Ravi Group is expert in getting rejecting genuine consumer complaints. See 14 Consumer orders. The reason was the advocate of Complainants poorly represented the case and it dismissed on technical fault! See the 14 Consumer Court orders. Appeal pending. The Complainants have genuine complaints and facing hardships before 1995!!! Still their fight is on!!! Is it wise to add you name in victims of Ravi Group???
Lesson: Better do not buy flats from this builder!!!
BEFORE CONSUMER DISPUTE REDRESSAL FORUM
MUMBAI SUBURBAN DISTRICT
Admn. Bldg., 3rd Flr, Nr. Chetana College, Bandra (E), Mumbai 400 051.
Complaint No. DF/MSD/410/02
Date of Filing-23/12
Date of Order-11/2
Mrs. Nirupama R. Shah
Flat No. B 401
Gaurav Geet, A/B Wing
Gaurav Garden, Bunder Pakhadi Road
Kandivali (W), Mumbai 400 067. Complainant
v/s.
1.Ravi Real Estate Developer’s Pvt. Ltd.
Builder & Developers
Laxmi Palace, 76 Mathuradas Road
Kandivali (W), Mumbai 400 067.
2.Brihanmumbai Municipal Corporation
Thru: Executive Engineer
Building Proposals (Western Suburbs)
H & K West Wards
Patkar Marg, Bandra (W)
Mumbai 400 050. Opponents
Present- Shri. R.D.Gate, President
Smt. Deepa S.Bidnurkar, Member
Shri. V.G.Joshi, Member
Shri. Deshpande, Advocate for the Complainant
Shri. Imtiaz Raibakker, Advocate for Opponent No.1.
Opponent No.2 absent.
Judgment Per Shri. V.G.Joshi, Hon’ble Member-
The complainant’s contention in brief-
The complainant influenced by attractive advertisements and brochures issued by the opponent no.1. The complainant paid amount of Rs.12, 25, 000/- towards the cost of flat 401, B wing, 11th floor and amenities as well as other charges such as society charges, 10 years layout maintenance and other charges
2
towards parking, maintenance, betterment, legal and electric meter deposit to the Ravi Real Estate Developers Pvt. Ltd., Opponent No.1.
The complainant placed the grievances against the opponent no.1 which are enumerated below-
1. Although it was assured while entering an agreement, the occupation certificate has not been obtained for the building in which the complainant’s flat is located till the date of filing of this complaint.
2. As per section 10 of the MOFA the opponent no.1 is required to form the co-operative society within four months from the date on which minimum number of persons required to form the co-operative society, who have booked the flat. The opponent no.1 failed and neglected to form the co-operative society and as such the complainant and other members had to take initiative to form the society since the opponent no.1 failed and neglected to form the society, is liable to refund the amount collected from the complainant with 18% interest p.a. thereon from the date of payment till realization.
3. The opponent no.1 also failed/neglected to give conveyance of the property of the society despite repeated reminders. The opponent no.1 is liable under section 11 of the MOFA to give conveyance in favour of the society within four months of its formation.
The complainant alleged that the opponent no.1 did not provide the other amenities as promised and advertised such as club house, swimming pool, two lifts, adequate parking facility.
The complainant further states that the opponent no.1 has not mentioned about the charges payable by the flat purchaser towards the parking facility in the agreement. However, in reality the opponent no.1 collected garage charges from the flat purchaser. The flat owners were not allowed to enter the building complex in
3
their vehicle if they had not purchased the parking space either in stilts or open parking space. At the time of giving the possession the opponent no.1 has collected Rs.26, 250/- form the complainant towards 10 years layout maintenance charges. Here too, the agreement is silent about such payment by the flat purchaser. According to section 4 (iA) (iv) of the MOFA, the opponent no.1 is legally bound to mentioned in the agreement the price of the flat including the proportionate price of the common areas and facilities which should be shown separately. The opponent no.1 cannot collect a single rupee from any flat purchaser in connection with the flat unless the same is mentioned in the agreement. This amounts to unfair and deceptive trade practice. Moreover, the opponent no.1 has collected betterment and layout charges @ Rs.15% sq.ft., property tax, water charges, but did not pay to the respective authorities. Later on BMC slapped auction notice for collection of these dues and water is being provided on the humanitarian ground with twice the normal charges.
