K. Chandradas Nadar : Judicial Member
This is a complaint filed under section 17 of the Consumer Protection Act. Complainant is M/s.Swapnil Apartments Owners Association, Cochin represented by its President. The opposite party is the construction company. The allegations in the complaint in brief are the following. Complainant association is formed with the objective to take over operate and maintain the apartment buildings and the common areas of the Swapnil Apartments Complex constructed on Survey No.327/2 of Kadavanthara Desam in Ernakulam Village. The Apartment Complex consists of 64 apartments. Opposite party had widely advertised for sale of the apartments offering all facilities for a comfortable living. It was promised that the owners of the apartments could 'live on the road to your dreams'. It was further promised that the building was designed for maximum comfort and luxury with dream amenities.
2. The members of the complainant association purchased their respective flats believing the promises made by the opposite party. But contrary to the promise opposite party abandoned the project on 31.03.2009 without completing and handing over the apartments. Opposite party had failed to form the owners association as promised. Opposite party collected Rs.62,820/- each from A & B Type Apartment Owners, Rs.55,980/- each from the C Type Apartment Owners and Rs.59,940/- each from the D Type Owners towards corpus fund intended for the upkeep and maintenance of the Swapnil Apartments. This amount totalling Rs.10,01,700 /- had to be handed over to the owners association on its formation. But the amount was appropriated by the opposite party. A list of 17 members from whom corpus fund was collected is incorporated in the complaint.
3. The members of the Apartment were shocked at the pitiable condition of the Apartment Complex which lacked the minimum requirements of drinking water, elevator individual power connection individual door numbers and safety requirements. Complainant as per letter dated 01.04.2009 requested the opposite party to complete the remaining items of construction and to hand over the title deed, related documents, lay out drawings and statutory compliance certificates to the complainant. Complainant repeatedly requested time bound completion of the items of work specified and to hand over the documents mentioned earlier. But the requests were not heeded. Hence notice dated 23.04.2009 was issued stating that complainant would be forced to undertake the works specified in the notice if the same was not commenced in a week time. Complainant pointed out that those works were mandatory in order to make the apartment complex habitable. Since there was no response from the opposite party complainant spent Rs.10,12,779/- and executed the works particulars of which are given in the complaint. Complainant has estimated that further amount of Rs.71,36,025.95/- is required for completion of the work as per the promised standard of apartment complex. Complainant for smooth and trouble free maintenance of the apartment complex and common facilities had instructed the opposite party to provide the drawings approval certificates etc detailed in the complaint. But the opposite party failed to provide the same. Complainant is also concerned about the mortgage of 58.850 cents of land in Survey No.327/2 of Ernakulam village in which Swapnil Apartment Complex is situated by the opposite party to the HDFC Bank, Nagpur. Complainant understood about the mortgage belatedly when request for original title deed was made. There is imminent threat of recovery by the bank. Hence complainant is entitled to get the original title deeds without encumbrance from the opposite party. There is gross negligence and deficiency in service on the part of the opposite party. As a result complainant association suffered severe loss mental agony and damage. The construction of the opposite party is defective and it even now remains defective and incomplete. Hence the complaint seeking various reliefs.4. Opposite party filed version raising the following contentions. The President of the apartments association has no locus standi to institute the complaint. The Secretary and the Managing Committee alone are competent to bring such an action. The association has no manner of right to institute complaint alleging deficiency in service in respect of the service to individual owners. They are entitled to represent those matters over which they have authority or right to administer and control like the common areas. The complaint is bad for misjoinder of causes of action. Individual claims of each apartment owners are being brought into litigation which is beyond the scope of the complaint. The very formation of the association is at the initiative of the opposite party as there was none who wanted to take over the responsibility of maintaining the common areas of the apartment complex and the complainant wanted to enjoy the maximum utilities at the expense of the opposite party without paying the service charges due to the opposite party.
