Binoy Kumar, Presiding Member

1. The present Consumer Complaint has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”) by Dev Siddhi Co-Operative Housing Society Ltd. (hereinafter referred to as the “Complainant”) against M/S Siddhi Construction & Ors. (hereinafter referred to as the “Opposite Parties”) alleging deficiency in service on the part of the Opposite Parties.
2. The Complainant is a Society registered under the Maharashtra Co-Operative Societies Act, 1960. The Opposite Party No. 1 is a partnership firm of partners Mr. Vilas Thakursingh Patil (Opposite Party No.2) and Mr. Krishna Trimbak Bhoir (Opposite Party No.3) engaged in the business of providing services related to development and construction of buildings.
3. The facts leading up to the present Complaint, as stated in the Complaint, are that as per an agreement dated 10.03.2000, the Opposite Parties obtained development rights for a plot measuring 3744.40 sq. meters, being Survey No.35, Hissa No.6, located in Village Vadavli, Ghodbunder Road, Thane, within the Thane Municipal Corporation limits (hereinafter referred to as “the said plot”). Although the Opposite Parties claimed that construction permissions and plans had been approved by the Thane Municipal Corporation, these documents, which the Agreement mentioned were available for review by buyers, were reportedly never actually shown for inspection. The construction permission for Building ‘B’ consisting of two wings was granted with specific terms and conditions, including separate commencement certificates for two wings dated 17.11.2000 and 09.08.2001 respectively. The Opposite Parties developed the plot by constructing 56 flats (28 in each wing) and 13 shops on the ground floor at the front of both wings of Building ‘B’. Additionally, they built two Meter Rooms (one per wing), a shared society office, and a single ground-floor room with a kitchen in one wing. The flats and shops were sold to Complainant members through stamped and registered agreements under the Maharashtra Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as MOFA). The Opposite Parties, on receiving the entire consideration amount, transferred possession without obtaining the required Occupancy Certificate, assuring Complainant members that it would be issued soon. The Society members, primarily from the lower middle class, had no choice but to take possession of their respective Units without the Occupancy Certificate, as their significant savings were tied up with the Opposite Parties. Many of the flat buyers, in particular, had taken bank loans to finance their homes. The OP’s failure to obtain the Occupancy Certificate led to higher water charges for flat owners, calculated on occupied area rather than actual consumption. Each flat owner paid Rs. 270/- per month, amounting to Rs. 1,65,240/- annually for all members (Rs. 270 x 12 x 51). These charges increased every year according to the Corporation's guidelines. The Society also had to pay water bills for unsold flats amounting to Rs. 1,69,650/-, resulting in significant financial losses, for which they were entitled to seek reimbursement from the Opposite Parties.
4. The Opposite Parties failed to form a registered Co-operative Housing Society as required, as per MOFA despite collecting Rs.13,851/- from each flat purchaser. The members, in the absence of cooperation from the Opposite Parties, approached the Registrar’s office and registered the Society themselves. The Opposite Parties did not reimburse any expenses, and the Society was entitled to a refund of the amounts paid by its members. A total of Rs.6,92,550/- was collected from 50 flat buyers, and Rs.1,21,563/- was collected from 13 shop owners.
5. The Opposite Parties did not execute the required conveyance deed, despite repeated requests from Society members and multiple assurances. Additionally, the Opposite Parties failed to provide original documents related to construction approvals. The Opposite Parties were responsible for paying property taxes and penalties until the conveyance deed was executed. Due to the lack of an Occupancy Certificate, the property taxes were higher, as it was treated as an “unauthorized construction”. The Society members have been paying these taxes since 2006 totalling to Rs.28,52,654/-. The Complainant stated that it was the Opposite Parties’ responsibility to pay all outgoings until the conveyance deed was executed and the property was transferred to the Society. Therefore, the Complainant was entitled to claim reimbursement of the property tax paid to date, amounting to Rs.28,52,654/-.
6. The Complainant stated that five flats remained unsold and were under the custody of the Opposite Parties. Despite several follow-ups and reminders, the Opposite Parties failed to pay the maintenance charges for these unsold flats. As of present, the Opposite Parties owed Rs.17,90,402/- in unpaid maintenance fees. Additionally, the Opposite Parties did not pay the property tax for these flats, which resulted in the local Corporation raising bills. To avoid property attachment, the Complainant Society had to settle the tax bills, amounting to Rs.1,28,927/-, and the Opposite Parties were liable to reimburse this amount to the Society.
7. The Opposite Parties failed to complete the project and provide the agreed-upon amenities, despite repeated assurances. As a result, the Complainant had to bear the following expenses to complete the work:

1. Borewell and pipeline installation: The Society spent approximately Rs.3,00,000/- to dig a borewell and install pipelines to each flat.
2. Levelling of road and installation of paver blocks: The Society incurred Rs.7,28,488/- for this work inside the building.
3. Drainage connection: The Society spent around Rs.20,000/- to install the drainage connection.
4. Garden levelling and plantation: The Society had to pay approximately Rs.2,00,000/- for garden work.
5. Power backup for lifts: The Society notes that power backup for the lifts has not yet been provided.

8. In addition to the incomplete amenities, the Opposite Parties also failed to construct the compound wall, which was a requirement specified in the Commencement Certificate issued by the Municipal Corporation. The Opposite Parties neglected this obligation, leading to encroachment by the neighbouring plot owner. This failure created significant problems for the Society, particularly in terms of safety and security for the building and its residents.
9. The Complainant stated that according to the Agreement, the Opposite Parties had committed to providing several general common amenities in addition to the internal features of the flats. These amenities, as listed in Annexure I of the Agreement, include:

1. Oil-bound distemper paint for the interior of each flat.
2. External walls finished with a combination of Snowcem paint.
3. One lift in each building.
4. A decorative entrance foyer.
5. Compound wall and paving around the building.

However, despite agreeing to provide these amenities, the Opposite Parties failed to do so till date.

10. The Complainant on 18.04.2018 sent a legal notice asking them to fulfil their obligations and complete the incomplete work. In response, the Opposite Parties made baseless allegations, and claimed that the possession had been taken, so they were not obligated to obtain the Occupancy Certificate.
11. Being aggrieved by the aforesaid acts of the Opposite Parties, the Complainant has filed this Consumer Complaint before this Commission and prayed for the following relief:

1. To hold and declare the Opposite Parties to be guilty of deficiency in service as per the provision of the Consumer Protection Act, 1986.

