GENERAL SECRETARY Vs. MANAGING DIRECTOR

JUDGEMENT

(1.) Complaint was filed, inter alia, alleging that the complainant association was formed for the welfare of the residents of Royale Garden Estate, E-12, Sector-61, Nodia and was registered under the provisions of Societies Registration Act, 1860 on 30.09.2003. New Okhla Industrial Development Authority (NOIDA) allotted plot No. E-12, measuring 19,605 sq. mtrs. in Sector-61 to the opposite party for developing a group housing society. After allotment of plot, the opposite party published brochure (Annexure-I) in several newspapers for construction of various types of apartments promising to provide facilities as under:-

(2.) Acting on the brochure the members of the complainant Association purchased flats after paying consideration thereof, from the opposite party. One time club membership fee was also paid by them. Almost all the flats excepting approx. 45 flats were sold and possessions thereof were handed over by the opposite party in October 1998 onwards. Despite assurance the opposite party did not provide some of the facilities promised till August 2003. It was further alleged that an agreement was entered into between the parties on 15.11.2003. The complainant had thereafter been regularly pursuing the opposite party for carrying out the works mentioned in the agreement dated 15.11.2003 but it has failed to execute them. So, the complainant got a legal notice through Advocate served on the opposite party on 8.11.2006 which was duly received on 10.11.2006. On receipt of legal notice the opposite party sent a back dated threatening notice of demand dated 10.11.2006 asking the President, Vice-President, Secretary and Treasurer of the Association to pay Rs. 5 crore each as damages for making defamatory statements. Opposite party did not reply to the said legal notice nor has it made good the deficiencies. It was also stated that by the letter dated 2.1.2007, the complainant demanded arbitration but the opposite party failed to appoint an architect. Under clause (10) of the said agreement dated 15.11.2003, the opposite party has agreed to pay to the complainant monthly maintenance charges @ Rs. 0.50 paise per square feet for the unsold flats w.e.f. 16.11.2003. Up to 31.12.2006 amount of Rs. 6,19,568/- was due towards maintenance charges in addition to advance charges for the year 2007 amounting to Rs. 2,86,242/-. Under clause (14) of the agreement the opposite party is to make water softening plant and tube well operational and the same has to be handed over on or before 31.1.2004. Opposite party is to bring fire fighting equipments/generators and to hand over them to the complainant on or before 31.12.2003. Work relating to water softening plant is incomplete. Fire fighting equipment work too is incomplete. Opposite party has to obtain a certificate from Fire Safety Department of the said Authority and to hand it over to the complainant which it has failed to do. Under clause (16) of the agreement the stilts are to be cement plastered and white washed before 15.1.2004 but this work too has not been completed on the ground floor of seven towers. Under clause (19) of the agreement the opposite party is to construct the second Health Club, second Swimming Pool before 31.3.2004 and to provide space for club house in one of the basements which too has not been done. Opposite party has unauthorisedly rented out the terrace of Eden Tower to Hutch (P) Ltd. for commercial activity. Opposite party has started selling the stilt as well as open area to the new purchasers. Reliefs claimed in the prayer clause of the complaint, being material are reproduced below:

(3.) Complaint was contested by filing written version by the opposite party. It was admitted that complainant is a registered body. It was stated that opposite party has been wrongly described as M/s. Padmini Infrastructure (I) Ltd. instead of Padmini Infrastructure Developers (India) Ltd. Allotment of plot No. E-12, Sector-61, NOIDA to the opposite party; publishing of brochure incorporating the contents as noticed in para no. 4 of the complaint were not disputed. It was stated that NOIDA issued possession letter of the said plot on 2.12.1998 and the opposite party thereafter commenced constructions and physical possession of the flats were handed over after completion of the project in the year 2001. So-called agreement dated 15.11.2003 was superseded by another agreement dated 8.07.2004. Opposite party had fulfilled all the promises under the latter agreement. The dispute sought to be referred to Arbitration by the complainant was not arbitrable. Moreover, recourse to arbitration has been given up by the complainant by filing the present complaint. It was claimed that the opposite party has made payment of maintenance charges to the complainant upto 31.03.2006 and it is ready to pay the balance maintenance charges upto 30.06.2007 amounting to Rs. 2,32,750/- provided the complainant association stops making false allegations against the opposite party. All provisions set out in para No. 17 referable to clause (14) of the agreement have been fulfilled. No objection Certificate from the Fire Department is in place and the same is available for perusal. The work on stilts is complete in all respects. It was asserted that opposite party has constructed the second swimming pool complete in all respect and Health club with fully equipped instruments. Space for club house has already been provided in the basement of the Tower. There was no irregularity in opposite party s letting out the terrace of the Eden Tower for setting up a telecommunication Tower. Terrace rights of the building were not sold. Reliefs claimed in the complaint are stated to be highly inflated.