5. The apartment owners had entered into agreements with the opposite party and later they got sale deeds executed in their favour after being fully convinced and satisfied with the services rendered by the opposite party. Instead of appreciating the ground realities complainant is advancing false allegations that the opposite party had abandoned the project without completing and handing over the apartments. The promises and commitments by the opposite party is to be construed within the frame work of the agreement for construction to which every owner of the apartments is a party. All the apartment owners have agreed to and were aware of the amenities and facilities provided to them. Annexures to the agreement for construction specify the technical details of all individual apartments relating to flooring, kitchen, bathrooms, electricity, doors and windows painting lift telephone, T.V cabling , water supply, fire safety , parking, diesel generator , health club, party room, security and other options. Specifications relating to foundation, structural design report plastering etc are also provided in the agreement. These specifications and technical details have been adhered to in effecting construction. So it is incorrect to say that opposite party failed to make quality construction and provide amenities as agreed.
6. The opposite party should hand over possession of the residential apartment to the concerned purchaser on obtaining completion certificate from the corporation of Cochin provided the purchaser had paid the amount due. Though the apartment was ready in all respects much before 15.03.2007, the opposite party could not apply for completion certificate firstly as there was stay order from the Court in Original Suit No. 1349/2006 filed by the residents of the Plakatt Colony adjoining the building complex against the construction being carried out. Secondly, there was delay from the side of the road committee regarding approval of FAR equivalent to the 13 cents of land surrendered by the land owner free of cost for widening Kaloor, Kadavanthara Road. Only after the matter was resolved interse (between the parties) approval of additional FAR from the road committee which meets only once in three months could be obtained.
7. The completion certificate issued by the Corporation of Cochin on 28.03.2008 is conclusive proof that there was technical compliance with respect to the construction of multi storied apartments. It is incorrect to say that opposite party abandoned the project without completing and handing over the apartment. The individual flat owners were given possession of the apartment and they took possession after being fully convinced and satisfied with the amenities and construction carried out by the opposite party. It is incorrect to say that the opposite party had collected maintenance deposit fund from 17 members of the complainant association amounting to Rs.10,01,700/-. In fact, only 10 apartment owners made payment of maintenance deposit. The opposite party has refunded the same to 8 of them. The remaining two members have not approached the opposite party till date seeking refund of their deposit. The opposite party is ready and willing to refund the deposit amount of the remaining two members. The apartment owners were under an obligation to entrust with the opposite party amounts required for maintenance of common facilities and common areas till an association is formed by the apartment owners. The purchasers of apartments were reluctant and unwilling to form the association and take up the responsibility of day today maintenance of the building complex. So opposite party had to maintain the building complex at its cost till the association was found resulting in financial loss to the opposite party. Opposite party had demanded maintenance expenses from the adhoc committee for the period from 01.01.2008 till 31.12.2008 amounting to Rs.10,33,979/- in the meeting dated 30th December 2008 addressed by the Managing Director of the opposite party, Mr.Anil. The Apartment Owners and Adhoc Committee Members were not willing to pay maintenance expenses citing delay in completion of the project for which opposite party was not responsible. In general interest and to keep healthy and cordial customer relationship opposite party agreed to waive off the expenses, even though apartment owners were liable to pay the same as per Clause No.15 of the agreement of construction. In the same meeting the adhoc committee and the apartment owners agreed to reimburse maintenance expenses to be incurred by the opposite party from 01.01.2009. But contrary to their commitments opposite party received payment of only Rs.81,000/- from out of the expenses of Rs.1,92,.000/- incurred by the opposite party from 01.01.2009 to 31.03.2009. The balance amount is yet to be received. Clauses 15 & 17 of the agreement for construction creates an obligation on the opposite party to upkeep and maintain the common areas and common facilities until a society or association or other body capable of maintaining the same is formed.
8. The individual apartment owners had taken possession of their apartments without any complaint. The opposite party carried out maintenance and supplied electricity to the apartment owners at their expense from the date of taking possession till date of receipt of completion certificate, as no association was formed to take over the maintenance of the complex. The allegation that the complainant gave notice dated 24.04.2009 is denied. Opposite party had carried out all works they were bound to execute as per the agreement for construction. The allegation that the complainant has spend Rs.10,12,779/- in order to make the apartment complex habitable is denied. The expenses for the work later started and completed by the association as per their requirements and decisions is to be borne by the complainant association itself. The allegation that further amount of Rs.71,36,025/-is required for completion of the works of the apartment complex is denied. Opposite party has constructed the apartment complex according to the plan specifications brochures and technical details mentioned in the agreement for construction. The salient features specified as annexure to the agreement for construction are nothing but the vision specification of the opposite party, that amounts to 'for maximum comfort and luxury' with 'dream amenities'. The opposite party repeatedly requested the apartment owners to form association and collect relevant documents but none of the members of the association came forward to take responsibility. The opposite party had asked the present President and then Head of the Adhoc Committee to take the file containing all the documents mentioned in the complaint. When the present President of the Association came to the office of the opposite party once again request was made to take the documents on acknowledging receipt. But he refused to accept the documents.
