SHRI MADHUBAN COOPERATIVE HOUSING SOCIETY LTD. vs MADHAVI INVESTMENT And TRADING PVT. LTD.

THIS complaint is filed by Shri Madhuban Cooperative Housing Society Ltd., against the developer Madhavi Investment and Trading Pvt. Ltd. to provide the amenities and to clear the defects listed in para 4 of the complaint or in the alternative the opposite party to pay to the complainant society a sum of Rs. 19,13,000/- being the value of the incomplete works to be carried out in the complex and to pay substantial compensation to the complainant society on account of harassment and mental agony and suffering suffered by the members of the society and such other reliefs which the Commission deems fit in the circumstances of the case and for costs.

BRIEFLY stated the allegations in the complaint are some time in the year 1992, the opposite party advertised for sale of flats and shops in a project to be known as Madhuban Shopping and Residential Complex situated in the property known as "Masconda" bearing City Survey Chaita No. 1 of P.T. Sheet No. 112 of Panaji city. The development was to comprise four blocks, A, B, C and D. The complainants are a cooperative society constituted by the purchasers of flats and shops of blocks A, B, C, and D of the said development which comprises 52 flats and 30 shops. The opposite party the developer entered into various agreements for sale with respective purchasers all of whom are members of the complainant society. The agreements executed separately were identical in nature and one such agreement is produced in the case dated 10.7.1992.

In terms of Clauses 15 and 17 of the agreement, the purchaser shall from the date of possession, maintain the said premises at their own costs in good and tenantable repair and condition. The premises were delivered to the respect purchasers. No amenities as stipulated in the agreement were provided by the opposite party and there were several incomplete works which were required to be completed by the opposite party which till date not done. The details of the incomplete works have been mentioned in para 4 of the complaint at Nos. 1 to 13 and further the opposite party has to execute the proper conveyance transferring proportionate undivided share in the property to the society. The purchasers of the flats thus formed a Cooperative Society which was registered. Letter was sent on 9.9.2000 to the opposite party giving notice listing the incomplete works which have to be completed and also for the execution of the conveyance. Correspondences were made. Subsequently the complainant sent a reminder. The opposite party by letter dated 5.2.2000 denied the liability to complete the works. The complainant engaged the services of Chartered Architect and Government Registered Valuer to assess the value of incomplete works. The Architect has given his report on 12.2.2001 in which he has calculated the value of the works to be carried out at Rs. 19,13,000/-. The brochure which was published by the opposite party shows that he had to develop open spaces, parking places and internal roads besides the building. None of these amenities mentioned in the agreement have been provided by the opposite party. The cause of action for the complaint arose on 5.12.2000 when the opposite party refused to complete and provide the amenities mentioned in the agreement and clear the defects. The complainant has prayed that the opposite party be directed to provide the amenities and clear the defects listed in para 1 of the complaint or in the alternative the opposite party be directed to pay the complainants the sum of Rs. 19,13,000/- being the value of incomplete works to be carried out by the opposite party and to pay substantial compensation amount of compensation to the complainant on account of the harassment and mental agony and suffering and such other compensation the Commission deems fit to grant along with costs.

THE opposite party in their written version has contended that the complaint is instituted by Shirodkar in the capacity as Secretary to the Cooperative Cociety no resolution authorising Shri Shirodkar to constitute and file the complaint for and on behalf of the complainants has been produced. Institution of the complaint without authority is not in accordance with law and the complaint has no locus standi to prosecute the proceedings. THEre is no privity of contract between the complainant and the opposite party the amount of compensation claimed is in addition to the claim of Rs. 19,13,000/- in respect of alleged unfinished works. Hence the value of the complaint will be beyond the jurisdiction of the Commission as it exceeds Rs. 20 lakhs. Further it is contended the complaint should have been filed within two years from 17.12.1997 of the formation of the society and the complaint is filed beyond the period of limitation. It is the contention of the opposite party the complainant society is a stranger to the contract between the opposite party and each of the purchaser of flats and shops in the blocks A, B, C and D of the complex. THE complaint as such is not maintainable. THE facilities mentioned in the contract entered into between the opposite party and each purchaser of flats and shops the facilities and services to be provided by the opposite party to each of purchaser of flats and shops have been mentioned in each agreement separately and each of the purchaser of the flats and shops have been given possession much before the formation of the complainant society and such purchase of flats and shops have not made out any grievance of lack of facilities as per the agreement nor have alleged at any time that the facilities and amenities as per the terms of agreement have not been provided to them. THE opposite party has denied that there were incomplete works. THE opposite party has also denied the incomplete woks as set out in para 4 of the complaint. On the other hand it is contended by the opposite party the work was completed and the building was handed over, the flats and shops to the respective purchasers after completing the building fully and on obtaining the occupancy certificate from Panjim Municipal Council. Whatever facilities and amenities were agreed to be provided to the purchasers of flats and shops were also duly provided before handing over the flats and shops to the concerned purchasers. THE opposite party forwarded the draft of the deed of conveyance to the complainant on 3.4.2000. THE complainant did not revert to the opposite party after receipt of the said draft of deed of conveyance. THEre was no reason for the complainant to engage the service of chartered architect to assess the value of alleged incomplete works. THE report annexed to the complaint and relied upon by the complainant is denied in toto. THE estimates of the expenses prepared by the said engineer Mr. Kiran B. Gedam are imaginary, arbitrary and on extremely higher side and denied as false. The complainant in support of the allegations made in the complaint filed affidavit-in-evidence with the resolution copy, the opposite party has also filed affidavit-in-evidence along with documents.