2. To direct the Opposite Parties to obtain Occupancy Certificate from Thane Municipal Corporation in respect of building named Dev Siddhi consisting of 56 flats and 13 shops constructed on plot of land admeasuring 3744.40 sq. mtrs bearing survey no.35, Hissa no.6, situated at Village Vadavli, Ghodbunder Road, Thane, within the limits of Thane Municipal Corporation.

3. The Hon’ble Forum may please to direct the Opposite Parties to comply with their statutory and contractual obligation of executing peaceful conveyance of the property admeasuring 3744.40 sq. mtrs out of Survey no.35, Hissa no. 6, lying being and situate at Vadavli, G.B. Road, Thane, Taluka and District - Thane within the limits of Thane Municipal Corporation and in the Registration of Thane by executing stamped and registered conveyance deed within the specified period and to pay property taxes along with penalty that may have accrue without burdening the flat owners and to perform obligation as per agreement under law.

4. To direct the Opposite Parties to reimburse sum of Rs.28,52,654/- (Rupees Twenty-eight Lakhs Fifty-two thousand six hundred and fifty-four only) towards property tax paid by the Complainant till the period of 2019 and further taxes till the execution of Conveyance Deed.

5. To direct the Opposite Parties to pay all arrears of maintenance charges in respect of unsold fiats till the fiats are sold, the amount of arrears till the period of June 2018 is sum of Rs. 17,90,402/- (Rupees Seventeen Lakhs Ninety thousand four hundred and two only) along with further maintenance charges, penalty and interest imposed by Complainant.

6. To direct the Opposite Parties to refund sum of (13,851 63) Rs.8,72,613/- (Rupees Eight Lakhs seventy-two thousand six hundred and thirteen only) collected from each of member of society towards society formation charges, legal charges, share money along with proportionate share of taxes.

7. To reimburse sum of Rs.1,28,927/- (Rupees One Lakh Twenty-eight thousand nine hundred and twenty-seven only) paid by Complainant towards property tax of unsold fiats.

8. To reimburse sum of Rs.1,69,650/- (Rupees One Lakhs Sixty-nine thousand six hundred and fifty only) paid by Complainant for water charges in respect of unsold fiats

1. To direct the Opposite Parties to refund sum of Rs.12,48,488/- (Rupees Twelve Lakhs Forty-eight thousand four hundred and eighty-eight only) incurred by the Complainant for completing the incomplete work.

10. To provide Compound wall on all the sides of the building.

11. To direct the Opposite Parties to pay sum of Rs.15,000/- (Rupees Fifteen thousand only) per month for financial loss caused to the members by Opposite Parties.

l. To direct the Opposite Parties to pay compensation of Rs.1000/- per day from the 16-09-2008 till the actual date of executing conveyance deed with the registered society. The amount calculated from 16-09-2008 till 31-01-2019 is sum of Rs.37,87,000/- (Rupees Thirty-Seven Lakhs Eighty-seven thousand).

13. That the Hon’ble Commission may be pleased to direct the Opposite Parties to pay an amount of Rs. 10,00,000/- towards compensation, mental agony and cost of the above numbered Complaint and further an amount of Rs.2,00,000/- towards incidental expenses incurred by the Complainant.

n. For such other and further relief’s as the nature and circumstances of the case may deem fit and proper.

12. The Opposite Parties resisted the Complaint by taking main objections as under: -

1. This Commission has no jurisdiction to entertain the present complaint as there is no consumer dispute between the parties.
2.  The complaint filed by the Complainant Society is essentially a civil suit, which should have been pursued in a Civil Court.
3. The Complaint is barred by limitation.
4. The Complainant Society does not qualify as a “consumer” under Section 12(1)(b) read with Sections 2(1)(d)(ii) and 2(1)(m) of the Act. It is registered under the Maharashtra Co-operative Societies (MCS) Act, 1960, and, therefore, cannot be considered as a “Voluntary Consumer Association” under the Companies Act or any other relevant law, also it is established for financial profit, not to serve the interests of consumers or society at large. Additionally, the Complainant Society failed to provide a list of its members along with affidavits from individual flat buyers, specifying their personal grievances and authorizing the Society to file the complaint on their behalf.
5. The Complainant Society did not avail or contract the services of the Opposite Parties for a consideration, as defined under Section 2(1)(d)(ii) read with Section 2(1)(o) of the Act. Therefore, it could not claim a deficiency in service.
6. The Complainant Society being a legal entity under Section 34 of the Maharashtra Co-operative Societies Act, 1960, it cannot claim compensation on behalf of its members unless those members are parties to the complaint. Additionally, the Society must follow the prescribed procedure under Section 12(1)(c) read with Section 13(6) and Order 1, Rule 10 of the Code of Civil Procedure, 1908.
7. There is no privity of contract between the Complainant and Opposite Parties. Additionally, some of the original flat purchasers have already sold their flats to third parties, who are now members of the Complainant Society and have not paid any consideration to the Opposite Parties. As a result, there is no contractual obligation between the parties. Furthermore, many of the original purchasers acquired the flats with the intention of reselling them for profit or engaging in commercial activities.
8. The complaint is a claim for the reimbursement of money or excess amounts, which is a straightforward money claim. Such a claim cannot be considered a consumer complaint, as it does not fall under the scope of the Act. It should be treated as a recovery suit.
9. The Complainant Society or its members have not paid the amount they are seeking to be refunded to the Opposite Parties for property tax or water charges. The Opposite Parties are not the service providers for these services, and the excess payments and recovery claims do not pertain to them. In fact, these services are provided by Municipal Authorities, not the Opposite Parties. Therefore, the Complainant society or its members cannot be considered consumers of the Opposite Parties in relation to the reliefs sought. 

