Bharatkumar Pandya, Member
Heard Mr. Dnyanaraj G. Sant, Advocate for the Complainant and Mr. Rahul S. Gandhi, Advocate, for Opposite Party.
2. The present consumer complaint, has been filed by M/s Nancy Lake Home Co-operative Housing Society Ltd. on behalf of its members against the Opposite Parties, Nancy Icon Builders & Developers and Nikkita Builders & Developers, alleging deficiencies in service, failure to provide promised amenities, non-execution of conveyance, and persistent negligence in completing statutory obligations and essential facilities. The Opposite Parties launched a residential project known as 'Nancy Lake Home' at Katraj, Pune, consisting of 383 flats across multiple buildings, for which possession was given in phases between 2010 and 2014. Based on brochures, representations, sanctioned plans, and written agreements, flat purchasers were assured a wide range of amenities including a podium, clubhouse, children's play area, solar system, swimming pool, fire fighting equipment, proper drainage and sewage systems, water supply network, internal roads, recreational areas, and adequate safety installations. The Society was duly registered on 10.12.2009, after which it assumed responsibility for coordinating with the builder for the completion of pending works. According to the complainant, after taking possession, the residents observed that a large number of amenities were incomplete, non-functional, substandard, or not provided at all, contrary to the contractual assurances. Defects and deficiencies highlighted include podium water leakages, an undersized and poorly constructed children's play area, leakage-prone swimming pool, incomplete clubhouse and gym facilities, non-operational solar water system, inadequate fire fighting equipment, blocked drainage/sewage system, damaged or unfinished internal roads, incomplete compound wall, and absence of CCTV surveillance. Photographs (Annexures C-7 to C-12) and a professional architectural inspection report (Annexure C-13) estimated the cost of rectifying these defects at Rs.2.05 crores. The Society had to independently spend Rs.9,32,928/- for repairing the fire system and Rs.2,19,332/- for installing CCTV cameras due to the builder's neglect. Residents also pointed out widespread construction defects such as leakages, cracked plaster, uneven flooring, rusting reinforcement bars, and poor-quality fittings in individual flats and common areas.
2.2 The complainant alleges that the builder failed to obtain critical statutory approvals such as Completion Certificate (CC) and Occupancy Certificate (OC) for all buildings, thereby exposing residents to safety and legal risks and forcing them to pay higher water charges, taxes, and penalties to municipal authorities. Despite repeated letters, meetings, and legal notices issued between 2013 and 2015 (Annexures C-14 to C-20), the builder allegedly stopped attending to complaints, abruptly discontinued maintenance, and refused to supply essential documents such as sanctioned plans, title deeds, fire safety documents, water connection approvals, lift licenses, and engineering drawings. The complainant further asserts that the builder collected substantial sums from members toward corpus fund, development charges, and maintenance amounts, but failed to maintain transparent accounts or hand over proper financial statements. A key grievance is the builder's failure to execute the conveyance deed in favour of the Society, violating mandatory obligations under MOFA and depriving the Society of full ownership rights and control over land and building. The complainants alleged that the builder wrongfully withheld Rs.50,75,207 belonging to the Society, and failed to pay Rs.33,15,000 towards maintenance charges for locked flats. Despite issuance of legal notices on 15.09.2010 and 12.10.2010 describing defects and demanding correction and dues, the builder issued false claims and failed to comply. Earlier litigation filed before the District Forum in Complaint No. 556/2011, Pune was dismissed on 10.09.2014 for lack of pecuniary jurisdiction/maintainability, prompting the complainants to file the present case before this Commission. The total claim made by the Society is Rs.3,33,28,217/-, including the cost of rectification, fire system repairs, CCTV installation, withheld maintenance amounts, unpaid dues for locked flats, damages, compensation for mental agony, inconvenience, and litigation expenses. The Particulars of the Claim:
| Sr. No. | Particulars | Amount (in Rupees) |
| a. | The rectification of defects and furnishing all amenities as per the Report of the Architect dated 29/06/2015 | 2,05,35,750/- |
| b. | Rectification of fire fighting system and installation of accessories | 9,32,928/- |
| c. | Installation of CCTV cameras and accessories | 2,19,332/- |
| d. | Non-utilization of maintenance amount by the Opponents | 50,75,207/- |
| e. | Unpaid maintenance amount by the Opponents against the vacant / locked flats | 33,15,000/- |
| f. | Inconvenience charges for non-utilization of any amenities provided | 10,00,000/- |
| g. | Mental agony and suffering | 5,00,000/- |
| h. | Damages | 10,00,000/- |
| i. | Cost of litigation | 7,50,000/- |
| Total | 3,33,28,217/- |
3. The Opposite Parties have filed a detailed Written Statement on 09.03.2016, denying all allegations raised by the complainant society and challenging the maintainability of the complaint on several legal and factual grounds. OPs argue that the complaint is not maintainable before this Commission as the society has no locus standi, since no consideration was ever paid by the society to the developers and each flat purchaser had an individual agreement under MOFA. According to the Ops, multiple unrelated grievances about construction, amenities, maintenance, and financial issues have been wrongly clubbed together, making the complaint a mis-joinder of separate causes of action. OPs also assert that the complaint is barred by limitation and contains several suppressed and distorted facts. OPs further argue that this Commission lacks jurisdiction to entertain what they describe as a vague and exaggerated claim amounting to more than Rs. 3 crore, supported by unverified documents and fabricated photographs.