9. Opposite party has denied the allegation that they had mortgaged with HDFC Bank, Nagpur 58.850 cents of land in Survey No.327/2 in Elamkulam Village in which Swapnil Apartments is situated. So the further allegation that there is threat of imminent recovery proceedings by the bank is false. There is no charge or lien over the property in which the apartment complex is situated. There is no negligence or deficiency in service on the part of the opposite party. It is incorrect to say that the construction is defective and even now remains defective and incomplete. The allegation that members of the association suffered damage and loss of Rs,5,00,000/- is a figment of imagination. The complainant is not entitled to relief and the complaint is liable to be dismissed.
10. On the allegations in the complaint and the contentions raised by the opposite parties the points that arise for consideration are the following.
1. Whether the complainant has succeeded in establishing deficiency in service on the part of the opposite party if so to what extent?
2. What are the reliefs if any to be granted to the complainant?
11. The evidence in this case consists of the depositions of the President of the complainant association and two witnesses as PWs 1 to 3, the deposition of the Managing Director of opposite party construction company as DW1, Exts. A1 to A11 & C1 marked on the side of the complainant and Exts.B1 to B61 marked on the side of the opposite party. After recording the entire evidence arguments were heard.
12. Complainant is the association of the owners of 64 apartments known as Swapnil Apartments. The opposite party construction company constructed the apartments at Cochin. Ext.A1 is the memorandum of association with by-laws of the complainant. Ext.A3 is the registration certificate of the complainant association dated 22.04.2009. It is obvious that the owners of individual apartments had entered into agreement for sale of undivided share over the undivided land intended for the construction of the apartment complex with the opposite party. It was followed by construction agreements with the owners of individual apartments. Ext.A9 is one such agreement executed by the President of the complainant association. Sale deed relating to the undivided share was subsequently got executed by the owners of individual apartments. Ext.A11 dated 30.03.2007 is the sale deed executed between the opposite party and the President of the complainant association. Ext.A11 refers to the agreement for sale of undivided share dated 02.11.2005. Ext.A9 construction agreement is a detailed one. The construction cost was fixed at Rs.22,19,000/- of which Rs.20,94,000/- was the cost of the residential apartment and Rs.1,25,000/- was the cost of one covered car park. The value of the undivided share was Rs.8,72,500/-.The construction agreement provided the schedule of payments and set conditions which the individual owners should comply.
The date for completion of the construction was fixed as 26.01.2007. As per Clause 15 of Ext.A9 the purchaser agreed and undertook to pay and become liable for his share of charges for the upkeep and maintenance of common areas and common facilities and agreed to entrust the construction company with the amounts required until a society or association or other body capable of maintaining the common facilities and common areas for the residential apartments is formed. The purchaser agreed to pay to the construction company an amount which would be fixed later for the said purpose and it was agreed that the amount would be handed over to the society or association after deducting the amount of expenses incurred by the construction company till the date of handing over. Clause 17 provides that the maintenance and upkeep of the common areas and common facilities included such things as maintenance of lifts , pump sets, water tanks etc, sanitary and electrical lines common to the residential apartments, replacement of bulbs in corridors payment of electrical and water charges for common services provision for day and night watch man painting the building provision for care taker, gardener and other staff required for the maintenance of residential apartments. The annexure details the salient features agreed to be provided. The agreement also provided the specifications relating to foundation, concrete mix plastering etc. For providing car parking facility extra cost would be incurred by the individual apartment owners. An option is provided for alterations or additions to the amenities if specified at the time of booking. Amenities provided at extra cost are fans, light fittings, furniture and wardrobes, kitchen counters and shelf, marble or granite, covered tiles and toilet fittings furnishing and interior decorations.