The complainant admits that Gaurav Geet CHS filed a Civil Suit no.3190 in the High Court. However, according to him this complaint is sustainable for a variety of reasons mentioned herebelow.
a) The complaint filed by him before Hon’ble Forum precedes the Civil suit filed by the society in the High Court.
b) The reliefs claimed by him in the complaint are not identical to those claimed in the said civil suit.
c) The remedy provided under the Consumer Protection Act, as expressly provided under section 3 the parliament was well aware of the remedy available under section 9 of Code of Civil Procedure.
Thus parliament intends to provide the additional remedy to the consumer. It is also a settled position that the provisions under the
4
Consumer Protection Act supplement and not supplant the jurisdiction of Civil Court.
Finally the complainant prayed for the following reliefs-
The Opponent be directed –
1. To obtain the occupation certificate form BMC within 2 months failing which fine of Rs.100/- be made payable to the complainant per month till obtaining said occupation certificate.
2. To refund amount of Rs.3260/-collected on account of society formation share money and entrance fees alongwith 18% interest p.a. from the date of collection till realization.
3. To give conveyance in favour of the society within 3 months from the date of order.
4. To provide swimming pool within two months from the date of order and also to pay compensation of Rs.10, 000/- for deprivation of the facility.
5. To install two more lifts within two months and also to pay compensation of Rs.15, 000/- for hardship.
6. To refund layout maintenance charges of Rs.26, 250/- with 18% interest p.a. from the date of collection till realization.
7. To give account of betterment charges collected.
8. To refund property tax of Rs.21, 000/- paid by the society to BMC with 18% interest p.a.
9. To obtain normal and full water supply from BMC within 2 months from the date of order.
10. To pay compensation of Rs.500/- per sq.ft for not providing amenities/facilities shown in the sale brochure and in the agreement.
5
11. To pay compensation of Rs.50, 000/- for all the hardship and losses suffered by the complainant.
12. To refund Club House Deposit of Rs.25, 000/- collected from the complainant alongwith 18% interest p.a. for not providing the Club House.
13. To refund garage charges of Rs.31, 000/- with 18% p.a. interest from the date of collection till realization.
In reply of opponent no.1-
The opponent no.1 contended that the complaint filed is not maintainable, bad in law and as such deserves to be dismissed. The complainant has made several false and misleading statements and has also suppressed several vital and relevant facts from the Hon’ble Forum.
At the further outset, opponent no.1 submits that the complainant alongwith other flat purchasers being the members of Gaurav Geet C.H.S.L. have already filed civil suit being suit no.3190 of 2003 filed in the High Court of judicature at Bombay on the same subject matter and on the ground of complaining of the same grievances. The present complaint therefore is not maintainable and deserves to be dismissed on this ground also.
With reference to grievances in respect of occupation certificate opponent no.1 says that the complainant and other flat purchasers and their society themselves are responsible for delay in obtaining occupation certificate. Besides since November a public interest litigation being writ petition no.379 of 2003 regarding 154 buildings in the city of Mumbai has been filed in the Hon’ble High Court by some third persons and Hon’ble High Court has stayed the regularization of any further building.
6
As regards the refund in respect of the amount collected towards formation of co-operative society opponent no.1 is willing to refund the amount collected from the complainant without any interest thereon.
In respect of conveyance of the property in favour of society, the opponent no.1 states that as the complainants’ building is a part of a big layout which is still under construction development, and the layout comprises several properties amalgamation together. The conveyance of the one portion or the building cannot be executed under prevalent law. Accordingly the opponent is not liable to convey the property at this juncture in as much as the conveyance will be required to be executed by opponent no.1 in favour of the Apex society of all the societies. There are about 13 buildings in the entire layout already constructed and further 3 to 4 buildings with more wings are likely to be constructed in view of the available FSI/TDR and as per entitlement of opponent no.1, and as per agreement opponent no.1 is required to execute the conveyance after having consumed total FSI as also floating FSI on the said property. Opponent no.1 further says that the layout being a very big layout, it was expected to be constructed over a period of 10 years and more, and therefore there was no malafide intention in collecting the amount towards maintenance charges for ten years.
Opponent no.1 finally concluded with the statement that the allegations made by the complainant are baseless, false, premature and malafide. The complainant has miserably failed to make out any case for grant of any relief or for refund of any amount or compensation from the Hon’ble Court hence deserves to be dismissed with compensatory cost.
The opponent no.2 has not filed its say and even complainant did not press for the same.
7
Read complaint, written reply of the opponent no.1 and written argument of both parties. Perused the exhibits and other documents produced in support of the complaint.