3.1 On the factual front, the Opponents admit developing the 'Nancy Lake Home' project and handing over possession of flats in phases, but deny that full consideration was paid for all units or that they failed to provide the amenities promised under the agreement. OPs insist that all facilities such as the podium, swimming pool, children's play area, clubhouse, gym, solar system, fire fighting equipment, drainage layout, and compound wall were completed in accordance with sanctioned plans and contractual obligations. OPs strongly deny allegations of inferior material, leakage, seepage, structural risks, or non-functional equipment. Photographs produced by the society are termed undated, manipulated, and not belonging to the project. Even the expert/architectural assessment report dated 29.06.2015 submitted by the society, valuing rectification at Rs.2.05 crores (page no. 119), is labelled as one-sided, obtained behind their back, and therefore wholly unreliable. The OPs also deny all allegations regarding missing or substandard safety systems and essential services. They stated that the firefighting system is functional and were provided with all necessary accessories, and reject the society's claim of spending over Rs.9.32 lakh on rectification as false. Regarding CCTV installation, OP stated that they began installation but several residents obstructed the work due to placement of dish antennas on external walls. Hence, OPs deny liability for the society's stated expenditure of Rs.2.19 lakh. For drainage and water systems, OP stated that routine blockages and maintenance fall within the society's responsibility after possession was fully handed over in June 2010. OPs firmly deny allegations of incomplete boundary walls, security hazards, or the presence of adjoining slums, claiming these allegations are exaggerated to inflate the claim amount. The Opposite Parties deny collecting a one-time maintenance corpus of Rs.50.75 lakh or withholding maintenance dues for locked flats amounting to Rs.33.15 lakh. OP stated that they have maintained separate accounts for flat purchasers and that these records remain open for inspection. OPs also deny failure to provide mandatory statutory documents, contending instead that all essential papers were handed over during possession. The Opponents further deny receiving several letters and notices relied upon by the society, while asserting that any issues raised after the handover of the scheme on 15.06.2010 fall within the society's maintenance domain and not that of the developer. OPs emphatically reject the allegations of unfair trade practice, misrepresentation, false promises, or breaches of statutory duties. The Opponents assert that the entire complaint is baseless, exaggerated, and driven by mala fide intent. OPs maintain that the project was constructed with due care, all amenities were provided, and possession was handed over properly, leaving no room for claims of deficiency in service or negligence. OPs request this Commission to dismiss the complaint with costs, stated that the complainant society has filed the present proceedings on the basis of fabricated documents, unreliable reports, and incorrect allegations solely to extract unwarranted financial gains.
3.2 The Opponents, alongwith written version, filed their a comprehensive set of supporting documents to substantiate their defence, establish statutory compliance, demonstrate completion of construction work and amenities, and to reinforce their stand against the allegations raised by the Complainant. The Opponents have placed reliance upon photographs of podium, clubhouse, play area and compound wall (Pg. 268-274) along with the photographer's bill and translation to establish existence of completed amenities. A letter dated 15.06.2010 issued by OP No. 1 to the Complainant Society handing over charge is filed at Pg. 278. The OPs have also placed on record Fire NOCs issued by the Chief Fire Officer on 06.05.2008 (Pg. 295) and 08.02.2010 (Pg. 294), along with Completion Certificates issued by PMC-Certificate No. BCO/14/2/522 dated 14.03.2008 (Pg. 296-297), Certificate No. BCO/14/2/31 dated 07.05.2008 (Pg. 298-300), and the Final Completion Certificate dated 30.03.2010 (Pg. 301-303). The Opposite Parties have also placed on record a letter dated 15.12.2010 addressed to the flat owners regarding the illegal installation of water tanks in the bathroom ducts, along with the acknowledgment list, which is available at Pages 304-311. The Opposite Party asserts that such unauthorized installation of water tanks by residents has resulted in leakage and seepage in the respective flats, as well as in the flats above and below them, thereby causing structural damage to the building. The Opposite Parties have filed a list identifying 51 flat owners who have installed water tanks in the bathroom ducts. It is further stated that the issue of leakage was also communicated to the Complainant through a letter sent by speed post on 16.12.2010. A letter issued by Medical Ward Officer, Dhankawadi Ward Office, PMC, dated 16.09.2008, has also been submitted by the Opposite Parties. Additionally, the NOC issued by the Pune Municipal Corporation for the swimming pool, dated 19.12.2008, has been placed on record, demonstrating that due approval was obtained for the swimming pool facility. The certified copy of the sanctioned plan dated 28.03.2007, along with Commencement Certificate No. CC/4600/06 dated 28.03.2007 (Pg. 316-317), have been relied upon to show statutory approvals. The OPs have filed the affidavit of Civil Engineer Mr. Rajkumar R. Singh dated 03.03.2016 (Pg. 318-320), civil engineer with approximately 24 years of professional experience, affirmed that he was requested by Mr. Nand G. Kimtani, partner of M/s Nikkita Builders and Developers, to conduct an inspection of the Nancy Lake Homes project situated at Survey No. 8/1+2/1 to 65, Katraj, Pune. He visited the site on 12.02.2016 during daytime, where Mr. A.K. Jha, the site supervisor, was present. He stated that he examined the certified copy of the PMC sanctioned plan dated 28.03.2007, issued under Commencement Certificate No. CC/4600/06, before starting his inspection. In his inspection, the affiant states that he thoroughly surveyed the podium, swimming pool, parking area beneath the swimming pool, and the compound wall surrounding the project. He specifically noted that no leakage or seepage was found in the podium area, the swimming pool, or the parking zone underneath. He further stated that the compound wall, having an average height of 2 meters, was constructed around the periphery of the project in accordance with the sanctioned plan. Further, OP filed the bills relating to installation of solar water heating system equipment from various agencies dated 04.05.2007, 06.10.2007, 24.10.2007 and 30.08.2007. The letter dated 30.03.2012 regarding handing over of copies of plans and commencement certificates is filed at Pg. 326-328, and lastly, the affidavit of photographer Vinod Chorghade dated 04.03.2016 confirming that the photographs were taken on-site has also been filed.