13. The above details are referred to in order to emphasise the fact that the individual owners of apartments had their own rights and obligations and the society or association to be formed by them have distinct and separate obligations to perform. So the complainant can have grievance only relating to the deficiencies or lack of provision relating to common areas. Secondly, the complainant has a claim relying on Ext.A4 brochure that promised standard of amenities were not provided by the opposite party. Ext.A4 proclaimed thus: 'live on the road to your dreams ’’. A valid claim cannot be based on the dreams of the individual. Firstly, the dreams of two individual as to the facilities in his building may be distinctly different. Secondly, the amenities that can be provided are directly related to the amount spent. The present construction was agreed for around Rs.22,00,000/- per apartment. More amenities and facilities can be certainly expected when the construction cost goes up substantially. Thirdly, there is a valid agreement for construction between the parties. It is the agreement of construction that is the guide for determining whether the opposite party had committed deficiency in service in the matter of providing the amenities. Obviously, amenities to be provided in individual apartments is distinctly different from the common amenities and facilities and only over the common amenities and facilities the complainant association can have grievance. Individual grievances should be redressed by the individual apartment owners at the appropriate time.
14. The complainant association has a case that the construction company had abandoned the construction without completing the same. The allegation is to be understood in a limited sense. The allegations in the complaint itself particularly in paragraph 6 of the complaint shows that the grievance is only that the construction company failed to complete the construction of the building to fulfil the dreams of the occupants. Ext.B11 is the occupancy certificate issued by the Corporation of Cochin which shows that as on 24.06.2008 the apartment complex was ready for occupation. The allegation in effect is that the condition of the apartment complex was pitiable and was not habitable when the complainant association was formed. It is only in the above limited sense the allegation is to be understood.
15. The main claim put forward as B and C Reliefs and explained in Paragraphs 6 & 7 of the complainant, is based on the allegation that the construction company abandoned the construction without fully completing the same. While in paragraph 6 of the complaint it is alleged that an amount of Rs.10,12,779/- is already spent by the complainant association, as per paragraph 7, a sum of Rs.71,36,025.95/- more is required for completion of the works in the apartment complex as per the standard promised by the opposite party. The complainant seeks to sustain the first claim based on Ext.A10 series of documents and Ext.C1 report of the expert commissioner who is examined as PW3. The claim for additional amount of Rs.71,36,25.95/- is sought to be sustained on the basis of Ext.A8 report of PW2.
16. In claims of such nature the complainant has to prove firstly the condition at which the construction was abandoned and Secondly adduce acceptable evidence to show how much amount is required to complete the construction. It may be reminded that as discussed earlier in establishing these aspects it is the contract between the parties that is important and not how the party dreams. It is pertinent to mention that complainant association is formed in March 2009 as per Ext.A1and it was registered in April 2009. Ext.C1 styled as estimate for additional works is filed on 25.05.2012. It is not sufficient that estimate is produced. In order to prove that this much amount was spent by the complainant to complete works, Ext.A10 series of documents are relied on. In Ext.C1 the total estimate of additional works is Rs.10, 12,779/-. Interestingly, most of the receipts in Ext.A10 series of documents produced to show that the works were executed are seen issued in 2009. The commissioner as PW3 deposed that he inspected the flat on 01.04.2012. He had issued notice to the opposite party before inspection in the address furnished from court. The case of the opposite party appears to be that by then their office was shifted.PW3 saw the approved plan and permit of the building. To a question whether he had seen any variation in the construction compared with the plan he answered that some works remained to be executed but he did not conduct any test to see whether water proofing was done. It seems that PW3 came to know that association had spent so much amount from their records. PW3 is obviously referring to Ext.A10 series of documents. He did not conduct any scientific test in relation to the parking area under the swimming pool. Obviously, there is no independent evidence to show the exact condition of the flat complex to see whether facilities and amenities were provided in accordance with the agreement between the flat owners and if not the details regarding the incomplete nature of the construction. Without such independent evidence the complainant allegedly proceeded to spend amounts as against the claim of the opposite party that they had in fact completed the construction in terms of the agreement for construction executed between the parties.
