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Judgment
Dr.Inder Jit Singh, Member
Consumer Complaint Nos. 2597 of 2018 (CC) has been filed by the Complainant against the opposite parties (OPs) as detailed above, inter aila praying for directing the OPs to:-
(i) hand over peaceful possession of Flat No. 902 with occupation certificate alongwith car parking and other amenities as per the Development Agreement and the Maharashtra Ownership of Flats Act (MOFA) Agreement.
(ii) pay Rs.23,37,800/- towards compensation and damages to the complainant for delay in handing over the flat.
(iii) pay Rs.7,00,000/- to the complainant towards rent from February 2018 till date of handing over the possession of the flat.
(iv) pay Rs.8,75,100/- towards shortfall of 29.17 sq.ft. in the flat.
(v) pay Rs.20,00,000/- towards mental harassment and agony due to the delay in completion of the work.
(vi) Rs.24,00,000/- being damages towards inferior quality of internal work and non-provision of promised amenities in Flat No. 902 as per the Development Agreement and MOFA Agreement.
(vii) Rs. 21,43,500/- calculated at Rs.1500/- per day for 1429 days i.e. from 31.12.2014 till date towards each day delay in handing over possession of the said flat.
(viii) To discharge all remaining obligations on the part of the OP-2 under the Development Agreement dated 11.11.2012 and MOFA Agreement dated 31.12.2014.
(ix) Rs.20,00,000/- towards costs of litigation towards legal action against the OPs.
Consumer Complaint No. 2598 of 2018 has been filed by the same complainant against same OPs, seeking similar reliefs in respect of Flat No. 903, with some differences in the amount claimed under various heads and an additional prayer to pay Rs.1,05,71,250/- as compensation of costs incurred by Complainant on account of OP-2 not providing any amenities as per Development Agreement and MOFA Agreement and handing over the said flat to the Complainant in bare shell condition.
Since the facts and question of law involved and the reliefs prayed for in these complaints are similar/identical and both the consumer complaints have been filed by the same complainant against the same Opposite Parties except for minor variations in the dates, events, quantum of compensation/relief sought and flat numbers etc., which are stated in para 2 above and summarized in the Table in para 9 below, these complaints are being disposed off by this common order. However, for the sake of convenience, Consumer Complaint (CC) no 2597 of 2018 is treated as the lead case and facts enumerated herein under are taken from CC 2597/2018.
It is averred/stated in the complaint that:-
i) OP-1 is the owner of all that piece and parcel of land at 353/4A, R.B. Mehta Marg, Ghatkpoar (East), Mumbai, admeasuring 1703.60 sq.mtrs. and the Ground plus two Upper Storey building known as Nutan Kailas Niwas consisting of 2 wings and having 30 flats plus 1 Garage and 22 members. The complainant owned two flats in the said building flat Nos. 2 and 17. The building of the members of OP-1 was constructed in the year 1965 and as such was old and needed repairs. The members of OP-1 decided for redevelopment of the said building by appointing OP-2 as developer for redevelopment of the said building. Development Agreement was executed between the OP-1 and OP-2 on 11.11.2012. OP-1 granted development rights to OP-2 for redevelopment of the said building. Under the Agreement, the OP-2 was to construct a duplex flat for its senior directors or third party purchasers on the 12th and 13th floors in the said building as consideration from OP-1 for redevelopment of the said building.
ii) As per the Development Agreement and clauses, the OP-2 was supposed to construct a G+Podium+Thirteen Upper Storey building with the stipulated time and hand over the said building along with common areas as set out in the MOFA, 1963. The common areas and amenities in the Development Agreement included basements, podium and such other facilities and amenities for the use by the members of OP-1.
iii) The complainant averred in his complaint that the clauses 1c,1d and 3 of the Agreement state that any additional FSI and TDR which may accrue on the said plot in the future shall be exclusive right and entitlement of the Society. Clause 4 of the Agreement states that members of the Society may purchase additional area from the developer at Rs.17,000/- per sq.ft. Clause 8 mentions rectification by the developer of the Property Register Card (PRC) wherein the original area of the Plot was 1703.60 square meters. However, on rectification of the PRC the area of the plot of the Society would stand increased by 77 square meters i.e. the area of the plot as per the revised PRC shall be 1780.60 sq. meters. Clause 2 (II) assures rent to the members of the Society at the rate stated therein from date of vacating and handover of premises by members to the developer till receipt of full Occupation Certificate (OC) and handing over possession to the members. Under recital VI of the Development Agreement, OP-2 was to complete construction of the said building within 24 months.
