M/S. DHRUV (A.T.T.) CO-OP. HOUSING SOCIETY LTD. Vs M/S. DHRUV CONSTRUCTIONS & 7 ORS.

M/s. Dhruv Park, the complainant, is a Co-operative Group Housing Society. M/s. Dhruv Constructions (Promoter / Partnership Firm) is the OP1. OP1 entered into a Development Agreement with M/s. City Life Developers, OP2, for the development of the project known as, "Dhruv Park", consisting of different residential buildings. As per the agreement, OP2 was to construct a Ground + 24 Floor Building with a height of 82.2 mts., known as ''Agarwal Trinity Tower'' on the disputed land, situated at Plot bearing CTS No. 334-A, 360, 361, 362, 577 of Village Valnai at Malad (W), as per the MCGM Building Plan dated 25.02.2003. Copy of the same has been placed on record as Annexure B.

In the year 2005, the OPs entered into an agreement for sale with the various flat purchasers in the said building, known as ''Agarwal Trinity Tower'' and one of such agreement was executed with Mrs. Arunakshi S. Karkera. Copy of the said agreement for sale dated 24.06.2006 entered with Mrs. Arunakshi S. Karkera has been placed on record as Annexure C. The OPs handed over the possession of respective flats to various flat purchasers from March, 2008 onwards. A registered Society was formed on 04.12.2009 vide Annexure D, which is copy of registration of complainant''s Society. The complainants have pointed out the following deficiencies on the part of the OPs:-

A. First of all, the Conveyance Deed has not yet been executed. That was to be executed within six months from the registration of the Society, i.e., on or before 03.06.2010, as per the provisions of Section 11, read with Rule 9 of MOFA (Maharashtra Ownership of Flats) Act, 1963. Letter dated 28.07.2009 regarding the execution of the Conveyance Deed is annexed to the complaint as Annexure E.

B. There is complaint in respect of exterior open spaces around the building. These should be, minimum of 16 mts. As per Regulation 12 of the Development Control Regulations for Greater Mumbai, 1991, the open space is not to be reduced by construction of a podium. However, the OPs have constructed a podium. The OPs, after acquiring the BMC approval, constructed a 28-Floor building of 82.2 mtrs height, along with the podium surrounding the building, utilizing the required exterior open space as per the model bye-laws and converting the space above and below the podium into parking slots.

C. There is absence of recreational grounds. There is no space for children to play. No space for gardening and no open space for recreational activities of all the 150 flat purchasers in the complainant''s building of 28-floors. The project is not yet complete. The construction work is going on. The recreational ground cannot be used for construction purposes. There is no place for parking the cars or the cars of the guests. The statutory requirement is that parking space meant for guests, relocating the parking slots from podium which is required to be open as per the bye-laws and the fire safety norms and 25% of the open space as per the Building Bye-laws and Development Control Regulation for Greater Bombay, 1991.

D. The parking spaces were sold in contravention of the agreement as per the provision of Rule 36 of the Development Control Regulation for Greater Bombay, 1991, promoter should provide 77 parkings, plus, 10% as guest parkings, totaling to be 85 only.

E. The next grouse of the complainant is that they were not provided the Club House and Swimming Pool facilities.

During arguments, it came to light that the Club House was ready, but the same was not open for the use of allottees, as certain taxes have to be paid and Occupation Certificate is to be obtained.

F. The question of Conveyance Deed is being delayed on the ground that Conveyance Deed will be given to the Federation of Entire Projects, after their full completion.

G. The other grievance of the complainant is that ''Corpus Fund'' has not been given to them. Society was entitled to receive ''corpus fund'' of Rs.35,20,000/- at the time of registration of the Society from the OPs, but the OPs are withholding the same. The said ''fund'' was collected for the out-going, like ground rent, municipal and other tax, water charges, electricity charges, revenue assessment and if the OPs fail to pay such charges, then it will be treated as violation of law and the cause of action will be continuous. Therefore, the reimbursement of the ''corpus fund'' will not only be compensation but also a statutory requirement to be paid by the promoters. The Sale Deed provides that the Promoters, Developers will give the account of Maintenance Deposit and Corpus/ Contingency Fund at the time of conveying the said building.

H. Then, there is a dispute about the property tax. The OPs were bound to pay the property tax till the ad-hoc committee took charge on 01.04.2009. It transpired that OPs failed and neglected to pay the property tax from 01.04.2008 to 31.03.2009, amounting to Rs.27,17,956/-. Thereafter, there is leakage problems and maintenance problems.