17. Regarding the claim for Rs.71,36,025.95/- to complete the construction, complainant relies on Ext.A8 report filed by PW2 an engineer having B.Tech (Civil) Degree. He was a consultant engineer and under took the work in his private capacity for the complainant. Ext.A8 itself is an estimate. The claim in paragraph 7 of the complaint is exactly based on Ext.A8. As PW3 he admitted that he visited the flat complex without giving notice to the opposite party. He did not examine any of the agreements between the flat owners and the opposite party. He did not examine the individual plans of several flats or the plan of the flat complex before preparing the report. He accepted the proposition that once the construction of the apartment complex is completed and handed over to the association, it is for the association to manage the common areas and common amenities. He did not examine any document to see when the possession of the premises was handed over to the association. The President of the association gave him Rs.10,000/- as remuneration. At the time of his inspection the building was completed and occupied by the flat owners. He admitted that due to natural causes defects such as cracks in plastering can occur. He did not conduct any scientific test to ascertain defects in laying eurocon tiles. It is not a mandatory requirement. Cracks can develop even if the maintenance is not proper and is untimely. PW2 did not conduct scientific test to see the cause of the alleged leakage noted by him. He pleaded ignorance as to whether scientific test is necessary to see the quality of water proofing. He agreed that if regular maintenance is not done leakage can occur in the swimming pool area. He did not note in his report that parapet was not constructed at the required height in the children play area. So Ext.A8 report is not convincing to show the extent of work left incomplete, particularly with reference to the agreement of construction between the parties and evidence is lacking to show the condition of the flat complex immediately on handing over possession to the complainant. The complaint itself was filed one year after the association was formed in 2009. Ext.A8 report is in March 2010 and Ext.C1 report came much later in 2012.
18. It remains to be seen whether the evidence of PW1 in any way improves the situation. His own evidence shows that many of the claims are raised not based on any contract between parties but based on ideal requirement. For example he claimed that one pump set is required in relation to the drinking water another is required for common use, a third pump is required for pumping water for use in flush tanks, another for pumping water into the fire tank and lastly a stand by pump. This is not something provided in the contract between the parties. The bill among Ext.A10 showing purchase of pump set is dated 28.05.2005. So it is obviously unrelated to the disputed construction. He pleaded ignorance to all inconvenient questions asked by the opposite party. For example when asked whether the builders had executed any work before the formation of the association at the request of the apartment owners, he pleaded ignorance. He agreed that two ceiling fans, phone extensions and tube lights were provided to the association office room. He insisted that these are amounts to be spent from corpus fund. When association was formed there were two lifts. This is all what was required to be provided as per the construction agreements. The complaint is only that one lift was not working. He admitted that from 2007-2009 builder was managing the common areas and common amenities. He pleaded ignorance whether during the said period the builder had spent Rs.11,11,782/- for the purpose of common amenities. It was suggested that they had further spent Rs.1,92,000/- for the period from January 20099 to March 2009. PW1 pleaded ignorance to this suggestion also. To the suggestion that Ext.A10 (series) bills relate to the common amenities attended by the association, PW1 answered that the bills related to essential items of work done by the association. Later he admitted that both the lifts were working at the time of his examination.
19. In short, regarding B & C Reliefs claimed in the complaint there is no convincing evidence to show that the complainant association has spent amounts to make the construction complete in terms of the construction agreement between the parties. If at all the association has incurred expenditure that must have been in relation to the maintenance of the common areas and common amenities. A good part of the claim could have been enforced only by the individual owners. None of the individual owners have put forward any grievance with respect to the flats in their possession. At any rate an exaggerated claim is put forward without sufficient evidence to grant any part of the claims covered by B and C Reliefs.
20. Complainant has a case that the opposite party failed to take steps to form the apartment owners association but as per the contract between the parties the apartment owners themselves should come together to form an association and take over management of common areas and common amenities. At any rate the evidence of PW1 though he vehemently denied indicates that an adhoc committee was earlier formed before the association itself was formed long after the individual owners took possession on their respective flats. (a) relief claimed in the complaint is for a direction to hand over to the complainant corpus fund of Rs.10,01,700/-allegedly collected from the members of the complainant association. According to the complainant seventeen out of the 64 apartment owners contributed a total amount of Rs.10,01,700/- to the opposite party. The complainant association claims this amount. According to the opposite party they had collected corpus fund from 10 apartment owners only. But they refunded the respective amounts to 8 apartment owners. They are willing to refund the corpus fund received from the remaining two apartment owners if they approach the opposite party. It is pertinent to mention that the fund was collected from individual owners before the complainant association was formed. So even if the amount is not handed over to the complainant association, it is the individual flat owners who have the cause of action to claim the amount and not the complainant association. PW1 himself admitted that no complaint was given by the individual flat owners stating that the corpus fund given to the builder was not returned to him. He claimed that in a meeting of the flat owners they had orally raised such a complaint. That is not sufficient to sustain such (a) claim. So the complainant is not entitled to claim (a) relief as well.