13. The Complainant Society, in its rejoinder, denied the averments made by the Opposite Parties and reiterated the contentions made in the Complaint.
14. We have heard learned Counsel for both the parties and have gone through material available on record.
15. Learned Counsel for the Complainant argued that there are a total of 56 flats, comprising 28 flats in each of two wings, and 13 shops on the ground floor, of which 4 flats remain unsold. The Opposite Party No.1 entered into Agreement for sale with individual purchasers i.e. members of the Complainant Society in accordance with the MOFA. The members of the Complainant Society booked their respective flats in 2004 and were granted possession from 2005 onwards. There are different dates of Agreement and possession for different flat numbers. The Opposite Parties collected amounts from each of the flat purchasers for formation of the Society but failed to form the Society, which was their responsibility under Section 10 of MOFA. As a result, the members of the Complainant Society had to get the society registered themselves on 16.04.2008, for which the Opposite Parties issued an NOC on 01.03.2008. The Opposite Parties failed to refund the amount paid by the individual members for registration of the Society.

As per Sections 3 and 6 of MOFA, Promoter is obligated to provide the Occupancy Certificate to the flat owners and must also pay outgoings such as ground rent, municipal taxes, water charges, and electricity charges until the property is transferred. The Opposite Parties have not applied for the Occupancy Certificate, and the Possession Letter was issued without obtaining it. It is the responsibility of the Promoter to convey the title and execute documents as per the agreement under Section 11 of MOFA. However, no conveyance of title has been done yet. The Opposite Parties have cited litigation as the reason for not executing the conveyance deed. This litigation dates back to 2003, but was not mentioned in the Agreements executed in 2004. Moreover, the Opposite Parties did not provide any details of litigation in their Written Statement. Additionally, the Opposite Parties failed to construct the compound wall as required by the terms and conditions of the commencement certificate issued by the Thane Municipal Corporation.

16. Learned Counsel for the Opposite Parties argued that the present complaint has been filed under Section 2(1)(d)(ii) and not under Section 12(1)(b) of the Act. The Housing Society was formed under Section 10 of MOFA. The Society came into existence under the mandatory provision of this Act, as opposed to being established through a voluntary Agreement or arrangement between its members. Given that the Society’s formation is mandated by statute and not the result of a mutual contract or voluntary decision, it will not be considered to be a “consumer” under the Act, and as such, it is not be eligible to file a Complaint before this Commission. The Opposite Parties relied on the order of the Hon’ble Supreme Court in Sobha Hibiscus Condominium vs. Managing Director, M/S Sobha Builders Ltd. & Anr., Civil Appeal No. 1118 of 2016, decided on 14.02.2020 and on the Order of this Commission in Landscape Heights Co-Operative Housing Society Limited and Others vs. M/S. Landscape Reality and Others, CC/06/2022, decided on 28.03.2023. The Opposite Parties further argued that most of the current members of the Society are subsequent purchasers who have not paid any consideration to the Opposite Parties, and therefore, there is no privity of contract that exists between them. Learned Counsel contended that the Opposite Parties have always been willing to hand over the conveyance to the Complainant Society, but due to various disputes and complexities involving the previous landowners, for which many Civil Suits were filed, the conveyance could not be completed. The Complainant Society was aware that the Occupancy Certificate cannot be obtained due to encroachment. The present Complaint is barred by limitation and is liable to be dismissed.
17. Perused the record.  There are certain objections raised by the Opposite Parties.  Some of them are trivial, which require no consideration.  The basic issue to be decided in the Complaint is whether the flat/ shop Buyers in a Project developed by the Opposite Parties are entitled to get their Conveyance Deed registered and receipt of Occupancy Certificate.  These are the two main demands of the Complainant.  There are a few other monetary compensation demanded by the Complainant Society for the deficiencies on the part of the Opposite Parties.
18. The key objection of the Opposite Parties is that the Complaint has not been filed under Section 12 (1) (b), which permits a Recognized Consumer Association to file a Complaint under the Consumer Protection Act, 1986.  On careful perusal of the Complaint, it is seen that this Section has not been mentioned, though name of the Complainant is very specific and has been clearly mentioned that it is a Society registered under the Maharashtra Cooperative Societies Act, 1960.  Omission of Section in the Complaint does not vitiate the right of the Complainant to file such Complaint. 
19. Even if a hyper technical view of filing of a Complaint by a Society is taken, the Complaint is always maintainable under Section 12 (1) (a) of the Act.  In this regard, we would like to rely on the Order of this Commission in Consumer Complaint No.6 of 2022 Landscape Heights Co-operative Housing Society Ltd. Vs. M/s Landscape Realty & Ors. decided on 28.03.2023, wherein similar objection was raised and the Complaint was held maintainable.  The relevant portion of the Order is reproduced below:-

“10.    It is important to go through the Order of the Hon’ble Supreme Court in Sobha Hibiscus (supra).  In this Order, the provisions of Karnataka Ownership Act, 1972 (for short Act of 1972) has been dealt with, whereas in the Complaints under consideration, the MOFA and Act of 2010 have been dealt with.  It is made clear that the provisions in all these Acts are similar.  The relevant portion of the Sobha Hibiscus (supra) Order is reproduced below:-

7. To maintain a complaint under the provisions of the Act complainant must be either a ‘consumer’ within the meaning of Section 2(1)(d) of the Act or it must fit into Section 12(1) of the Act. The word ‘consumer’ is defined under Section 2(1)(d) of the Act which reads as under :

“2. Definitions.-(1) In this Act, unless the context otherwise requires,- …. …. …. ….

(d) “consumer” means any person who,-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose; Explanation,-For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.

8. Section 12 of the Act deals with the manner in which complaint shall be made. As per the Section 12(1)(a), a consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided can file a complaint. Under clause (b) of sub-section (1) of Section 12 of the Act any ‘recognised consumer association’ whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not can file a complaint. As per the Explanation to Section 12 of the Act, ‘recognised consumer association’ means any voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force. It is clear from the Explanation that only a voluntary consumer association registered under the Companies Act, 1956 or any other law can maintain a complaint under Section 12(1)(b) of the Act. So as to consider whether the appellant is a voluntary consumer association or not, it is necessary to refer to relevant provisions of the 1972 Act. The Karnataka Apartment Ownership Act, 1972 is an Act of the State which is enacted with a view to provide for the ownership of an individual apartment in a building and to make such apartment heritable and transferable property and for matters connected therewith. The appellant body has come into existence pursuant to a declaration made by the opposite party in terms of the 1972 Act. Section 3(j) of the 1972 Act defines ‘declaration’ as under:-

“3. Definitions.-In this Act, unless the context otherwise requires.-

…. …. ….