HEARD the Counsel for the complainant and the Counsel for the opposite party. It is contended by the Counsel for the complainant as per Clause 15 of the agreement which is dated 10.7.1992 the purchasers shall from the date of possession maintain the said premises in a good and tenantable repair and condition and the staircase common passages the compound, garden, playground parking and open spaces should not be changed or altered and Clause 17 also mentions that the, purchasers should have no claim to the open spaces, unallotted parking spaces, shops. The contention of the Counsel for the complainant is the purchaser is not provided these amenities as agreed in the agreement and these amenities and facilities should have been provided to the purchaser as agreed in the agreement. It is to be noted that the society has been registered on 17.12.1997 of the building purchasers of the flats and shops. Before that under each agreement between the purchaser and opposite party, in the year 1995-1996 every purchaser has taken possession of the flats and shops. The cause of action to file the complaint for incomplete works as per the grievances put forward by the society cannot be said to be a common one because the flats and shops have been given individually under different agreements and different dates. No doubt even though the purchasers have formed the society from the date of registration on 17.12.1997, the cause of action had arisen against the opposite party. It is to be noted all the agreement are independent by themselves which are of the purchasers of the flats and shops and delivery of possession of them is also on different dates and none of them has filed any affidavit in support of the grievances made in the complaint.

AS per the stand taken by the opposite party when possession was given to each of the purchaser, there remains no nexus or privity of contract between the opposite party and the purchaser though the formation of the society is mentioned but it cannot be said that there is privity of contract between the society and the developer the opposite party. If at all any cause of action has arisen it is from the date 17.12.1997 of the formation of the complainant society. Subsequent to formation of the society correspondence was made and on 5.12.2000 the opposite party denied his liability. From that date the limitation has arisen cannot be accepted the reason being when each individual owner of the flat and shop has separate and independent contract and they had already taken possession, to file common complaint on behalf of each and all of them he should have been empower to file such a complaint. The resolution produced before the Court does not say that the present complainant the Secretary of Society was empowered to file on behalf of all the purchases, except the fact that it has been mentioned that legal action can be taken against some persons who owe some liability to the society but there is no mention of the opposite party even on that score also the present complainant has no locus standi to maintain the complaint. From the point of limitation from the date of formation of society the cause of action has arisen and not from the date which has been mentioned in the complaint after the architect was appointed by the complainant and his report listing the incomplete works and its value and the notice is issued subsequently which has been denied cannot be said to give cause of action to the complaint the reason being there is privity of contact between the complainant the society as such and the opposite party.

EVEN otherwise no affidavit of the architect has been filed to establish the contention of the complainant that the incomplete works remain to be completed and its assessment. This has been denied by the opposite party in toto in his objections and also by way of affidavit in evidence. No material has been placed before the Court by the complainant to show the incomplete works and also the amount claimed to be paid to the complainant. From the point of limitation itself the complaint has to fail for the reason that the complainant Society consisting of the members who are the purchasers of the flats and shops who had already taken possession of the flats and shops individually in 1995 or 1996 and in 1997 Society has been formed, further none of them have filed affidavits or placed any material before the Commission about the grievances as ventilated in the allegations of the complaint.

When such being the case in the absence of any material to substantiate about the incomplete works with respect to the garden staircase and other amenities the relief claimed in the complaint cannot be entertained on the question of limitation and locus standi. The complaint has to fail particularly when there is no privity of contract there is no nexus in the claim made by the complainant against the opposite party the complaint has to fail.

IN view of the discussion made as above in our opinion the claim made by the complainant is to be turned down for want of legal relationship as the consumer complainant or the opposite party as the builder of the complainant. When such being the case the complaint has to fail. For the reasons mentioned above, the complaint filed by the complainant fails and the same is dismissed. In the circumstances of the case parties to bear their own costs. Complaint dismissed.