Ajit Singh vs M/s Evershine Builders Pvt. Ltd. & Anr

Heard Mr. Kapil Mitra, Advocate, for the complainant, Mr. Vinod Gautam, Advocate, for opposite party-1 and Ms. Vandana Sehgal, Advocate, for opposite party-2.

Ajit Singh has filed above complaint for directing the opposite parties to (i) handover possession of the apartment allotted to him complete in all respect, as per specifications; (ii) pay delay compensation in the form of interest @12% per annum on his deposit from 07.01.2009 till the date of offer of possession; (iii) disclose internal area of the apartment and area of common amenities and facilities etc. (iv) refund the amount realized from him for the excess area with interest @12% per annum from the date of deposit till the date of refund; (v) refund the amount realized for car parking space with interest @12% per annum from the date of deposit till the date of refund and provide adequate car parking space free of cost; (vi) refund the amount of premium paid for an apartment on 24th floor with interest @12% per annum from the date of deposit till the date of refund; (vii) to refund total amount of service tax realized from him with interest @6% per annum from the date of deposit till the date of refund; (viii) pay Rs.500000/- as compensation for unilaterally changing his allotment; (ix) pay Rs.100000/- per year for delayed period, for disruption of living arrangement, mental agony and harassment; (x) pay Rs.300000/- as litigation costs; and (xi) any other relief which is deemed fit and proper in the facts and circumstance of the case.

The complainant stated that M/s Evershine Builders Pvt. Ltd. (opposite party-1) was a company, registered under the Companies Act, 1956 and M/s Monarch & Qureshi Builders (opposite party-2) was a partnership firm, registered under Indian Partnership Act, 1932. They were engaged in the business of development and construction of group housing project. The opposite parties launched a group housing project in the name of “Evershine Cosmic”, at CTS Nos.567, 567/1 to 144, 574, 574/1 to 86, 575, 575/1 to 52, 576, 577 and 578 (area 23213.60 sq.mtrs.), Village Oshiwara, Andheri (West), Taluka Andheri, Mumbai, in the year 2005 and made wide publicity of its facilities and amenities. The complainant, who was residing in a rented accommodation, booked Flat No.2403, 24th Floor, Tower Wing-C, price 10907190/- in above project and deposited booking amount of Rs.500000/- on 07.01.2006. As per demand of opposite party-1, the complainant deposited Rs.4962930/- till May, 2010. The opposite parties, vide letter dated 16.06.2010, informed that due to differences between them, now the construction would be upto 17th floors in wings A, B and C as such Flat No.2403, 24th Floor allotted to the complainant would be adjusted towards available flat below 17th floor. The complainant, vide letter dated 16.06.2010, opted for allotment of Flat No.1603, on 16th floor, Wing-A and transfer his money for that flat, which was allotted by the opposite parties by another letter dated 16.06.2010, which also contained “construction link payment plan”. The opposite parties executed an Agreement for Sale dated 13.11.2010, in favour of the complainant. Opposite party-1, vide letter dated 29.11.2010, demanded Rs.1517463/-, informing that due to differences between them, Civil Suit No.1335 of 2010 was filed in the High Court, which was decided in terms of settlement. Thereafter, they are proceeding with construction with rapid speed. Clause-17 of the agreement provides that letter for possession would be delivered on or before 31.12.2013, subject to receiving permission from statutory authority. As per demand, the complainant deposited instalments regularly on time. The complainant deposited total Rs.10507865/- till May, 2012 and only 5% of the consideration, which was payable at the time of offer of possession, remained to be paid. On 28.02.2014, opposite party-1 informed that the flat is ready for possession and called upon the complainant to make some adhoc payments of Rs.1443623/- but admitted that “occupation certificate” was not issued. On inspection, the complainant found that Wing-A was far away from completion. Neither construction was completed nor “occupation certificate” was obtained and possession was handed over but the opposite parties sent bills relating to Property Tax, Maintenance charges, Repair fund, Sinking Fund etc. on 01.05.2016, which was protested by the complainant through email dated 09.05.2016. The complainant, through email dated 11.05.2016, actual date for delivery of possession but the opposite party did not respond. The flat was initially allotted on 07.01.2006 and the opposite parties were regularly realizing instalments since then. Section 3(2)(f) of Maharashtra Ownership of Flats(Regulation of the Promotion, Construction, Sale, Management and Transfer) Act, 1963 (for short the MOFA), provides that if period of handing over is not specified, then three years period from the date of allotment would be maximum period for handing over possession. Section 4 of the MOFA requires for execution of registered agreement if 20% or more of the consideration is collected. The Collector Mumbai, Suburban District, in his order dated 27.03.2006, while granting permission to change the land use, also given three years period for raising construction. The opposite parties have illegally realized charges for “car parking space”, although “car parking space” is being provided under stilt area, which is “common area” and its price has already been realized. The opposite parties have charged consideration for 1990 sq.ft. “super area”, while carpet area is 1242 sq.ft., which amount to loading 60% on carpet area. Details of 748 sq.ft area has not been provided. As per brochure, the opposite parties have committed to provide swimming pool, fully equipped health club, landscaped garden but none of these amenities are available. The opposite party did not pay compensation for delay in possession. Then this complaint was filed on 21.07.2016, alleging deficiency in service.

