Sushma Sonavane v. Ekdant Construction Pvt.Ltd.

PER MR.B.S.WASEKAR, HONBLE PRESIDENT

1) The present complaints have been filed by the complainants under section 12 of the Consumer Protection Act, 1986. Since the facts and legal aspects are the same in all these consumer complaints, common judgment is being delivered. According to the complainants, they had purchased the flats from the O.P.No.1/Developer. The O.P.No.2 is a Society looking after their flats. The land under the building is situated at Survey No.14(part), City Survey No.42(part) at Tilak Nagar. It was granted by MHADA by way of 99 years lease from 1st April, 1980 in favour of Tilak Nagar Dhananjay Co-operative Housing Society Limited. Later on, Conveyance was executed by MHADA in favour of the Society. The Society entered into -10- Development Agreement with M/s. Khushi Developers Private Limited vide Development Agreement dated 2nd July, 2004. Later on, said project was taken over by the O.P.No.1 and Deed of Confirmation was executed and registered on 5th January, 2008. Some of the complainants entered into an agreement to purchase the flat from the opponent and some of the complainants entered into an agreement with M/s. Khushi Developers Private Limited. Accordingly, the agreement came to be entered into between the complainants as First Party and the O.P.No.1 as the Second Party. The said agreements are produced along with the complaints. Within a short span of time, various deficiencies were noticed by the complainants. The complainants were put in possession of their flats in December-2008. However, no Occupation Certificate was granted by the M.C.G.M. Therefore, the possession of the complainants can not be called as a complete and legal possession. Thus, there is deficiency in service on the part of the opponent. Separate parking has not made available by the opponent even though consideration was obtained by the opponent. The parking area has not been demarcated by the opponent. There is no proper management of the vehicles. The building is ground plus seven storey building. As per Development Control Regulation, 1991, one lift has been installed in each wing. It was necessary to keep the lift in proper condition. However, the opponent has not made proper provision in respect of the lift. On account of non payment of electricity bill, electricity supply for the lift has been disconnected. On inquiry, it was found that the amount of Rs.47,670/- is outstanding. The opponent was expected to provide separate water supply for each flat. However, there is no separate and -11- independent water connection to each flat. The opponent has collected maintenance charges from December-2008 till November-2012 but failed to give the account of the expenses. The opponent collected property tax from each member. The opponent has also collected Rs.75,000/- towards separate charges for water connection and electricity connection as per clause 17 of the agreement from each purchaser. But, the opponent has not provided separate water connection. The opponent collected water charges but failed to pay therefore M.C.G.M. disconnected water connection. Earlier, the water connection was for the use of 36 members. Now, there are 100 members. The complainants have filed necessary application for membership of the Society but the opponent failed to provide necessary assistance to admit the complainants as member of the Society. The opponent accepted the charges towards security, sweeper, garbage collector, lift operator, parking management and for annual maintenance. But, the opponent failed to pay the dues of security services. Therefore, there is no security to the premises. There is no parking management.

2) The complainants are not seeking any relief against the O.P.No.2/Society. The O.P.No.2/Society is necessary party therefore the O.P.No.2 is joined as party to the complaints. In spite of notice, there was no compliance. Therefore, the complainants have filed these complaints to direct the opponent to remove deficiencies and to pay compensation of Rs.5 Lakhs to each complainant for deficiency in service. The complainants have also claimed cost of litigation of -12- Rs.50,00/- to each complainant.

3) The O.P.No.1 is appeared and filed written statement. It is submitted that the complainants are not the consumer under the Consumer Protection Act therefore, the complaints are not maintainable. The complainants have not followed the provision under section 12(1)I of the Consumer Protection Act. There are no agreements in between the complainants and the O.P.No.1. Therefore, the complaints are not maintainable. The claim is barred by limitation. The alleged possession was handed over in the year-2008 and the complaints are filed in the year-2013. Dispute between M/s. Khushi Developers Private Limited and the O.P.No.2 is still pending. M/s. Khushi Developers Private Limited, M.C.G.M. and MHADA are the necessary parties. The complaints are bad for non joining of necessary parties. There is no privity of contract in between the complainants and the O.P.No.1. Therefore, the complainants are not entitled for the relief as prayed. Many complicated issues are involved therefore, this Forum can not decide it in summary procedure. The complainants have not produced the alleged agreement in between them and the O.P.No.1 and also with M/s. Khushi Developers Private Limited. No consideration was accepted by this opponent from the complainants. The building is looked after by the O.P.No.2. It is only for the O.P.No.2 to look after the maintenance and parking. This opponent has duly paid the bills upto November- 2012. Water connection is provided by separate overhead water tank for each wing. The issue of infrastructure is pending between MHADA and the M.C.G.M. The complainants can not claim account for maintenance -13- charges in their individual capacity as it is common interest. However, the O.P.No.1 is willing to hand over the accounts of maintenance. The complainants paid property tax upto March-2011. However, the O.P.No.1 has paid property tax for the year 2012-2013. This opponent has requested the O.P.No.2 to implead the complainants as member of the Society. This opponent has regularly provided services to the building upto December-2012. This opponent has not collected parking charges as it is the affair of the O.P.No.2. There is no deficiency in service on the part of this opponent. Therefore, the complainants are not entitled for the relief as prayed.

