More often than not, developers especially the fly-by-night ones give false promises to flat purchasers who get easily tricked and are not even provided copies of the building plan, the statement of account, copies of original documents of the title to property but, you can set them right says Gajanan Khergamker.
Builders also do not comply with their statutory obligations as stipulated in the Maharashtra Ownership Flats (Regulation, of the Promotion of Construction, Sale, Management and Transfer) Act, (MOFA) 1963.
Firstly you will need to examine what is the period of limitation as regards the filing of a criminal complaint against the builder. If the offences that are stipulated in the Indian Penal Code (IPC) are continuing offences, there is no period of limitation as regards filing a complaint against the builder. In any other event the limitation would be of three years from the date of cause of action.
While drafting the criminal complaint, the Society should highlight specifically the violation of various provisions of MOFA Act. The Society should also emphasize that violation of the provisions of MOFA Act is criminal in nature. Attention of the criminal court should also be drawn to offences of various sections of the IPC such as Sections 406, 407 read with sections 415 and 420.
The complainant should also bring out the irregularities committed by the builders while executing the constructions of the building:
a) Selling away the parking space
b) Not giving copies of the building plan
c) Not giving the original documents such as title deeds
d) Not giving building plans
e) Not giving replies to the various submissions made by the Society by way of legal notices of advocates.
The complainant may substantiate their allegations with documentary evidence and correspondence done with the builder.
Where filing a suit in a Consumer Court is concerned, although there is no specific format prescribed for a complaint, it is advisable that the Complainant files a complaint in a proper form in order to facilitate the easy adjudication of his complaint.
First and foremost, the Complainant must put in his complaint (a) his full name and address, (b) the name and address of opposite party, (c) then the subject matter, (d) then the nature of the complaint, (e) what are the efforts that he has taken to redress his complaint, (f) the grievance with the opposite party in which he has to narrate what is the correspondence that has taken place and then after that the relief that he is seeking from the Consumer Court.
In this case, the consumer must note that it should not be a general or a sort of vague prayer that justice should be done like this. It should be a specific relief that the prayer should be specific and it should not be vague. Now also with the complaint, the Complainant must enclose necessary documentary evidence such as the correspondence or the bills, receipts, guarantee or warranty or the Agreement whatever be the case.
On the receipt of the complaint now under the Consumer Protection Act, a nominal fee is required to be paid. On receipt of the application or rather the complaint from the Complainant, the complaint is liable to be admitted if it is fit for admission it will be admitted within twenty-one days after the date of filing and then a notice will be issued to the opposite party who will be asked to file his written version within thirty days period.
This thirty-day period can at the most be extended by an additional fifteen days and no more. So, the Complainant must take care and ensure that if the opposite party fails to file his written version in response to his complaint within thirty days plus maximum extendable period of fifteen days that is a total of forty-five days then he must approach the Consumer Court for deciding the case.
This is the provision which is for the benefit of the Consumers. If the opposite party files the written version then it is optional for the Complainant if in case he wants to file any rejoinder to that and after that the complaint is normally posted for the hearing.
The hearings in the Consumer Court are rather informal. It is open for the Complainant to appear either in person or through his advocate or even through any authorised agent who may not necessarily be the advocate. After hearing both the sides, the Consumer Court gives a decision which is naturally binding on both the parties.
There can be an appeal against the order of the district forum or the state commission or the national commission and any aggrieved party can file appeal against the order of the district forum or the state commission or the national commission in state commission, national commission or the Supreme Court respectively within a period of thirty days from the date of receipt of the order.