(j) ‘Declaration’ means the instrument by which the property is submitted to the provisions of this Act, as hereinafter provided, and such Declaration as from time to time may be lawfully amended:”

As per Section 13 of the 1972 Act, Declarations, Deeds of Apartments and copies of floor plans are required to be registered under provisions of the Registration Act, 1908. A copy of the Deed of Declaration dated 22.05.2006 is placed on record and the same is a declaration under provisions of the said Act by the opposite party. The name of appellant body as “Sobha Hibiscus Condominium” has come into existence pursuant to clause (8) of the Declaration. The bye-laws framed by the appellant-Condominium are also placed on record. Bye-law No.5 of the Bye-laws deals with the Members of Association which reads as under :

“5) MEMBERS OF ASSOCIATION: 5.1) All persons who have purchased constructed Apartments in the “Sobha Hibiscus” shall execute respective declarations under Section 5(ii) of the Karnataka Apartment Ownership Act, 1972 submitting their Apartments to the provisions of the Act. All persons who become the owner of the Apartment, shall acquire 10 shares of the “Sobha Hibiscus Condominium” by paying Rs.1000/- and on acquisition, shall become the members of the “Sobha Hibiscus Condominium” and be bound by the Deed of Declaration and Exhibits thereto.”

9. On a conjoint reading of the various relevant provisions of the 1972 Act and the Bye-laws of the Condominium referred above, we are of the view that the appellant-body has come into existence as per the mandatory provisions under the 1972 Act. It is clear from the objects of the said Act, that it is an Act to provide ownership of an individual apartment in a building and to make such apartment heritable and transferable property. In view of the mandatory provisions of the 1972 Act the appellant cannot be said to be a voluntary registered association for the purpose of filing a complaint before the competent authority under the provisions of the Act. The Explanation to Section 12 of the Act makes it clear that, the recognised consumer association as referred under Section 12(1)(b) of the Act means any voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force. By applying the said Explanation, the appellant cannot be said to be a voluntary consumer association so as to maintain a petition. Further, it will not fall within the definition of ‘consumer’ as defined under Section 2(1)(d) of the Act. The term ‘voluntary’ has been defined in Black’s Law Dictionary IX Edn. as under :

“voluntary, (14c) 1. Done by design or intention voluntary act. 2. Unconstrained by interference; not impelled by outside influence voluntary statement. 3. Without valuable consideration or legal obligation; gratuitous voluntary gift. 4. Having merely nominal consideration voluntary deed. Voluntariness”.

The term ‘voluntary’ as defined in Oxford Dictionary reads as under :

“2. Of an action: performed or done of one’s own will, impulse, or choice; not constrained, promoted, or suggested by another. Also more widely, left to choice, not required or imposed, optional. Of an oath, a confession, etc: voluntarily made or given; not imposed or prompted by a promise or threat. Of a conveyance, a disposition etc.: made without money or other consideration being given or promised in return. Growing wild or naturally; or spontaneous growth. Volunteer

3. …. ….

4.a. Assumed or adopted by free choice; freely chosen or undertaken; (of work) unpaid b. Brought about by one’s own choice or deliberate action; self-inflicted, self-induced. C. Of a society, association, etc.: entered into a free choice. Also consisting of volunteers. 

5. Done by deliberate intent; designed, intentional 

6. Of the will: free, unforced, unconstrained.

7. Of a person: acting from personal choice or impulse, willingly, or spontaneously, in a specified capacity. Also, endowed with the faculty of willing. B. Serving as a volunteer soldier. Also, composed of such volunteers.

8. Freely or spontaneously bestowed or made; contributed from personal choice or impulse or from generous or charitable motives.

9. …. ….

10. Of an institution, organisation, etc.: maintained or supported solely or largely by voluntary contributions. Also more widely, existing through voluntary support, not established by statute; in the UK, (of a school) built by a voluntary institution but maintained by a local education authority. B. of, pertaining to, or advocating voluntarism in respect of Church, schools, etc.”..

In essence, a voluntary consumer association will be a body formed by a group of persons coming together, of their own will and without any pressure or influence from anyone and without being mandated by any other provisions of law. The appellant association which consists of members of flat owners in a building, which has come into existence pursuant to a declaration which is required to be made compulsorily under the provisions of 1972 Act, cannot be said to be a voluntary association to maintain a complaint under the provisions of the Act.

10. The learned counsel appearing for the respondents also relied on the very same judgment in the case of Moulivakkam Trust Heights Flats Affected Buyers Association etc.1 In the aforesaid decision, a Full Bench of the National Commission has taken a view that even a Residents’ Welfare Association, if registered under a statute will qualify as a consumer association under the provisions of Section 12 of the Act provided, it qualifies as a voluntary association.

11.       While the Order of the Hon’ble Supreme Court deals with the Consumer Protection Act, 1986, the same is applicable in the Consumer Protection Act, 2019 and the difference is only of the Section, as Section 12 (1) (b) of the Consumer Protection Act, 1986 has now become Section 35 (1) (b) of the Consumer Protection Act, 2019.

12.       We need to also go through the Section10 of the MOFA, which is reproduced below:-

10. Promoter to take steps for formation of co-operative society or company.

(1) As soon as a minimum number of persons required to form a Co-operative society or a company have taken flats, the promoter shall within formation the prescribed period submit an application to the Registrar for registration of the organisation of persons who take the flats as a Co-operative society or, as the case may be, as a company; and the promoter shall join, in respect of the flats which have not been taken, in such application for membership of a Co-operative society or as the case may be, of a company. Nothing in this section shall affect the right of the promoter to dispose of the remaining flats in accordance with the provisions of this Act.

[Provided that, if the promoter fails within the prescribed period to submit an application to the Registrar for registration of society in the manner provided in the Maharashtra Co-operative Societies Act, 1960, the Competent Authority may, upon receiving an application from the persons who have taken flats from the said promoter, direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society:
 

Provided further that, no such direction to register any society under the preceding proviso shall be given to the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar, by the Competent Authority without first verifying authenticity of the applicants’ request and giving the concerned promoter a reasonable opportunity of being heard.].