4) The O.P.No.2 appeared and filed written statement. It is submitted that name of the O.P.No.2 is not written properly in the title. Proper name is Tilak Nagar Dhananjay Co-operative Housing Society Limited, Building No.66. MHADA authority allotted plot of land along with Building No.66 to 36 allottees under L.I.G. Income Group Housing Scheme. Those allottees formed Co-operative Housing Society and registered it. The MHADA conveyed the building in favour of the Society. The MHADA granted lease for the period of 99 years in favour of the Society with effect from 26th April, 2002 with various terms and conditions. In lieu of additional F.S.I. to the O.P.No.2, it was decided in the General Body Meeting in the year-2004 to carry out development by way of demolishing the existing building and reconstructing the new building. Accordingly, the resolution was passed. The Society entered into Development Agreement with M/s. Khushi Developers Private Limited dated 2nd July, 2004. M/s. Khushi Developers Private Limited -14- got approved building plan in the year-2005 and started construction work of three wings i.e. A, B and C consisting of ground plus seven floors. The Developer agreed to allot 36 constructed tenements to the members of the Society and the Developer was entitled to retain other tenements as sale component. Said M/s. Khushi Developers Private Limited started the work but could not be continued. The building was in incomplete stage and the Society members were put in hardship. Therefore, the Society issued legal notice and terminated the Development Agreement. Thereafter, the Society unanimously decided to allot the work to the O.P.No.1 and agreement was executed on 5th January, 2008. The same was registered with Sub-registrar. The O.P.No.1 gave assurance to complete the work at his cost and with liabilities as is where is basis. The O.P.No.1 handed over the possession of 36 flats to the Society in December-2008 and the Society handed over possession to the purchasers. The O.P.No.1 has not provided the facilities and has not obtained the Occupation Certificate. The O.P.No.1 failed to comply with the obligations under the Development Agreement. The O.P.No.1 has not produced the alleged agreements with the purchasers of sale component. The O.P.No.1 has also not produced the list of purchasers of sale component. The Society and the purchasers have to pay extra amount towards property tax and water charges. The O.P.No.2 is charging Rs.200/- per month for car and Rs.50/- per month for motorcycles for the parking. Parking demarcation is not done properly by the O.P.No.1. There are three lifts without liftman. The electric charges for operation of the lift have been paid separately by each wing. Each wing members are collecting charges -15- separately for maintenance of lift. The O.P.No.1 has not provided separate water connection to all the wings. As there is no Occupation Certificate, the purchasers have to pay double charges for water charges. The O.P.No.1 have collected maintenance charges from the purchasers till December-2012 but no account has been provided. It is the liability of the O.P.No.1 to pay maintenance charges, security charges, electric charges and property charges till handing over the possession. The complainants have not made proper membership application. The O.P.No.1 wrote letter dated 7th August, 2012 asking the O.P.No.2 to give membership to all 78 purchasers. But, the O.P.No.1 has not given the names of the purchasers. The O.P.No.1 is required to produce N.O.C. and No Due Certificate from the concern authorities. No case is made out against the O.P.No.2. Therefore, the complaints are liable to be dismissed with costs.

5) We have heard the arguments of Mr.Uday Warunjikar- learned Advocate for the complainants and Ms.Poonam Makhijani- learned Advocate for the O.P.No.1 and Mr.D.S.Vader-learned Advocate for the O.P.No.2. After going through the record, following points arise for our consideration. POINTS Points Findings

