Edward Fernandes vs M/s Arkade Developers Pvt. Ltd

Heard Mr. Parmanand Yadav, Advocate, for the complainant and Mr. Amol V. Deshmukh, Advocate, for the opposite party.

Edward Fernandes has filed above complaint, for directing the opposite party to (i) handover possession of Apartment No.103, in the project “Arkade Adornia”; (ii) pay Rs.568000/- with interest @18% per annum, from the date of agreement till the date of payment; (iii) pay rent @Rs.35500/- per month from April, 2016 till the delivery of possession, with interest @18% per annum; (iv) pay penalty @Rs.10/- per sq.ft. per month of the area from April, 2016 till the date of possession with interest @18% per month; (v) rectify the defects of counter top wash basin, kitchen door, intercom point & instrument and provide intercom connection; (vi) to provide deficit one toilet in the flat as per the FDA and approved plan provided to the condominium dated September, 2013 as provided to other flat owners above his flat; (vii) pay the outgoings such as maintenance, electricity, water charges, property tax etc. up to the date of possession; (viii) pay stamp duty and registration charges and get the agreement dated 12.03.2015 registered; (ix) pay Rs.20/- lacs, as compensation for mental agony and harassment; (x) pay Rs.2/- lacs, as litigation costs; and (xi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of commercial/residential buildings. There was an old building, named as “Bhagirath” at CTS-442 area 2525 sq.mtrs., Jaiprakash Nagar, Pahadi School, Road No.2, Goregaon (East), Mumbai-400063, consisting total 44 apartments and one garage, in 4 floors, i.e. 11 apartments and one garage on ground floor, 10 apartments at first floor, 10 apartments at second floor and 10 apartments at third floor and 3 apartments at fourth floor. The original owners had sold all the Apartments to the occupiers. The complainant and his wife Mrs. Priscilla J Fernandes were owners of Apartment No.A-8 area 710 sq.ft. Mrs. Priscilla J Fernandes died on 05.12.2015, leaving behind her, the complainant and two daughters, as her heirs. The daughters surrendered their rights in favour of the complainant. Association of Apartment Owners of Bhagirath Condominium, in its special body meeting dated 28.01.2007 decided for demolition and reconstruction of old building and invited quotations from qualified builders. General body of Association in its meeting dated 13.12.2008, resolved to give the work of demolition and reconstruction to the opposite party and terms and conditions were finalized. M/s. Arkade Developers Private Limited entered into Development Agreements dated 05.01.2010, 27.12.2010 and 05.03.2011 with different set of apartment owners. As the work of demolition & reconstruction was delayed, Association of Apartment Owners of Bhagirath Condominium revised the terms and conditions, which was accepted by the opposite party through its letter dated 25.10.2012. In pursuance thereof, new set of agreements were executed between the opposite party and flat owners. The opposite party entered into fresh agreement dated 19.12.2012 with the complainant and his wife. In pursuance of new agreements, all the flat owners of “Bhagirath” handed over vacant possession of their flats to the opposite party till April, 2014. Building plan was approved on 07.09.2013, then the opposite party allocated flats to different flat owners and notified a list in September, 2014, in which, the complainant was allotted Flat No.103 area 923 sq.ft. Thereafter, the opposite party issued allotment letter dated 26.11.2014 of the above flat to the complainant. Clause 8 of the agreement provides 24 months period from the date of receiving keys of all vacant flats with grace period of six months to complete construction of new building. The opposite party executed a new agreement dated 12.03.2015, in respect of the Flat No.103 in the new building “Arkade Adornia” but this deed was not executed on requite stamp papers nor it was registered. The period of 24 months expired in March, 2016 and grace period of six months expired in September, 2016. But the opposite party delayed construction of new building. The opposite party issued cheque relating to rental of the month of September, 2015, in wrong name and same was not replaced in spite of repeated request of the complainant. The opposite party stopped payment of rental from May, 2016. The opposite party obtained part “occupation certificate” on 07.02.2017 and intimated the complainant on 08.02.2017, for taking possession. The complainant visited the flat and found that the plaster work in the flat was going on, flooring was not finished and there was no water and sewerage connection. The opposite party malafide in order to avoid liability of rental, issued letter dated 08.02.2017. The condominium society applied for regular water connection in the building on 27.02.2017 and 21.03.2017.The condominium society, through letter dated 28.02.2017, raised various objections and demands in terms of the agreement, from the opposite party on behalf of the flat owners. In spite of service of the letter, the opposite party did not respond. The society gave reminder dated 20.03.2017 but did not receive any reply. The opposite party through letter dated 26.05.2017 informed that full occupation certificate was received on 17.05.2017. Then the complainant, vide letter dated 05.06.2017, requested for handing over possession without demur to his other rights as per agreement but the opposite party did not respond. The opposite party wrote a letter dated 19.06.2017 to the Secretary, Redevelopment Committee that possession of the building was handed over to the Committee on 09.06.2017 and he would withdraw his security w.e.f. 30.06.2017. Then this complaint was filed on 17.08.2017, alleging following deficiencies in service:- (i) Clause-10 of the agreement provides that on obtaining full occupation  certificate, the developer shall give 30 days’ notice to all the Apartment owners to take possession. The opposite party obtained full occupation certificate on 17.05.2017 but did not give notice for possession to the complainant although, the complainant himself wrote a letter dated 05.06.2017, for possession. (ii) Clause-L of the agreement provides for Corpus @Rs.800/- per sq.ft. on existing carpet area. Carpet area of the complainant’s flat was 710 sq.ft. as such, Corpus of Rs.568000/- was payable in April, 2014, which was not paid by the opposite party. (iii) Clause-L provides for rent @Rs.43.50 per sq.ft. for a period of 12 months and @Rs.47/- per sq.ft. for next 12 months and thereafter @Rs.52/- per sq.ft., till offer of possession. The opposite party stopped payment of rent from April, 2016. Cheque relating to the rent of the month September, 2015 was given in wrong name no fresh cheque in the name of the complainant was given. (iv) Clause-8 provides for penalty @Rs.10/- per sq.ft. per month, if the opposite party failed to offer possession with 30 months. The period of 30 months completed in September, 2016. The opposite party is liable to pay penalty thereafter. (v) As per approved layout plan one toilet in all the three bed rooms and one common toilet has to be provided but the opposite party did not provide toilet in one bedroom. (vi) The construction has to be completed as per specifications but there was defective counter top wash basin, kitchen door, intercom point & instrument and intercom connection has not been provided.(vii) the opposite party is liable to bear outgoings such as maintenance, electricity, water charges, property tax till offer of possession. (viii) the opposite party is liable to pay stamp duty on the agreement dated 12.03.2015 and get it registered.