4. The complainant filed a brief rejoinder on 08.07.2016. The complainant categorically denies all allegations and submissions made by Opponent Nos. 1 and 2 in their written version, asserting that the entire reply is false, misleading, and contrary to the actual facts of the case. Complainant contended that a major defence taken by the opponents in their reply was that the complainant society lacks locus standi and is not a 'consumer." The complainant strongly disputes this contention, pointing out that the opponents themselves executed individual registered agreements with the flat purchasers, all of whom later formed the present housing society. Furthermore, the society has been duly authorized by a valid Resolution dated 01.05.2015 to represent its members collectively. The complainant stresses that even the written version of the opponents (Paragraph G, page 236) admits the existence of these individual agreements with the society's members. Hence, the relationship of consumer-service provider stands conclusively established, and the objection on locus standi is baseless and raised merely to avoid accountability. Regarding the issue of defective amenities, substandard construction, and incomplete infrastructure, the complainant asserts that the opponents have merely issued blanket denials without producing any technical evidence, explanation, or documents to justify how the amenities allegedly provided by them meet the needs of the flat holders. On the contrary, the complainant has submitted extensive documentary and photographic evidence, including expert assessments (Page No. 113 to 120), which substantiate every allegation regarding inadequate, incomplete, or defective amenities. The opponents, despite filing a detailed reply, have failed to rebut these factual defects with any credible proof. The complainant further emphasizes that the allegation relating to withholding of maintenance corpus of Rs.50,75,207/- has been fully proven through documents placed on record (Page No. 92 to 97). Additional supporting pages (129 to 133) strengthen the complainant's case, and even the opponents' own correspondence at (pages 134 and 140) indicates their liability. Similarly, the complainant rejects the opponents' claim that 'charge' was handed over to the society. It is stressed that no conveyance deed has been executed, and therefore, handing over charge without following lawful procedures is meaningless and cannot be recognized in law. The letter dated 15.06.2010 (page 278) relied upon by the opponents is described as a mere 'paper formality' without legal effect. The complainant also denies the opponents' allegation that the present case is an afterthought or that new causes of action have been introduced. The complainant clarifies that no new documents have been added, and all pleadings remain consistent with the original complaint. The society further reiterates that the complaint has been filed within the period of limitation and before the proper forum, as already explained in paragraphs 38 to 40 of the main complaint. Finally, the complainant submits that the opponents' written version contains only bald, evasive denials without any substantive defense or evidence. Their reply neither clarifies their position nor refutes the specific allegations of defective amenities, withheld funds, non-execution of conveyance, and non-compliance with statutory obligations. Since the opponents have failed to present any legally sustainable explanation, the complainant prays that all reliefs sought in the original complaint be granted.
5. The Complainant, in support of his case, filed evidence by way of affidavits on 23.11.2016 of Sh. Santosh Suresh Patil along with documents. On the other hand, the Opposite Party filed its evidence by way of affidavit on 28.12.2016 of Sh. Nand Gobindram Kitani.
6. We have carefully gone through the correspondence exchanged between the parties. The Complainant Society, through letters dated 31.05.2010 and 09.06.2010, raised multiple grievances before the Opposite Parties regarding incomplete construction work, non-provision of amenities, and serious functional deficiencies prior to the proposed handover scheduled on 15.06.2010. The Society pointed out non-installation of CCTV, persistent seepage and leakage problems in several flats and podium, absence of fire-fighting equipment and demonstration, unclean drainage, defective flooring, structural safety issues, missing safety nets, inadequate lighting, lack of facilities in the community hall, improper maintenance of compound wall and tin sheds, and absence of toilet facility for security personnel, among other deficiencies. The Society requested urgent completion of the outstanding work before handover and convened a meeting of members to discuss action. The second letter dated 09.06.2010 reiterated the complaints with specific flat numbers affected by seepage and demanded sanctioned plans, accounts, and documentation to be handed over before taking charge. In response, the Opposite Party issued a letter dated 15.06.2010, stating that they were pleased to hand over the charge of the Society and enclosed a list of files and documents such as bank permissions, sold/unsold flat details, equipment files (lifts, generator, solar system, fire-fighting, water & drainage, etc.), and three years' maintenance accounts, along with the keys to the Society office, without addressing or admitting the deficiencies raised by the Complainant. The Complainant Society, through its letter dated 06.07.2010, responded to the Opposite Party's communication of 29.06.2010, stating that all flat purchasers had already paid three years' maintenance charges at the time of purchase, and that the three-year period was still not completed. It was pointed out that the Society presently lacked funds, and no owner was willing to pay additional maintenance until expiry of the prepaid period; therefore, the Complainant requested that the builder continue bearing the maintenance expenses until the matter was resolved. In reply, the Opposite Party, via letter dated 21.07.2010, referred to Clause 16 of the flat purchase agreement and asserted that they had collected only a provisional monthly contribution of Rs.1 per sq. ft. towards outgoing expenses, not a lump-sum three-year maintenance amount. They stated that the Society was duly handed over on 15.06.2010, along with full maintenance accounts and expenditure statements up to 30.04.2010, which allegedly showed that the Opposite Party had already spent more than the amount collected, and further expenses were incurred till 15.07.2010. The Opposite Party expressed inability to continue maintaining the premises and declared that from 01.08.2010, they would withdraw all maintenance services and stop payments, including MSEB bills, directing the Society to assume responsibility. They also demanded refund of Rs.24,73,106/-, claimed as excess expenditure incurred by them, from the respective flat owners by 30.08.2010. The Opposite Party, through its letter dated 18.11.2010, referred to its previous communication dated 21.07.2010 and reiterated the request to the Society to refund the alleged excess amount spent by the builder towards provisional maintenance. They stated that although the Society was formally handed over on 15.06.2010, the builder continued to bear the maintenance expenses until 31.08.2010. The Opposite Party enclosed detailed statements showing the calculation of provisional monthly maintenance for three years, details of the total amount collected from flat owners until 31.08.2010, and the expenditure incurred against the same period. Based on these records, the Opposite Party claimed that an excess amount of Rs.28,80,035/- had been spent from their side and demanded that the Society refund said amount immediately.
