Samruddhi Co-Operative Housing Society Ltd vs Mumbai Mahalaxmi Construction Pvt. Ltd

This consumer complaint has been filed by the complainant Samruddhi Co-operative Housing Society Ltd. on behalf of the Members of the Association against the opposite party Mumbai Mahalaxmi Construction Pvt. Ltd.

The brief facts leading to the present complaint are that complainant is a Co-operative Housing Society Ltd. who booked the flat of the opposite party in the year 1993 and got the possession their flat in 1997. It has been alleged in the complaint that the opposite party has not obtained Occupation Certificate and due to this reason the members of the complainant Society have to take additional taxes particularly the property tax and the water charges at a higher rate. The complaint has been filed for payment of Rs.2,60,73,475/- to the complainant paid by the members towards excess tax and charges. Heard the learned counsel for the complainant at the admission stage and perused the record.

First of all, the learned counsel for the complainant stated that the complainant is a Cooperative Housing Society which is filing this complaint on behalf of its members who had taken the flats from the opposite party under section 12(1)(b) of the Consumer Protection Act 1986. Individual authorizations from the members have also been filed apart from the resolution passed by the society for filing the complaint. The learned counsel stated that the flats were booked by the members of the complainant society in the year 1993 and the possession was taken in the year 1997 by the members. The opposite party has not given the completion certificate or the Occupancy certificate to the members of the society. In fact, the Occupancy certificate has not been obtained by the Builder. Due to non availability of the completion certificate, the members of the society are paying government taxes like property tax, water charges and electricity and other public services' charges at a higher rate due to the deficiency on the part of the opposite party.

Members have paid more than rupees one crore as extra taxes and additional charges due to this deficiency in service on the part of the opposite party and therefore the members of the society are entitled to get the refund of this amount from the builder. The members have waited for long and the opposite party was giving assurances that the completion certificate would be obtained, however nothing has been done so far and therefore, it has been decided to file the consumer complaint in this regard. The learned counsel stated that as a result of absence of the occupancy certificate, the complainant Society as well as the individual flat owners was not eligible to get electricity and water connection. In such circumstances, after much efforts of the Complainant Society, only interim water and electricity connection were permitted by the concerned authorities on humanitarian and sympathetic ground. However, due to non-issuance of occupancy certificate, the Society as well as the members have been directed to pay property tax themselves and that too at a rate 25% higher than the normal rate and water charges at a rate 50% higher than the normal rate, although the liability to pay the same lies with the respondent builder. Thus, whatever extra amount the members are paying is due to the fact that the opposite party has not obtained the Occupancy certificate for the said building.

Coming to the question of limitation the learned counsel stated that the claim of the complainant is not barred by law of limitation as the claim of the complainant in respect of the excess water user charges is a continuing and subsisting one. The bill for use of water is raised by the concerned municipal authority every month. Without prejudice to the above, it is submitted that the cause also arose on 07.04.2014 when respondent acknowledged and admitted to pay Rupees one crore. The cause of action further arose on 15.12.2015 when the OP flatly refused to pay an amount to the complainant. Therefore, the claim of the complainant is filed within the period prescribed under Section 24A of the Act. It was further argued that the non issuance of the Occupancy certificate will constitute a continuous cause of action and therefore the complaint cannot be said to be beyond limitation. In support of his argument, the learned counsel referred to the judgement of this Commission in Twin Tower Co-op. Hsg. Society Ltd. Vs. M/s. Manish Vijay Enterprise & Anr., OP No.22 of 2001, decided on 9th April, 2013 (NC), wherein this Commission has observed the following:-

"The first objection is on the ground of limitation. It is alleged that the possession of the flats was given in 1989, while the complaint was filed eleven years later in 2000. Hence, the complaint is alleged to be barred by Section 24 A of the Consumer Protection Act, 1986. As replied in the rejoinder of the complainant, the occupation certificate is not issued and the conveyance of the property is not admittedly executed still. Therefore, the question of limitation does not arise. We agree with this position. If the cause of action arose in 1989 with the handing over of physical possession, it has continued to exist due to non-execution of the conveyance deeds in favour of the flat purchasers."

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the complainant society and have gone through the record. First coming to the question of limitation, It is seen that the complainant society is claiming the filing of the present complaint within limitation by stating the cause of action as the assurance given by the opposite party on 7th April 2014 for reimbursing an amount of rupees one crore to the society. Further it has also been alleged that cause of action also arose on 15.12.2015 when opposite party flatly refused to honour the commitment made by him on 7th April 2014. The fact is that the flats were booked in the year 1993 and the possession was taken in the year 1997 and since then the complainants are enjoying the possession. Clearly the possession was taken against the rules as there was no occupancy certificate obtained by the Builder. When the complainant society was making efforts to get the individual connections for water to each member and when the municipal authority ordered the members to pay property tax at a higher rate and water charges also at higher rate, the actual cause of action arose at that time. The complaint should have been filed within 2 years of the date of arising of this cause of action. The members of the society have not cared to file the complaint in time and continued paying the property tax and the water charges at higher rate to the concerned authorities. Though the Society took up the matter with the opposite party, however, no amount of further communication between the parties can extend the limitation period as observed by Hon'ble Supreme Court in State of Tripura & Ors. Vs. Arabinda Chakraborty & Ors., decided on 21.04.2014 (SC), wherein the following has been held:-

"10. In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided. ........"

