NCDRC : SAGAR AVENUE-I CHS LTD VS SAGAR SHOPPING DEVELOPERS - FORUM SLAMS BUILDER; DIRECTS IT TO OBTAIN OC AND ALSO PAY COMPENSATION FOR DELAY & DEFICIENCY
IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
NC/CC/255/2013
WITH
NC/IA/6350/2023, 4897 & 8596/2025
(Placing additional documents, Condonation of delay and Condonation of delay)
Sagar Avenue-I CHS Ltd.
Regd. No. MUM/W-H-E/HSG (TC)/14683/2009-10
dt. 1/2/2010
Patuck Road, Kolekalyan
Dhobighat, Vakola Bridge
Santacruz (E),
Mumbai 400 055
1) M/s. Sagar Shopping Developers
Versus
2) Mr. Malik K. Meredia
Partner in M/s. Sagar Shopping Developers
3) Mr. Mohsin K. Meredia
Partner in M/s. Sagar Shopping Developers
Opposite Parties ho. 1 to 3 having
their office at:
Site Office, Sagar Avenue-II, Annex Building,
Patuck Road, Vakola, Dhobighat
Santacruz (E), Mumbai 400055.
And
106, Sofiya Zober Road,
Near Nagpada Police Station
Mumbai 400008
And
Hotel Heritage
Santa Savta Mali Road,
Byculla (E), Mumbai 400027.
4) OP No.4 is deleted from the array of parties
vide Order dated. 24/11/2014
.......Complainant
...Opposite Party no.1
...Opposite Party no.2
....Opposite Party no.3
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5) The Assistant Commissioner
Municipal Corporation of Greater Mumbai
"H" East, BMC Office, Prabhat Colony
Santacruz (East), Mumbai 400 055. ...Opposite Party no.5
6) The Executive Engineer, Building Proposals (WS)
Municipal Corporation of Greater Mumbai
Building & Proposals (Western Suburbs)
H/East Ward, Mahapalika office,
R.K. Patkar Marg,
Bandra (West), Mumbai 400 050
BEFORE:
HON’BLE MR. JUSTICE A.P. SAHI, PRESIDENT
HON’BLE MR. BHARATKUMAR PANDYA, MEMBER
Appearance at the time of arguments:
For the Complainant : Ms. Neha Sharma, Advocate
For the Opp. Parties No. 1-3 : Mr. Kush Chaturvedi, Advocate
Mr. Zulfiqar Zariwala, Advocate
Ms. Anshula Grover, Advocate
Mr. Apoorv Khatar, Advocate
Mr. Ayushman Aggarwal, Advocate
Mr. Lenpitnang Sihlion, Advocate
For the Opposite Party No. 4 : Deleted vide order dated 24.11.2014
For the Opposite Parties No. 5 & 6: Mr. S. Sukumaran, Advocate
Pronounced on: 30th September 2025
ORDER
JUSTICE A.P. SAHI, PRESIDENT
1. This complaint raises allegations of deficiency in service regarding flat
buyers of the complainant society pointing out the persisting defects and the
shortcomings in the constructions and further non-availability of an occupancy
certificate that continue to persist even today and, therefore, the complaint has
been filed contending that the opposite parties having failed to carry out their
contractual and statutory obligations, the relief prayed for deserves to be
allowed.
2.
There are approximately 17 reliefs prayed for violating contractual and
statutory obligations by the OP No. 1 to 3 which according to the complainant
society remain unfulfilled. Paragraph 6 of the complaint broadly details the
allegations and the consequences faced by the complainant on being charged
double the rate of water charges by the Municipal Corporation. The non
availability of occupancy certificate, the non-construction of an external
compound wall, absence of club and other facilities have also been pleaded
with the contention that all these promises are borne out from a perusal of the
brochure, the agreement as well as the communications on record.
3.
It is further submitted that the opposite parties charged a hefty amount
for the registration and formation of the society which was also not done as
such charges which have been levied on that count deserve to be refunded.
4.
The complaint was instituted on 16.08.2013. Notices were issued and
the opposite parties have come up raising objections that the complaint is
barred by limitation in view of the provisions of Section 24(A), as also the fact
of filing of previous complaints by 14 complainants of the same Society
regarding 8 flats before the District Consumer Forum, Mumbai being CC No.
592 to 599 of 2009 decided on 28.02.2011. The contention is that the issues
raised herein have already been contested and orders passed and as such
the joining of such of the complainants and the filing of a complaint through
the Society cannot be permitted on the principles of res judicata and
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constructive res judicata. It is urged that no additional claim can be raised as
once a set of complaints of the members of the Society having been decided,
the reliefs sought for cannot be re-agitated by the society.
5.
It is further the case of the opposite parties that there is no default of the
developers and as a matter of fact certain legal impediments had crept in and
further an affidavit has been filed pursuant to the orders passed by this
Commission vide Order dated 02.12.2024 bringing on record the additional
facts that were required in order to substantiate the justification for delay in
construction of a bridge over Vakola Nala. It is submitted that the issuance of
the occupancy certificate was delayed on account of those factors as
explained in the affidavit and, therefore, the contentions raised are incorrect
and cannot be made the basis for claiming any relief. Written submissions
have been filed and are on record.
6.
The opposite parties had moved IA No. 17895 of 2017 praying for
cross-examination of the complainant’s witness on which notices were issued
and finally on 06.03.2019 an Order was passed that there was no need for
any cross-examination at that stage and issues shall be dealt with at the time
of final hearing.
7.
The case continued thereafter with directions to file written submissions
and arguments but could not be taken up for one reason or the other.