6.1 The complainant issued two legal notices dated 15.09.2010 and 12.10.2010, wherein the complainant reiterated that despite collecting full consideration from the members and promising various common amenities and facilities as per the registered agreements, the Opposite Parties had failed to provide the same and had handed over incomplete work with several deficiencies. It was stated that the construction quality was substandard with continuous seepage and leakage problems, the fire-fighting system was non-functional, the podium and swimming pool were leaking, and several promised amenities were not provided. The complainant further reiterated that the Opposite Parties had not properly responded to earlier letters raising grievances, had not executed the conveyance deed despite formation of the Society, and instead of rectifying the defects, had illegally demanded refund of an alleged excess maintenance expenditure. The complainant once again called upon the Opposite Parties to complete all pending works and comply with contractual obligations within the stipulated time.
6.2 In response to legal notice OP sent the legal reply on 09.11.2010. The OP (Nancy Icon Builders & Developers) states therein that they strongly deny all allegations made by the complainant society in the legal notice dated 15.09.2010 and put the complainant to strict proof of all claims. They clarify the ownership and development arrangement, confirming that the project was legally undertaken after acquiring development rights and sanction of building plans, and that the project is correctly named 'Nancy Lake Homes" and not Nancy Towers, as wrongly stated by the complainant. The OP asserts that Phase-1 of the project, consisting of nine buildings (A, B, C, D, E, F, J, G & H) with a total of 383 flats, has been completed as per sanctioned plans, and Phase-II is yet to commence. They claim that all contractual obligations have been fulfilled, and members of the complainant society have given written confirmation of satisfaction regarding construction quality and amenities. They allege that false complaints are now being made to gain undue pecuniary advantage. The OP states that allegations regarding inferior amenities and deficiency in services are untrue and provides a detailed list of amenities delivered, including a 52,000 sq. ft. podium, clubhouse, gymnasium, community hall, children's play area, swimming pool, and sports facilities. They further state that CCTV installation work was obstructed by the complainant, and systems such as the Tata Solar and Photovoltaic energy system are fully functional, with maintenance responsibility lying with the society. The OP alleges that the complainant society has illegally disconnected genset backup and stopped maintenance services for Buildings G and H, despite having received the maintenance deposit. They further allege that 102 flat owners have made unauthorized structural modifications by installing private water tanks, resulting in leakage and structural risk, for which the OP cannot be held responsible. The OP also contends that they have provided accounts, approved building plans, and purchaser lists at the time of handing over management. They assert that complainants are unlawfully withholding maintenance dues payable to them. They warn that if the complainants continue making false allegations or obstruct Phase-II development, the OP will initiate civil and criminal proceedings.
7. We have heard the learned counsel for both parties and carefully perused the pleadings, documents, and submissions placed on record. Mr. Sant has, taking us through the relevant paras of the complaint and the documents referred to therein, reiterated the same and urged that the inadequate and defective common amenities as pleaded is a a serious deficiency for which based on a qualified architect's report the compensation of Rs. 205 lacs has rightly been claimed. The OP builder, having collected the maintenance charges in lump sum at Rs. 1 per sq ft per month for 3 years from the allottees, has not handed over the 'unutilised' pro-rata amounts for the allottees whose occupation of unit after taking possession, and hence expendable maintenance charges for such lesser period is less than 3-year amount actually paid by the allottees. Such balance 'unconsumed' amount of Rs. 50.75 lacs (pg 197) should have been handed over to the society at the time the 'charge' of maintenance was handed over to the society. Similarly the amount of Rs. 33.15 lacs is claimed because, allegedly, the builder had unsold 65 flats for which the 3-year advance at stipulated rate would come to this amount which should have been put by developer into the common maintenance fund. The Complainant has primarily alleged several deficiencies in the construction quality, non-provision of agreed amenities, improper maintenance accounts, structural defects, incomplete fire-fighting system, and irregularities in the handover process, as detailed in the deficiency chart. The Opposite Parties, on the other hand, have categorically denied each of these allegations in their Written Statement and have contended that all amenities were provided as per sanctioned plans, that no structural or functional defects exist, that proper handover along with accounts was completed, and that the Society is raising false and baseless grievances. The defense taken by the Opposite Parties against each allegation has been summarized in the corresponding reply table:
| Sr. No. | Category of Deficiency | Specific Deficiency Alleged | Details / Evidence Referred |
| 1 | Structural Defects | Leakage from podium | Repeated complaints on 31.05.2010, 05.06.2010, 09.06.2010; not rectified. |
| 2 | Structural Defects | Leakage in swimming pool | Pool remains non-functional; poor construction guality. |
| 3 | Structural Defects | General leakage and seepage in buildings | Raised repeatedly; developer failed to take action. |
| 4 | Fire Safety System | Fire-fighting system incomplete | Major components missing; not installed as per sanctioned plan. |
| 5 | Fire Safety System | Fire system non-functional | No fire pumps, hoses, alarms; serious safety violation. |
| 6 | Deviation in Promised Amenities | Proposed and promised amenities not provided as per Schedule-II | Developer failed to deliver amenities listed in registered agreements. |
| 7 | Amenities Deviation | Inferior quality of amenities | Actual amenities provided were below agreed standard. |
| 8 | Amenities Deviation | Failure to demonstrate how provided amenities meet Society needs | Opponents gave only denials, no justification. |
| 9 | Maintenance Account Issues | Developer withheld Rs. 50,75,207/- maintenance amount | Documents at serial nos. 92-97; pages 129-133; admissions in letters. |
| 10 | Maintenance Issues | Instead falsely demanded Rs.24,73,106/- from Society | Opponent's letter dated 21.07.2010 calling it 'excess payment'. |
| 11 | Maintenance Issues | Developer issued 'fake' maintenance accounts | Letter dated 18.11.2010; figures manipulated and incorrect. |
