once the maintenance was handed over to the society). Therefore, they further deny their responsibility for repairs of the building. It is also submitted that buildings were constructed as per standard practice and only after physical inspection, the Occupation certificate was issued by the local authority.
10. Heard both the sides. Perused the record.
11. It may be submitted that the correspondence, copies of which are placed on record including copy of the agreement with one of the flat purchasers, which is taken as a representative agreement with the flat purchasers/shop purchasers are not in dispute. Said agreement is dated 10/10/2006 and Mr.Suhas B. Kanherkar who claims to be an authorized signatory of the complainant society and also sworn an affidavit in evidence on behalf of the complainant society. The Affidavit filed is nothing but mere reproduction of the averments made in the complaint and fails short to answer the defence raised on behalf of the opponent builder in their written version. Since the grievance made by the complainant society is to be understood properly in terms of the agreements with the flat purchasers/shop purchasers who are members of the complainant society (and not on the basis of a brochure), we prefer to refer to some of those relevant clauses. Clause 11 refers to the formation of Co-operative Housing Society and obligation of the flat purchasers/shop purchasers to become a member of the society and to abide by the standard bye-laws/model bye-laws of the Memorandum and Articles of Association of the said society. Clause 13 stipulates that if the flat purchaser/shop purchaser brings it to the notice of promoters any material leakage defect in respect of the premises within a period of one year from the date of handing over possession of their respective premises and then wherever possible said leakage defect would be rectified by the Promoters at their own costs. Admittedly, possession to the respective flat purchasers/shop purchasers was handed over in the year 2008 itself and there was no complaint raised within one year of receiving their respective possession by the flat purchasers/shop owners.
12. Clause 17 of the Agreement refers to special amenities such as outdoor Badminton Court, special equipment for childrens park, club incidental amenities, swimming pool, table tennis, chess room, etc. Said clause made it clear that those special amenities are to be provided to the entire Housing complex, common for all the purchasers of flats, tenements, shops, etc. in the buildings from said Housing complex and those purchasers/members of each society will be entitled to use those special amenities i.e. common areas, Restricted Common Areas upon procuring express consent/permission from the Promoters and it was further submitted that those amenities would be available subject to provisions of clause 28 relating to charging for and payment of charges for all those amenities, if so stipulated by the Apex body. Admittedly, in the instant case, the members of the complainant society are yet to obtain an express consent/permission from the Promoter (in writing). However, builder did submit that along with the members of the other societies subject to the fulfillment of the conditions stipulated, even the members of the complainant society can utilize these benefits which are being provided in the complex. Therefore, as far as relief pertaining to providing special amenities of Club house, Swimming pool, etc.; the grievance of the complainant society appears to be unfounded.
13. Clause nos.18 and 19 of the Agreement speaks about conveyance in favour of the Apex body i.e. apex body of the society of which complainant society would be a part. In this context it is revealed further that draft conveyance which is filed along with the written version by the builder as per the list, is yet to be approved by the complainant society by passing resolution in its General Body meeting as per the bye-laws. Thus, the builder since had taken the necessary steps in that direction, the grievance that the builder is deficient in service by not discharging his such obligation on that count also appears to be without any basis. No deficiency in service on the part of the builder on that count, thus, could be alleged.
14. Clause 21 of the Agreement speaks for liability of the purchaser i.e. flat/shop purchaser to pay monthly contribution to Rs. 1650/- which is supposed to be utilized to settle the bills of local taxes, water charges, insurance premium, salaries of the clerk, watchmen, sweeper, etc. Complainant society is formed in the year 2008 and maintenance was also handed over to them. It is not the case that accounts of the amounts received were not submitted to the complainant society which as per bye-laws were supposed to be tendered in the first meeting in which the ad-hoc managing committee is to be elected. As alleged in the complaint, if at all certain attachments towards the recovery of the taxes was effected by the local body on 25/03/2011 i.e. to recover the taxes, arrears of Rs. 2,86,564/- and the complainant society had paid the same to save itself from the further consequences and if it is a case of complainant society that it is an ungratitious act on its part to pay the charges which in fact ought to have been paid by the builder and, therefore, they should be reimbursed, then such claim would be covered u/sec.69 of the Indian Contract Act and it will not fall with the scope of a consumer dispute.
15. Furthermore, for the sake of argument if we presume that the actionable claim in respect thereof arise, then it is to be taken as arisen in the year 2008 itself since it relates to the amount pertaining to the charges collected for maintenance and out of which even the taxes of the local body were to be paid, then since the consumer complaint is not filed within two years there from such cause of action arose, the consumer complaint could not be entertained since it is time barred and no application for condonation of the delay was filed.
16. Same is the case in respect of claim made for Rs. 42,57,000/-, supra. Thus, said claim along with the claim of Rs. 3,06,266/- towards the electricity outstanding dues paid on behalf of the builder to Electricity Distribution Company and N.A. taxes upto period 31/05/2008, Property taxes arrears paid to save the attachment of Rs. 6,65,708/-, cannot be granted. It may not be out of place to mention here that by its letter dated 01/07/2009 the society claimed reimbursement of the payments made by it towards the charges of MSEDC from the builder then it is also a clearly time barred claim even if such claim, for the sake of argument, is held as recoverable from the builder as a consumer dispute.
17. As far as claim towards the quotation for repairs of Terrace and external wall of society building Rs. 28,87,500/- is concerned, as earlier pointed out since from its formation the society would be responsible for the maintenance of the buildings within their jurisdiction. Similarly, there is nothing said on the basis of which it could be inferred that any bad quality work was carried out by the builder and, as such, said claim also cannot be entertained. Another claim made pertaining to compensation for mental agony and damages @ Rs. 10,000/- to 172 members of the society, total amounting to Rs. 17,20,000/-. This claim is also not sustainable since no deficiency in service on the part of builder is established on that count. Similarly, it may not be out of place to mention that there is no iota of evidence led to substantiate such claim.
18. For the reasons stated above, we find the complaint is misconceived. We hold accordingly and pass the following order:-
Consumer complaint stands dismissed.
In the given circumstances, parties to bear their own costs.