However, the contentions at the first instance were noted by this Commission
in the Order dated 01.02.2024 that is extracted hereinunder:-
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“Heard learned counsel for the complainant and the learned counsel for the opposite
parties.
This complaint was filed on 16.08.2023 by the Housing Society on behalf of its
members entailing herein 18 reliefs (a) to (r). In paragraph 11 of the complaint it has
been disclosed that 8 complaints, being complaint nos. 592 to 599 of 2009 were
filed before the Mumbai Suburban District Consumer Disputes Redressal
Forum against the Developer.
These 8 complainants according to the learned counsel are occupiers of flats
in Tower "A". A copy of the complaint has been filed by the opposite party along
with the written version as annexure L, page 51 thereof. The relief prayed in the said
complaint runs from (a) to (h) and in total 14 prayers have been made.
The prayers which seem to be common in the present complaint and the complaints
filed by those 8 complainants, who undisputedly are the members of the complainant
society, have raised the issue of the grant of occupancy certificate, handing
over the original documents to the society which may be formed as prayed for in
the said complaint, to hold the opposite parties guilty of deficiency in service and
unfair trade practice, to construct the dub house and other common amenities as
promised and to an extent certain other benefits, which may be seemingly common
in the present complaint
However, the present complaint has been filed by the society, which is stated to
have come into existence in 2010 and it is now pursuing the cause of all the
members keeping in view the deficiencies in service, which according to them still
continue to persist.
It is admitted in paragraph 5 of the complaint that all the complainants are residing
and in Occupancy of their flats since 2003-2004. According to the present complaint
the deficiencies in service that have been narrated in paragraph 7 of the complaint,
and then as detailed in the relief clause, are continuing causes of action and hence
the present complaint was rightly filed in the year 2013. The submission is that this
complaint should be treated to be on behalf of all the members and bar of any
limitation under Section 24 (A) (2) of the Consumer Protection Act, 1986 does not get
attracted in the light of the facts that have been narrated in the complaint.
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There are other litigations which have been referred to and their impact according to
the learned counsel for the complainant has also to be assessed, in as much as the
complainant herein is now the society and is pursuing the cause of the members in
respect of those deficiencies in services that have not been rectified by the
developer/ builder. It is therefore submitted that none of principles of estoppel /
waiver arise or otherwise are attracted so as to prevent the society from pursuing the
said causes in the present complaint. Coupled with this it is urged that there is no
delay in the filing of the complaint and hence the issue of limitation will not stand in
the way of the present complaint.
From the order sheet on record it appears that on 02.03.2023, the matter was heard
at length and it was observed that the matter should be placed before a Bench with a
judicial member for which a nomination may be made by the Hon'ble President.
The question as to whether there is bar of limitation or not will be dependent upon the
cause of action and its explanation. For this the delay condonation application filed
by the applicant which is IA/5156/2013 and the contents thereof have to be perused.
The delay condonation application commences with the fact of the society having
come into existence in the year 2010 and then complains of non-cooperation by the
developer. The said application nowhere indicates any causes that were deficient or
were agitated by the members between 2004 to 2010 except for the 8 complaints,
which were filed and were disposed of and the appeals filed by the builder against
the same have upheld the order of the District Forum.
Thus, in the background above, and in the absence of any pleading at all in the delay
condonation application for the period between 2004 to 2010, it will have to be
examined in the light of the judgment of the Apex Court in the case of State Bank of a
15. BS. Agriculture Industries, (2009) 5 SCC 121. Paragraph 11 to 15.
Learned counsel for the applicant/ complainant will therefore have to expian as to
why the said decision on the facts of the present case be not applied or any such
authorities which the learned counsel may choose to rely on.
Apart from this, learned counsel for the complainant will also gather the names of
those persons, who were complainants in the 8 complaints that have already been
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disposed of by the District Forum vide its order dated 28.02.2021, capy whereof is
exhibit 19 at page 163 of the paper book.
The issue of proceeding with the merits of the complaint would therefore be
dependent on the disposal of delay condonation application 1A/5156/2013 and the
issue of the impact of the previous litigation in the complaints decided in respect of
the 8 complainants.
List on 02.05.2024 at 2 p.m.”
8.
On the next date further issues were raised with regard to the filing of
the 14 complaints in respect of the 8 flats before the District Commission and
the Order passed therein on 28.02.2011. The same was also noted and the
Order passed on 02.05.2024 is extracted hereinunder:-
“Head learned counsel for the complainant society.
The matter had been heard on 01.02.2024 and the complainant's counsel was called
upon to answer the queries raised.
Today arguments have been advanced contending that so far as the order passed by
the DCDRC Suburban District Mumbai dated 28.02.2011 is concerned, the same
was confined to 8 flats of which some were jointly owned and there were a total
number of 14 complainants who had staked their claim for the reliefs as prayed for in
their respective complaints. A copy of the Complaint No. 598 of 2009 (Santosh
Kumar Mishra & Mrs. Poonam Santoshkumar Mishra Vs. M/s Sagar Shopping
Developers & Ors.) is on record as Annexure-L to the written statement filed by the
opposite parties no. 1 to 3.
The relief prayed for in the said complaint is contained in para-14 thereof where
several reliefs have been enlisted from (a) to (n).
The said reliefs also included injunctions with regard to raising of construction of G
Wing of the Project. The complainants in those complaints were flat buyers of
Building-A only.