I. No water or bore-well was provided. The complainant itself got the bore-well connection and also got the useable water from the Corporation, on their own charges. As the Occupation Certificate was not obtained, therefore, they have paid Rs.7/- per unit along with proportionate higher sewage charges, instead of Rs.3.5 per unit. They had to pay Rs.4,08,163/-, i.e., 50% of the total actual bills, up to 09.04.2012. The complainant obtained the premises from BMC to drill bore-well and also had to do rain-water harvesting for additional water for flushing and gardening for which the complainant had incurred an expenditure of Rs.4,27,098/-. The BMC Water Supply connection is not enough for the residents of 150 flat-owners. Consequently, additional BMC water supply connection had to be required at the cost of Rs.3,37,500/-. The cost for putting a separate pipe-line amounting to Rs.2,13,400/- was incurred. No accounts, etc., was given by the OPs.

J. The sky-lights provided in the duct are not fenced and hence birds are entering inside the ducts, making nests and laying eggs. Moreover, the windows and flower-beds are yet to be covered. The sanitation work is defective.

K. There are cracks on external surface of the building.

L. Toilets did not have proper doors, water supply, etc.

Legal notice dated 10.03.2011 was issued, but it did not evoke any response. The complainant, thereafter filed this complaint before this Commission, on 16.10.2012, with the following prayers :-

" a) To hold and declare the OPs to be guilty of deficiency in service and unfair trade practice as per the provisions of the CPA, 1986.

b) to direct the OPs to comply with their statutory obligations and to execute the Conveyance Deed of the land in plot bearing CTS No.334-A, 360, 361, 362, 577 of Village Valnai at Malad (W) in favour of the registered society within a time bound schedule of 6 months.

c) To decide in conveying the land in plot bearing CTS No.334-A, 360, 361, 362, 577 of Village Valnai at Malad (W) to the complainant society or member societies to meet the statutory requirements of recreational ground, amenities and open space duly approved by BMC and to save the other prospective consumers from the unfair trade practice by way of selling flats in the prospective building / buildings to be constructed illegally by the opposite parties even if there is no balance open space in the project.

d) To direct the OPs to convey the land to the complainant required for relocation of the 36 parking slots sold by the promoters over and above the approved 85 parking slots as per the provisions of Rule 36 of the Development Control Regulation for Greater Bombay, 1991.

e) To direct the OPs to compensate the complainant Rs.3,63,00,000/- @ Rs.3,00,000/- per parking for all 121 parking slots sold illegally and interest @ 24% p.a., till the date of actual payment.

f) to direct the OPs to comply with their statutory obligations and to execute the conveyance deed of the land in plot bearing CTS No.334-A, 360, 361, 362, 577 of Village Valnai at Malad (W) approved for club house and swimming pool in favour of the registered society(s) within a time bound schedule of 6 months and refrain the promoters to award the operational and maintenance contract to M/s.Richie Rich Resorts Ltd., holding the contract illegal. To make the club house and swimming pool operational by members, the promoters should refund the club house membership money collected at the time of possession form the flat purchasers along with interest @ 24% and compensation@ Rs.50,000/- per member for the loss suffered by all the 150 members. Or as the Hon''ble Commission may think fit, to direct the OPs to build and provide the club house and swimming pool facility on time bound manner within 6 months and to pay Rs.75,00,000/- to compensate the financial loss suffered, mental agony and harassment by the opposite party along with the interest @ 24% p.a., on the admission fees of Rs.37,50,000/- until the above said amenities are made available on a time bound manner.

g) to direct the OPs to pay to the complainant the corpus fund of Rs.35,20,000/- and interest @ 24% p.a., for the period commencing from 04.12.2009 (Society registration date), till the date of actual payment.

h) to direct the OPs to pay to the complainant the property tax of Rs.27,17,956/- for the period commencing from 01.04.2008 till 31.03.2009 which is being paid by the complainant under protest and without prejudice to avoid attachment by BMC as the OPs have not paid the same

and interest @ 24% p.a., till the date of actual payment.

i) to direct the OPs to pay to the complainant Rs. 10.00 lakhs to fix the leakage problems in the building.

j) to direct the OPs to pay to the complainant the maintenance due from three flats (2506 and 2706) money charged by the OP)s for giving late possession to the flat purchasers Rs.2,21,107/- and interest @ 24% p.a., till the date of actual payment.

k) to direct the OPs to pay to the complainant the maintenance wrongly charged giving back-dated possession to the flat purchaser amounting to Rs.22,50,000/- and Rs.22,50,000/- for the maintenance done by the Society w.e.f. 01.04.2009 for which the OPs have collected the maintenance and interest @ 24% p.a., till the date of actual payment.