The following points arise for my consideration.-
Points Findings
1.Is the complainant consumer? Yes
2.Is the complaint barred by law of limitation No
3.Is the complaint tenable? No
4.What order? As per final order.
Reasons-
Points No.1 to 3 together-
As regards the points mentioned herein my findings are as follows-
The complaint is not barred by law of limitation as the cause of action is continuous since statutory.
The Gaurav Geet CHSL has filed a Civil Suit bearing no.3190 of 2003 in the Bombay High Court wherein the same reliefs were claimed by the society and the complainant is also a member of the same society. No doubt the registered housing society is having separate legal entity and represents all its members to voice their grievances. But the grievances against the developer/promoter raised either by the members individually or society as a whole cannot be different.
Although it is true that the provisions under the Consumer Protection Act supplements and not supplant the jurisdiction of the Civil Court and the provisions of this Act shall be in addition and not in derogation of any other law, it is an option given to an individual to chose either Consumer Forum or Civil Court but not both at a time even though the remedies available at both the Court are more or less similar. The provisions of Code of Civil Procedure order II Rule II are also quite clear about it. In this context section 3 – syp.6 (b) on page 561 of Commentary of the Law of Consumer Protection in India, Fifth edition is very specific and reads as
8
follows- “Matter pending in Civil Court between the same parties for the same cause of action – If the matter is pending before the Civil Court between the same parties for the same cause of action, the District Forum will not entertain the complaint, because under section 3 of Consumer Protection Act, the consumer agencies are in addition to and not in derogation of the provisions of any other law and that complaint before Redressal Forum is an additional remedy.”
Hence, complainant is not liable to approach Consumer Forum and Civil Court simultaneously for similar reliefs. There is no provision either in the C.P.C. or Consumer Protection Act, 1986 to grant reliefs in part basis. On the contrary the reliefs which are not prayed for are treated as relinquished and no further claim can be entertained once the case is finally decided. Taking into consideration above findings, this complaint is not maintainable, therefore liable to be dismissed. Hence, the following order is passed.
ORDER
1.The complaint is not tenable hence is dismissed.
2.No order in respect of Opponent no.2.
3.No order as to cost.
4.Copy of order be supplied to both the parties free of cost.
Mumbai
/2
(V.G.Joshi)
Member
We agree,
(Smt. Deepa S.Bidnurkar) (R.D.Gate)
Member President
rsc
BEFORE CONSUMER DISPUTE REDRESSAL FORUM
MUMBAI SUBURBAN DISTRICT
Admn. Bldg., 3rd Flr, Nr. Chetana College, Bandra (E), Mumbai 400 051.
Complaint No. DF/MSD/410/02
Date of Filing-23/12
Date of Order-11/2
Mrs. Nirupama R. Shah
Flat No. B 401
Gaurav Geet, A/B Wing
Gaurav Garden, Bunder Pakhadi Road
Kandivali (W), Mumbai 400 067. Complainant
v/s.
1.Ravi Real Estate Developer’s Pvt. Ltd.
Builder & Developers
Laxmi Palace, 76 Mathuradas Road
Kandivali (W), Mumbai 400 067.
2.Brihanmumbai Municipal Corporation
Thru: Executive Engineer
Building Proposals (Western Suburbs)
H & K West Wards
Patkar Marg, Bandra (W)
Mumbai 400 050. Opponents
Present- Shri. R.D.Gate, President
Smt. Deepa S.Bidnurkar, Member
Shri. V.G.Joshi, Member
Shri. Deshpande, Advocate for the Complainant
Shri. Imtiaz Raibakker, Advocate for Opponent No.1.
Opponent No.2 absent.
Judgment Per Shri. V.G.Joshi, Hon’ble Member-
The complainant’s contention in brief-
The complainant influenced by attractive advertisements and brochures issued by the opponent no.1. The complainant paid amount of Rs.12, 25, 000/- towards the cost of flat 401, B wing, 11th floor and amenities as well as other charges such as society charges, 10 years layout maintenance and other charges
2
towards parking, maintenance, betterment, legal and electric meter deposit to the Ravi Real Estate Developers Pvt. Ltd., Opponent No.1.
The complainant placed the grievances against the opponent no.1 which are enumerated below-
4. Although it was assured while entering an agreement, the occupation certificate has not been obtained for the building in which the complainant’s flat is located till the date of filing of this complaint.
