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Judgment
The Complainant is a registered Co-operative Housing Society, bearing Registration No.MUM/WR/HSG/TC/14327/2008-09. The Opposite Party is the Promoter/Developer of the land bearing C.T.S.No.1456, Survey No.327, Hissa No.6 and C.T.S. No.1455A, Survey No.327, Hissa No.7.
The case of the Complainant is that its members had purchased flats with stilt parking places from the Opposite Party in 2006-2007 by executing individual flat purchase agreements and separate agreements for stilt parking places. As per agreement, Opposite Party was to handover possession by 30.12.2007, which they failed to do. The Opposite Party, vide letter dated 04.01.2008, informed the flat purchasers that the construction of Bhagirath building was complete but due to cumbersome process adopted by Brihan Mumbai Mahanagarpalika, the Occupancy Certificate could not be obtained. The Opposite Party, vide letter dated 04.04.2008, intimated the purchasers that completion certificate of the building had been received by the Opposite Party on 11.03.2008 and the water connection was obtained on 27.03.2008 but due to dispute between Reliance Energy and Tata Power Company, electricity supply could not be provided. Possession of the flats was, however, handed over to the members of the Complainant Society only on 01.06.2008, after a delay of about 5 months.
The Complainant found that the Opposite Party had not applied for Occupancy Certificate till due date of possession and finally obtained the same on 11.03.2008. They also came to know that the Opposite Party applied for electricity connection in December, 2007, whereas Reliance Energy required at least 6 months to supply electricity. The Opposite Party forced and coerced the flat purchasers to pay additional amounts over and above the amounts agreed in the agreement and further compelled to sign unjust undertakings. The amounts collected by the Opposite Party included Corpus Fund, advance maintenance from 01.06.2008 to 31.05.2009, interest for late payment @ 26% p.a. and Interest Free Service Tax. The flat purchasers had to sign the undertakings and pay the amounts demanded by the Opposite Party under duress and coercion in order to receive possession of the flats. An amount of Rs.25,000/- collected by the Opposite Party as per Clause 6 of the agreement was retained by them and later adjusted the said amount against frivolous expenditures without consent of the Complainant.
The Complainant also noticed following defects in the flats:
· Leakages, seepages, especially in wet area provided in many flats.
· Overhead tank is improperly designed, resulting in frequent overflows.
· Concealed pipes, sink drain pipes, bathroom drain pipes involve frequent flooding and leakages.
The defects were brought to the notice of Opposite Party, but in vain. Despite repeated requests, the Opposite Party had not handed over complete charge of the property to the Managing Committee of the Complainant Society. They also failed to execute conveyance deed in favor of the Complainant Society. Alleging deficiency in service on the part of the Opposite Party, the Complainant Society approached this Commission with following prayer:
“a. To allow the above numbered Complaint.
b. To hold and declare that Opposite Party to be guilty of deficiency in service and unfair trade practice under the provisions of Consumer Protection Act, 1986.
c. To direct Opposite Party to complete its title and execute conveyance deed in favor of the Complainant Society, in respect of the land bearing C.T.S. No. 1456, Survey No.327. Hissa No. 6 & C.T.S. No. 1455A, Survey No.327, Hissa No. 7 along with the Complainant Society building, open space, appurtenant land, etc. within a time bound schedule as may be decided by this Hon'ble Commission.
d. To direct Opposite Party to pay to the respective flat purchasers through the Complainant Society interest @ 26% p.a. on the amounts paid by them towards their respective flats/stilt parking places from 30/12/2007 (the agreed date of possession) till date of possession 01/06/2008 amounting to Rs.2.05,30,737/- (Rupees Two Crores, Lakhs, Thirty Thousand, Seven Hundred and Thirty Seven) as detailed in statement of claim and Exhibit 'C-5'.
e. To direct Opposite Party to reimburse to the Members through the Complainant Society the sum of Rs.86,39,543/- (Rupees Eighty Six Lakhs, Thirty Nine Thousand Five Hundred Forty Three) being the amount collected under the pretext of service tax, along with interest @ 26% p.a. from the date of respective payments till reimbursement.