(2) If any property consisting of building or buildings is constructed or to be constructed [and the promoter submits such property to the provisions of the Maharashtra Apartment Ownership Act, 1970, by executing and registering a Declaration as provided by that Act] then the promoter shall inform the Registrar as defined in the Maharashtra Co-operative Societies Act, 1960, accordingly; and in such cases, it shall not be lawful to form any co-operative XXIV society or company.

13.       We need to also go through the Section 14 (1) to (5) of the Act of 2010 of Uttar Pradesh, which is reproduced below:-

Section 14 - Association of apartment owners and bye-laws relating thereto

(1) There shall be an Association of Apartment Owners for the administration of the affairs in relation to the apartments and the property appertaining thereto and for the management of common areas and facilities :

Provided that where any area has been demarcated for the construction of buildings, whether such area is called a block or pocket or by any other name, there shall be a single Association of Apartment Owners in such demarcated area.

(2) It shall be the joint responsibility of the promoter and the apartment owners to form an Association. The promoter shall get the Association registered when such number of apartments have been handed over to the owners which is necessary to form an association or 33% of apartments, whichever is more, by way of sale, transfer or possession, provided the building has been completed alongwith all infrastructure services and completion certificate obtained from the local authority. (3) In a case, where an association of the apartments owners of a building has not been formed, on the intended date of execution of a deed of apartment in favour of prospective apartment owner, it shall be obligatory for a prospective apartment owner to become member of the association within a period of 4 weeks on receipt of a written intimation about the formation of such association. (4) Where an association of an apartment owners exist on the intended date of transfer of an apartment, it will be obligatory for the prospective apartment owner to become member of such association before execution of a deed of an apartment in his favour. (5) On formation of the Association of the Apartment Owners under subsection (2) above, the management of the affairs of the apartments regarding their common areas and facilities shall be deemed to be transferred from the promoter to the Association which shall thereupon maintain them, Provided that till all the apartments are sold or transferred, the promoter shall proportionately share the maintenance cost of common areas and facilities.

14.       From the material on record, we notice that all these Societies have been formed pursuant to the completion of the Project and under the aegis of mandatory provision of the Act as explained above.  The three Societies relating to the State of Maharashtra have been formed under MOFA.  These have been registered after the Promoter/ Builder has taken the initiative to form the Society, which were later got registered under the Act of 1960.  This is clear from the Model Bye-Laws of the respective Societies, which define the role of the Promoter and the objects.  The applications for registration of the Societies have been signed by the Promoters.

15.       In our considered view the principles laid down by the Hon’ble Supreme Court in Sobha Hibiscus Condominium (supra) is squarely applicable in these four Complaints and accordingly we hold that these Housing Societies are not voluntary consumer association as defined under Section 35 (1) (b) of the Act and the explanation therein.  Therefore, the Complaints cannot be maintained under Section 35 (1) (b) of the Act.

16.       While the Complaint cannot be maintained under Section 35 (1) (b) of the Act, in our considered view, the Complaint is maintainable under Section 35 (1) (a) of the Act.  We have gone through the relevant Sections of the Act in this regard.  Section 35 (1) (a) of the Act dealing with the manner in which Complaint shall be made reads as under:-

35 (1). A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by—

1. the consumer,—

1. to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided; or

2. who alleges unfair trade practice in respect of such goods or service;

The key point to be noted in Section 35 (1) (a) of the Act is that the Complaint should be filed by a consumer.  We need to also look into the definition of Complainant under Section 2 (5) (i) of the Act, which says that a Complainant means a consumer.  Under Section 2 (7) (ii) of the Act, the consumer has been defined as under:-

2 (7) "consumer" means any person who—

(ii)       hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

The key word to be noted is the word “beneficiary of such service, other than the person, who hires or avails of the service for consideration paid or promised or partly paid or partly promised……………”.  In our considered view, the Societies in question are beneficiaries as defined under Section 2 (7) (ii) of the Act and though they have not directly paid any consideration to the Opposite Party, they are beneficiaries of the services availed by their members who have paid consideration to the respective Opposite Parties.  Further, under Section 2 (31) (iv) of the Act, a person includes a Cooperative Society.  Undoubtedly, the Society in question is a person as it is a Cooperative Society registered under the Cooperative Societies Act/ Societies Registration Act.  Therefore, we hold these Societies as qualified to be consumers for the purpose of filing the Complaint for redressal of their grievance on behalf of the respective members of the Society.

17.       A question that will emerge and which needs to be discussed is whether this Commission has the pecuniary jurisdiction to entertain these Complaints.  These Societies comprise of individual members, who are allottees and who have paid the required consideration or who have paid most of the consideration to the respective Opposite Parties towards the sale consideration of the flats.  For determining the pecuniary jurisdiction, we rely on the recent Order of the Larger Bench of this Commission in Akshay Kumar & Ors. Vs. Adani Brahma Synergy Pvt. Ltd. (CC/48/2021) decided on 06.03.2023, which has exhaustively dealt the question of pecuniary jurisdiction.  We would like to quote the relevant paragraphs, which will show that this Commission has the pecuniary jurisdiction to entertain these Complaints:-

30. As held by the Hon’ble Supreme Court in Brigade Enterprises (supra) (in para 35, 36 & 37), that there is nothing in the Act, which prohibits the few Complainants from joining together and filing Joint Complaint. The word complaint includes plural i.e., complaints also.  Thus, a Joint Complaint is maintainable and it will be treated as one-complaint.

31. The following questions came-up for consideration before a Three-Member Bench of this Commission in the case of ‘Ambrish Kumar Shukla (supra)’:-

“(ii)Whether a complaint under Section 12(1)(c) of the Consumer Protection Act is maintainable, before this Commission, where the value of the goods or services and compensation, if any, claimed in respect of none of the allottees / purchasers exceeds Rupees one crore.