l) to direct the OPs to pay to the complainant the loss of Rs.4,08,163/- which is calculated as 50% of the total bills received from BMC from 05.01.2009 to 09.04.2012 due to the highest rate of water supply on humanitarian ground and interest @ 24% p.a., till the date of actual payment.

m) to direct the OPs to pay to the complainant Rs.4,27,098/- towards the expenditure incurred on bore-wells and rain water harvesting and Rs.3,37,500/- to get the additional line from BMC to resolve the water problem in the society.

n) to direct the OPs to pay to the complainant the cost for putting a separate delivery line for supply of tanker water from ground tank to overhead tank of Rs.2,13,400/- to abide by the permission granted by BMC building department.

o) to direct the OPs to pay to the complainant the formalities of handing over society and the documents, i.e., i) audited accounts (ii) statement of balance maintenance charges paid by the complainant''s members (iii) approved plan (iv) building completion certificate (v) occupation certificate (vi) any other legal documents required to be maintained by the society.

p) to direct the OPs to pay to comply with their statutory obligations and to execute the conveyance deed of the land in favour of the registered society required for to meet the statutory obligation of providing the required / specified open space, children park area and to create the recreational facilities within a time bound schedule of 6 months.

q) to direct the OPs to pay to pay the expenditure of Rs.1,96,083/- for fencing and bird-proofing the duct area of the building.

r) to direct the OPs to pay to provide the grills in the balconies and flower-beds as per the BMC rules.

s) to direct the OPs to pay to change the sanitation system to meet the requirements.

t) to direct the OPs to pay to fill the cracks in the exterior plaster of the building.

u ) to direct the OPs to pay to provide the facilities required at the three refuse-areas of the building.

v) to direct the OPs to pay to pay to the complainant the sum of Rs.75.00 lakhs [Rs.50,000/- x 150 members] towards compensation for the inconvenience and hardship caused to the complainant for the long period from 2008, till date, due to the negligence and deficiency in service of the OPs.

w) to direct the OPs to pay to the complainant the sum of Rs.7.50 lakhs [Rs.5,000/- x 150 members] being the legal and other incidental expenses incurred by the complainant.

x) to award an interest of 24% p.a., to refrain the promoters / developers from the unfair trade practice of easily collecting the money in the name of providing the facility at a later date and utilize the money in other business and to earn money at around 25 to 30%.

y) for such other and further relief as this Hon''ble Commission may deem fit and proper in the nature and circumstances of the above numbered complaint".

DEFENCE :

The OPs have enumerated the following defences. Agarwal Trinity Tower had commenced in the year 2005 and was completed in the year 2008. The Occupation Certificate in respect thereof, was issued in the year 2008 itself. The case is hopelessly barred by time. The complaint suffers from non-joinder and mis-joinder of parties. The OPs 1(a), 1(b) and 2(a) to 2(d) are neither necessary nor proper parties. The complainants do not want to make payment of VAT, though they are liable to make the same, in accordance with the provisions of law. The entire lay out has not been developed, as per Clause No.23 of the Agreement for Sale, executed by the OPs 1 & 2, in favour of the Members of the Complainant Society. It specifically mentions that :- " 23. ....... The promoter shall cause to be granted a conveyance in favour of the said society or limited company to be formed in respect of land occupied by the said buildings of the entire complex and more particularly described firstly, secondly, thirdly, fourthly and fifthly, in the First Schedule hereunder written to be constructed on

the said larger property, including the said Agarwal Trinity Tower and in such event, the said larger property together with all the buildings shall be conveyed, in favour of Federation of such societies on the completion of the entire project".

OP1 procured development rights in respect of the property mentioned and more particularly described in the firstly, secondly and thirdly in the first schedule of the agreement for sale being Ex. C to the complaint through an agreement dated 20.01.2004 from M/s. Datani Construction, who, in turn, had acquired the said property from three different families, i.e., (1) Wange family (2) Misquitta family and (3) Jadhav family under three different agreements, all dated 04.09.1980.