1) Whether the complainants are the consumers ? No

2) Whether there is deficiency in service ? No

3) Whether the complainants are entitled for the relief as prayed ? -16-

4) What Order ? As per final order REASONS

6) As to Point No.1 & 3 :- In complaint, para 1 of the all the complaints, the complainants have stated that they have purchased the flats from the O.P.No.1. In second para of all the complaints, the complainants have stated that some of the complainants entered into agreement of purchase of flat from the opponent and some of the complainants entered into agreement with earlier developer M/s. Khushi Developers Private Limited. The present opponent has taken over the said project therefore the agreements are in between the complainants as the First Party and the O.P.No.1 as the Second Party. In second para of all the complaints, the complainants have specifically stated that those agreements are produced along with the complaint at Exh.A. On perusal of all the complaints, agreement at Exh.A is the agreement in between the O.P.No.1 and 2 and not in between the complainants and the O.P.No.1 or M/s. Khushi Developers Private Limited. The O.P.No.1 in written statement in all complaints has specifically stated that there is no agreement in between the complainants and the O.P.No.1 and there is no privity of contract in between the complainants and the O.P.No.1. In spite of this specific defense raised by the O.P.No.1 the complainants have not produced alleged agreement in between them and the O.P.No.1. It is also stated by the complainants that consideration was paid by the complainants to the O.P.No.1 and the O.P.No.1 issued receipts to that effect. The O.P.No.1 has specifically denied this fact. In the written notes of argument, Page No.2, the complainants have stated -17- that the complainants have produced an agreement between the O.P.No.1 and the O.P.No.2 at Exh A. It is Development Agreement. It is further submitted that the opponent has accepted the consideration and executed the receipts and those receipts are produced on record. On perusal of all the complaints, no receipt is produced by any of the complainant showing the payment towards consideration amount. The receipts produced by the complainants are in respect of maintenance charges, property tax and electricity charges. Thus, there is no evidence on record produced by the complainant showing that they have paid the consideration towards the flat. No agreements are produced on record. Therefore, there is no privity of contract in between the complainants and the opponents. In complaint, para 14, the complainants have specifically stated that they are not seeking any relief against the O.P.No.2/Society. The O.P.No.2 is joined as necessary party. It is submitted by the learned advocate for the O.P.No.1 that as there is no privity of contract, the complainants can not claim relief as prayed and the complaints filed by the complainants before this Forum are not maintainable. On the other hand, the learned advocate for the complainants has submitted that the O.P.No.1 has not disputed the receipts produced on record. Therefore, the complaints are maintainable and the complainants are entitled for the relief as prayed. At this juncture, we would like to rely upon the judgment of Honble Supreme Court reported in 1993 SCC (1) 397, in the case of Indian Oil Corporation Versus- Consumer Protection Council, decided on 7th December, 1993. In that judgment, it was the case of the appellant that there is no privity of contract in between the parties therefore the -18- complainant can not seek remedy under Section 2(g) of the Consumer Protection Act. The Honble Supreme Court has discussed the facts and legal position in the judgment and concluded in para 19 as under : Para 19. In so far as there is no privity of contract between the appellant and the consumer no 'deficiency' as defined under Section 2(g) (quoted above) arises. Therefore, the action itself is not maintainable before the Consumer Forum. For all these reasons, we set aside the judgments of the authorities below. Civil Appeal will stand allowed. However, in the circumstances of the case there shall be no order as to costs. In the instant complaints before us also, there are no agreements produced on record in between the complainants and the O.P.No.1. There is also no evidence showing that the complainants have paid consideration to the O.P.No.1 towards the flat purchased by them. Thus, there is no privity of contract in between the complainants and the O.P.No.1. The complainants are also not from the original 36 members of the Society. In view of the abovesaid law laid down by the Honble Supreme Court, there is no privity of contract in between the complainants and the O.P.No.1. Therefore, the complainants are not entitled to seek the relief to give direction to the opponent to remove deficiencies. In complaint, para 14, the complainants have stated that they are not seeking any relief against the O.P.No.2/Society and the O.P.No.2 is joined as necessary party. As there is no privity of contract, -19- the complainants are not entitled for the compensation as prayed.

7) The learned advocate for the complainants has placed reliance on the judgment of Honble Supreme Court reported in (2000)

1 SCC 586, in C.A.No.2418 of 1996, in the case of Lata Constructions & Anr. Versus- Dr.Rameshchandra Ramniklal Shah & Anr., decided on 12th August, 1999 and judgment reported in (2008) 10 SCC 345, in Civil Appeal No.3302 of 2005, in the case of Faqir Chand Gulati Versus- Uppal Agencies Private Limited & Anr., decided on 10th July, 2008. In both these judgments, there were agreements in between the parties. In the instant complaints before us, there are no agreements on record and there is no privity of contract. Therefore, the abovecited judgments are not applicable. The learned advocate for the complainants has also placed reliance on the judgment of our State Commission in First Appeal No.996 of 2009, in the case of Shri Dinesh S.Mishra Versus- Adarsh Builders & Developers & Anr., decided on 10th March, 2010. In that judgment also, there were agreements in between the parties. Therefore, this judgment is not applicable.

8) Thus, there are no agreements on record in between the complainants and the O.P.No.1. There is also no evidence on record showing the payment of consideration amount by the complainants to the O.P.No.1. Thus, there is no privity of contract in between the parties therefore, in view of the abovecited judgment of Honble Supreme Court dated 7th December, 1993 referred supra, the complainants are not entitled for the relief as prayed. Hence, we proceed to pass the following order. -20- ORDER

1) Consumer complaints bearing No.CC/13/68 to CC/13/81 (Total

14 consumer complaints) stands dismissed.

2) Parties are left to bear their own costs.

3) Inform the parties accordingly.

4) Original judgment be kept in CC/13/68 and copies be kept in other consumer complaints. Pronounced on 3rd August, 2015 [HON'ABLE MR. B.S.WASEKAR] PRESIDENT [HON'ABLE MR. H.K.BHAISE] MEMBER Malve/-