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It is these 8 flat buyers whose complaints were finally disposed of on 28.02.2011
and the orders passed are contained in para-37 of the said order of the District
Commission which is to the following effect
"Orders
1) The complaint Nos. 592 to 599 are collectively are partly allowed.
2) It is directed that the opponents should not construct that portion of
Bldg.G which comes in front of the existing Bldg.A.
3) The Interim Order in respect of Building G is made Final.
4) It is ordered that the opponent should obtain the O.C within three
months of having received the copy from the Court in relation to
Building A of the Complainant.
5) It is also ordered that the opponent should give Rs.5000/-towards the
expenses incurred.
6) Accordingly, all the above complaints are discharged.
7) Authenticated copies of the judgment should be sent to the complainants
and opponents."
The order passed by the District Commission was appealed against the said order
which upheld the order of the District Commission but modified the same in respect
of a limited relief regarding obtaining of occupancy certificate for which a further
period of six months was granted. The order of the State Commission dated
27.02.2013 is also on record. Thus, the aforesaid orders of the District Commission
and the State Commission became final. The finality of orders under the Consumer
Protection Act, 1986 is protected under Section 24 which is extracted hereunder:
24. Finality of orders. Every order of a District Forum, the State Commission
or the National Commission shall, if no appeal has been preferred against
such order under the provisions of this Act, be final."
Learned counsel for the complainant urged that the District Commission while
proceeding to decide the matter has noted the following submissions in para 10 of
the order which is as follows:-
10. … The matter of hearing the complaints was restricted by the
complainants only to objections in the case of Building G. This judgment,
therefore, discusses the question whether the Opponents have breached
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MOFA and the Agreements in case of planned construction of Building G in
front building A."
On the strength of the aforesaid recital, it is urged that since the relief prayed for was
limited, the same should not preclude the complainants from raising their disputes
any further even through the society.
Learned counsel for the opposite parties no.1 to 3 has however urged that those 14
complainants cannot have any say in this matter and the society in the present case
cannot represent their cause. Learned counsel for the complainant society however
urges that the society came into existence in 2010 and thereafter raised the
issues of several deficiencies regarding the opposite parties which are common in
nature and therefore the society cannot be precluded from raising their cause as well.
Having heard learned counsel for the parties, the question of entertaining any
claim on behalf of those 14 complainants by the society does not arise,
inasmuch as they have filed their complaints, and, if they have chosen to
restrict their relief voluntarily during the course of hearing, the same cannot be
a reason to raise all those causes that were pleaded before the District
Commission and were voluntarily given up there.
This is the impact and effect of finality clause as contained in Section 24 of the
1986 Act. Thus, the present complaint prima facie can be treated for consideration
for such of those members of the complainant society only who have not contested
their claim anywhere else. The 14 complainants who have got their cause tried or
have not chosen to seek other reliefs before the District Commission cannot be
permitted to plead their cause once again.
However, learned counsel for the opposite parties no. 1 to 3 seeks permission to
further argue this matter. It is open to him to contest the claim petition at the time of
final hearing but for the moment the complaint has to proceed keeping in view the
fact that even on the issue of delay, which had been raised in the order dated
01.02.2024, learned counsel for the complainant has invited the attention of the
Bench to the various communications from 26.07.2006 onwards which form part
of the pleadings of the opposite parties no.1 to 3 itself indicating that the
allegations of deficiency were being pursued by the members of the society
which led ultimately to the filing of some complaints by individual flat buyers.
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The claims were being pursued by the other members even thereafter and it is urged
that having failed to get the deficiencies redressed, the present complaint was filed in
the year 2013. There is therefore a continuing cause of action subsisting that
requires adjudication. Accordingly the issue of limitation may not prevent the
proceedings of the present complaint.
Learned counsel for the opposite parties no.1 to 3 may if he so chooses address this
issue at the time of final hearing but prima facie the complaint is maintainable for the
issues raised to be decided finally after contest between the parties.
Let the case be listed on 22.08.2024 at 2.00 p.m.”
9.
The fact of the orders passed by the District Commission on 28.02.2011
and the affirmance of the same in an appeal by the State Commission okn
27.02.2013 has also been noted therein. The Order of by the State
Commission dated 27.02.2013 extends the period for obtaining of the
occupancy certificate by the opposite parties by another six months.
10.
The complaint was once again heard on 02.12.2024 when the following
Order was passed:-
Heard Ms. Neha Sharma, learned counsel for the complainant. The issues have
been addressed keeping in view the orders passed on 01.02.2024 and 02.05.2024.
However, while commencing the arguments it has been pointed out that the opposite
parties have allegedly been deficient in their services on certain counts for which she
has invited the attention of the Bench to the amenities promised in the brochure
(page 41), the agreement (page 45) and then to Annexure-C (page 75).
The contentions raised are that the amenities as promised have not been provided
for and continue to be deficit even today. It is then urged that certain changes were
made by the opposite parties which could not have been done by them as it violates
the relevant clause of the agreement which is at page 50.
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The next contention is that the occupancy certificate has not been obtained so far.
The fact remains that every owner whom the society professes to represent and
started to be in Occupancy of their flats since 2004. It is submitted that all the four
bulidings of the project namely, Sagar Avenue-I have been occupied, yet the
occupancy certificate is not available.
Other relevant provisions of the agreement have been read into in support of the
contentions and it is submitted that the formation of the society was also envisaged
under the agreement for which a sum of Rs.5,000/- per head was paid, but the
opposite parties failed to carry out their obligations. As such a refund of the said
amount has also been claimed.