(iii)Whether a complaint under Section 12(1)(c) of the Consumer Protection Act is maintainable before this Commission, where the value of the goods or services and the compensation claimed in respect of an individual allottee exceeds Rupees one crore in the case of one or more allottees but does not exceed Rupees one crore in respect of other allottees;

(iv)Whether a complaint under Section 12(1)(c) of the Consumer Protection Act is maintainable, in a case of allotment  of several flats in a project / building, where the allotments / bookings / purchases are made on different dates and or the agreed cost of the flat and / or the area of the flat is not identical in all the bookings / allotments / purchases.”

32. In Para 12 of the Order, the larger Bench had held as under:-

“12.    Issue No. (ii) and (iii)

Section 21 of the Consumer Protection Act, to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds ₹1.00 crore.  Therefore, what has to be seen, for the purpose of determining the pecuniary jurisdiction, is the value of the goods or services and the amount of the compensation claimed in the complaint.  If the aggregate of (i) the value of the goods or services and (ii) the compensation claimed in the complaint exceeds ₹1.00 crore, this Commission would have pecuniary jurisdiction to entertain the complaint.  Similarly, if the aggregate of the value of (i) the goods or services and (ii) compensation, if any, claimed in the complaint exceeds ₹20.00 lacs but does not exceed ₹1.00 Crore, the State Commission would have the pecuniary jurisdiction to entertain the complaint.  Since a complaint under Section 12(1)(c) of the Consumer Protection Act can be filed only where there are numerous consumers having the same interest and it has to be filed on behalf of or for the benefit of all the consumers so interested i.e. all of the numerous consumers having the same interest, it is the aggregate of the value of the goods purchased or services hired or availed of, by all those numerous consumers and the total compensation, if any, claimed for all those numerous consumers, which would determine the pecuniary jurisdiction of this Commission.  If the aggregate of the value of the goods purchased or the services hired or availed of by all the consumers having the same interest and the total compensation, if any, claimed for all of them comes to more than ₹1.00 crore, the pecuniary jurisdiction would rest with this Commission alone.  The value of the goods purchased or the services hired or availed of and the quantum of compensation, if any, claimed in respect of the one individual consumer therefore, would be absolutely irrelevant for the purpose of determining the pecuniary jurisdiction in such a complaint.  In fact, this issue is no more res Integra in view of the decision of a Four-Members Bench of this Commission in Public Health Engineering Department Vs. Upbhokta Sanrakshan Samiti I (1992) CPJ 182 (NC).  In the above referred case, a complaint was preferred, seeking to recover compensation for alleged negligence on the part of the petitioner which had resulted in a large number of persons getting infected by Jaundice.  The names of 46 such persons were mentioned in the complaint but it was alleged that there were thousands of other sufferers who were similarly placed and that complaint was filed on behalf of all of them.  The complainant had sought compensation of ₹20,000/- for every student victim, ₹10,000/- for every general victim and ₹1,00,000/- for the legal representatives of those who had died due to Jaundice.  The District Forum held that it had no pecuniary jurisdiction to adjudicate upon the complaint.  The State Commission took the view that the District Forum has to go by the value as specified for each consumer.  Rejecting the view taken by the State Commission, this Commission inter-alia held as under:

“5.     In our opinion this proposition is clearly wrong since under the terms of Section 11 of the Act the pecuniary jurisdiction of the District Forum would depend upon the quantum of compensation claimed in the petition.  The view expressed by the State Commission is not based on a correct understanding or interpretation of Section 11.  On the plain words used in Section 11 of the Act, the aggregate quantum of compensation claimed in the petition will determine the question of jurisdiction and when the complaint is filed in a representative capacity on behalf of several persons, as in the present case, the total amount of compensation claimed by the representative body on behalf of all the persons whom it represents will govern the valuation of the complaint petition for purposes of jurisdiction”.

6.      The quantum of compensation claimed in the petition being far in excess of ₹1.00 lac the District Forum was perfectly right in holding that it had no jurisdiction to adjudicate upon the complaint.  The reversal of the said order by the State Commission was contrary to law”.

Therefore, irrespective of the value of the goods purchased or the service hired and availed of by an individual purchaser / allottee and the compensation claimed in respect of an individual purchaser / allottee, this Commission would have the pecuniary jurisdiction to entertain the complaint if the aggregate of the value of the goods purchased or the services hired or availed of by the numerous consumers on whose behalf or for whose benefit the complaint is filed and the total compensation claimed for all of them exceeds ₹1.00 crore.

Issue No. (iv)

13.    As noted earlier, what is required for the applicability of Section 12(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code of Civil Procedure is the sameness of the interest i.e. a common grievance of numerous persons which is sought to get redressed through a representative action.  Therefore, so long as the grievance of the consumers is common and identical relief is claimed for all of them, the cost, size, area of the flat / plot and the date of booking / allotment / purchase, would be wholly immaterial.  For instance, if a builder / developer has sold 100 flats in a project out of which 25 are three-bed room flats, 25 are two-bed room flats and 50 are one-bed room flats and he has failed to deliver timely possession of those flats, all the allottees irrespective of size of their respective flats / plots, the date of their respective purchase  and the cost agreed to be paid by them have a common grievance i.e. the failure of the builder/ developer to deliver possession of the flat / plot sold to them and a complaint filed for the benefit of or on behalf of all such consumers and claiming same relief for all of them, would be maintainable under Section 12(1)(c) of the Consumer Protection Act.  The relief claimed will be the same / identical if for instance, in a case of failure of the builder to deliver timely possession, refund, or possession or in the alternative refund with or without compensation is claimed for all of them.  Different reliefs for one or more of the consumers on whose behalf or for whose benefit the complaint is filed cannot be claimed in such a complaint.”

33. The larger Bench had answered the issue Nos. (ii) (iii) and (iv) as follows:-

“Issue No. (ii), (iii) and (iv)

A complaint under Section 12 (1)(c) of the Consumer Protection Act is maintainable before this Commission where the aggregate of the value of the goods purchased or the services hired or availed of by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation, if any, claimed in respect of all such consumers exceeds ₹1.00 crore.  The value of the goods purchased or the services hired and availed of by an individual consumer or the size, or date of booking / allotment / purchase of the flat would be wholly irrelevant in such a complaint where the complaint relates to the sale / allotment of several flats / plots in the same project / building.”