iv) As per clause 4 of the Development Agreement, the OP-2 offered all the members of OP-1, who were interested in purchasing additional area in the said Building, the said additional area @ Rs.17,000/- per sq.ft. The said rate of purchase was opted for by the Complainant in the year 2012. This was for purchase of an additional area of 245 sq. feet @17,000/- per sq.ft. which amounts to a consideration of Rs.43,41,000/- only.
v) The complainant approached OP-2 for purchase of an additional area admeasuring 245 sq.ft. @ Rs.17,000/- for a total value of Rs.43,41,000/- (including stamp duty) in the said building. The complainant paid Rs.2,50,000/- in October 2012. The agreement for the said flat was executed by OP-2 with the complainant on 31.12.2014. As per Development Agreement dated 11.11.2012, the OP-2 was supposed to complete the construction work and hand over the possession with full OC to the members of OP-1 within 24 months from the date of the said Development Agreement. At the time of executing the Agreement of 31.12.2014, the OP-2 requested for an extension of time and assured the Complainant with full OC.
vi) The complainant paid the entire amount of Rs.43,41,000/- to OP-2 till October 2017. OP-2 obtained the IOD on November 2013 and the Commencement Certificate and started construction of the building in the year 2013 and the complainant agreed to execute the MOFA Agreement with OP-2 based on the said assurance of completing construction of the said Flat and Building by December 2014.
vii) In one meetings held by the Committee, members were informed by the Committee of OP-1 that there were certain modifications being made to the Development Agreement in terms of certain additional amenities being provided by OP-2 and that the modification was based on certain alleged discrepancies in the existing usable carpet area of the members and OP-1. The Committee informed the members that a supplemental agreement would be executed and the same was executed on 21.03.2016. Thereafter, in September, 2017, the Committee of OP-1 proposed a Second Supplemental Agreement with OP-1 to deal with some additional FSI on the property which had come to the right of the Society, i.e. members and OP-1. However, on reading the contents the complainant found that the Committee of OP-1 had through the First Supplemental Agreement dealt with the compulsory common areas and amenities of the OP-1 and its members with the OP-2. The complainant was shocked to see that the Committee of OP-1 under the proposed second supplemental agreement was now seeking to sell additional compulsory common areas and amenities of the members and sell off the additional FSI generated of the said plot much below the market value and to detriment of the members and the complainant.
viii) In view of the illegalities committed by the Committee of OP-1 with OP-2, the complainant issued a letter on 20.02.2018 to the committee of OP-1 and called them to provide an explanation in respect of the First Supplemental Agreement and also called upon them not to execute the proposed Second Supplemental Agreement or any other document with OP-2. The complainant once again addressed a letter dated 19.03.2018, listing out the illegalities and deficient dealings of the Committee of OP-1 with the OP-2 and sought an explanation for the same. Since no reply was given by the committee of OP-1, the complainant had realized that the committee was in collusion with OP-2. The compliant vide his Advocates notice dated 17.04.2018 addressed to the Chairman/Secretary of the OP-1 called upon the committee members of OP-1 not to execute any further document or the proposed Second Supplemental Agreement with OP-2 and deal any further with the common areas, amenities and other entitlements of the members of the OP-1.
ix) Since there was no response given by the Committee to the letters and Notice of the complainant, the complainant filed a suit No. 1259/2018 along with Notice of Motion before the Hon’ble City Civil Court at Mumbai inter alia challenging the i) First Supplemental Agreement and seeking cancellation of the same ii) injection against the OP-2 from executing, implanting or enforcing the proposed Second Supplemental Agreement. At the time of hearing of the said suit on 05.05.2018, the OPs informed the Hon’ble Court that they had executed the second supplemental agreement on 4th May 2018. Hence, the Court directed the Complainant amend the Plaint. Despite the letters and notice of the Complainant, the OPs executed the second supplemental agreement dealing with the additional FSI and amenities of the members, the Complainant filed another suit being Suit No. 1433/2018 against the OPs and the Municipal Corporation of Greater Mumbai (MCGM) to challenge the amended plans put up by the OP-2 to MCGM to build an additional floor and the OP had never taken complainant’s consent before putting up the plans. The issues raised by the complainant in the said suits are under MOFA and are not subject matter of the present Complaint. The said suits are pending and sub-judice before the Hon’ble City Civil Court and the Notices of Motion are part heard. The issues involved in the said suits are not involved in the present complaint.