It is also alleged that water charges are being levied on the occupants at double
the normal rate on account of the fact that the occupancy certificate is not yet
available till date. Consequently, the Municipal Corporation is charging double the
amount of the water charges, which is also one of the grievances raised in the
complaint
However, on the issue of limitation as well as on the issue of the earlier complaints
having been decided, which were filed by 14 complainants in respect of 8 units,
learned counsel has invited the attention of the Bench to the written statement filed
by the opposite parties and the communications appended thereto dated 04.10.2017
(Page-37), 12.10.2007 (Page-39) and the reply given by the opposite parties on
13.01.2008 (Page-42) to contend that negotiations were on and therefore the
cause was a continuing cause.
It is also pointed out that a separate complaint was filed by the occupants of the
building of Wing-A alleging that the construction of Wing-G was being made contrary
to the plan and to the promises made and consequently a complaint was made by
those occupants on 09.06.2009 to which a reply was given by the opposite party on
13.06.2009. While, reading the said response, learned counsel urged that this reply
indicated the shifting of the club house and its non-availability as well as
certain other issues which are also part of the present complaint.
A letter was received from the opposite parties on 04.12.2010, but without any
specific response, as a result whereof again issues were raised through letter
dated 23.04.2012 (page 162 of the written version). A reply to the same was given
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by the opposite parties but in the absence of any details a legal notice is said to
have been sent by the petitioner in July, 2012, whereafter the present complaint was
filed.
It was pointed out that the 14 complainants who have filed the 8 complaints earlier
were all individual complaints and it was not a class action and confined only to the
reliefs prayed for therein, including the unauthorized constructions relating to Wing-G
and at the same time about the occupancy certificate of only Wing-A. It is therefore
submitted that the said complaints and their decision on 28.02.2011 as confirmed in
appeal on 27.02.2013 does not in any way eclipse the rights of the members of the
complainant society to maintain the present complaint. The arguments could not
conclude today.
List on 24.04.2025 at 2 p.m.
Mr. Vikram Mehta, learned counsel for the opposite parties states that in so far as the
issue of occupancy certificate is concerned, subject to his submissions to be made
later on, he points out that the issue was correlated to the construction of a bridge
over Vakola Nallah. He submits that certain facts need to be brought on record in
relation thereto, for which he prays that he may be granted four weeks dime to file an
affidavit. Let the same de filled with an advance copy to the learned counsel for the
complainant, who may file a response, if any, to the same by the next date fixed.
11.
It is then that after having noticed the arguments of the learned counsel
for the opposite parties that a direction was issued calling upon the opposite
parties to file an appropriate affidavit explaining any impediment in the
obtaining of the occupancy certificate.
12.
With the afore-said submissions having concluded the matter was finally
heard on 25.08.2025 and the parties were requested to file their written notes
and Orders were reserved.
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13.
The two primary issues which need to be dealt with at the outset are the
objections regarding limitation and the issue arising out of the decision in
respect of the 14 complainants, who are members of the Society owning 8
flats, as to whether the same would operate as res judicata or constructive res
judicata for maintaining the present complaint.
14.
We may point out the pleadings in this regard and in paragraph 5 of the
complaint it has been stated that the members of the Society purchased the
flats in the building Sagar Avenue-I from the developers after paying full
consideration around 2003 and are occupying the said flats since 2004. The
possession of the flats were taken in 2004 itself and individual agreements of
sale were entered into with the members of the complainant Society.
15.
It is also evident from the facts stated on record that the complainant
society was registered in 2010. There is a statutory obligation on the opposite
parties to obtain an occupancy certificate. The opposite parties admittedly
obtained a partial completion certificate as stated by them in 2020 and the
bridge over the Vakola Nala upon its completion was allowed to be opened to
traffic vide a letter dated 28.01.2020. It may be mentioned that the period of
six months was extended to the builder for obtaining occupancy certificate by
the State Commission while disposing of the appeal on 27.02.2013 filed
against the Order of District Commission dated 28.02.2021 as mentioned
above. Process of the issuance of the occupancy certificate, therefore,
remains pending and this fact stands admitted now in paragraph 18 of the
affidavit filed by the opposite parties 1 to 3 on 21.04.2025. The opposite
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parties 1 to 3 have clearly stated that the application for full occupancy
certificate has been made way back in 2008 but the same has not be granted.
The reason given by the opposite parties is that it was on account of illegal
additions and alterations carried out in the flats by the members of the
complainant Society. It is, therefore, evident that the absence of occupancy
certificate continues to be a grievance of the flat buyers and the said issue
had not terminated finally as in spite of the extension of the time of six months
in the complaints filed by the individual complainants referred to hereinabove
the opposite party / developer has failed to deliver the occupancy certificate
which is being contested on the ground that there is a default on the part of
the complainants themselves.
16.
In our considered opinion, this is clearly a continuing cause of action
keeping in view the law laid down by the Apex Court in the case of
Samruddhi Co-Op Housing Society Vs. Mumbai Mahalaxmi Construction
Pvt. Ltd., 2022 SCC OnLine SC 35. The complaint would, therefore, not be
barred by limitation as it was filed in 2013 and is also supported by the fact
that the Society came into existence in the year 2010 whereafter
communications ensured between the Society and the opposite parties where
promises have been extended to the Society for fulfilling the commitments.
17.
