KALYAN APARTMENTS OWNERS WELFARE ASSOCIATION Vs. SANDEEP DEVELOPERS

JUDGEMENT

(1.) This appeal has been filed by the appellant against the order dated 23.01.2012 passed by the learned U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, 'the State Commission') in Consumer Complaint No. 28 of 2007 Kalyan Apartments Owners Welfare Association Vs. M/s. Sandeep Developers by which, complaint was dismissed.

(2.) Brief facts of the case are that OP/respondent invited general public for allotment and sale of residential flats in Kalyan Apartments and in pursuance to that Members of complainant/appellant Association entered into an agreement with OP for purchase of flats. The physical possession of each flat was delivered to the members of the Association under execution of the agreement. The opposite party promised to execute the sale deeds after receiving the cost of the flats within a period of six months from the date of delivery of possession of a flat but the builder inspite of several personal persuasion and repeated requests failed to execute the sale deeds. The delay as alleged was deliberate and malafide with ulterior motive and this delay gave a cause of action to the Association to file this complaint. The right for maintenance of the building had to be transferred to the members of the Association but for years together the builder kept with it the right for maintenance of the requisite services. The board of the managers of the Association requested the builder to execute the sale deeds and transfer the maintenance part of the services but there was no response. The Association had also highlighted the members grievance against the builder's demand for maintenance charges at the rate of Rs.10/- per square meter. The members of the Association individually as well as collectively through the Association brought into the notice of the builder that there were several defects in the building but the proprietor of the firm did not pay any heed to their demand. The ground floor hall had a shabby look and required to be properly designed and decorated so that it could be used for the community's various purposes as also a club. Narrating in detail the defects further, the Association pleaded in its complaint that marbles fixed on the floor of each flat were found broken and needed replacement before execution of the sale deed. There were cracks in the walls of flats which were required to be repaired by the opposite party. The two lifts provided for use by the members of the Association were not functional and they too needed repairs but the builder did not pay any attention to their request, as a consequence the elderly persons suffered lot of harassment. The water supply too was faulty as the tube-well meant for the members was excessively used by the owners of the Kalyan Apartments while raising another building. There were security hazards also as the security guards posted at the main gates did not discharge their duty to the satisfaction of the members and at times were found absent leaving the gate unattended. The two generators pressed into service for the power backup were not fitted with automatic system so as to get on with power backup. The garden provided for the use by the members of the Association had no gardener and consequently the garden was in a bad shape. The opposite party had promised a banquet hall under the terms and conditions with provisions of furnitures/fixtures and necessary equipments and also promised to provide an office but nothing was done on these two scores. Also it was alleged that white-washing of the outer walls of the building, staircase, verandah grill, guardrails were also not properly executed. The builder was required to affix glass panels on the ground floor windows covered with the wire-net but he failed to do so and obviously it was also a deficiency in service on his part. The open spaces around the building have not been properly developed as a result of which the members of the Association were put to lot of inconvenience while going to their flats. Alleging deficiency on the part of OP, complainant filed complaint before State Commission. Opposite Party resisted complaint and submitted that leasehold land to be converted into freehold land in group housing scheme of U.P. Avas Evam Vikas Parishad (hereinafter to be referred to as 'Parishad') was allotted to the opposite party in the year 1998 and the hire purchase agreement was executed by the Parishad on 28.10.1998. Possession of the land was also delivered on the same day. The opposite party constructed and completed on the said land an eight storeyed building including basement in the name and style as 'Kalyan Apartments'. The persons eager to purchase flats in the said building approached the opposite party for allotment of individual units under an agreement and handed over possession of the flats to the allottees. Before entering into the agreement with the opposite party and taking possession of the individual flat, each of the purchasers satisfied himself/herself about the title of the opposite party, method of the construction on K-Building System. The individual members agreed with the opposite party in regard to maintenance of the building and common services and promised to pay charges so long as service was rendered to them. The allottees had formed the Association essentially for the purpose of ensuring good maintenance of the building and common services and not to protect the interest in general of the allottees. Therefore, the complaint of the Association regarding grievances of the flat purchasers could not be filed and as such their complaint is liable to be dismissed on this count alone. The opposite party offered free services for three years for management and maintenance of the building, common areas and common services were provided to the purchasers in accordance with the terms of agreement. The allottees had to form an Association within three years for management of common services and management thereof. Even after the formation of the Association, the flat/unit holders were reluctant to take over the management of common services since they were satisfied with the maintenance being done by the opposite party. As a matter of fact, the huge electricity charges were payable for maintaining the common services and allottees were not interested to take over the management with a view to avoid payment of electricity bills. In these circumstances, the complainant's claim for refund of the maintenance charges is contrary to the terms and conditions of the agreement and as such, liable to be rejected. The flat holders who have not paid the arrears of maintenance charges are liable to clear their arrears. The flat owners knew very well that the cost of the plot was to be paid by the opposite party to the Avas Evam Vikas parishad by way of instalments under the hire purchase agreement scheme and unless the entire payment was made, the Parishad was not ready to execute the sale deed. The last instalments was to be paid upto 16.4.2010 and the sale deed in favour of the flat owners could have been executed only after April, 2010 and since this fact was well within their knowledge, they should not have sustained any grievance against the opposite party. Even the members of the Association approached the authorities of the Parishad with a view to persuade them to execute the sale deed in favour of the opposite party so that the members of the Association could acquire full rights over their individual flats. In this way there was no deficiency on the part of the opposite party. The question of making any payment as interest does not arise at all as all the flat owners were inducted into possession of the individual flats. Now since the opposite party had to obtain favourable orders from the Hon'ble High Court and got a direction issued to the authorities, the sale deed had been executed in the name of the opposite party. As regards the infirmities in the construction work, the opposite party submitted that no flat owner complained about the broken marble in the flooring of the flats at the time of taking the possession and the opposite party is not responsible for the damage done to the floor subsequent to the delivery of possession. Now since the management of the building as a whole has been given to the Association, the complaint has become infructuous and liable to be dismissed on this ground alone. Learned State Commission after hearing both the parties dismissed complaint against which, this appeal has been filed.

(3.) Heard learned Counsel for the parties and perused record.