(Per Shri Narendra Kawde, Hon’ble Member)
[1] Complainant is a Cooperative housing society, filed this consumer complaint alleging several deficiencies against the opponent builder developers for failure to discharging statutory obligations under the provisions of The Maharashtra Ownership Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act, 1963 (“the MOFA” for brevity). Complainant has summarized the deficiency in the complaint stating that opponent failed to register flat buyers’ co-operative society, not paid the property taxes to the authorities though collected from the flat buyers ultimately resulting into attachment of the building property of the co-operative society, not executed the deed of conveyance and finally claimed in aggregate amount of Rs.43,17,788/- as compensation.
[2] Case in brief as submitted by the Complainant society is that members of the complainant society entered into individual agreement for purchase of flats under the provisions of MOFA, 1963 and were put into possession somewhere in the year May, 1995. Opponent though under statutory obligation failed to form the co-operative society of the flat buyers. On failure to do so, all the flat buyers come together and at their own costs the co-operative society was constituted and registered in the year 2001-2002 vide registration No.BOM/WR/HSG/TC/11496/2001-02. Opponent though collected society formation charges from each member @Rs.2,000/- each, failed to register the society. Further though opponent was under obligation to settle the property taxes with municipal authorities since were collected in advance from the individual members failed to pay on time which resulted into attachment of the building of the complainant society. Water charges electricity bills paid upto 30/09/2001 was not deposited with the concerned authorities. Therefore, society was required to pay these dues amounting to Rs.60,000/- and Rs.91,850/- respectively. Though occupation certificate was obtained and issued by the opponent. Yet no conveyance of the property has been executed even after lapse of 15 years from taking over possession and formation of society. All these lapses rendered opponent liable for action under the relevant laws. Several reminders proved futile as no positive response came forward to address the grievance. Hence, the consumer complaint.
[3] Opponents have opposed the contentions of the complainant by filing written version. Except the ground stating that several meetings took place for settlement of the outstanding dues which failed to materialize is the only substantive ground taken up by the opponent for contesting the claim. It is also stated property is required to be conveyed to the apex/federal society as there are more than one building.
[4] We have heard learned advocate Mr.M.R.Rao for the complainant and learned advocate Mr.Uday Wavikar for the opponent.
[5] It was tried to submit on behalf of the opponent that monetary claim raised in the complaint are time barred since the society was formed in the year 2001 and the consumer complaint has been filed on 10/03/2006 that too without delay condonation. Monetary claim is not supported by documentary evidence. No amount has been received by the opponent as stipulated in clause 38 of the Agreement to Sale since it was agreed to be received at the time of possession. Municipal taxes as and when due were paid to avoid the attachment of the property.
[6] On carefully going through the complaint compilation, we find that the municipal authorities issued the attachment warrant attaching the building of the complainant society for failure to pay the municipal taxes upto 30/09/2001. Total amount due and payable to the municipal authorities against this head is stipulated in the warrant of attachment Rs.60,15,552/-. The learned advocate appearing for the complainant invited our attention to the dispute of an amount of is Rs.16,33,000/- which was tried to be negotiated by the opponent with the complainant as sumptuous amount of Rs.29,26,946/- was already paid to the opponents on account of municipal taxes. The dispute remained to be resolved for lack of positive approach of the opponent even though according to the complainant society disputed amount worked out to Rs.14,11,276/-. Possession of flats was handed over and completed in the year 1995. Co-operative society was formed by the members themselves though formation charges were collected by the opponent. Co-operative society came into existence and registered in the year 2001-02. Even thereafter various attempts to get the deed of conveyance did not bear fruit on the alleged ground that two other buildings are part of the same sanctioned were lay-out and yet to be completed. The learned advocate categorically mentioned that the two other buildings have recently been completed after almost gap of 15 years from date of possession of the flat by the members of the complainant society. As regards the monetary claim few receipts of individual members to demonstrate that the payments on account of municipal taxes, maintenance charges were made to the opponent who has issued the receipt duly discharged by the opponent’s partner. The tangible proof of the lack luster attitude of the opponent invited attachment warrant of municipal authorities thereby attaching the building; because amount so collected till 30/09/2001 against the property taxes was not paid to the municipal authorities. It is a conclusive proof of glaring deficiency of service on the part of opponent.
[7] The contention raised on behalf of the opponent that the monetary claims are time barred is not acceptable. Since Hon.National Commission has held in the First Appeal No.459/2004 and First Appeal No.64/2005 by order dated 22/07/2009 that the claims raised by the complainant in the original complaint were Directly reletable to the alleged defects and deficiency on the part of the builder developer and could have been dealt appropriately by State Commission. Though disputed by the opponent was the society obviously formed by the complainant themselves on failure of the opponent to do so as there is no denial of the fact in the written version filed by the opponent. We do not find force in opponent’s claim alleged of non-co-operation of complainants for want of supporting document on record. There is no iota of truth and non-formation of co-operative society by opponent is totally unjustified as it initiates provision of MOFA. Likewise that possession of the flat was handed over without accepting amount of Rs.27,465/- from each of the member as stipulated in Clause 38 of the Agreement to Sale unsustainable since this payment is part of agreement. By no stretch of imagination any developer/builder would hand over possession of the flats except without receipt of all the dues as per the stipulations. Therefore, we are not in agreement that these amounts were not received by the opponent since there are certain receipts of individual flat buyers as a proof of payment to demonstrate. Moreover, there is no reason to disbelieve statement of complainant made on affidavit supporting this payment. Therefore, arguments advanced on behalf of the opponent are difficult to digest for us.