5. As per section 10 of the MOFA the opponent no.1 is required to form the co-operative society within four months from the date on which minimum number of persons required to form the co-operative society, who have booked the flat. The opponent no.1 failed and neglected to form the co-operative society and as such the complainant and other members had to take initiative to form the society since the opponent no.1 failed and neglected to form the society, is liable to refund the amount collected from the complainant with 18% interest p.a. thereon from the date of payment till realization.
6. The opponent no.1 also failed/neglected to give conveyance of the property of the society despite repeated reminders. The opponent no.1 is liable under section 11 of the MOFA to give conveyance in favour of the society within four months of its formation.
The complainant alleged that the opponent no.1 did not provide the other amenities as promised and advertised such as club house, swimming pool, two lifts, adequate parking facility.
The complainant further states that the opponent no.1 has not mentioned about the charges payable by the flat purchaser towards the parking facility in the agreement. However, in reality the opponent no.1 collected garage charges from the flat purchaser. The flat owners were not allowed to enter the building complex in
3
their vehicle if they had not purchased the parking space either in stilts or open parking space. At the time of giving the possession the opponent no.1 has collected Rs.26, 250/- form the complainant towards 10 years layout maintenance charges. Here too, the agreement is silent about such payment by the flat purchaser. According to section 4 (iA) (iv) of the MOFA, the opponent no.1 is legally bound to mentioned in the agreement the price of the flat including the proportionate price of the common areas and facilities which should be shown separately. The opponent no.1 cannot collect a single rupee from any flat purchaser in connection with the flat unless the same is mentioned in the agreement. This amounts to unfair and deceptive trade practice. Moreover, the opponent no.1 has collected betterment and layout charges @ Rs.15% sq.ft., property tax, water charges, but did not pay to the respective authorities. Later on BMC slapped auction notice for collection of these dues and water is being provided on the humanitarian ground with twice the normal charges.
The complainant admits that Gaurav Geet CHS filed a Civil Suit no.3190 in the High Court. However, according to him this complaint is sustainable for a variety of reasons mentioned herebelow.
d) The complaint filed by him before Hon’ble Forum precedes the Civil suit filed by the society in the High Court.
e) The reliefs claimed by him in the complaint are not identical to those claimed in the said civil suit.
f) The remedy provided under the Consumer Protection Act, as expressly provided under section 3 the parliament was well aware of the remedy available under section 9 of Code of Civil Procedure.
Thus parliament intends to provide the additional remedy to the consumer. It is also a settled position that the provisions under the
4
Consumer Protection Act supplement and not supplant the jurisdiction of Civil Court.
Finally the complainant prayed for the following reliefs-
The Opponent be directed –
14. To obtain the occupation certificate form BMC within 2 months failing which fine of Rs.100/- be made payable to the complainant per month till obtaining said occupation certificate.
15. To refund amount of Rs.3260/-collected on account of society formation share money and entrance fees alongwith 18% interest p.a. from the date of collection till realization.
16. To give conveyance in favour of the society within 3 months from the date of order.
17. To provide swimming pool within two months from the date of order and also to pay compensation of Rs.10, 000/- for deprivation of the facility.
18. To install two more lifts within two months and also to pay compensation of Rs.15, 000/- for hardship.
19. To refund layout maintenance charges of Rs.26, 250/- with 18% interest p.a. from the date of collection till realization.
20. To give account of betterment charges collected.
21. To refund property tax of Rs.21, 000/- paid by the society to BMC with 18% interest p.a.
22. To obtain normal and full water supply from BMC within 2 months from the date of order.
23. To pay compensation of Rs.500/- per sq.ft for not providing amenities/facilities shown in the sale brochure and in the agreement.
5
24. To pay compensation of Rs.50, 000/- for all the hardship and losses suffered by the complainant.
25. To refund Club House Deposit of Rs.25, 000/- collected from the complainant alongwith 18% interest p.a. for not providing the Club House.
26. To refund garage charges of Rs.31, 000/- with 18% p.a. interest from the date of collection till realization.
In reply of opponent no.1-
The opponent no.1 contended that the complaint filed is not maintainable, bad in law and as such deserves to be dismissed. The complainant has made several false and misleading statements and has also suppressed several vital and relevant facts from the Hon’ble Forum.