x) It is averred in the complaint that the OP-2 has till date not completed construction of the said Building as per the said Development Agreement and so not completed and handed over the said Flat as per the MOFA Agreement to the Complainant. The OP-2 has also failed to obtain full occupation certificate and completion certificate in respect of the said Building and handover the same to the OP-1 and its members. However, as per the Development Agreement, OP-2 was supposed to complete construction of the said building and hand over the same to the members of OP-1 within 24 months of the date of Agreement i.e. by December 2014. The OP-2 now proposes to construct an additional floor in the said Building and further delay and deprive the Complainant and other members, possession of their homes which is delayed by more than four years. The complainant is residing in a temporary alternate accommodation till date.
xi) As a consequence of the complainant filing the suits in the Hon’ble City Civil Court and adopting legal action against OP-2, the OP-2 refused to complete the interior work of the said Flat and failed to provide the complainant amenities or facilities such as tiling, flooring, fittings, furniture etc. The OP-2 handed over the said flat to the complainant in an incomplete condition. The OP-2 stopped interior work of the flat 902 and has intentionally provided the complainant with inferior quality of material, amenities or facilities. The estimated costs provided to the complainant in respect of Flat No. 902 is Rs.24,00,000/-.
xii) It is also contended by the complainant that the complainant appointed a surveyor –Purva Surveyors to carry out the measurement of the said flats on 11.10.2018 and there is a shortfall of 101.64 sq.ft. in the said flats. The shortfall in the area in the said Flat No. 902 is 29.17 sq.ft. as per report of the surveyor. The complainant is entitled to be refunded money to the extent of the deficiency in the area provided i.e. 29.17 sq.ft. @Rs.30,000/- per sq.ft. i.e. Rs.8,75,100/- by OP-2.
xiii) The OP-2 has without procuring the full OC of the said building has moved into the said building and also permitted some persons from the Committee to reside at the said building. The OP-2 has now also started to use flat No.1101. It is also contended by the complainant that the OP-2 in collusion with OP-1 has committed repeated defaults in providing the possession as promised under the Development Agreement. Due to having filed the suits against the OPs for illegal sale of common areas and illegal revision of amended plans of the said building, the OP-2 has stopped paying rent to the complainant since February, 2018. The complainant is entitled to receive Res.21,43,500/- for a delay of 1429 days calculated @ Rs.1500/- per day for the said flat from December, 2014.
The OP-1 in their written statement/reply stated that :-
i. It is contended by OP-1 that complainant is not a Consumer within the meaning and definition of the C.P.Act, 1986 and this OP is not servicer provider. The locus of the complainant qua this OP is that of a member and a Society. Thus, any dispute between them (OP-2 and complainant) ought to be adjudicated before a different Forum. The complainant is not a Flat Purchaser and it is not as if he is a stranger to the Society. Since, both the parameters are not present, the complaint filed against the OP does and cannot come within the C.P. Act and that on that score alone this complaint ought to be dismissed.
ii. It is contended that OP-1 adopts, restates and reiterates all that has been stated by OP-2 in its written statement.
The OP-2 in their written statement/reply stated that: -
(i) It is contended by OP-2 that the complainant filed suit No. 1259/2018 before the Bombay City Civil Court at Mumbai under the MOFA Act. In the said suit the claim of the complainant is that after the execution of the Development Agreement by OP-1 with OP-2, the complainant has challenged the execution of the first Supplemental Agreement and the second Supplemental Agreement executed and has alleged connivance between the OP-1 & OP-2. The said suit was filed by the complainant on 02.05.2018 and moved the court for urgent ad-interim relies on 05.05.2018. The said interim relief was refused. Against such refusal, the complainant did not file any Appeal before the High Court. The court advised the complainant to amend his Plaint, the complainant chose not to do so.
ii. The complainant filed fresh suit No. L.C. Suit No. 1433/2018 again under MOFA Act but restricting it to Section 7 of MOFA Act. He moves another court and seeks for the same reliefs for the 14th floor construction. The said relief was also refused on 23.06.2018. The complainant did not challenge the same in the High Court. The OP then moved an application under Order-7 Rule-11 before CR-8 which was not granted. Hence, the OP then filed a Civil Revision Petition No. 30804 of 2018 in the High Court which is pending. The complainant has also filed his application before Deputy District Registrar. After spending the entire year of 2018 before various Forums and realizing he has got nothing to extract albeit illegally from these OPs, the present complaint is filed.