| 12 | Maintenance Issues | No proper handover of accounts despite repeated demands | Correspondence shows avoidance and concealment. |
| 13 | Handover Process | False claim that charge of building was handed over | Complainant denies - no conveyance deed executed. |
| 14 | Handover Process | Handover letter dated 15.06.2010 is only a 'paper formality' | No legal transfer or compliance of due process. |
| 15 | Misrepresentation & Unfair Practice | Developer claimed Phase-II residents will use same amenities | First time stated in letter dated 09.11.2010; mala fide intent. |
| 16 | Misrepresentation | Sharing inadequate amenities with Phase-II is illegal | Amenities already insufficient for existing 383 flats. |
| 17 | Misrepresentation | False assurances made in brochures and verbal claims during booking | Actual delivery did not match representations. |
| 18 | Conduct During Litigation | Developer giving only bald denials in Written Statement | No documentary proof offered. |
| 19 | Procedural Misconduct | Developer claims complaint is afterthought & baseless | Complainant denies; no change in pleadings; filed within limitation. |
| 20 | Procedural Misconduct | Developer concealed true and correct facts in WS | Rejoinder specifically denies their false averments. |
| Sr. No. (Linked to Deficiency Table) | Deficiency Alleged by Complainant | Reply / Defence of Opposite Parties (as per Written Statement) |
| 1 | Leakage from podium | Opponents deny allegations; claim podium is constructed as per approved plans and no structural defects exist. |
| 2 | Leakage in swimming pool | Opponents deny any leakage; claim pool was built as per specifications and was functional at handover. |
| 3 | General building leakages | Opponents deny; state no complaints were raised at the time of possession and allegations are exaggerated. |
| 4 | Fire-fighting system incomplete | Opponents state system is installed as per PMC norms; any missing items are due to Society's poor maintenance. |
| 5 | Fire system non-functional | Opponents deny; claim full fire system was handed over and faults (if any) developed later due to non-maintenance by Society. |
| 6 | Promised amenities not provided | Opponents deny; claim all amenities promised in the Agreements/Schedule-ll were provided. |
| 7 | Inferior quality of amenities | Opponents state quality provided is standard and acceptable; deny any substandard work. |
| 8 | Amenities not meeting Society needs | Opponents argue amenities are as per sanctioned plan, not based on later expectations of Society. |
| 9 | Withholding Rs.50,75,207/- maintenance amount | Opponents deny withholding; claim maintenance amount was adjusted against expenses incurred by developers. |
| 10 | False demand of Rs.24,73,106/- | Opponents justify demand, stating they spent more on maintenance than collected; Society must reimburse excess. |
| 11 | Fake/incorrect maintenance accounts | Opponents claim accounts are correct, duly prepared, and transparently shared with Society. |
| 12 | No proper handover of accounts | Opponents deny; state full accounts and relevant documents were handed over through letter dated 15.06.2010. |
| 13 | False claim of building charge being handed over | Opponents insist charge was handed over properly via letter and documents; Society deliberately disputing it. |
| 14 | Handover letter is a paper formality | Opponents maintain it is valid and constitutes proper handover under law. |
| 15 | Phase-II residents using common amenities | Opponents claim both phases are part of one project master-layout; common amenities meant for entire development. |
| 16 | Inadequate amenities for Phase II inclusion | Opponents deny inadequacy; state amenities are designed to serve full project population. |
| 17 | Misrepresentation through brochures & verbal assurances | Opponents claim brochures are only indicative; actual obligations are as per registered agreement, which they followed. |
| 18 | Bald denials in WS | Opponents argue complainant has not provided technical proof; hence allegations cannot be accepted. |
| 19 | Complaint is afterthought / baseless | Opponents assert complaint filed only after earlier complaint dismissed; hence mala fide and afterthought. |
| 20 | Concealing true facts in WS | Opponents deny concealment; say complainant is suppressing actual facts and making false accusations. |
7.2 Per contra, Mr. Gandhi, the learned counsel appearing for Opponent Nos. 1 & 2 relied heavily on technical and legal objections to maintainability. It is their submission that the complaint filed by the Housing Society is not maintainable, as according to them, a society cannot file such a complaint unless it is itself a consumer as defined under the Act. Reliance was placed on the judgment Ambrish Kumar Shukla & 21 Ors. vs. Ferrous Infrastructure Pvt. Ltd., I (2017) CP J 1 (NC) to argue that individual purchasers must jointly file and not the society. It is contended that the Complainant suffered from contradictions, where at Page 5 Para 8 and 9 of the Complaint, they claim bothi that individual purchasers paid consideration and that the society paid the full amount. The OPs have further argued that allegations of cheating, fraud or breach of trust cannot be adjudicated under consumer jurisdiction, relying on Oriental Insurance Co. Ltd. v. Munimahesh Patel (2006) 2 CPC 668 (SC), Suresh Pannalal Mundada v. Sant Namdeo Nagari Sahakari Patsanstha Maryadit, IV (2019) CPJ 518 (NC) and Bright Transport Co. v. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC). The OPs further argued that the complaint suffers from delay and laches, stating that possession was handed over on 15.06.2010, whereas the present complaint was filed on 23.07.2015, and therefore is hopelessly time-barred. They also asserted that earlier complaint No. 556/2011 was wrongly filed before the District Commission and after dismissal, the claim amount was suddenly increased from Rs. 20 lakhs to Rs. 3,33,28,217/- without justification, indicating mala fide intention to harass. The OPs also relied on K.N. Kandpal vs. Alliance Builders & Contractors Ltd., II (2013) CPJ 376 (NC), arguing that once possession and control are handed over, maintenance responsibility lies with the society, and the builder cannot be expected to handle upkeep for years. They further contended that agreements to sale were executed individually with each purchaser and not with the society, and therefore the society has no locus standi to maintain this complaint. The OPs denied all allegations of construction defects and deficiencies and argued that the expert report relied upon is unreliable, cryptic, without date, unsupported by affidavit, and prepared without participation of the OPs, and therefore cannot be relied upon. They maintained that no flat purchaser pointed out any construction anomaly at the time of possession and therefore the complaint is false, imaginary and concocted. They submitted that the complaint contains joinder of several causes of action and is not supported by independent evidence. Hence, they prayed that the complaint be dismissed with costs.