At the further outset, opponent no.1 submits that the complainant alongwith other flat purchasers being the members of Gaurav Geet C.H.S.L. have already filed civil suit being suit no.3190 of 2003 filed in the High Court of judicature at Bombay on the same subject matter and on the ground of complaining of the same grievances. The present complaint therefore is not maintainable and deserves to be dismissed on this ground also.
With reference to grievances in respect of occupation certificate opponent no.1 says that the complainant and other flat purchasers and their society themselves are responsible for delay in obtaining occupation certificate. Besides since November a public interest litigation being writ petition no.379 of 2003 regarding 154 buildings in the city of Mumbai has been filed in the Hon’ble High Court by some third persons and Hon’ble High Court has stayed the regularization of any further building.
6
As regards the refund in respect of the amount collected towards formation of co-operative society opponent no.1 is willing to refund the amount collected from the complainant without any interest thereon.
In respect of conveyance of the property in favour of society, the opponent no.1 states that as the complainants’ building is a part of a big layout which is still under construction development, and the layout comprises several properties amalgamation together. The conveyance of the one portion or the building cannot be executed under prevalent law. Accordingly the opponent is not liable to convey the property at this juncture in as much as the conveyance will be required to be executed by opponent no.1 in favour of the Apex society of all the societies. There are about 13 buildings in the entire layout already constructed and further 3 to 4 buildings with more wings are likely to be constructed in view of the available FSI/TDR and as per entitlement of opponent no.1, and as per agreement opponent no.1 is required to execute the conveyance after having consumed total FSI as also floating FSI on the said property. Opponent no.1 further says that the layout being a very big layout, it was expected to be constructed over a period of 10 years and more, and therefore there was no malafide intention in collecting the amount towards maintenance charges for ten years.
Opponent no.1 finally concluded with the statement that the allegations made by the complainant are baseless, false, premature and malafide. The complainant has miserably failed to make out any case for grant of any relief or for refund of any amount or compensation from the Hon’ble Court hence deserves to be dismissed with compensatory cost.
The opponent no.2 has not filed its say and even complainant did not press for the same.
7
Read complaint, written reply of the opponent no.1 and written argument of both parties. Perused the exhibits and other documents produced in support of the complaint.
The following points arise for my consideration.-
Points Findings
1.Is the complainant consumer? Yes
2.Is the complaint barred by law of limitation No
3.Is the complaint tenable? No
4.What order? As per final order.
Reasons-
Points No.1 to 3 together-
As regards the points mentioned herein my findings are as follows-
The complaint is not barred by law of limitation as the cause of action is continuous since statutory.
The Gaurav Geet CHSL has filed a Civil Suit bearing no.3190 of 2003 in the Bombay High Court wherein the same reliefs were claimed by the society and the complainant is also a member of the same society. No doubt the registered housing society is having separate legal entity and represents all its members to voice their grievances. But the grievances against the developer/promoter raised either by the members individually or society as a whole cannot be different.
Although it is true that the provisions under the Consumer Protection Act supplements and not supplant the jurisdiction of the Civil Court and the provisions of this Act shall be in addition and not in derogation of any other law, it is an option given to an individual to chose either Consumer Forum or Civil Court but not both at a time even though the remedies available at both the Court are more or less similar. The provisions of Code of Civil Procedure order II Rule II are also quite clear about it. In this context section 3 – syp.6 (b) on page 561 of Commentary of the Law of Consumer Protection in India, Fifth edition is very specific and reads as
8
follows- “Matter pending in Civil Court between the same parties for the same cause of action – If the matter is pending before the Civil Court between the same parties for the same cause of action, the District Forum will not entertain the complaint, because under section 3 of Consumer Protection Act, the consumer agencies are in addition to and not in derogation of the provisions of any other law and that complaint before Redressal Forum is an additional remedy.”
Hence, complainant is not liable to approach Consumer Forum and Civil Court simultaneously for similar reliefs. There is no provision either in the C.P.C. or Consumer Protection Act, 1986 to grant reliefs in part basis. On the contrary the reliefs which are not prayed for are treated as relinquished and no further claim can be entertained once the case is finally decided. Taking into consideration above findings, this complaint is not maintainable, therefore liable to be dismissed. Hence, the following order is passed.
ORDER
1.The complaint is not tenable hence is dismissed.
2.No order in respect of Opponent no.2.
3.No order as to cost.
4.Copy of order be supplied to both the parties free of cost.
Mumbai
/2
(V.G.Joshi)
Member
We agree,
(Smt. Deepa S.Bidnurkar) (R.D.Gate)
Member President
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