f. To direct the Opposite Party to pay to the respective Members through the Complainant the money the sum of Rs.13,50,169/- (Rupees Thirteen Lakhs, Fifty Thousand One Hundred Sixty Nine) wrongly charged and collected as interest along with interest @ 26% p.a. from the date of respective payment till the date of realization.
g. To direct the Opposite Party to hand over to the Complainant duly audited Statement of Account in respect of all the charges, fees, Corpus Fund, Society Registration Charges, share money, legal charges, Parking charges, Advance Maintenance charges, account for the amount of Rs.25,000/- as per clause 6 of the Agreement, etc., and to reimburse to the Complainant Society the unspent/surplus money lying with him within a specified time to be stipulated by this Hon'ble Commission.
h. To direct the Opposite Party to hand over to the Complainant all the original documents pertaining to the Building viz. the updated Property Card with CIS Plan, set of approved /completion plans, occupation /building completion certificate, NA permission issued by the Collector, structural/construction drawings, structural calculations, electrical layout & power distribution diagram, approved lift drawings along with lift license , approved drawings of firefighting system, Warranty/Guarantee Certificates, and all other certificates in the possession of the Opposite Party within a specified time as may be decided by this Hon'ble Commission.
i. To direct the Opposite Party to rectify all the defective work and or more specifically mentioned under para 9 of the Complaint within a time bound schedule of three months or such other time as may be specified by this Hon'ble Commission or in the alternative to pay to the Complainant the cost of rectifying the said work.
j. To hold and declare as null and void and not binding on the flat purchasers and Complainant Society, the various undertakings obtained by Opposite Party from the flat purchasers under coercion at the time of handing over possession.
k. To grant interim relief as regards the prayers in para Nos. 17h. and 17i. herein above.
l. To grant adequate compensation to be paid by Opposite Party to the Complainant Society for the mental agony and physical harassment suffered by the members of the Complainant Society due to the deficiency in service and unfair trade practice on the part of Opposite Party.
m. To direct Opposite Party to pay to the Complainant Society an amount of Rs.5,00,000/- (Rupees Five Lacs) towards the legal and Incidental expenses Incurred by Complainant Society for pursuing the above numbered Complaint.”
Opposite Party resisted the Complaint by filing written version stating that there was no privity of contract between the Complainant Society and the Opposite Party. The Complaint was also time barred.
On merits, it was stated that the claim was exaggerated and not substantiated by documentary evidence. The delay in handing over the possession was not due to the Opposite Party and the reason for delay was duly communicated to the members of the Complainant Society on 04.01.2008, 04.02.2008 and 17.05.2008. It was stated that all the amounts collected from the purchasers were in accordance with the allotment and there was no ambiguity in the agreement
Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Complainant submitted that the Opposite Party failed to comply with the statutory and contractual obligations as such cause of action was continuing and the Complaint was not barred by limitation. The Opposite Party had obtained 90% of the consideration amount and they were liable to compensate for delay and an interest at 26% p.a. as the Opposite Party had also charged the same interest. The Opposite Party forced and coerced the members of the Complainant Society to pay additional amounts in the name of Corpus Fund, Advance Maintenance, interest for late payment Interest free Service Tax Deposit over and above the amounts agreed in the agreement without providing any justification. Learned Counsel submitted that as per circular No.108/02/2009, ST of the Central Board of Excise and Customs the flat purchaser was not required to pay Service Tax. The Opposite Party compelled to sign undertakings illegally. Opposite Party also failed to execute the conveyance deed.
The Learned Counsel for the Opposite Party submitted that the Complaint was to be filed on or before 30.05.2010. The Complaint, however, was filed with a delay of almost one year without any application for condonation of delay. With respect to execution of conveyance deed, the cause of action arose on 10.03.2009, i.e. four months after the registration of the society as per the provisions of MOFA. The Complainant ought to have raised it on or before 09.03.2011 as per Section 24A of the Consumer Protection Act, 1986. It was stated that there was no privity of contract between the Complainant Society and the Opposite Party. The Co-operative Society not being a Consumer cannot file a Consumer Complaint.