21. Though the complainant has a case that the construction is defective it is obvious that what is alleged is not defect in construction but failure to complete the construction as promised. Even otherwise there is no expert evidence regarding the structural deficiencies or defects if any of the apartment complex building.
22. Certainly there was short delay in handing over possession of flats to the individual owners. The opposite party justifies the delay as consequent on suits filed by the residents of adjacent plakkat colony and disputes relating to road widening work. Exts.B50 to B56 show that suits were filed by the residents of adjacent Plakkat Colony before the Munsiff Court, Ernakulam as well as the Sub Court Ernakulam and there was order of injunction against proceeding with the construction. Obviously, prompt steps were taken to get the order of injunction vacated and the matter was settled between the parties. Even otherwise handing over possession of individual flats is dependent on other conditions such as effecting full payment for the construction in terms of the agreement and the grievance if any in that regard can be redressed only by the individual flat owners in that capacity and not by the complainant.
23. The opposite party has a contention that the President of the complainant association is incompetent to file the complaint. But as per Clause 9 of the by-laws of the association, the President of the association is the competent person to sue on its behalf. Hence this contention is devoid of merit.
24. The grievance alleged in paragraph 10 of the complainant is that the property on which the flat complex is constructed by the opposite party is mortgaged with the HDFC Bank, Nagpur and proceedings to realise the mortgage amount is imminent. According to the opposite party this allegation is devoid of substance. PW1 admitted that the said allegation is not made based on any document. But he heard people say that the property was mortgaged. His inference seems to arise
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from the alleged failure of the opposite party to hand over the original documents to the association. He admitted that he did not receive any notice from the bank showing the intention to initiate recovery proceedings. Originally the complainants produced the photocopy of the title deeds relating to the property and marked the same as Exts.B27 to B49. Subsequently, the originals of the documents were produced. So the apprehension on the part of the complainant association is not genuine. 25. As per D Relief in the complaint the complainant seeks a direction to the opposite party to furnish documents detailed in paragraph 8 of the complaint to the association. These are documents such as final approval drawings of the apartment project received from the Corporation of Cochin, GCDA and the Chief Town Planner, original title deeds and related documents and tax receipts pertaining to the property completion certificate from the Corporation of Cochin and such other documents relating to lay out drawings for electricity connection etc. Certainly these documents are necessary for the effective management of the apartment complex which vests with the complainant association. So if these documents are not already handed over to the complainant association, they are entitled to receive the same. The E Relief is to some extent duplication of the ‘D’ relief. Handing over of the title deeds of the property over which flat complex is situated to the complainant association is sought. As already indicated the original title deeds are before this commission and the complainant association shall be entitled to receive the same on executing proper acknowledgment. We are not forgetting the contention of the opposite party that in fact the complainant association and its office bears have refused to accept the documents. In short the complainant is entitled to (d & e) reliefs claimed in the complaint. 26. The complainant has claimed compensation of Rs.5,00,000/- for the loss and mental agony suffered by the members of the complainant association allegedly due the negligence on the part of the opposite party. The prayer itself indicates that the association has no mind to feel mental agony. While discussing the eligibility for A to C Relief in the complaint it was found that complainant could not establish that it had suffered any loss due to the failure of the opposite party to effect construction in terms of the agreement. Even if there was such failure it is the owners of the individual flats who are entitled to claim such relief. Hence the complainant is not entitled to F relief as well. The point is found accordingly. Point No.2 27. It follows from the detailed discussion and conclusions arrived at that the complainant is entitled to D & E Reliefs claimed in the complaint only. Hence the complaint is liable to be allowed in part. In the result, the complaint is allowed in part and in terms of the D & E reliefs claimed in the complaint, opposite party is directed to furnish the documents and original title deeds relating to 58.850 cents of property in Survey No.327/2 of Kadavanthara Desom in Ernakulam Village within one month from the date of receipt of copy of this order. It is made clear that the original title deeds already produced by the opposite party can be obtained by the complainant on executing proper acknowledgement. The parties are directed to bear their respective costs.