M/s Evershine Builders Pvt. Ltd. (opposite party-1) has filed its written reply and contested the complaint. Evershine stated that the project land was occupied by slum dwellers and was declared as “slum area” under the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971. Slum dwellers formed a co-operative housing society, for redevelopment of area, who appointed Monarch for carrying redevelopment of the said area under Regulation 33(10) of the Development Control Regulations, 1991. Monarch obtained requisite approvals and permission from Slum Rehabilitation Authority for redevelopment on 27.02.2003. Monarch entered into an agreement dated 04.08.2003 with Evershine for redevelopment. Three buildings A, B, C, of the project “Evershine Cosmic” were falling in free sale component. The complainant approached Evershine for purchase of a flat and booked Flat No.2403 Tower-C. Evershine was constructing the said three buildings as per sanctioned layout plan. However, some differences arose between Evershine and Monarch due to which Evershine filed Suit No.1335 of 2010, in May, 2010 in Bombay High Court. In the meantime, the dispute was settled between the parties and the suit was decided in terms of the settlement dated 26.05.2010 on 08.06.2010. In the settlement, construction of free sale component was limited to 17 floors in the share of Evershine. In view of this change, the complainant changed his allotment to Flat No.1603, in wing-A on 16.06.2010 and agreement for sale was executed on 13.11.2010. Amit Singh, the brother of the complainant raised his claim over Flat No.1603 through email dated 19.08.2013, stating that the complainant had fraudulently got the property in his name alone. Evershine completed 17th floor in the three buildings till 07.01.2013. Thereafter, Monarch started construction from 18th to 21st floors. Monarch applied for “occupation certificate” of the three buildings up to 17th floor on 10.07.2013 but failed to obtain “occupation certificate” due to which, Evershine was not able to handover possession to 186 purchasers, although construction has been completed till 07.01.2013. Then a supplementary settlement was executed between Evershine and Monarch on 05.02.2014 and under Clause-4(D)(iii) Monarch had undertaken to give delay compensation to the purchasers after 07.01.2013. This supplementary settlement was filed in Suit No.1335 of 2010, which was accepted by High Court, vide order dated 10.02.2014. The complainant voluntarily accepted Flat No.1603 in Wing-A and agreement for sale was executed between the parties, in respect of this flat. Now the complainant is not entitled to raise any claim in respect of Flat No.2403. All the demands were according to the agreement.