8. After hearing the counsels and minutely perusing the records, we firstly deal with the preliminary objections, primarily of competence of the society to file the complaint, of delay/latches and of mis-joinder of unconnected causes of action, as raised by the OP. The allottee members of the complainant society took possession of their respective units between October-2007 onwards pursuant to buyer's agreements executed on and around 20.01.2007. The complainant society was registered under Maharashtra Co-operative Societies Act, 1961 on 10.12.2009. The maintenance of common amenities was handed over by the Developer to the Society on 15.06.2010. Thereafter grievances relating to the common concerns and amenities were taken up up by the society with the builder and the communications happened between the parties culminating into legal notice dated 15.09.2010, which stood duly responded to by the OP on 09.11.2010. Thereafter, a complaint being CC/556 of 2011 was filed before the District Forum, Pune, on 15.12.2011 which was 'returned' for lack of pecuniary jurisdiction vide order dated 10.09.2014. The relief sought in that complaint (pg 58 of reply) was primarily for conveyance of land of the project and for directions to the OPs to complete 'incomplete' amenities/facilities and remove irritants like leakage and seepage. Subsequent to the 'return' of the complaint, the present complaint came to be filed on 14.07.2015. Notably, there are new claims in this complaint which were not there in the earlier complaint, particularly those monetary claims relating to maintenance amounts. With regard to the competence of the complainant to file this complaint, a larger bench of this commission dealt with the issue and answered the question of law vide order dated 05.05.2017 that the residents' welfare societies can validly file a complaint as a voluntary organisation, subject to the same being voluntary and serving a class or subclass of consumers. The complainant society, subsequent to the said order, filed additional documents, being by-laws of the society. The object clause specifies the main object as obtaining the conveyance of the land, structure and common amenities of the project from the builder/developer and maintaining those amenities and promoting general welfare of all the residents in the project. It has vehemently been urged by the learned counsel for the OP builder that the complaint is not maintainable for multiple reasons. The first is that there is no consideration which has moved from the complainant society to the OP builder, and there is no privacy of contract between them. It has been further urged that many of the original allottees have sold the respective units allotted to them and therefore the alleged authorization to pursue the complaint no longer survives and the complaint is not maintainable on that count as well. Otherwise also, it has been held by Supreme Court in Shobha Hibiscus Condominium Vs. Managing Director, Sobha Developers Ltd. (2020) 11 SCC 328 that the society formed under statutory requirement of MOFA or such other corresponding statutes, being 'non-voluntary', do not qualify to be 'complainant' under Section 2(1 )(d) of the CP Act. On the other hand, it has been urged that the society has been formed to protect and promote the common interest of the residents and to obtain conveyance of the land and building and amenities of the project and to maintain those amenities for benefit of all residents. Apart from this, it has been urged on behalf of the society that the complainant society is formed under the Cooperative Societies Act and has an independent statutory existence and has competence to file and defend suits, and the inclusive definition of 'person' under section 2(1 )(b) of the Act specifically mentions a co-operative society. The complainant society, on account of the consideration paid by the allottees, have earned statutory entitlement to receive the conveyance and possession of common areas and facilities and is thus also beneficiary of the services rendered by the OP builder within the meaning of section 2(1 )(d) of the CP Act. Relying on Samruddhi Cooperative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. (2022) 4 SCC 103 and NCDRC decision in C.C. No. 1 of 2022 Adriatica Cooperative Housing Society Ltd. Vs. Macrotech Developers Ltd. & Anr. dated 30.01.2024, it is urged that the Supreme Court and this Commission have, after considering Shobha Hibiscus (supra) and after relying on other decisions quoted in para 7 and 8 of the decision in Adriatica, have held that the cooperative societies who have entitlement for conveyance of common facilities and obligation of maintenance of such facilities under the provisions of the respective Apartment Ownership Act, are entitled to lodge a complaint before an appropriate forum to litigate with respect to the deficiency in its own right as a beneficiary qua such common facilities and conveyance and related services. On facts, it is urged that the OP-builder has been engaging with the complainant society with regard to issues faced by the allottees, have handed over the documents and common facilities to the complainant society and therefore also the competence of the complainant to approach the Commission cannot be questioned now by the builder. After considering the rival contentions, we find no merit in the contentions raised by the OP-builder qua competence to file the complaint as a society. The competence of the complainant society to file, maintain and pursue the present complaint cannot be validly questioned in law particularly when the builder has handed over the maintenance and documents and corresponded with the very society. After considering the decisions cited at the bar, more particularly the following para, we agree with the learned counsel for the complainant that the complainant society is competent and eligible in its own right in its capacity of a cooperative society of allottees to be a complainant within the meaning of CP Act regardless of the fact why or how it came into being. The grievances raised in the complaint are mainly relating to common areas and facilities and the- conveyance of the project property which, in our opinion, due to statutory relationship between the parties as provided under MOFA, rightly makes the society effective "beneficiary" within the meaning of section 2(1 )(d). As rightly urged, on facts also, the OP is demonstrated to have engaged with the society qua common facilities and common interest of the allottees and therefore also we find no reason to non-suit the society on technical ground as raised by the OP. Therefore the competence on the ground of absence of privity of contract or of the society is not a voluntary organisation has no merit and are rejected. The Adriatica observations may be reproduced while observing that though the decision is with respect to C P Act, 2019 the principle laid down therein would be applicable in the present case with full force:
7. Under Section 35 of the Act, consumer grievance can be agitated by the consumer itself, by any recognised consumer association, by one or more consumer, for numerous consumers, who have same interest, by Central Government, Central Authority and State Government. The Act, is a beneficent legislation and in order to ensure effective administration and settlement of consumer dispute, apart from the consumer and government authorities, 'any recognised consumer association' has been authorised to raise the consumer grievance. Under Section 35 (1) (b) of the Act a stranger recognised consumer association is permitted to agitate the grievance of a consumer. It does not appear to be logical that the association formed by the consumer is not permitted to agitate its grievance only for the reason that the association was formed in compliance of a statutory requirement. The statutory requirements compel formation of the association. By such formation it cannot be held that it is not a voluntary consumer association. With the help of definition of 'complainant' and explanation of 'recognised consumer association', if the arguments of the counsel for opposite party-1, is accepted the phrase 'any recognised consumer association' will be altered as 'only voluntary consumer association" which will amounts to rewriting the legislation by the judiciary, while interpreting statutory provision. An Explanation cannot override main provision as held by Supreme Court in M.K. Salpekar (Dr.) Vs. Sunil Kumar Shamunder Chaudhary, (1988) 4 SCC 21, S. Sundaram Pillai Vs. Pattabiraman (1985) 1 SCC 591 and M.P. Cement Manufacturer's Association Vs. State of M.P. (2004) 2 SCC 249.
