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Judgment
Heard Ms. Nikita Sharma, Advocate, for the complainants and Ms. Haripriya Padmanabhan, Advocate, for the opposite parties.
92 flat buyers of the project “Casa Paradiso” have filed above complaint for directing the opposite parties to (i) refund Rs.25000/- with interest @18% per annum from the date of collection till the date of refund to each of them; (ii) pay maintenance charges with interest @18% per annum, of unsold flats on pro-rata basis; (iii) rectify/replace the sewage treatment plant installed in the north part of the project and install another sewage treatment plant in the south part of the project; (iv) pay Rs.200000/-, to each of them, as compensation for mental agony and harassment; (v) pay Rs.500000/-, as litigation costs; and (vi) any other relief which is deemed fit and proper in the facts of the case.
The complainants stated that M/s. Sanathnagar Enterprises Limited and Macrotech Developers Limited (OP-1 and 2) (the developer) were companies of Lodha Group and registered under the Companies Act, 1956. The developer got sanctioned Building Plan of the project “Casa Paradiso”, at Fatehnagar Railway Station, Sanathnagar, Hyderabad, being No.8067/HO/CZ/Cir-P/2011 dated 27.01.2012, from Greater Hyderabad Municipal Corporation and developed the group housing project consisting 719 flats of 4 different sizes. The complainants booked their respective flats in the year 2012 onward and deposited booking amount. The developer executed agreement to sell in favours of the complainants of their respective flats in 2012 onward. As per agreement to sell, payment plan was ‘construction link payment plant’ and date of ‘fit-out possession was 31.03.2014. The complainants made payments as per demand of the developer and the developer offered ‘fit-out possession’ in July, 2014 onward till 2017. Although the developer completed the project and handed over possession but possession of car parking, club house and water supply etc. were completed only after litigation in this respect. The buyers of the flat formed Casa Paradiso Owner’s Welfare Association (OP-3) on 10.12.2012, for raising their grievances, in relation to common amenities and facilities. The developer collected Rs.25000/- from every flat owner for formation of the flat owner’s welfare society. The developer handed over the project to OP-3 on 18.12.2018 but did not refund the amount collected from the buyers for formation of the flat owner’s welfare society. The developer is in possession of unsold 91 flats in the project “Casa Paradiso” and is liable to pay ‘common area maintenance charges’ of these flats on pro-rata basis but the developer is not paying it, in spite of demand of OP-3. The developer constructed ‘sewage treatment plant’ in north block of the project. Most of the pumps of ‘sewage treatment plant’ are not functional and lying defective. Due to defective design of ‘sewage treatment plant’, untreated water with foul smell is coming back into supply, thereby causing health hazard to the residents. A report obtained from an independent agency namely M/s. Revolve Engineers Private Limited dated 27.01.2017, pointing the snags in ‘sewage treatment plant’ has been given to the developer but they did not take any step for its repairs. On these allegations, the complaint was filed on 18.09.2019.
The complainants filed IA/15239/2019, under Section 12(1)(c) of the Consumer Protection Act, 1986, for grant of leave to file the complaint in representative capacity on behalf of numerous flat buyers of the project, having same interest. The developer filed their reply to this IA and stated that there are total 12 Towers in the project “Casa Paradiso”. There is no complaint from any resident of Tower- Eden-A. Large number of the flat buyers filed their individual complaints before District Forum and State Commission, which are pending either before original forum or in appeal. Total 125 complainants are the owners of 92 flats and they took possession before August, 2017. The developer realized Rs.25000/- towards administrative charges and not for formation of ‘flat owner’s welfare society’. Casa Paradiso Owner’s Welfare Association (OP-3) was formed and registered on 10.12.2012. Entire project including all the common amenities and facilities were handed over to Casa Paradiso Owner’s Welfare Association (OP-3) on 15.10.2016 and statement of accounts were handed over on 29.11.2016. Some documents which formed the chain of the title over the project land were handed over on 18.12.2018. The developer was not in control of maintenance of any common amenities and facilities after 15.10.2016. All maintenance, bear and tear of the common amenities and facilities are looked after by OP-3 and the developer is not responsible for it. OP-3 filed various cases i.e. (i) Case No.34 of 2013 before Competition Commission of India, raising the issue that the developer was in dominant position in the geographical market of Hyderabad. (ii) CC/508/2013 before District Consumer Forum, Hyderabad challenging validity of clauses F, G, 61., 6.2, 6.3, 11.1, 11.2, 11.5, 14.1, 14.5 and 16.2 of the sale deed. (iii) CC/629/2014 before District Consumer Forum, Hyderabad, as a representative complaint, raising issue of construction of “Club House” at somewhere else, to provide stilt level car parking and restraining the developer from selling additional car parking in the name of ‘Tandem Car Parking’. (iv) Writ Petition No.27072 of 2014, Writ Petition No.27093 of 2014 and Writ Petition No.32845 of 2014, before Andhra Pradesh High Court, alleging that the developer deviated from original sanction plan. (v) Civil Suit No.391 of 2019 raising various issues of the maintenance of the common amenities and facilities and recovery of alleged surplus amount of ‘common area maintenance charges’, which is pending before Additional District Judge, Court No.XV, Kukatpally, Rangareddy District. (vi) EA/17/2018 in CC/629/2014, for executing order dated 08.09.2015. The complainants have deliberately concealed filing of above litigations and have not come with clean hand. Under Rule-11 of Andhra Pradesh Apartments (Promotion of Construction and Ownership) Rules, 1987, the developer is exempted from the liability of ‘common area maintenance charges’ in respect of unsold flats. It has been denied that the developer has committed any deficiency in service.