Learned counsel for the Opposite Parties, through the written
submissions tendered on 02.09.2025, has raised pleas on limitation and has
also relied on his previous written submission dated 30.09.2022 as well as the
affidavit filed on 21.04.2025. It has been urged therein that the cause of action
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had already emerged as is evident from the letters dated 04.10.2007 and
12.10.2007 filed along with the written statement that was addressed by
several members of the Complainants’ Society to the Secretary of the
Complainant raising grievances, and therefore the cause has been in
existence since 2007 even before the first round of litigation before the District
Commission. In such circumstances, the plea that the cause of action arose
on 01.02.2010 after the registration of the Society is of no avail. Even
otherwise the complaint was filed in 2013 and therefore the complaint was
barred by time. It is also alleged that writing of letters in the year 2012 does
not justify any delay and which would not extend the period of limitation for
which reliance has been placed in a Delhi High Court judgment in the case of
C.P. Kapoor vs. The Chairman & Ors., 2012 SCC OnLine Del 5465.
18.
As already recorded hereinabove, the Opposite Parties have failed to
provide the Occupancy Certificate till date. This fact by itself is a continuing
deficiency and to that extent the reliance placed by the learned counsel for the
complainant on the decision of the Apex Court in the case of Samruddhi
Cooperative Housing Society Ltd. vs. Mumbai Mahalaxmi Construction
Pvt. Ltd. (supra) is fully justified. Learned counsel for the complainant is
therefore correct in her submission that the complainants are being penalized
with the additional financial burden of making payment of higher taxes without
an Occupancy Certificate, whereas the other building occupiers in the same
Scheme who have been benefitted with the Occupancy Certificate are paying
water charges at almost half the rate of the charges which are being paid by
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the members of the Complainant Society. This is only due to the absence of
the Occupancy Certificate and it is in this background that the cause of action
continues and is fully supported by the decision referred to hereinabove.
19.
The contention on behalf of the Opposite Parties regarding the
complaint being barred by the principles of res judicata, suffice it to say that
there was no Society registered or in existence prior to 2010. The present
complaint has been filed by the Society and it represents its members. The
Society was not the complainant and the contest was only by 14 individual
complainants. To that extent, we have already made observations in the order
dated 02.05.2024 extracted hereinabove. We have already indicated therein
that the impact of finality attaches to the proceedings and the orders passed
therein in terms of Section 24 of the 1986 Act.
20.
However, it may be clarified that both complaints had been allowed,
calling upon the Opposite Parties to obtain the Occupancy Certificate within
three months. This order was to an extent modified by the State Commission
by extending the period to six months vide order dated 27.02.2013. The fact
remains that the Occupancy Certificate admittedly has not been obtained till
today as admitted in the affidavit filed by the Opposite Parties on 21.04.2025.
It is therefore a reiteration of a continuing issue and as a matter of fact, the
orders passed in the said complaint for providing an Occupancy Certificate
stands confirmed in the present proceedings in view of the admitted position
that the Occupancy Certificate has not been obtained till date. The deficiency
continues to subsist. Thus, there is no conflict of any issues nor is there any
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conflict with the conclusions drawn hereinunder, where in the present
proceedings the passing of an order would not be in any way inconsistent with
or contrary to the orders passed in those complaints. Consequently, the
continuing cause of action gets reinforced by the orders passed in the cases
of the 14 complainants that had been decided previously.
21.
There is one more reason for us not to accept the argument of res
judicata for the reason that the District Commission itself in paragraph ‘10’ of
the order dated 28.02.2011 has indicated the scope of those petitions. The
said observation is therefore sufficient to construe that the present
proceedings which have been instituted by the Society, that came into
existence in 2010 for the common benefit of the members, would not be
barred and hence even if the complainants have taken the aide and support of
or placed reliance on the said complaints, the same cannot, in any way,
preclude the maintainability of the present complaint for the reliefs prayed
herein.
22.
The contention raised is that the complainant had withdrawn Writ
Petition No. 1226/2013 filed before the Bombay High Court also estopps them
from pursuing the present complaint. The order passed by the Bombay High
Court had expressed its disinclination to entertain the same, but at the same
time, the petition was permitted to be withdrawn to pursue the reliefs before
the appropriate forum. The order passed by the Bombay High Court therefore
does not operate as res judicata or estoppel for the institution of the present
complaint.
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23.
Learned counsel has cited the decision of the Apex Court in the case of
State of U.P. vs. Nawab Hussain, (1977) 2 SCC 806 to substantiate his
submissions.
24.
There cannot be any dispute about the principles of law enunciated in
the said decision that is based on public policy. Paragraph ‘3’ and ‘4’ of the
said judgment are extracted hereinunder:
3. The principle of estoppel per rem judicatam is a rule of evidence. As has
been stated in Marginson v. Blackburn Borough Council [(1939) 2 KB 426 at
p. 437], it may be said to be “the broader rule of evidence which prohibits the
reassertion of a cause of action”. This doctrine is based on two theories: (i)
the finality and conclusiveness of judicial decisions for the final termination of
disputes in the general interest of the community as a matter of public policy,
and (ii) the interest of the individual that he should be protected from
multiplication of litigation. It therefore serves not only a public but also a
private purpose by obstructing the reopening of matters which have once
been adjudicated upon. It is thus not permissible to obtain a second
judgment for the same civil relief on the same cause of action, for otherwise
the spirit of contentiousness may give rise to conflicting judgments of equal
authority, lead to multiplicity of actions and bring the administration of justice
into disrepute. It is the cause of action which gives rise to an action, and that
is why it is necessary for the courts to recognise that a cause of action which
results in a judgment must lose its identity and vitality and merge in the
judgment when pronounced. It cannot therefore survive the judgment, or give
rise to another cause of action on the same facts. This is what is known as
the general principle of res judicata.