The opposite party has filed its written reply on 25.10.2017 and contested the matter. The opposite party stated that out of 44 apartment owners of Bhagirath, 37 owners signed development agreement dated 05.01.2010. The complainant was demanding additional money apart from which was agreed with Apartment Owners of Bhagirathi Condominium and did not sign development agreement dated 05.01.2010. After taking Rs.500000/- extra, the complainant executed development agreement on 27.12.2010. Six other apartment owners also created hindrance in handing over vacant possession of their apartment and signing development agreement. Apartment Owners of Bhagirathi Condominium filed Civil Suit No.2753 of 2011, before Bombay High Court against them. High Court appointed Court Commissioner on 19.06.2012, for taking possession from them. During pendency of the suit, fresh demands were made by Apartment Owners of Bhagirathi Condominium, in October, 2012, which was accepted by the opposite party on 25.10.2012. Then a supplementary agreement was executed on 19.12.2012, between the complainant and the opposite party. Municipal Corporation Greater Mumbai approved Building plan and issued IOD on 07.09.2013. The opposite party wrote a letter to Redevelopment Committee to handover vacant possession of the building Bhagirath, which was handed over to the opposite party in April, 2014. Then the opposite party obtained ‘commencement certificate’ on 02.06.2014, up to plinth level. Municipal Corporation Greater Mumbai issued amended IOD on 14.09.2014 and further commencement certificates on 22.10.2014 and 24.09.2015. The opposite party completed construction up to 18th floor and applied for issue of part occupation certificate which was issued on 02.02.2017. The opposite party handed over possession of the newly constructed building to Apartment Owners of Bhagirath Condominium along with part occupation certificate through letter dated 08.02.2017 and rent till then was also paid. All the apartment owners took possession over their newly constructed flat. The opposite party handed over list of car parking space allotted to all the 44 owners on 01.06.2017 and 24.06.2017 to Apartment Owners of Bhagirath Condominium. The opposite party obtained full occupation certificate on 17.05.2017 and handed over possession of all amenities and equipment to Apartment Owners of Bhagirath Condominium on 09.06.2017, who acknowledged it on 25.12.2017. The complainant and his wife purchased the old apartment through unregistered deed as such he has to clear his title before execution and registration of the agreement for Permanent Alternate Accommodation. The opposite party vide letters dated 25.07.2014 and 02.09.2014 demanded document of title of the complainant and some other owners but they failed to supply registered document. The opposite party had no information of the death of the wife of the complainant nor received “no objection” from his daughters. Full occupation certificate was issued on 17.05.2017. The complainant did not approach the opposite party for possession and balance rental. It has been denied that there was any deficiency in construction or amenities. Corpus is payable on formation of Co-operative Housing Society and execution of conveyance in favour of such Society. The complainant agreed to purchase 35 sq.ft. additional carpet area. In that condition, 3 toilets and one common toilet was agreed. Later on the complainant refused to purchase 35 sq.ft. additional carpet area hence one toilet was reduced. The complaint is filed on false allegations and is liable to be dismissed.

The complainant has filed Rejoinder Reply, Affidavit of Evidence of Edward Fernandes and documentary evidence. The opposite party has filed Affidavit of Evidence of Sandep U. Jain and documentary evidence. The complainant filed his written synopsis.

