COMMON ORDER IN FIRST APPEAL NO.893 OF 2014 TO FIRST APPEAL NO.895 OF 2014

Per – Hon’ble Mr. P. B. Joshi, Presiding Judicial Member

Being aggrieved by orders passed by District Consumer Disputes Redressal Forum, Pune partly allowing Consumer Complaint No.243 of 2011, Consumer Complaint No.244 of 2011 and Consumer Complaint No.245 of 2011 on 16/07/2014, present appeals have been filed by original Opponents Nos.1 to 7.

[2]     Facts, which are necessary for deciding these appeals, can be summarized as under:-

          Respondents/original Complainants (hereinafter referred to as ‘the Complainants’ for the sake of brevity) had booked flats with the Appellants/original Opponents (hereinafter referred to as ‘the Opponents’ for the sake of brevity).  Agreements were executed by the Opponents and the Complainants.  Considerations for the flats were paid by the Complainants to the Opponents and the possessions of the flats were handed over to the Complainants by the Opponents.  Possessions of the flats were taken over the Complainants in the months of September-2010, November-2009 and January-2011 respectively.  After taking over the possessions of their respective flats, the Complainants noted deficiencies on the part of the Opponents by not providing the facilities as mentioned in the agreements.  Even after correspondence with the Opponents, the Opponents did not rectify the deficiencies.  Hence, the Complainants approached the District Forum and filed the consumer complaints with prayers demanding damages and seeking directions to the Opponents to form and register a cooperative housing society of the flat-purchasers in the scheme, execute deed of conveyance in favour of cooperative housing society, obtain Completion Certificate and Occupancy Certificate, remove the defects, short-comings and lacunae in the construction of the flats and buildings, as mentioned in the complaints.

[3]     Opponents resisted the complaints by filing their written versions.  Opponents have not disputed booking of the flats by the Complainants, execution of the agreements, payments of considerations by the Complainants and hand-over possessions of the flats to the Complainants.  However, it was the contention of the Opponents that the Opponents applied for revalidation of the plan and the Pune Municipal Corporation has objected for said proposal of the Developer.  It is also contended that the Complainants have approached the Civil Court by filing a Special Civil Suit No.2259 of 2011 in the Court of Civil Judge, Senior Division, Pune against the Opponents and, therefore, these complaints are not maintainable before District Forum and are liable to be dismissed.  On these main grounds, Opponents prayed that the complaints may be dismissed.

[4]     Considering the rival pleadings of the parties and evidence led by the parties, the learned District Forum partly allowed these three consumer complaints and declared that the Opponents have caused deficiency in service by not obtaining Completion Certificate and by not forming a cooperative housing society and by not executing deed of conveyance in favour of the society as well as by not providing facilities and amenities, which were agreed to be provided in the agreements.  District Forum also directed the Opponents to obtain Completion Certificate and execute conveyance in favour of the society and also directed the Opponents to provide the facilities and amenities to the Complainants which are shown in the agreements.  District Forum also directed the Opponents to pay to the Complainants, in each of these three consumer complaints, an amount of Rs.2,00,000/- by way of compensation towards mental and physical agony as well as costs of litigation.  It is against these orders, original Opponents Nos.1 to 7 have preferred these appeals.

[5]     In all these appeals, we have heard learned counsel Adv. Rahul S. Gandhi on behalf of the Appellants/original Opponents and learned counsel Adv. Ajit Kulkarni on behalf of the Respondents/original Complainants.  With the help of both the learned counsel present before us, we have also carefully perused the material placed on record.

[6]     Considering submissions made before us, considering the record and keeping in view the scope of these appeals, following points arise for our determination and our findings thereon are noted against them serially for the reasons given below:-

REASONS FOR FINDINGS

Point No.1

[7]     Considering the submissions made before us by both the learned counsel and after going through the record, it is clear that the flats were booked by the Complainants with the Opponents.  Agreements were executed.  Considerations were paid.  Possessions of the flats were handed over to the Complainants by the Opponents.

[8]     It is the contention of learned counsel for the Complainants that there were deficiencies on the part of the Opponents in not providing services and amenities, as agreed and the Opponents have not discharged their statutory as well as contractual obligations.