4. But it may be that the same set of facts may give rise to two or more
causes of action. If in such a case a person is allowed to choose and sue
upon one cause of action at one time and to reserve the other for
subsequent litigation, that would aggravate the burden of litigation. Courts
have therefore treated such a course of action as an abuse of its process
and Somervell, L.J., has answered it as follows in Greenhalgh v. Mallard
[(1947) All ER 255 at p. 257] :
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“I think that on the authorities to which I will refer it would be accurate to
say that res judicata for this purpose is not confined to the issues which
the court is actually asked to decide, but that it covers issues or facts
which are so clearly part of the subject-matter of the litigation and so
clearly could have been raised that it would be an abuse of the process
of the court to allow a new proceeding to be started in respect of them.”
This is therefore another and an equally necessary and efficacious aspect of
the same principle, for it helps in raising the bar of res judicata by suitably
construing the general principle of subduing a cantankerous litigant. That is
why this other rule has some times been referred to as constructive res
judicata which, in reality, is an aspect or amplification of the general
principle.
25.
In the present case and on the facts as unfolded above, the present
proceedings will only reinforce the views taken by the Consumer Forum in
those complaints that had been filed by individuals for the simple reason that
the cause of deficiency and the consequential penalty being still suffered by
the complainant deserves to be remedied as the deficiency has not been
rectified as yet. We therefore do not find any reason to entertain this plea
which is accordingly rejected.
26.
The contention on behalf of the Opposite Parties is that a partial
Occupancy Certificate had been obtained in 2006 and for a full Occupancy
Certificate, the request was made later on, but it has not been granted. For
that, allegations had been made against some of the members who had
carried illegal alterations and additions. This fact has been noticed by the
Society and the Developer had to take appropriate steps in the matter which
has not been pursued by them and as such this by itself cannot be any ground
to deny relief to the Complainant Society. The obligation of constructing the
bridge over the Vakola Nala has admittedly happened in the year 2020, long
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after the complaint was filed. The deficit and the reasons for the deficit was
not on account of the flat buyers.
27.
Coming to the issue of non-providing of the amenities including the club
house, the arguments raised on behalf of the complainant deserves
acceptance keeping in view the decisions cited by the learned counsel for the
complainant in the written submissions filed on 01.09.2025 referring to the
judgment of the Apex Court in the case of Wing Commander Arifur Rehman
Khan & Ors. vs. DLF Southern Homes Pvt. Ltd. & Ors., (2020) 16 SCC
512. The representations made in the brochure are therefore clearly a
requirement that was promised by the builder and has to be fulfilled. Further,
merely because the complainant has entered into possession of its premises,
it was entitled to claim all such benefit that had been promised which stands
further acknowledged by the Apex Court in the case of Debashis Sinha &
Ors. vs. R.N.R. Enterprise & Ors., 2023 3 SCC 195. The amenities therefore
referred to in the brochure that had been filed on record is not alien to the
expectations of the flat buyers.
28.
The amenities which were promised in the brochure are as follows:-
“Amenities: Granite/ Granamite flooring in the entire flat. Powder
coated Aluminium sliding windows with tinted glass. Cable TV Points
and Telephone points. Granite kitchen platform with stainless steel
sink. Piped Gas connection. Inlet connection for water purifier system.
Concealed plumbing with good quality C.P. fittings & sanitary wares.
Full height glazed tiles in all toilets and bathroom. Inlet and outlet
points for washing machine. Attractive entrance lobby for each wing.
Cheaper electric tariff. Fire alarm system and fire hydrant on each
floor. Building Automation system with communication Security,
Sound and display special effects (C. C. Tv). Two high-speed
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elevators in each wing. Beautiful landscaped garden with children's
park. Luxurious clubhouse equipped exclusively with facilities for
carrom, table tennis, gymnasium and library”
29.
The brochure has been filed along with the Complaint and has not been
denied. Coming to the agreement for sale dated 04.09.2002 of Mr.
Madhusudan Ramchandra Kombekar that has been filed on record, Clause 10
of the agreement is extracted hereinunder:-
“10. The fixture fittings and amenities to be provided by the
Developers in the said building and the flat/shops/garage/stilt
parking/open space/terrace unit/s are those that are set out in
Annexure "C" hereto.”
30.
Annexure ‘C’ to the agreement as mentioned in Clause 10 extracted
above is as follows:-
“LIST OF AMENITIES:
1. Granite tiles flooring.
2. Granite kitchen platform with Stainless Steel sink.
3 Powder coated aluminium sliding windows with tinted glass.
4. Concealed electrification with modular switches.
5. Concealed plumbing with good quality C. P. fittings and sanitary
wares
6 Full height glazed titles in all toilets and bathrooms.
7. Cable T.V. point and Telephone points.
8. Inlet and outlets points for washing machines.
COMMON AMENITIES:
1. Attractive entrance hall at each wing.
2. Two high-speed lifts in each wing.
3. Beautiful landscape garden with children's park.
4 Intercom and Camera Security System.
5. Clubroom with carom, tennis, chess, gymnasium and library.
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6. Provision for Gas connection points.
7. Cheaper electric tariff.”
31.
The Opposite Party has in the written statement in paragraph 6
responded to the said allegations with the following averments:-
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32.
In rejoinder the Complainant has come up with the following averments
in paragraph 6 to 9 as follows:-
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From the aforesaid allegations and the reply it is evident that the
said promises had also been made in the brochure followed by Annexure
‘C’ to the agreement and all of them have not been fulfilled.
33.