iii. It is contended by the OPs that they have handed over the possession to each and every member of the Society including the complainant in September 2017 for carrying out interior works. In fact the complainant himself asked for the said flat to be given to him for purposes of carrying out interior works in terms of his letter dated 31.08.2017 and the OPs gave possession for carrying out interior works on 01.09.2017.
iv. Pursuant to the OC which the OPs obtained on 04.12.2018, the actual physical possession was handed over to all the Members including the complainant. Till the filing of the complaint the complainant did not allege for non-provision of the amenities and inferior quality of internal work in respect of the said Flat having been handed over to him. The complainant is now flagging an issue, which was and is never an issue between them.
v. OPs contended that there is no question of being asked to make payment of Rs.21,43,500/- or any other amount as the possession was handed over to the complainant on 01.09.2017 with all the amenities as per the Development Agreement dated 11.11.2012 and the Tripartite Agreement dated 31.12.2014. The complainant is only entitled for 10 months compensation from February 2018 to November 2018 in the sum of Rs.1,92,260/- and prayer for compensation of Rs.23,37,800/- or Rs.21,43,500/- deserves to be rejected.
vi. The other allegations are denied by the OPs.
Complainant in his rejoinder to the Written State filed by OP-1 stated that the W.S. filed by OP-1 does not deal with the specific allegations and contentions raised by the complainant in the present matter but merely proceeds on the basis of denials and hence is not sustainable as a defence in the present case filed by the Complainant. The OP-1 relied upon the W.S. filed by OP-2 in many places. The complainant having filed its Affidavit in Rejoinder to the W.S. filed by OP-2 seeks to rely upon the same as a reply to such paragraphs of the W.S. of OP-2 and states that the same be incorporated for the sake of brevity verbatim. The complainant contends that as spoken by the OP in paragraph 5(k) of the written statement, the possession is not legal possession but is a fit-out possession which was delayed by the OP-2 in terms of the original development agreement executed with OP-1 and its members. The OP-2 has till date failed to procure the full occupation certificate from the concerned authorities in respect of the said building.
Complainant in his rejoinder to the Written State filed by OP-2 stated that the Written Statement filed by OP-2 does not deal with the specific allegations and contentions raised by the Complainant in the present matter but merely proceeds on the basis of denials and hence is not sustainable as a defence in the present case filed by the complainant. The OP-2 has failed to give any valid reasons or explanations for the grievances raised by the complainant. The complainant contends that the W.S. filed by the OP-2 is vague and ambiguous but also fails to give true and proper particulars on allegations made by it against the complainant. In para 1(a) of the W.S. filed by OP-2, relates to suit No. 1259 of 2018 filed by the complainant before the Hon’ble City Civil Court are a matter of fact and record. However, the said suit and reliefs sought are completely different to the present complaint filed.
Evidence by way of an Affidavit was filed by the complainant and OP(s) broadly on the lines of averments made in their respective complaint/reply. The details of the flats allotted to the Complainant(s)/other relevant details of the case are given in the Table below:-
Sr No
Particulars
Case No/ Complainant
Case No/ Complainant
CC/2597/2018
CC/2598/2018
1
Project Name/Location etc.
Re-development
of building, R.B. Mehta Marg,
Ghatkpoar (East) Mumbai
Re-development of building, R.B. Mehta Marg, Ghatkpoar (East) Mumbai
2
Building at
353/4A
Flat No. 902
353/4A
Flat No. 903
3
Size
1703.60 sq.mtrs.
245 sq.ft.
1703.60 sq.mtrs.
245 sq.ft.
4
Date of signing Re- development Agreement
11.11.2012
11.11.2012
5
Date of Tripartite Agreement
31.12.2014
31.12.2014
6
Committed date of possession as per Agreement (with Grace period, if any)
11.02.2015
11.02.2015
7
Date of 1st supplementary agreement
Date of 2nd supplementary agreement
21.03.2016
04.05.2018
23.01.2016
04.05.2018
8
D/o Offering Possession
01.09.2017
04.12.2018
9
Date of Occupation Certificate
04.12.2018
04.12.2018
10
Actual D/o Physical Possession
06.12.2018
06.12.2018
11
Total Consideration
Rs.43,41,000/-
Rs.43,41,000/-
12
Amount Paid
Rs.43,41,000/-
Rs.43,41,000/-
13
D/o Filing CC in NCDRC
26.11.2018
26.11.2018
14
D/o Issue of Notice to OP(s)
29.11.2018
29.11.2018
15
D/o Filing Reply/Written
Statement by OP1
16.01.2019
16.01.2019
16
D/o Filing Reply/Written
Statement by OP2
16.01.2019
16.01.2019
17
D/o filing Rejoinder by the
Complainant to the W.S. filed by OP-1
17.09.2021
17.09.2021
18
D/o Filing Evidence by way of Affidavit by the Complainant
17.09.2021 &
19.07.2022
17.09.2021 &
19.07.2022
19
D/o Filing Evidence by way of
Affidavit by the OP-1
06.05.2022
06.05.2022
20
D/o Filing Evidence by way of
Affidavit by the OP-2
06.05.2022
06.05.2022
Heard counsels of both sides.