[8] No satisfactory explanation is coming forward as to why the deed of conveyance is not executed so far even though almost 15 years’ time since the formation of the co-operative society. Maybe that the lay-out consists of more than one building for which opponent received the approval of competent authorities. However, there is no counter as to why construction of other buildings in sanctioned building has been delayed for more than 15 years. We do not find this proposition is acceptable in the eyes of the law as the complainant society cannot be made to await for indefinite period to complete the rest of the building work, obtaining occupation certificate for such work and then execute the deed of conveyance. The learned advocate of the opponent expressed the willingness of the opponent to execute the deed of conveyance on the basis of occupation certificate by exchanging drafts as early as possible which is a welcome sign to settle the consumer complaint at least on this count. Complainant acceded to this submission.
[9] In so far as property taxes paid by each complainant are @Rs.4,275/-. There are 70 members in the complainant society. This amount work to Rs.2,99,250/- paid by the members prior to formation of society. We do not find much clarity as to what was the total amount beside this was paid by the members against the property tax. Complainant claimed Rs.43,48,222/-. We are at loss to understand the details of payment exactly collected by the opponent and finally paid to the authorities to avoid attachment warrant demanding Rs.63,93,301/-. Therefore, in absence of the concrete documentary evidence, we consider that the complainant society has paid an amount of Rs.2,99,250/- against the taxation head. Beside this, the opponent has collected 27,465/- from each member under various head as per stipulation of agreement. Out of this, an amount of Rs.2,000/- for legal charges and Rs.1,725/- paid by each member against BMC/BSES services though sought for refund society will not be entitled as these are processing charges and deposits for availing basic services. Rest of the amount of Rs.260/- as share money, Rs.2,000/- for formation of society, Rs.7,440/- advance proportionate share of taxes, Rs.11,040/- as provisional out going against municipal taxes and Rs.3,000/- as cost of construction for society’s office paid by each member [Rs.23,740/- x 70] works out to Rs.16,61,800/- are worth considering as claim for refund as opponent failed to form the society and construct the society’s office as stipulated in the agreement. All these amounts were collected prior to formation of society. We are not inclined to consider claim of refund on account of water charges, legal fees as claimed. Non-execution of Deed of Conveyance, not providing office of society though charges were collected, not settling property taxes collected prior to formation of society are deliberate lapses of opponent which amount to deficiency in service.
[10] Both the parties were directed to bring on record copies of occupation certificate obtained by the opponent from the authorities. Both the parties submitted prior to pronouncement of judgment copies thereof by both the parties. Taken on record. As per the details of property shown in the occupation certificate, we do not find difficulty now to execute Deed of Conveyance in favour of the complainant society as the complainant agreed for this arrangement during the course of arguments.
[11] Having considered this case in its totality, we are of the opinion that opponent builder/developer has rendered deficiency of service by not discharging statutory obligation i.e.execution of conveyance deed under the provision of Sec.11 of MOFA and not providing the society office as per stipulation in the agreement. There is no justification as to why municipal taxes though collected but not paid which necessitated the authorities to issue attachment warrant. The complainant society has made out the case of establishing deficiency of service against the opponent. To meet the ends of justice, direction to opponent to execute deed of conveyance to transfer title, interest and rights in favour of the complainant society and granting the prayer for refund of amount prayed for as discussed in the body of the judgment would suffice the purpose. Hence, we allow the consumer complaint and proceed to pass the following order.
ORDER
1.Consumer complaint is partly allowed.
2.Opponent builder/developer is directed to execute deed of conveyance in favour of the complainant society to transfer title, interest and rights of the upper-tenant land and the building within a period of 120 days from date of this order. Non-compliance, if any, opponent to pay Rs.500/- per day to the complainant till compliance of the order.
3.Opponent to pay amount of Rs.19,61,050/- as detailed below within a period of 60 days from the date of this order together with interest @9% p.a. from the date of filing complaint i.e.10/03/2006. Non-compliance shall enhance rate of interest to 12% p.a. till realization.
a)Rs.2,99,250/- towards collection of municipal taxes.
b)Rs.16,61,800/- collected as per stipulation of agreement.
4.Opponent to bear their own costs and to pay Rs.25,000/- to the complainant as cost of litigation.
5.One set of complaint compilation be retained. Rest be returned to the complainant forthwith.
6.Certified copies of the order be furnished to the parties forthwith.
Pronounced
Dated 14th May, 2015.