The developer filed IA/3011/2020, for dismissing the complaint as time barred. The developer stated that Casa Paradiso Owner’s Welfare Association (OP-3) was formed and registered on 10.12.2012 and all the common amenities and facilities were handed over to Casa Paradiso Owner’s Welfare Association (OP-3) on 15.10.2016. As such the relief of rectify/replace the sewage treatment plant installed in the north part of the project and install another sewage treatment plant in the south part of the project are barred by limitation as provided under Section 24-A of the Consumer Protection Act, 1986. Under Rule-11 of Andhra Pradesh Apartments (Promotion of Construction and Ownership) Rules, 1987, the developer is exempted from the liability of ‘common area maintenance charges’ in respect of unsold flats. The developer realized Rs.25000/- towards administrative charges and not for formation of ‘flat owner’s welfare society’ at the time of offer of possession. Relief for refund Rs.25000/- is also barred by limitation.
The developer filed IA/3107/2020 for dismissing the complaint as under Order II Rule 2 C.P.C., stating that Casa Paradiso Owner’s Welfare Association (OP-3) filed Civil Suit No.391 of 2019 raising various issues of the maintenance of the common amenities and facilities and recovery of alleged surplus amount of ‘common area maintenance charges’, which is pending before Additional District Judge, Court No.XV, Kukatpally, Rangareddy District. Relieves sought for in this complaint could have been claimed in Civil Suit No.391 of 2019. If it were not claimed then it is barred under Order II Rule 2 C.P.C. The complaint is liable to be dismissed as time barred and under Order II Rule 2 C.P.C.
The complainants filed replies to these IAs. The complainants stated that Mrs. Sonam Agrawal (complainant-45) took possession of the flat allotted to her on 23.03.2018. Delivery of possession of Flat No.605, Tower Eden-B, took place in the year 2020. Process of handing over the project to OP-3 was completed on 18.12.2018, as such, the complaint filed on 18.09.2019 is not time barred. It has been denied that Rs.25000/- was collected in the head of “administrative charges” rather it was collected for expenses for formation of flat owner’s welfare society as is mandatory under Telangana Apartments (Promotion of Construction and Ownership) Act, 1987. The developer is in possession of unsold 91 flats in the project “Casa Paradiso” and is liable to pay ‘common area maintenance charges’ of these flats on pro-rata basis but the developer is not paying it, in spite of demand of OP-3, which amounts to unfair trade practice. The burden of maintenance is falling upon other flat buyers. The developer constructed ‘sewage treatment plant’ in north block of the project. Most of the pumps of ‘sewage treatment plant’ are not functional and lying defective. Due to defective design of ‘sewage treatment plant’, untreated water with foul smell is coming back into supply, thereby causing health hazard to the residents. This is continuous wrong and cause of action arises on every day. Order II Rule 2 C.P.C. has no application on the complainants as they were not party in the litigations as pointed out by the developer.
We have considered the arguments of the counsel for the parties and examined the record. Main relieves in the complaint are (i) refund Rs.25000/- with interest; (ii) pay maintenance charges with interest of unsold flats on pro-rata basis; (iii) rectify/replace the sewage treatment plant installed in the north part of the project and install another sewage treatment plant in the south part of the project. Other prayers are consequential relieves. Casa Paradiso Owner’s Welfare Association (OP-3) was formed and registered on 10.12.2012 and all the common amenities and facilities were handed over to it on 15.10.2016. As such the relief of rectify/replace the sewage treatment plant installed in the north part of the project and install another sewage treatment plant in the south part of the project, are barred by limitation as provided under Section 24-A of the Consumer Protection Act, 1986 as the complaint was filed on 18.09.2019,. The complainants do not dispute handing over all the common amenities and facilities to OP-3 on 15.10.2016 but stated that handing over continued till 18.12.2018. A copy of the letter dated 18.12.2018 has been filed as Annexure-C-8, which shows that 19 papers were handed over to OP-3 on 18.12.2018. But OP-3 had been filing various complaints against the developer, prior to handing over the project. Cause of action for deficiency in ‘sewage treatment plants’ arose to OP-3 on 15.10.2016. So far as the complainants are concerned, 7 complainants took possession in 2013, 45 complainants in 2014, 21 complainants in 2015 and 22 complainants in 2016. Therefore, cause of action in respect of deficiency in ‘sewage treatment plant’ arose on the date of taking possession. The complaint in respect of deficiency in ‘sewage treatment plant’ to OP-3 and many complainants are time barred. Supreme Court in State Bank of India Vs. B.S. Agriculture, (2009) 5 SCC 121, Kandimalla Raghavaiah and Company Vs. National Insurance Company, (2009) 7 SCC 768 and V.N. Srikhande Vs. Anita Sena Fernandes, (2011) 1 SCC 53, held that after expiry of two years from cause of action, complaint is not liable to be admitted.
The relief for refund Rs.25000/- is also barred by limitation. The complainants have stated that Mrs. Sonam Agrawal (complainant-45) took possession of the flat allotted to her on 23.03.2018. Delivery of possession of Flat No.605, Tower Eden-B, took place in the year 2020. But the complainants did not give the date of deposit of this amount. At that time maintenance was with opposite party-3. In any case there is no sameness of interest inasmuch as relief for all the complainants (except Mrs. Sonam Agrawal (complainant-45) has become time barred. The complaint of one complainant falls within pecuniary jurisdiction of District Commission. Under Rule-11 of Andhra Pradesh Apartments (Promotion of Construction and Ownership) Rules, 1987, the developer is exempted from the liability of ‘common area maintenance charges’ in respect of unsold flats.
ORDER
In view of the aforesaid discussions, the complaint is dismissed as time barred with liberty to those complainants, whose claim is within limitation to file complaint for refund of Rs.25000/- before District Commission.