The Complainants have also raised the issue regarding maintenance
charges having not been reimbursed to the society. To this the reply given by
the Opposite Party is a letter dated 04.12.2010 which is extracted
hereinunder:-
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To the arrears of maintenance charges the Opposite Party in paragraph
6 as quoted above has indicated that the society itself has generated a huge
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amount by installation of hoardings set-up on the top of the building and the
revenue received therefrom exceeds more than five crores.
34.
The arrears of maintenance charges has been responded by the
Complainant along with the issue on property tax in paragraph 15 and 16 of
the rejoinder which is extracted hereinunder:-
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36.
There is another issue relating to the erection of the compound wall
where the written statement has taken a plea that there cannot be a
segregated and exclusive compound wall exclusively and separately for the
building of the Complainant society which has been stated in paragraph 6 (v)
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of the written statement quoted above. The rejoinder states that this promise
had been made and therefore now the Opposite Parties cannot take a
contrary stand. On the issue of internal compound wall the Complainants in
the rejoinder stated as follows:-
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A perusal of the reply would indicate that the Complainants have relied
on the agreement for the said purpose.
37.
From a perusal of the agreement and the sanctioned maps we have not
been able to gather any indication of a promise or agreement of an internal
compound wall nor is there anything in the list of amenities to the said effect.
Apart from this an internal compound wall cannot be constructed without the
prior permission of the competent authority and a legal sanction. In the given
circumstances we do not find any deficiency in that regard.
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38.
Apart from this the Opposite Parties have not handed over the accounts
and the other documents pertaining thereto. In the written statement in
paragraph 6(iii) extracted above it has been categorically stated by the
Opposite Parties that they are always ready and willing to hand over the
complete charge of the accounts and maintenance to the society but the same
could not be done on account of the dispute over the arrears of maintenance
and taxes.
39.
The Municipal Corporation has filed a brief written note on behalf of
Opposite Parties Nos. 5 and 6 through their Counsel. We however found that
it only entails the claim of statutory dues which remain unpaid on account of
property taxes.
40.
Having considered the submissions raised and the discussion
hereinabove, the major issue is with regard to non-availability of the
Occupancy Certificate and the builder having not executed the Conveyance
Deed. The defence taken by the builder is about shortcomings of alleged
unauthorised constructions raised by some of the members.
41.
The Opposite Parties have raised a plea in paragraph 6(vi) of the reply
that some flat purchasers have carried out structural additions and alterations
and the issuance of Occupancy Certificate has been delayed because of the
said reason. So far as the issue of Vakola Nallah bridge is concerned, with the
affidavit having being filed on 21.04.2025, the construction over the bridge
appears to have been accomplished but so far as the structural alterations in
individual units are concerned, this issue was raised as pointed out by the
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learned Counsel for the Opposite Party by the society itself in its meeting, the
records whereof have been filed by the Complainant. The proceedings of the
Annual General Meeting dated 07.08.2011 record discussions on the issue
regarding expenses towards legal action to be taken for illegal constructions
by members. The said extract of the meeting is reproduced hereinunder:-
“Expenses towards Legal action to be taken for illegal
Construction by members...
The chairman informed the members about the illegal
construction done by members in the building since the
society has been registered and the topic was thrown open for
discussion. After much thought and analysis it was decided
that for all Illegal construction being done in the society
premises hereafter in the building, the Managing
Committee shall take the recourse from the BMC to take
stern action against the errant members However a
approval is hereby given to the Newly elected Managing
Committee to incur any expenses in this regard.”
42.
In this regard the Opposite Parties have come up with a plea that they
themselves have reported one of the matters to the Municipal Corporation of
Greater Mumbai on 18.07.2011 and the said letter is extracted hereinunder:-
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The Opposite Parties received a letter regarding some illegal
constructions in a common passage in the D Wing of the building on
07.10.2011. The illegal construction was alleged against Mr. George
Varghese and on 12.10.2011 the Opposite Party is stated to have sent the
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letter to Mr. Varghese accordingly that has been filed on record. A Second
Complaint was received by the Opposite Parties from the Executive Engineer
regarding the same. On this issue learned Counsel for the Complainant urged
that these facts have been brought to the notice of the developer and it is their
obligation to get it rectified and the same cannot be taken as a shelter for not
procuring the Occupancy Certificate. It has been alleged in paragraph 10(b) of
the rejoinder that no follow up action has been taken by the Opposite Parties
in this regard.
43.
Regarding the Occupancy Certificate not having been made available
the stand taken by the Opposite party in the written statement was non
completion of Vakola bridge which was delayed on account of situation
beyond the control of the Opposite Parties. The said issue has been resolved
as stated in the affidavit indicated above filed by the Opposite Parties. The
question of removal of unauthorised encroachments has to be followed up by
the Opposite Parties and to take appropriate steps for the same. The
obligation for obtaining of the Occupancy Certificate is of the Opposite Parties.
It is also evident that the possession was to be given to the Members of the
Complainant long back but till date the Occupancy Certificate has not been
made available whereas the Complainants have come with a clear case that
the Occupancy Certificate of Sagar Regency has been made available by the
Opposite Parties themselves and therefore not getting an Occupancy
Certificate for the Complainant society is a clear statutory violation of the
obligations under the MOFA.
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44.
We find from the discussion hereinabove that the Society itself had
indicated about the illegal constructions and the Opposite Parties have also
approached the Municipal Corporation for taking such steps as may be
necessary. We do not find any steps having been taken or any reference
thereof by the builder after 2011. Almost 14 years have passed by and in the
absence of any such attempt having been made by the builder to pursue and
get the defects removed, indicates that the builder is trying to take shelter of
some individual deviations that was brought to its notice way back in 2011.