34. It may be mentioned here that the Judgment passed by the Three-Member Bench of this Commission in the case of Ambrish Kumar Shukla (supra)’, has been affirmed by a Five-Member Bench of this Commission vide Order dated 26.10.2021 passed in “CC No. 1703 of 2018, Renu Singh vs. Experion Developers Private Limited” and other connected matters” wherein it has been held that the Full Bench of this Commission in Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd. I 2017 CPJ 1 (NC), lays down the law correctly on the issue relating to pecuniary jurisdiction.

35. Though, under the Consumer Protection Act, 1986, the value of goods or services and compensation claimed was to be taken for determining the pecuniary jurisdiction of the Consumer Fora but the Principle laid down by the Larger Bench in the case of Ambrish Kumar Shukla (supra), would also be applicable for determining the value of goods and services paid as consideration in the Complaint where the Complaint has been filed as a Joint-Complaint by more than one person.  

36. Admittedly, in the present cases, the value of the consideration paid by all the persons who have joined as Complainants in the Joint Complaint, exceeds ₹2 Crores, therefore, this Commission has pecuniary jurisdiction under Section 58(1)(a)(i) of the Act to entertain all the present Joint Complaints. Accordingly, it is held that all the present Joint Complaints are maintainable before this Commission.

18.       In these Complaints since the Societies are representing the members who have paid the consideration, which in aggregate exceed Rupees Two Crores in each of the Complaint and since we have held the Society to be a consumer, competent to file a Complaint under the provisions of the Act, we are of the firm view that this Commission has pecuniary jurisdiction to admit these Complaints under Section 58 (1) (a) (i) of the Act.”

          Thus, this objection of the Opposite Parties is untenable.

20. The other objections raised by the Opposite Parties are that being a Society formed under a statute and in this case MOFA, as per the Order of the Hon’ble Supreme Court in Sobha Hibiscus Condominium (Supra), the Complainant is not a consumer.  When the record is carefully examined, it is seen that as per Section 10 of the MOFA, a Society needs to be formed by the promoters and builder within a certain time frame and the same has not been done by the promoter even after handing over the possession to the Units in question from the year 2005 onwards.  The builder had even collected money for registering such Society.  In such an eventuality the Buyers had no other option but to form a Society and this was done on 16.04.2008, which is around three years from the date of completing the construction and starting of handing over of possession.  In view of such circumstances, we are of the considered opinion that the Order of the Hon’ble Supreme Court in Sobha Hibiscus Condominium (Supra), would not apply as sufficient opportunity for forming such Society/ Association had already been provided for.  Further, we would be once again relying of the Order of this Commission in Landscape Heights Co-operative Housing Society Ltd. (Supra).
21. It is a fact that the Agreement for sale for the Units in the Project started from the year 2004 and there are varying dates for the same.  The due date for possession was 24 months.  Possession was started to be given from the year 2005 itself.  In situation like this, the question of not obtaining the Occupancy Certificate even after this length of time having elapsed serious deficiency of service on the part of the Opposite Parties is evident.  Obtaining of Occupancy Certificate is mandated under MOFA.  The Opposite Parties have taken the ground that due to certain litigations they are not in a position to obtain the Occupancy Certificate.  The litigation as per information available started in 2003 itself.  As per Section 3 of the MOFA, the builder has to do full disclosure about the property including the title, etc.  However, the same was evidently not done and in the Agreement for sale entered between the parties, no such mention of dispute has been made.  This is again in violation of MOFA and, therefore, such ground is not sustainable.  As per Section 11 of the MOFA, the promoter is to convey title and execute documents according to the Agreement.  This has not been done till date, which is again a serious deficiency of service on the part of the Opposite Parties.  In this connection, we would like to rely on the Order of the Hon’ble Supreme Court in Civil Appeal No.4000 of 2019 Samruddhi Co-operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. decided on 11^th January, 2022.  The relevant portion of the Order is reproduced below:-

“17.    Sections 3 and 6 of the MOFA indicate that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this, the promoter must make payments of outgoings such as ground rent, municipal taxes, water charges and electricity charges till the time the property is transferred to the flat-owners. Where the promoter fails to pay such charges, the promoter is liable even after the transfer of property .

18.       Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.

19.       The NCDRC in its impugned order has held that the cause of action arose when the municipal authorities ordered the payment of higher taxes in the first instance. Further, the impugned order also states that the present complaint is barred by limitation as there is no prayer for supply of occupancy certificate. We are unable to subscribe to the view of the NCDRC on both counts. Undoubtedly, the continuing wrong in the present case is the failure to obtain the occupancy certificate. Against this act of the respondent, the appellant society has taken appropriate action by filing a complaint before the consumer forum. The appellant is currently pursuing the execution of the order of the SCDRC arising from that complaint. However, that itself does not preclude it from claiming compensation for the consequences which have arisen out of this continuing wrong. The failure to obtain the occupancy certificate has resulted in the levy of higher taxes on the members of the appellant society repeatedly by the municipal authorities. Despite the order of 20 August 2014, the respondent has failed to obtain the occupancy certificate. This has resulted in a situation where the appellant, despite having followed the correct course of litigation in demanding the furnishing of an occupancy certificate, will continue to suffer the injury inflicted by the respondent merely due to the delay in the execution of the order against the respondent. Rejecting the complaint as being barred by limitation, when the demand for higher taxes is made repeatedly due to the lack of an occupancy certificate, is a narrow view which is not consonance with the welfare objective of the Consumer Protection Act 1986.

20.       We shall now briefly advert to the finding of the NCDRC on the merits of the dispute. The NCDRC has held that the appellant is not a ‘consumer’ under the provisions of the Consumer Protection Act as they have claimed the recovery of higher charges paid to the municipal authorities from the respondent. Extending this further, the NCDRC has observed that the respondent is not the service provider for water or electricity and thus, the complaint is not maintainable.