8. The word 'person' has been defined under Section 2(30) of the Act, which includes a co-operative society. Although the complainant has not availed the services of 'house construction' from opposite party-1 but is beneficiary of such service with the approval of the home buyers, who had availed the service of 'house construction' from opposite party-1. A Full Bench of this Commission in CC/6/2022 Landscape Heights Co-operative Housing Society Limited Vs. M/s. Landscape Realty (decided on 28.03.2023) and Supreme Court in Samruddhi Co-operative Society Ltd. Vs. Mumbai Mahalaxmi Construction Private Limited, AIR 2022 SC 428, held that co-operative housing society, incorporated by opposite party-1 due to mandate of Section-10 of the MOFA, is itself a consumer and the complaint filed by it, is maintainable under Section 35(1 )(a) of the Act.
9. Thus, complainant society is competent to be a complainant, and this complainant is maintainable. However, the complainant u/s 12(1)(a) in our opinion, shall be competent to raise only those issues which pertain to its statutory relationship with developer and entitlement under MOFA, relatable primarily to taking over the control, management and maintenance of common facilities and amenities including the incompleteness or deficiencies therein in terms of the promises made in brochure or in allotment letter/ buyer's agreement and subject to terms therein. Further, we also find merit in the contention on behalf of the OP that all the issues which were not raised in the original complaint filed before the District Forum on 15.12.2011 would certainly get barred by limitation in the present complaint filed on 14.07.2015 after the District Commission 'returned' the Complaint on 10.09.2014, though, as submitted, many issues were time barred even in the complaint filed before the District Forum in December-2011 as well. In this behalf, though there is reference to the issue of maintenance charges in the complaint before the District Forum and even in the letter addressed by the society to the developer before filing the complaint, no compensation or amount was specifically claimed with regard to maintenance charges in the complaint before the District Forum. Apart from this, the payments for ad-hoc maintenance charges for three years were admittedly made by individual allottees in terms of the buyer's agreement. The claim with regard to propriety or legality or otherwise thereof is a matter between the individual allottee and the builder and the complainant-society has not been able to show how it, as a society, is entitled to raise the issue now in July-2015 after nearly 6 years of its formation and 5 years from taking over the maintenance of the society and after having perused the maintenance account and expenses as supplied by the builder, and even after not raising the same in the complaint filed before the District Forum. Otherwise also, the claim qua the maintenance charges i.e. Rs. 50.75 lacs and Rs. 33.15 lacs are pure money claims, involving counter claim by the OP and is thus also for rendering accounts not involving any deficiency in service. These maintenance amount claims are therefore dismissed as belated, barred by res-judicata and for being money claims not arising from any deficiency in service.
10. The possessions of individual flats were handed over from October-2007 onwards, and common amenities were being utilised by the allottees from that point of time. The complaint before the district forum prayed as under:
'a) Direct the all the Opponents to convey the land to the Complainant Society.
b) Direct the Opponent no.1 and 2 to pay a sum of Rs. 20 lakhs towards compensation/damages to the Complainant and for the purpose mentioned in para 41 & 43 above.
c) Direct the Opponent no.1 and 2 to construct the boundary wall as mentioned in para No. 26.
d) Direct the Opponent no.1 and 2 to remove the leakage in common Area as mentioned in para No. 37.
e) Direct the Opponent no.1 and 2 to repair the leakage in the individual Flat as mentioned in para No. 37.
f) Direct the Opponent no. 1 and 2 to give all the documents and details of the purchaser as mentioned in para No. 35 and Para No.36.
g) Direct the Opponent no. 1 and 2 to provide an office room for the Society as mentioned in para No. 18.
h) Direct the Opponent no. 1 and 2 to repair the Water Pump Room as mentioned in para No. 21.
i) Direct the Opponent no. 1 and 2 to provide complete Fire System as mentioned in para No 22.
j) . Direct the Opponent no. 1 and 2 to change / repair the drainage pipe as mentioned in para No. 24.