We therefore find the builder to have been deficient in its performance in this
regard and it is the obligation of the builder to have taken all such remedial
steps in order to facilitate the availability of the Occupancy Certificate. We
therefore hold the builder to be defaulting in its performance of the obligations
in order to provide the Occupancy Certificate and therefore is liable for the
consequences.
45.
Coming to the issue of the refund of the charges levied for the
registration of the Society, the builder has failed to get the Society registered
and therefore the amount realised from the buyers individually as per their
agreements deserves to be refunded. The builder has failed to carry out its
obligation and it is the Society and its members who had undertaken the entire
exercise to meet the financial expenditure for registration and therefore in
these circumstances, the amount realised by the builder has to be reverted
back to the Society and its members. From the facts that have been brought
on record it is evident that the society had to be formed by the Complainant on
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its own whereas the amount for the said purpose has been categorically
charged towards share money, entrants fee and registration fee for formation
of the society under clause 17(C) of the agreement referred to above. Thus
the amount was charged from all the flat buyers accordingly. The plea of
defence taken by the Opposite Party was that there was some interim Order
from the Registrar of Cooperative Societies delaying the same. The stand
taken is stated in paragraph 23 of the written statement which is extracted
hereinunder:-
“23. The opposite parties by letter dated 4.12.2010 to the complainant society
informed that the order granting registration of society has been stayed by the
Divisional Joint Registrar vide order dated 11.3.2010. A copy of the letter dated
4.12.2010 by the opposite parties to the complainant society is annexed herewith
and marked as Annexure-R.”
The same has been responded to in the rejoinder in paragraph 14.
46.
It is therefore evident that the amount to the tune of Rs. 5,000/- has
been realised from each of the members whereas the society was registered
by the Complainants themselves and as such the said amount deserves to be
refunded.
47.
Accordingly, the relief prayed for the refund of the registration charges
realised by the builder deserves to be granted and we accordingly, allow the
same.
48.
The builder is also liable to execute the Conveyance Deed after
completing all the formalities, the default whereof is evident from the facts
narrated above. This relief therefore also deserves to be granted.
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49.
Coming to the amenities as referred to above, we find that the brochure
as well as the agreement clearly promise the amenities referred to therein.
Regarding the club house, the explanation given is that since the area that
was earmarked for the club house fell in the CRZ zone, therefore it could not
be constructed and instead one floor in the building has been given for
running a health club and gymnasium.
50.
The amenities promised have to be provided as held by the Apex Court
in the case of Wing Commander Arifur Rehman Khan & Ors. vs. DLF
Southern Homes Pvt. Ltd. & Ors. (supra). The Brochure and the Agreement
combined are part of the expectation of the complainants and have to be
legitimately provided for. An inferior alternative arrangement in the shape of a
health club or a gymnasium is no substitute for a club house. This is therefore
also a deficiency which is evident where the builder is taking shelter of the
earmarking of the land in the CRZ zone. It was the duty of the builder to have
provided a separate space for the club house and not included it in a floor of
the building. This does not suffice nor is it an equivalent of a club house as
promised. The buyers have paid for a club house and not for any lesser
substitute. This deficiency is also established against the builder.
51.
Having recorded the findings hereinabove and the nature of the
deficiencies alleged we are satisfied that the following reliefs deserved to be
granted as there is deficiency on the part of the Opposite Parties in extending
the said benefits that have been proved by the complainant Society. The
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Opposite Parties Nos. 1 to 4 are entitled to the following reliefs as per the
directions therein:
a) The Opposite Parties Nos. 1 to 4 shall construct a club house at a
suitable place within a time bound schedule of six months with
effect from the date of this Order of the standard in nature as
promised in the brochure read with the agreement as quoted
hereinabove with all facilities therein and hand it over to the
Society accordingly.
b) To obtain an Occupancy Certificate from the Competent Authority
for which the Opposite Parties Nos. 5 and 6 shall take appropriate
steps to take further action to ensure that the Occupancy
Certificates are also provided to the complainant after carrying
out all formalities not later than six months from today.
c) The Opposite Parties Nos. 1 to 4 shall provide an appropriate
Society Office to the complainant within six months.
d) The Opposite Parties shall execute the Deed of Conveyance
immediately upon obtaining the Occupancy Certificate as directed
hereinabove, the Opposite Parties Nos. 1 to 4 shall hand over all
the audited Statement of Accounts as well as all such necessary
papers and documents required by the Society including building
records, Lease Deeds, Agreement copies, Land conveyance,
Electricity deposit receipts etc. within three months from today.
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e) The Opposite Parties Nos. 1 to 4 shall compensate the
complainant Society for excess water charges from January,
2004 to November, 2012 to the tune of Rs. 24,43,173/- with 6%
interest till the date of payment.
f) The Opposite Parties shall refund the entire amount collected
from the members of the Society for registration with 9% interest
thereon from the date of collection till the date of actual refund.
This shall be carried out within three months from today.
g) The Opposite Parties shall pay a lump-sum compensation of Rs.
10 lakhs towards mental agony and harassment of the
complainants within three months from today and finally shall pay
Rs. 1 lakh as costs of litigation.
52.
The complaint is therefore allowed with the aforesaid directions to be
complied with accordingly.
ar/Pramod/Rita/Pramod/Court -1/Reserved Order
.….……..…………………..………..
(A.P.SAHI, J)
PRESIDENT
.….……..…………………..………..
(BHARATKUMAR PANDYA)
MEMBER
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