Ramesh R. TrivedI vs Amber Tower Co-operative Housing Society Ltd. and others Ltd. and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 249

IN THE HIGH COURT OF BOMBAY
(NEW DELHI)
V. Balakrishna Eradi, President; S.S. Chadha, Dr. (Mrs.) R. Thamarajakshi, S.P. Bagla C.L.
Chaudhry, Members.
Ramesh R. Trivedi .....Appellant.
Versus
M/s Amber Tower Co-operative Housing Society Ltd. others .....Respondents.
First Appeal No. 543 of 1996, decided on 30-5-1997.
Advocates appeared :
S.B. Prabhavalkar, for the petitioner.
Vivek Patki, Authorised Representative, for the respondents.

Headnote:Section 2(1)(g)-Maharashtra Ownership of Flats (Regulation of the Promotion, Construction, Management and Transfer) Act, 1963, Sections 11 and 13-Builder developer not executing deed-All charges already collected-State Commission ordering to execute day-Penalty of Rs. 1,000/per day for delay-Held-Said order modified with execution of deed as per terms of agreement, penalty waiver.-The order passed by the State Commission, so far as it related to the direction regarding execution of the conveyance deed on the basis of the "exceeded ES.I." is not correct and cannot be sustained in law. Court accordingly set aside that part of the order. As a result court direct the appellant to execute the conveyance deed subject to the provisions of the relevant laws and in terms of the agreement. It was lastly contended on behalf of the appellant that the penalty of Rs. 1,00,000 / - per day imposed on the appellant was not justified in the facts and circumstances of the case. Court see force in this contention. There was no jurisdiction for the State Commission to impose such heavy penalty of Rs. 1,000 / - per day on the appellant. Court set aside the order of the State Commission so far it related payment of penalty of Rs. 1,000/per day.
Sections 11 and 13-See Consumer Protection Act, 1986, Section 2(1)(g).

JUDGMENT - C.L. CHAUDHRY, MEMBER.:---This appeal is directed against the order dated 21-5-1996 in Complaint No. 146/94 passed by the State Consumer Disputes Redressal Commission, Maharashtra. The facts giving rise to this appeal are that the Opposite Party No. 1 had not executed the conveyance deed in favour of the Society nor they formed the Society even though the amount had been collected by the opposite party for the formation of the Society. It was also complained that the opposite party had provided half-inch water connection to the houses of the members of the Society instead of one-and-half inch water connection as provided under the rules and regulations.

2.The claim was contested on behalf of the opposite parties on various grounds. A plea was taken by the complainants that the complaint filed by or on behalf of the complainant under the provisions of the Consumer Protection Act was not maintainable. The complaint was clearly barred by time. Regarding the execution of the conveyance deed it was pleaded that it was made clear to the complainant that the conveyance deed would be executed in terms of Clauses 13 and 14 of the Agreement entered into between the parties. The complainant No. 1 was told to prepare and forward the draft conveyance deed in accordance with the terms and conditions of the agreement for consideration and approval of the Opposite Party No. 2. Regarding providing of one-and-half inch water connection the claim of the complainant was denied.

3.The State Commission by the impugned order gave the following directions : (1) The Opposite Party No. 1 shall pay to the complainant a sum of Rs. 10,800.00 which had been spent for installing the water connection. (2) The Opposite Party No. 1 to execute the conveyance deed in favour of the complainant Society on the basis of the exceeded F.S.I. (3) The Opposite Party No. 1 to refund the amount which was collected for the formation of the Society and in case the Opposite Party No. 1 failed to comply with the direction they would be liable to pay penalty of Rs. 1,000.00 per day to the Society till the compliance of the direction.

4.Aggrieved by the order of the State Commission the Opposite Party No. 1 has filed this appeal by assailing the order of the State Commission.

5.We have heard the learned Counsel for the parties. The first contention raised on behalf of the Counsel for the appellant was that the complaint filed by and on behalf of the complainant Society under the provisions of the Consumer Protection Act was not maintainable. We find from the impugned order that this contention was not pressed before the State Commission. We find no force in this contention.

6.It was next contended that the complaint was filed beyond the period of limitation. We have perused the order of the State Commission. No such plea was pressed before the State Commission. Being a mixed question of fact and law we are not inclined to entertain this objection at this stage. Even otherwise, we find that the complaint was filed within time.

7.It was next urged on behalf of the appellant that the State Commission wrongly awarded a sum of Rs. 10,800.00 to the complainant. We find no force in this contention too. The grievance of the complainant was that the appellant provided half-inch water connection to the flats of the members of the Society whereas under the rules and regulations one-and-half inch water connection was to be provided. The State Commission agreed with the contention of the complainant and directed the appellant to provide one-and-half inch water connection to the 18 members of the Society. From the evidence lead by the complainant, the State Commission came to the finding that the complainant had spent an amount of Rs. 10,800.00 for providing one-and-half inch water connection. We see no reason to interfere with the finding of the State Commission which was recorded on appreciation of the evidence.

8.It was next contended on behalf of the appellant that the order of

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