On merits, Learned Counsel for the Opposite Party submitted that the members of the Society had taken possession of the respective flats without mentioning any defect in the quality of construction. Further, the Complainant had not substantiated the allegation regarding quality of construction through expert report or otherwise. The delay in handing over the possession was subject to the contingencies provided in clause 10 of the agreement. The Opposite Party had completed the construction before the due date of possession and the delay in obtaining the Occupancy Certificate was on account of cumbersome procedures at BMC office. The notification issued on 29.01.2009 by the Ministry of Finance waived the Service Tax and the Opposite Party, vide letter dated 15.07.2009, clarified that the money deposited by the Flat Purchasers towards interest free security deposit against the future service tax liability would be utilized for settlement of the liability for value Added Tax (VAT) for the respective flats as per rules and regulations of the Government of Maharashtra.
Brief facts of the case are that the Complainant is a Co-operative Society comprising of Flat Purchasers, who had purchased respective flats from the Opposite Party by executing individual flat purchase agreements and separate agreement for purchase of stilt parking places. As per the agreement, the Opposite Party was to handover possession of the flats by 30.12.2007, however, it was handed over on 01.06.2008.
Regarding maintainability, in the opening para of the Complaint it is admitted that the Complainant is a duly registered Co-operative Housing Society. The main objection taken in the written statement is that the Complainant is not a Consumer qua Opposite Party. The Complainant Society was registered under the provisions of Maharashtra Co-operative Societies Act and was not a voluntary Consumer Association. This Commission in Ambrish Kumar Shukla v. Ferrous Infrastructure Pvt. Ltd., 2016 SCC On Line NCDRC 1117, held as follows:
“…..a Cooperative Society or a group of Cooperative Societies is not entitled to file a complaint under Section 12 (1)(c) of the Consumer Protection Act unless the cooperative society itself is a consumer as defined in Section 2(1)(d) of the Consumer Protection Act. Similarly, no group of Firms, Society or Association can file such a complaint unless such group of Firms, Society or Association itself is a consumer as defined in Section 2(1)(d) of the Consumer Protection Act. No person who does not qualify as a consumer in terms of Section 2(1)(d) of the Consumer Protection Act, can be party to a complaint under Section 12(1)(c) of the Act nor can he be amongst the persons on whose behalf or for whose benefit such a complaint is filed. In fact, a person who is not a consumer, as defined in Section 2(1)(d) of the Act, can invoke the jurisdiction of a Consumer Forum, by way of a consumer complaint.”
From above, it is clear that a Cooperative Society is not entitled to file a complaint under Section 12 (1)(c) of the Consumer Protection Act unless the cooperative society itself is a Consumer. In the registration certificate it is mentioned that the Society had been registered under Section 9 (1) (Year 1961 of Maharashtra Regulation No.24) Maharashtra State Co-Operative Societies Act, 1960. It is thus, clear that the Complainant Society was registered under the statutory provisions of Maharashtra State Co-Operative Societies Act, 1960. Hon’ble Supreme Court in Sobha Hibiscus Condominium vs. Managing Director, M/s Sobha on 14 February, 2020 held as follows:-
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.”
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 C.A.No.1118 of 2016 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.”
From the above, it is clear a Society registered under the statutory provisions is not a voluntary Consumer Association and not entitled to file a Consumer Complaint. In the case on hand, the Complainant is also registered under the statutory provisions of Maharashtra State Co-Operative Societies Act, 1960. The Complainant, thus, cannot be said to be a “Consumer.”
Considering the facts and circumstances of the case as well as keeping in view the judgment of this Commission in Ambrish Kumar Shukla (supra) and also Sobha Hibiscus (supra), I find that the Complainant is not a “Consumer” and the Complaint filed by the Complainant is not maintainable. The Complaint is, therefore, dismissed as not maintainable with liberty to the Complainant to approach appropriate Forum in accordance with law.