This Commission in Panipat Thermal Power Station HPGCL, Panipat through its Executive Engineer/LRE-7 Vs. New India Assurance Co. Ltd., (2013) 1 CPJ 114 (NC) has held that:-

"6. ............It is well settled principle of law that after repudiating the claim or making some payment under claim as final payment subsequent correspondence between the parties does not extend period of limitation and complaint has to be filed within the prescribed statutory period of two years. ......................................................................."

The same view has been taken by this Commission in Mahesh Nensi Shah Vs. Oriental Insurance Co. Ltd., III (2006) CPJ 414 NC. It has been observed that:-

"3. ........ The cause of action for filing the complaint arose in 1992 itself because it is by now settled law that repudiation itself is the 'Cause of Action'. No amount of correspondence between the parties can extend the period of limitation, whereas in the present case the complaint was filed after almost 5 years of the 'Cause of Action'. No sufficient ground, except exchange of correspondence between the parties, has been shown to us to satisfy us that there were sufficient grounds for filing the complaint with such great delay. The State commission has rightly dismissed the complaint as barred by limitation for the simple reason that any amount of correspondence does not extend the period of limitation as per settled law. ..................................."

From the above, it is clear that once the cause of action arose on the date when the municipal authorities ordered payment of property tax by the members of the society at increased rate and payment of water charges also at an increased rate or for the first time the members paid increased bills, the period of limitation shall I start from this date and it cannot get extended on the basis of the exchange of communications between the parties. So far as the continuous cause of action in respect of non availability of the Occupancy certificate is concerned d, cause of action continues for any direction to be given to the opposite party for supplying of Occupancy certificate to the members of the society. However it is seen from the complaint that no such prayer has been made in the complaint as would be clear from the prayers made in the complaint which read as under:-

"A. Direct the opposite party to the sum of Rs.2,60,73,475/- (Rupees Two Crores Sixty Lacs Seventy Three Thousand Four Hundred and Seventy Five only) to the complainant towards the Government taxes, levies, legal expenses, water charges till 31.03.2016 and any further amounts which may remain outstanding until the date of obtaining Occupation Certificate.

B. Award a sum of Rs.20,00,000/- [Rupees Twenty Lacs Only] towards the mental agony and inconvenience cause to members of the Society due to deficiency of service by the respondents.

C. Award cost of the proceedings in favour of the complainant.

D. Award cost of the proceedings in favour of the complainant.

D. Pass such or further order as deem fit and proper in facts and circumstances of the case."

From the prayers it is clear that no prayer for supplying occupancy certificate has been made in the present complaint and question of limitation is to be seen only in the context of the reliefs sought in the complaint. The only relief sought is for directing the opposite party to refund an amount of Rs.2,60,73,475/- to the complainant Society and for this relief, the cause of action had arisen much earlier when the municipal authorities ordered the members to pay the property tax themselves on enhanced rate and to pay the water charges also on enhanced rate. Thus, I do not find any merit in the contention of the learned counsel for the complainant that the complaint is filed within the limitation period. In fact, the complaint is hopelessly barred by limitation in respect of the reliefs claimed.

Even on merits, It is seen that the complaint has been filed for reimbursement of Rs.2,60,73,475/- from the opposite party. This is the excess amount paid to the respective authorities and not to the opposite party. It seems that the amount has already been paid to the concerned authorities and the complaint has been filed for recovery of the same from the opposite party. It is to be examined weather this type of recovery can be made from the concerned party under the provisions of the Consumer Protection Act 1986. Section 2(1) (d) of the Consumer Protection Act 1986 defines the consumer. A complainant is a consumer if he has paid or promised to pay consideration for the goods being purchased or services being availed or hired. In the present case, the complainant society or its members have not paid the amount being asked for refund to the opposite party for availing services of property tax or the water charges. The opposite party is not the service provider for these things for which excess amount has been paid and recovery is claimed against the opposite party. Thus, the complainant society or its members are not the consumers of the opposite party qua the reliefs claimed as these services are not being provided by the opposite party. In fact, these services are being provided by the municipal authorities. On these considerations, the present complaint does not seem to be a consumer dispute between the complainant society and the opposite party so far as reliefs sought are concerned. From this aspect also, the present complaint does not seem to be maintainable before this Commission. However, the complainant is free to file recovery suit before a competent Civil Court if so advised and liberty is granted for the same.

Based on the above discussion, the complaint is dismissed as being hopelessly barred by limitation as well as being not maintainable under the provisions of the Consumer Protection Act 1986 for the reliefs claimed.