OP1 procured the development rights in respect of the adjacent properties mentioned and described in the Fourthly and Fifthly of the First Schedule of the agreement for sale, Ex. ''C'', from M/s. N.A. Developers and from M/s. Parekh Investments & Development Pvt. Ltd. vide Agreement dated 21.02.2004 and 01.02.2005, respectively. OP1 got the major portion of the aforesaid properties amalgamated under BMC file dated 20.07.2004. OP1 took three separate IODs for the construction of three buildings on the portion of aforesaid properties. The BMC of Greater Bombay has provided the club house. The construction of all the entire building is not yet complete. The construction of Agarwal Business 2 Business Centre is still under progress. The construction of the said building No.2 and further buildings will commence in due course. The OP1, as agreed, will convey the right, title and interest in the said property along with the buildings in the said property along with the buildings constructed, and to be constructed in favour of the Federation of the Societies after the completion of entire project as per clause 23 of the agreement.

Again, the complainants are ''not'' the consumers. It is averred that Section 4 of the MOFA, clearly provides that in the absence of the agreement, the builder/ promoter shall execute the conveyance within 6 months from the date of registration of the Society. All the facilities have been provided. The complainants have made a false complaint. The OPs are not liable to pay property tax. All the funds have been utilized for the benefit of the allottees. It is contended that the OPs have maintained the accounts as required, and in absence of MOFA, 1963, they are ready and willing to make full and true disclosure of all the transactions as required under the said provision.

We have heard the counsel for the parties. We will decide all the deficiencies listed above, one by one. i) Whether, the complaint is barred by time ?

This is an admitted fact that Conveyance Deed of the premises in dispute is yet to be executed.

Counsel for the OPs vehemently argued that they have already executed the Occupation Certificate. Again, on the basis of Occupation Certificate, there have been transfers, in favour of the strangers. The complainants cannot be evicted from the premises in dispute for lack of Conveyance Deed. It was submitted that this ground has been taken to bring this case within limitation.

All these arguments are bereft of merit. It is well settled that the cause of action will continue till execution of the Conveyance Deed. This view was taken by this Commission in Revision Petition No. 2391 of 2013, titled Rajubhai Tank & Ors. Vs. Bindra Ben Bharat Kumar Mavani & Anr., decided on 02.04.2014. Special Leave Petition (Civil Appeal no.12293/2014) was filed before the Hon''ble Supreme Court, which was dismissed, vide order dated 09.05.2014.

It must be also mentioned here that due to non-receipt of Occupation Certificate from the concerned authorities, the complainants are paying Rs.7/- per unit for their water. If the Occupation Certificate is received by the OPs, Complainant will be charged @ 50% per unit, i.e.,Rs.3.5 per unit. Moreover, as per the agreement dated 22.06.2006, entered into between the parties, all the facilities have not yet been provided. Even the water facility has not been given, a fact, admitted by the OPs counsel himself. Without Conveyance Deed, the Club House and the Swimming Pool cannot be used. The cause of action is continuous and the case is not barred by time.

ii) Conveyance Deed : The OPs are avoiding this issue of Conveyance Deed on the specious plea that the Conveyance Deed will be executed by the Federation of the Society, after the construction of the properties there. This provision was inserted only to delay the matter to no-end. There lies no bar in getting the separate Conveyance Deed for this portion, i.e., for Agarwal Trinity Tower.

We find considerable force in the arguments urged by the counsel for the complainants that they are not getting the same as they have to pay certain taxes to the Government. Whatever the position may be, the OPs are hereby directed to get the Conveyance Deed executed within one year from today. They can complete the entire work and get the Conveyance Deed as per the provisions of the Agreement. If they are unable to do so, they will get a separate Conveyance Deed for these premises. If they fail to get the Conveyance Deed for these premises, after the expiry of one year, they will pay penalty upto Rs.5,000/- per day, to the complainant Society, till compliance.

iii) Facility of water : At the very outset, the counsel for the OPs admitted that they will pay the water charges for the bore-well. Apart from this, the Water Engineer Department vide letter dated 08.08.2003 informed:- " 1. As per the existing rules, 90 liters of water per person per day will be supplied for the domestic purposes on the submission of Occupation Certificate.

For the purpose of construction and after obtaining Occupation Certificate for flushing well-water or bore-well water should be used. That water should not be mixed with BMC water. Also for this water, an independent tank has to be constructed and red coloured separate pipeline has to be used for the supply of this water".

Water charges : The complainants have spent additional water line from BMC to resolve the water problem in the Society and spent Rs.3,37,500/-. They further incurred a sum of Rs.2,13,408/- for putting pipeline for supply of tanker water from ground tank to over-head bank, to abide by all the permission rules granted by BMC building department, All the documents have been placed on record. The case of the complainants Society stands proved to this extent. Counsel for the OPs very fairly admitted that OPs are liable to pay. Consequently, the OPs are directed to pay a sum of Rs.5,50,900/- to the complainant''s Society, with interest @ 12% p.a., from the date of filing of this complaint, till realization.