[9]     Learned counsel for the Appellants/Opponents argued that the Complainants have filed a Special Civil Suit No.2259 of 2011 and an interim injunction was obtained in the said suit against the Appellants/Opponents herein.  Copy of interim injunction order dated 29/02/2012 passed by Civil Judge, Senior Division, Pune in Special Civil Suit No.2259 of 2011 is produced on record.  Learned counsel for the Opponents has drawn our attention to operative part of the said order. It is to the effect that ‘the Defendants therein viz. Appellants herein are temporarily restrained from causing construction of any new building, barring the buildings required for development of amenity space between building Wing ‘A’ and Wing ‘C’ of the suit property till the decision of suit’.  Learned counsel for the Appellants further argued that building Wing ‘A’ and Wing ‘C’ were completed.  However, in between these two wings, building Wing ‘B’ is to be constructed and only after completion of construction of building Wing ‘B’, Completion Certificate and Occupancy Certificate can be obtained from the concerned competent authorities and conveyance can be executed.  However, it is because of interim injunction order sought by the Complainants and granted by the Civil Court, it is not possible for the Appellants to construct building Wing ‘B’ and to obtain Completion Certificate as well as Occupancy Certificate and execute the conveyance deed.

[10]   Learned counsel for the Complainants argued that there was no question of constructing building Wing ‘B’.  In the agreements between the parties, there is mention of only two buildings, which were completed.  Space in between building Wing ‘A’ and Wing ‘C’ there is an open space, which is to be used for providing different amenities to the flat-purchasers.  However, the Opponents are trying to construct building Wing ‘B’ in between two buildings viz. Wing ‘A’ and Wing ‘C’ without providing amenities in that open space and it is because of that, a suit was filed by the Complainants against the Appellants and an interim injunction was granted.  Learned counsel for the Complainants has drawn our attention to internal page (14) of the agreement, wherein there is a specific mention of construction of two multi-storied buildings.  He submitted that in view of such specific mention in the agreements, there is no question of construction of a third building/wing in between building Wing ‘A’ and Wing ‘C’.

[11]   Learned counsel for the Appellants argued that the Appellants have changed the plans and the Appellants propose to construct building Wing ‘B’ in the open space between building Wing ‘A’ and Wing ‘C’.  However, it is material to note that learned counsel for the Appellants failed to show from the agreements between the parties that in fact, three buildings were to be constructed.  On the other hand, as referred by us above, there is a specific mention of only two multi-storied buildings and those have been constructed.  Thus, there is no question of construction of a third building in between building Wing ‘A’ and Wing ‘C’.  On the other hand, open space between these two buildings/wings is to be used for providing different amenities to the flat-purchasers, as mentioned in the agreements.  Thus, we find that defence raised by the Appellants about construction of a third building and about injunction obtained by the Complainants from the Civil Court is of no help to the Appellants.  Thus, we find that there is no substance in the defence taken by the Appellants.  Thus, it is very clear that there is deficiency in service on the part of the Appellants in not providing the amenities to the Complainants, as agreed.  Hence, we have accordingly answered the Point No.(01) above in the affirmative.

Point No.2

[12]   In view of our answer to the Point No.(01) above in the affirmative, we hold that the Complainants are entitled to the directions as against the Appellants for providing the amenities as mentioned in the agreement and to fulfill their statutory as well as contractual obligations, as rightly directed by the District Forum.  Hence, we have accordingly answered the Point No.(02) above in the affirmative.

Point No.3

[13]   In view of our answer to Points Nos.(01) and (02) above in the affirmative, we hold that there is no substance in these appeals and these appeals deserve to be dismissed.

          Hence, we pass the following order:-

ORDER

First Appeal No.893 of 2014 + First Appeal No.894 of 2014 + First Appeal No.895 of 2014 stand dismissed. 

Appellants shall bear their own costs.  However, in each of these appeals, Appellants/original Opposite Parties shall jointly & severally pay to the Respondents/original Complainants jointly costs quantified at Rs.25,000/-.

Pronounced on13th April, 2015