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Amratlal Chaganlal Mistry V/S Kasturi Tower Co-op. Housing Society Ltd.

    First Appeal No. 815 of 2012
    Decided On, 23 August 2013
    For Petitioner: Rahul Jathar, Advocate And For Respondents: D.H. Daund, Advocate

Judgment Text

1. This appeal takes an exception to an order dated 16/03/2012 passed by District Forum, Thane in consumer complaint No. 233/2010. The facts of the appeal can be summarized as under:-

The original complainant/respondent is a co-operative Housing Society. The society has filed a consumer complaint alleging deficiency in service on the part of appellant/opponent that they have not handed over the land and building to the complainant/respondent by executing Conveyance Deed. They contended that it is a statutory obligation of the opponent/appellant under the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 to execute Conveyance Deed in favour of the Society. So, they have filed consumer complaint praying therein to direct opponent/appellant to execute a Conveyance Deed transferring the land and building in the name of complainant-respondent and Rs. 5 Lakhs for mental agony and compensation. Along with complaint, they have attached copy of the agreement dated 23/02/2004 and 7/12 extract in respect of land to be conveyed in favour of the Society.
2. District Forum had issued notice to the opponent/appellant. Notice sent to opponent/appellant has returned back with endorsement "Not Claimed". Hence, opponent/appellant was proceeded ex-parte. District Forum on relying on the documents produced by the original complainant/respondent and agreement dated 23/02/2004 and the evidence filed on affidavit arrived at the conclusion that there is deficiency in service on the part of opponent/appellant and directed opponent/appellant to execute a Conveyance Deed in respect of Plot No. 260, TPS No. 1 admeasuring 2218.32 sq.mtrs., Pachpakhadi, Thane in favour of complainant/respondent-Society also directed the opponent/appellant to pay Rs. 20,000/- as compensation for mental agony and Rs. 5,000/- as costs. Amount was to be paid within a period of 30 days, failing which the amount will carry interest @ 9% p.a. vide order dated 16/03/2012. It is this order against which the present appellant/opponent has filed this appeal.

3. We heard Mr. Rahul Jathar, Advocate for the appellant and Mr. D.H. Daund, Advocate for the respondent.

4. Admittedly, respondent/complainant is a Co-operative Society. The appellant/opponent has constructed building as per the agreement dated 23/02/2004 and handed over the possession to the respective flat holders. As per Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, it is the statutory obligation of the appellant to execute a Conveyance Deed in favour of the complainant/respondent-Society transferring the land and building in the name of complainant-Society. However, the appellant has not discharged his statutory obligation and hence, consumer complaint was filed before the District Forum.

5. Admittedly, opponent was served with notice. However, said notice has returned back with postal endorsement ''Notice is refused". On the direction of the District Forum, complainant/respondent-Society had issued a notice in a "Dainik Konkan-Sakal" and said notice was published on 20/10/2010. However, opponent has not appeared before the District Forum even after notice through paper publication.

6. Learned Counsel for the appellant has tried to argue that G-6. Kasturi Tower Co-operative Housing Society, is not an address of the appellant/opponent and hence, notice was not properly served on the appellant. In support of his contention, he has produced on record electricity bill, Ration Card wherein address of the appellant is shown as Flat Nos. 238A/102 in the complainant/respondent-Society. To this, Advocate for the respondent stated that in the said Society, appellant owns flat Nos. 101 & 102 and conducts his business from G-6 which is located at ground level. To this Learned Counsel for the appellant stated that he has sold G-6 and hence, it is not his address. On inquiry when he sold G-6, Learned Counsel for the appellant could not specify the date. Learned Counsel also stated that appellant is ready and willing to execute Conveyance Deed in favour of complainant/respondent-Society. However, there is a dispute regarding area to be conveyed. In the agreement dated 23/02/2004 the area of the plot is mentioned and the appellant is legally responsible to hand over said area to the complainant/respondent-Society by executing Conveyance Deed. At page-56 there is a sanction of development permission/commencement certificate given by Thane Municipal Corporation which is dated 10/12/1997. In the said commencement certificate, the Corporation has stated that purchasers of the tenements have taken possession of the tenements and they are staying there and hence, for any alteration or additional construction, permission of the Society is required. So, the Local Development Authority has given permission to the appellant for carrying out additional construction provided he takes the permission of respondent-Society for carrying out additional construction. From the aforesaid facts, it is clear that to hand over land and building in favour of the complainant/respondent-Society by executi

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ng Conveyance Deed is a statutory responsibility. There is a deficiency in service on the part of appellant/opponent. District Forum has rightly passed the order. We do not find any infirmity in the order passed by the District Forum. We hold accordingly and pass the following order:- ORDER 1. Appeal is dismissed. The impugned order of the District Forum dated 16/03/2012 is hereby confirmed. 2. Appellant to pay cost of Rs. 10,000/- to the respondent/complainant and bear his own costs. 3. Copies of the order be furnished to the parties.