We have considered the arguments of the counsel for the parties and examined the record. The opposite party took plea that the complainant had created hindrance in giving possession from very beginning. Out of 44 apartment owners of Bhagirath, 37 owners signed development agreement dated 05.01.2010. The complainant was demanding additional money apart from which was agreed with Apartment Owners of Bhagirathi Condominium and did not sign development agreement dated 05.01.2010. After taking Rs.500000/- extra, the complainant executed development agreement on 27.12.2010. Although it is proved that the complainant did not sign the agreement dated 05.01.2010, but it is not proved that the opposite party had paid Rs.5/- lacs to the complainant. When fresh agreement was executed on 19.12.2012, then the parties are bound by the terms of fresh agreement.

Clause-10 of the agreement dated 19.12.2012 provides that on obtaining full occupation certificate, the developer shall give 30 days’ notice to all the Apartment owners to take possession. According to the opposite party, construction up to 18th floor was completed and part occupation certificate was obtained on 02.02.2017. The opposite party handed over possession of the newly constructed building to Apartment Owners of Bhagirath Condominium along with part occupation certificate through letter dated 08.02.2017 and rent was also paid till then. This statement of the opposite party is not liable to be accepted. Clause-10 of the agreement dated 29.12.2012 contemplates for possession after obtaining full occupation certificate, which was obtained on 17.05.2017. A perusal of the list filed at page 141 of the complaint shows that 12 apartment owners were allotted flats from 19th floor to 21st floor. Before obtaining of full occupancy certificate and water and sewerage connection in the building handing over possession to Apartment Owners of Bhagirath Condominium on 08.02.2017 was not in terms of the agreement. The opposite party again gave possession to Apartment Owners of Bhagirath Condominium on 09.06.2017, although it was required to give possession to individual flat owner. The complainant wrote a letter dated 05.06.2017, for possession but the opposite party did not respond.

Clause-L and 6 of the agreement dated 19.12.2012 provides for rent @Rs.43.50 per sq.ft. for a period of 12 months and @Rs.47/- per sq.ft. for next 12 months and thereafter @Rs.52/- per sq.ft., till offer of possession. The opposite party stopped payment of rent from April, 2016. The complainant alleged that cheque relating to the rent of the month September, 2015 was given in wrong name no fresh cheque in his name was given but has not filed any evidence to prove this fact. The opposite party does not dispute stopping payment of rent from April, 2016. As such the complainant is entitled for rent from April, 2016 till delivery of possession.

Clause-L of the agreement dated 19.12.2012 provides for Corpus @Rs.800/- per sq.ft. on existing carpet area. Carpet area of the complainant’s flat was 710 sq.ft. as such, Corpus of Rs.568000/- was payable, which was not paid by the opposite party. The opposite party vide letters dated 25.07.2014 and 02.09.2014 demanded document of title of the complainant and some other owners but they failed to supply registered document. The developer was entitled to investigate into title of the flat owners under clause-7 of the agreement dated 27.12.2010. According to the complainant cause of action for corpus arose in April, 2014, when possession of the flat was handed over but this complaint was filed 17.08.2017 as such this relief has become time barred.

Clause-8 of the agreement 19.12.2012 provides for penalty @Rs.10/- per sq.ft. per month, if the opposite party failed to offer possession with 30 months. The period of 30 months completed in September, 2016. The opposite party is liable to pay penalty thereafter.

The complainant alleged that as per approved layout plan one toilet in all the three bed rooms and one common toilet has to be provided but the opposite party did not provide toilet in one bedroom. This fact is not proved from approved layout plan. The complainant filed one tentative layout plan (on pg.129), from which, also four toilets are not proved. The opposite party admitted for providing four toilets on the condition of purchasing additional carpet area. The complainant further alleged that there was defective counter top wash basin, kitchen door, intercom point & instrument and intercom connection has not been provided but no reliable evidence has been adduced. The complainant did not file any application for issue of local commission.

The complainant stated that the opposite party is liable to bear outgoings such as maintenance, electricity, water charges, property tax till offer of possession. As the opposite party has not handed over possession to the complainant in terms of the agreement as such the opposite party is liable to bear these liabilities.

The complainant alleged that the opposite party is liable to pay stamp duty on Permanent Alternate Accommodation Agreement dated 12.03.2015 and get it registered. As the complainant has not produced valid document of title to the opposite party as such the complainant is liable to pay stamp duty and registration charges on Permanent Alternate Accommodation Agreement.

ORDER

In view of aforesaid discussions, the complaint is partly allowed with cost of Rs.one lac. The opposite party is directed to handover possession of Apartment No.103, in the building “Arkade Adornia” to the complainant within one month from the date of this judgment and pay rent @Rs.35500/- per month from April, 2016 till the delivery of possession and penalty @Rs.10/- per sq.ft. per month of the area from April, 2016 till the date of possession and the outgoings such as maintenance, electricity, water charges, property tax etc. up to the date of possession, within a period of two months from the date of this judgment. The complainant will get Permanent Alternate Accommodation Agreement dated 12.03.2015, registered at his own cost. When the complainant will require presence of the authorised signatory of the opposite party for registration of the document, he will appear before the Registrar concerned.