k) Direct the Opponent no. 1 and 2 to provide CCTV'
As can be seen, the concerns and relief claimed, apart from that of the conveyance of the land, related to construction of boundary wall, removal of leakage from common area, and in some 11 individual flats, providing 6 documents relating to the complex/flat design, providing an office room, repairs in the water pump room, to provide 'complete' Fire System, repair of drainage pipe and provision of CCTV. It appears that the conveyance of the land and the whole project property has even as on date not been executed in favour of the society by the OPs, and hence, to that extent there is a continuing cause of action for the society. The management and maintenance of the property including the common amenities were handed over to the society as early as on 15.06.2010, and the complaint before the district commission was filed after 18 months on 15.12.2011 mentioning the above quoted grievances/reliefs when the project, including the amenities was, being enjoyed by the allottees for more than 4 years without any grievances after obtaining possession of individual flats in October-2007 onwards. The perusal of the complaint before the District Forum reveals that apart from cryptic averments and allegations in the complaint, no particular evidence has been referred to in the complaint to support the allegations. Further, the allegation also relate to insufficiency or inadequacy (rather than either the absence of or the deviation from the particular specification, if any, as provided in the brochure or in the buyer's agreement) of the amenities like the children play area or of the solar system by general statements. Of course, there is some correspondence exchanged and legal notice (pg 167) was also issued by the society before filing the complaint which was duly responded to (pg 193) and the allegations were specifically and exhaustively denied (except qua the provision of CCTVs) as early as on 9.11.2010. The present complaint has though disclosed the proceedings before the District Forum, it has purposefully not enclosed the copy of the complaint filed there which in fact came to be filed only by the OPs. The complainant has not referred to any evidence annexed with the complaint or filed later on to support its contentions before the District Forum in the present complaint. In the present complaint also, apart from the legal notice and reply thereof, the complainant has filed some photographs. As rightly submitted by OPs, neither the date of those photograph nor any authentic averment and corroborative affidavit specifying the date or exact place of photograph has been averred or filed. The vague picture of some defects or disuse dilapidation or leakage which emerge therefrom has been denied by the OPs and countered by filing dated photographs supported by affidavit of the photographer to contend that every promise in the brochure and in the buyer's agreement has duly been fulfilled. Apart from this, the only other evidence relied upon by the complainant is the report/quotation/estimate of architect M/s Design Degree Architecture dated 26.08.2015, which as a matter of fact, attempts merely to estimate or quote the rate for work under 10 different heads at Rs. 205 lacs. The OPs have in detail, and with valid justification, questioned the evidentiary value of the said 'report' which is obtained after 5 years from the date the maintenance was handed over to the society, which is obtained at the back of the OP, which is vague and non-self-explanatory, and which does not disclose any valid scientific basis or material to support the 'estimate' or quote etc. Even the letter of the society dated 29.06.2015 referred to in the report has not been filed by the complainant. The purpose of the assignment and methodology adopted is wholly unclear. There is no supporting affidavit of M/s Design Degree filed by the complainant. On the other hand, apart from pointing out that even if the project has deteriorated in quality or become substandard as prima facie made out in the said report, the blame must go to the poor maintenance by the society. The OPs have also filed an affidavit of a qualified civil engineer Mr. Rajkumar Singh, who has, after visiting the site on 12.02.2016, stated that no leakage in the podium area or in the parking area below the swimming pool was noticed and that the 2 meter high compound wall has been constructed as per the sanctioned plan. Further, the OPs have filed alongwith the reply the copies of NoCs issued by the Fire Officer, completion certificates and final completion certificate issued by Pune Municipal Corporation, NoC for swimming pool, evidence of solar system installation, and also evidence of handing over of the 14 further documents relating to the project vide letter dated 30.03.2012, duly received by the Society. The rejoinder of the complainant is, in the face of such detailed well-substantiated reply by the OPs, has resorted to bald denial of the defence and has merely reiterated the complaint.
10.1 After considering the totality of the facts and circumstances, we are of the opinion that all of the allegations and deficiency as alleged in the complaint are belated, unsubstantiated and are expansion of or in addition to those made in the complaint before the District Forum and hence without merits and not maintainable. In any case, the allegations of 'inadequacy' of the swimming pool or of the children play area or of the solar system or of fire-fighting system or of compound wall are mere subjective allegation wholly unsubstantiated. The allegations do not emanate from the brochure or from the buyer's agreement. It is not the case of the complainant that the promised amenity is absent. As per the evidence on record, the amenities are very much in place which fact is not denied by the Complainant. The allegations of leakage, non-functional/deficient fire equipment, non-erection of boundary wall etc did find mention in the legal notice and all the issues were duly and in detail responded to by the OPs. It was therefore absolutely obligatory for the complainant thereafter to carefully and responsibly support the complaint before the District Forum with cogent and credible evidence including a reliable technical report. Not only it was not done, the belated and half-hearted effort before us also of filing photographs and the 'report' of M/s Design Degree has not at all impressed us. The undated, unverified photographs lacking description has no evidentiary value particularly after it has been denied and rejoinder does not bring in clinching material. The Design Degree report is also not only vague and non-self-explanatory, the 'estimate' obtained in 2015, unless it categorically so deduces scientifically, cannot establish defect/deficiency or short-coming in 2007 or in 2010. The OP has, on the other hand established the defence with reliable photos, cogent documentary evidence and also an affidavit of an engineer who has visited the site. There is no basis to allege deficiency or demand a separate 'office room' unless the entitlement or promise for same is shown from statute or brochure, which is not done by the complainant. The accounts for the amounts collected by the OP towards maintenance charges have not only been furnished by the OPs, but have also been place on record by the OPs. In any case, that monetary claim is clearly time barred. Thus, we find that allegations in the complaint could not be validly supported by the complainant with cogent, credible and acceptable evidence. On the other hand, the developer has brought in enough material on record to establish that there is no actionable deficiency in service on its part with regard to the issues covered by Design Degree report.
11. However, there are two issues on which the complaint must succeed. The first and foremost is the execution of the conveyance deed in favour of the society in terms of the statutory requirement, which has still not been done by the OP developer. No evidence to establish the same in this behalf has been placed on record by the OPs. Non-execution of the conveyance deed is a continuing cause of action and a continuing deficiency in service from the developer as held by the Supreme Court in Samruddhi supra. We would therefore direct the OPs, jointly and severally, to ensure that the conveyance deed in favour of the complainant society is executed as per law within 6 months from the date of this order. Second, we also note that admittedly CCTV cameras, though promised in the brochure, were not provided. This issue was taken up by the society in the legal notice and was accepted by OP in reply thereto. The issue therefore remained live and subsisting till filing of the present complaint. This deficiency in service of unfulfilled promise must result in compensation, which, as prayed by the complainant, we quantify at Rs. 2,19,332/- , which shall be paid by the OPs with 9% interest for the period from the date of complaint till the date of payment, within 2 months from the date of this order, failing which the rate of interest payable shall stand at enhanced rate of 12% The complainant shall also be entitled for litigation costs of Rs. 1 lakh from the OPs.
12. The complaint is partly allowed.