M/s Monarch & Qureshi Builders (opposite party-2) filed its written reply and stated that the complainant was not a consumer of Monarch. The complainant deposited money with Evershine, allotment letter was issued by Evershine, only agreement was signed by Monarch as a consenting party. Bombay High Court in Writ Petition No.1326 of 2007 has directed that all the dispute relating to slum rehabilitation scheme has to be decided by a High Powered Committee as such this complaint is not maintainable. The building, in which, the complainant was allotted Flat No.1603 was being developed by Evershine up to 17th floor. Monarch obtained requisite approvals and permission from Slum Rehabilitation Authority for redevelopment on 27.02.2003 and Letter of Intents dated 27.02.2003 and 25.08.2006. As per Letter of Intent, Monarch had to construct 941 residential tenements, 71 commercial tenements, 61 R/C tenements, 30 permanent transit camp tenements, 13 Balwadi, 13 welfare centres, 13 society offices, one Masjid and one school, free of cost, which had to be funded from free component. “Evershine Cosmic” is under free component. Monarch entered into an agreement dated 04.08.2003 and supplementary agreement dated 24.12.2003 with Evershine for redevelopment. Under the settlement dated 26.05.2010, Evershine had to construct 17 floors in three buildings of free component, including residential and commercial, garages, parking space & other premises. Monarch has nothing to do with Flat No.1603, which is on 16th floor of Wing-A. Commencement Certificate of Wing-A was issued on 18.03.2010. If delay has occurred in construction then Evershine is responsible for it. After completion of the construction, when Evershine informed Monarch, it has applied for “occupation certificate” on 10.07.2013. Demand dated 28.02.2014 was issued by Evershine. The complainant is an investor and not consumer.

The complainant has filed Rejoinder Replies of both written replies, Affidavit of Evidence of Ajit Singh and documentary evidence. Opposite party-1 filed Affidavit of Evidence of Lalit Khilnani and documentary evidence. Opposite party-2 filed Affidavit of Evidence of K.R. Gupta and documentary evidence. All the parties have filed their short synopsis.

We have considered the arguments of the counsel for the parties and examined the record. So far as the arguments that opposite party-1 had collected more than 20% of the consideration, in violation of Section 4 of the MOFA is concerned, this argument cannot be entertained after two years of execution of the agreement for sale dated 13.11.2010. Similarly, the complainant has accepted change of the allotment on 16.06.2010 as such this issue can also be not raised in this complaint filed 21.07.2016. There is nothing on record that any preferential location was charged for Flat No.2403, which was a tentative allotment.  Under Section 3(2)(m)(ii) of MAFA, the price is payable on carpet area and proportionate price of common areas and facilities. Similarly Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that if the builder is providing covered car parking space, then it is entitled to charge for it.

Clause-17 of the agreement provides that letter for possession would be delivered on or before 31.12.2013, subject to receiving permission from statutory authority. According to the opposite parties, the construction was completed till 07.01.2013. After completion of the construction, Evershine informed to Monarch and it has applied for “occupation certificate” on 10.07.2013, which is still awaited. According to opposite party-1, possession was offered to the complainant, vide letter dated 28.02.2014, but the complainant did not come forward for deposit of balance amount and take possession. But in the absence of “occupation certificate” offering possession was illegal. Clause-18(b) of the agreement of sale dated 13.11.2010, strictly prohibit from taking possession without issue of “occupation certificate”. As such, there is no valid offer of possession till today.

In the agreement dated 04.08.2003 and supplementary agreement dated 24.12.2003, between opposite parties-1 and 2, opposite party-2 is responsible to obtain “occupation certificate”. In Clause-4(D)(iii) supplementary settlement dated 05.02.2014, opposite party has undertaken to give delay compensation to the purchasers after 07.01.2013. This supplementary settlement was filed in Suit No.1335 of 2010 and High Court, vide order dated 10.02.2014, made it as part of the decree dated 08.06.2010. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Limited Vs. Capital Green Flat Buyer’s Association, (2021) 5 SCC 537, held that interest @6% per annum on the deposit of the home buyer would be appropriate compensation for delay in possession. The complainant is entitled for delay compensation in the form of interest @6% per annum on his deposit from 01.01.2014 till the offer of possession.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. Opposite party-2 is directed to obtain “occupation certificate” within a period of four months from the date of this judgment and pay delay compensation to the complainant from 01.01.2014 till obtaining “occupation certificate” in the form of interest @6% per annum on the deposit of the complainant, within a period of two months, thereafter. After issue of “occupation certificate” opposite party-1 will offer possession of Flat No.1603 to the complainant, complete in all respect as per specification, without any further delay, who shall take possession after deposit of balance amount. On settlement of account, the opposite parties will execute conveyance deed in favour of the complainant, in terms of the agreement, without any further delay.