21.       Section 2(1)(d) of the Consumer Protection Act defines a ‘consumer’ as a person that avails of any service for a consideration. A ‘deficiency’ is defined under Section 2(1)(g) as the shortcoming or inadequacy in the quality of service that is required to be maintained by law. In its decisions in Wing Commander Arifur Rahman Khan & Others v. DLF Southern Homes Private Limited & Others and Pioneer Urban Land Infrastructure Limited v. Govindan Raghavan, this Court has held that the failure to obtain an occupancy certificate or abide by contractual obligations amounts to a deficiency in service. In Treaty Construction v. Ruby Tower Cooperative Housing Society Ltd., the Court also considered the question of awarding compensation for not obtaining the certificate. In that case, the Court declined to award damages as there was no cogent basis for holding the appellant liable for compensation, and assessing the quantum of compensation or assessing the loss to the members of the respondent society.

22.       In the present case, the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society are well within their rights as ‘consumers’ to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate.”

22. After having established the deficiency of service on the part of the Opposite Parties, as a next step, it would be in order to go through certain monetary claims of the Complainant.  In the Prayer Clause certain monetary compensation has been sought.  The first compensation is reimbursing the Property tax paid by the Complainant till the period 2019 and till the execution of the Conveyance Deed.  As per Section 6 of the MOFA, this is the responsibility of the promoter for a payment of outgoings till property is transferred.  Section 6 is reproduced below:-

“6. Responsibility for payment of outgoings till property is transferred-

A promoter shall, while he is in possession, and where he collects from persons who have taken over flats or are to take over flats sums for the payment of outgoings even thereafter, pay all outgoings (including ground rent, municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any), until he transfers the property to the persons taking over the flats, or to the organization of any such persons [Where any promoter fails to pay all or any of the outgoings collected by him from the persons who have taken over flats or are to take over flats, before transferring the property to the persons taking over the flats or to the organization of any such persons, the promoter shall continue to be liable, even after the transfer of the property, to pay such outgoings and penal charges (if any) to the authority or person to whom they are payable and to be responsible for any legal proceedings which may be taken therefor by such authority or person.”

Therefore, the payment of Property Tax till the Conveyance Deed is executed is the responsibility of the Opposite Parties and the same shall be paid to the Complainant.

23. The second compensation prayed by the Complainant is the refund of the money collected from the buyers towards formation of Society.  Since this Society was formed by the Buyers themselves, the question of retaining such amount by the Opposite Parties does not arise and the same needs to be refunded to the Buyers from whom the money was collected.
24. The third monetary prayer is regarding reimbursement of the amount paid towards the maintenance charges paid in respect of unsold flats, which again is the responsibility of the Builder and not of the existing Buyers/ Society.
25. And finally the other Prayer is for refund of water charges paid by the Society in respect of unsold flats.  This also is a valid prayer, which the Opposite Parties need to reimburse to the Complainant as the same are being paid by the Complainant to the concerned authority.
26. It is seen that the Opposite Parties after having handed over possession of the Units have not bothered about their basic responsibility cast upon them as per MOFA, which is a deficiency of service and to this extent, we are of the considered opinion that certain compensation needs to be paid by the Opposite Parties to the Buyers, who have filed the Complaint.  In line with the Order of the Hon’ble Supreme Court in DLF Home Developers Ltd. (Earlier known as DLF Universal Ltd) and Another Versus Capital Greens Flat Buyers Association in Civil Appeal No. 3864-3889 of 2020 decided on 14.12.2020, wherein it had been decided that a delay compensation @ 6% per annum on the amount paid by the individual members of the Society, who filed the Complaint in case of seeking possession is a just compensation, similar compensation needs to be paid to the Complainant Members/ Buyers.  The relevant portion of the Order reads as under:

          “It is true that in the present case, the contractual rate of Rs 10 per square foot per month is double the rate fixed in the agreements in the above case. On the other hand, the court must be conscious of the fact that the situation in the real estate market in Delhi is very distinct from that in Bengaluru both in terms  of rentals and land values.  This has not been disputed. The flat buyers had to suffer on account of a substantial delay on the part of the appellants. In such a situation, they cannot be constrained to the compensation of Rs 10 per square foot provided by the agreements for flat purchase. However, having regard to all the facts and circumstances, we are of the view that the compensation on account of delay should be brought down from 7% to 6%. Moreover, the amount, if any,  which has been paid in terms of the contractual rate shall be adjusted while computing the balance due and payable in terms of the judgment. (In the earlier decision noted above, compensation at 6% was ordered to be paid in addition to the contractual rate since the amenities agreed to be provided by the developer had not been set up).

10. Insofar as the parking and club charges are concerned, in view of the decision of the court in Wing Commander Arifur Rahman Khan (supra), the direction of the NCDRC in that regard shall stand set aside.

11. Accordingly, we allow the appeals in part to the following extent:

1. The compensation on account of delay in handing over possession of the flats to the flat buyers is reduced from 7% to 6%; and

2. The direction for the refund of parking charges and club charges and interest on these two components shall stand set aside.

12. We clarify that the directions of the NCDRC are upheld, save and except, for the above two modifications in terms of clauses (i) and (ii) above. The payment at the rate of 6% per annum shall be made after making due adjustments for the compensation for delay at the contractual rate (where it has been paid in terms of the agreement to the flat purchasers). The order shall be complied with within a period of two months from today.”

27. In view of the aforesaid, the Complaint is partly allowed by directing the Opposite Parties as under:-

1. To obtain the Occupancy Certificate from the concerned statutory authority within a period of three months;
2. To execute the Conveyance Deed in respect of all the members of the Society for the respective Units within three months;
3. To provide compound wall on all the sides of the building, which again is a mandate of MOFA;
4. To reimburse the Property Tax paid by the Complainant till the registration of the Conveyance Deed;
5. To refund the entire amount collected towards formation of the Society to the individual Buyers;
6. To reimburse the Property Tax of unsold flats and continued to be paid till the same are sold and Conveyance Deed registered.
7. Payment for sub-paras (iv) to (vi) above shall be made along with interest @ 6% per annum from the date of filing of Complaint till realization within eight weeks of this Order, failing which the rate of interest shall be 9% per annum for the same period.
8. Pay delay compensation on the deposited amount for the Unit concerned to each Buyer along with an interest of @ 6% per annum from the date of filing of Complaint till date of receipt of Occupation Certificate or execution of the Conveyance Deed, whichever is earlier, within four months of this Order, failing which the rate of interest shall stand enhanced to 9% per annum for the same period.

28. Pending applications, if any, stand disposed of.