Again, the complainants paid Rs.7/- per unit instead of Rs.3.5 per unit for the water charges. The complainant has suffered a loss of Rs.4,08,133/- which is calculated as 50% of the bills upto 09.04.2012. The OPs are directed to pay Rs.4,08,133/-, with interest @ 12% p.a., to the complainants Society, for that extra payment of this amount, in favour of the complainant, up to 09.04.2012, from the date of filing of this complaint, till realization. They are further directed to pay 50% of the amount spent by the Complainant Society, from 10.04.2012, till the Conveyance Deed is obtained, with interest @ 12% p.a., from the date of announcement of this judgment, and continue to pay 50% of the water units, till the Occupation Certificate is obtained.

iv) Club House and Swimming pool : Both the parties admitted that the Club House is already ready, but it is not being opened. The complainants allege that the OPs have to pay some taxes, therefore, the same is not being opened. Counsel for the OPs admitted that it will be opened after it receives the Conveyance Deed. Consequently, the complainants have filed the complaint case within time. There is continuous cause of action. What is the use of that Club House which cannot be utilized by the allottees, after such a long time? Possession was given to

them 4-5 years back. They are not availing that facility. Consequently, we direct the OPs to open the Club House, within 90 days from today, otherwise, they will pay Rs.5,000/- per day to the complainant Society, till compliance.

v) Parking space : Para xxxi of the Agreement for Sale, runs as follows :- " The purchaser/s has/have agreed to purchase flat/ shop/office No.80 on the 8 floor along with th car parking no.-- on the -- floor admeasuring -- sq.mts., to park their vehicle in the proposed building standing partially on ground and partially on stilt and to be called and known as "Agarwal Trinity Tower", being constructed on the portion of the plot described in the First Schedule hereunder written being and forming a portion of the said larger property (more particularly described Firstly, Secondly, Thirdly, Fourthly and Fifthly in the First Schedule hereunder written) and which flat is admeasuring 462 sq.ft. or thereabouts of the carpet area together with right to park a LMV / Two wheelers at car parking space situated on podium/under the stilt / open to sky if allotted and agreed upon by the promoters/ developers and bearing Identification No.-- at or for a total and lump sum consideration of Rs.23,79,170/- subject to the following agreed terms and conditions.

It is further agreed by the purchaser/s that if the purchaser/s does not purchase the said stilt / podium / covered garages / open car parking then in that event, he / she / they / it shall not have any right of parking in the ---- covered garages / open car parking space in the larger open ----".

This clearly goes to show that no separate charges will be taken from the allottees. The parking space is part and parcel of the allotted flat. The counsel for the OPs has cited an authority reported in Nahalchand Laloochand Private Ltd. Vs. Panchali Co-operative Housing Society Ltd., (2010) 9 SCC 536. The facts of that case are different from the present one. The parking space was not a part of the agreement. Therefore, that authority will not be applicable to this case.

Counsel for the OPs vehemently argued that some of the flats have been sold to the strangers. Consequently, the strangers are not covered under the agreement in question. The OPs are directed to return all the amount charged for parking space, to the allottees, from whom they have originally charged the amount(s), along with interest @ 12% p.a., from the date(s) of charging the same, till its/their realization.

vi) Corpus Fund : This is an admitted that that the complainant Society deposited Corpus Fund in the sum of Rs.35,20,000/- with the OPs. The OPs could not account for that. They are directed to return the sum of Rs.35,20,000/-, to the complainant Society, along with interest @ 12% p.a., from 04.12.2009, till realization.

vii) Property Tax : The complainants have paid property tax in the sum of Rs.27,17,950/-. The same be returned with interest @ 12% p.a., from the date(s) of deposit(s), till realization.

The OPs are also directed to refund the maintenance amount charged from few flat purchasers, from the date(s) of collecting the maintenance charges, with interest @ 12% p.a., till handing over the possession, to those flat purchasers.

The complainants are also facing leakage problem. They have spent Rs.1,96,083/- on fencing the duct of the area of the building. The OPs will pay a lump sum of Rs.2.00 lakhs, to the complainant Society, with interest @ 12% p.a., from the date of filing of this complaint, till its realization.

The complaint case is accordingly allowed with litigation charges and with costs of Rs.3.00 lakhs, which be paid to the Complainant Society through demand draft, within 90 days'' from the receipt of this order, otherwise, it will carry interest @ 12% p.a., till its realization. The complaint, accordingly, stands disposed of.