Admittedly in both the CCs possession of the respective flats have already been taken over by the Complainant. OPs have also obtained O.C. in respect of building in question. The allegation of non-provision of promised amenities/provision of bare shell flat is with respect to Flat No. 903 in CC/2598/2018, while with respect to Flat No. 902 in CC/2597/2018 allegation is that of inferior quality of internal works/amenities and non-provision of some of the promised amenities. In CC/2597/2018, there is an allegation of area shortfall of 29.17 sq.ft., while in CC/2598/2017 the alleged shortfall in area is 72.47 sq.ft. Complainant has since sold the flat No. 903 in CC/2598/2018.
The committed date of possession as per Re-development Agreement dated 11.11.2012 was 24 months from the date of commencing demolition. Hence, the committed date was 07.02.2016 (with a grace period of 3 months). The possession for fit-outs was offered on 01.09.2017. OC was obtained on 04.12.2018, physical possession was obtained on 06.12.2018. Hence, even going by the dates there is a delay of two years 10 months (07.02.2016 to 06.12.2018). During the arguments, OPs stated that contract itself provide for compensation for delay and the same has been paid till January 2018. OPs stated that they may have no objection in paying the compensation from February 2018 to December 2018 as per rates given in the agreement.
OP-2 has denied that there is any shortfall in the area in any of the flats in these two CCs and stated that Surveyor appointed by the complainant, made a Incognito visit without any notice to OPs, hence Surveyor’s report is suspect and cannot be relied upon. As per report of Architects of the OPs, there is no shortfall in the area.
As regards allegations of non-provision of any of the amenities/provision of bare flat No. 903 in CC/2598/2018, the OP-2 stated that it is the complainant himself who made a request for bare flat as complainant was keen on making his own design on the said bare flat. The OPs agreed and stated that the difference in the amounts against a bare flat and a fully constructed flat shall be paid over/adjusted with complainant. However, by the time complainant approached OPs for a bare flat, OPs have already carried out certain works already carried out certain works from the list of promised amenities, except the sanitary fittings, which is corroborated by the certificate of OPs site Engineer. In view of the certain works already done, the difference between flat No. 903 bare condition and normal flat, was calculated and arrived at Rs.8.14 lakh which the OPs had agreed to pay to the complainant.
We have gone through the provisions of Re-development Agreement, Tripartite Agreement and other related documents. After giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
CONSUMER COMPLAINT NO.2597 OF 2018
i. OP-2 shall pay a delay compensation to complainant in the form of simple interest @ 6% p.a. from the committed date of possession (07.02.2016) to the date of possession (06.12.2018). Delay compensation already paid by OP-2 as per provisions of the Agreement(s) shall be duly adjusted while calculating the delay compensation payable as per this order.
ii. OP-2 shall pay the rent as per agreed rates under the agreements till the date of possession (06.12.2018). Amount already paid on account of this item shall be duly adjusted
iii. For other reliefs, if any, the complainant is free to pursue his civil remedies for which cases have already been filed/are pending before various Civil Courts.
iv. Parties to bear their respective litigation costs.
v. All payments to complainant under this order shall be made within three months from the date of this order.
CONSUMER COMPLAINT NO. 2598 OF 2018
i. OP-2 shall pay a delay compensation to complainant in the form of simple interest @ 6% p.a. from the committed date of possession (07.02.2016) to the date of possession (06.12.2018). Delay compensation already paid by OP-2 as per provisions of the Agreement(s) shall be duly adjusted while calculating the delay compensation payable as per this order.
ii. OP-2 shall pay the rent as per agreed rates under the agreements till the date of possession (06.12.2018). Amount already paid on account of this item shall be duly adjusted.
iii. For other reliefs, if any, the complainant is free to pursue his civil remedies for which cases have already been filed/are pending before various Civil Courts.
iv. OP-2 shall charge the complainant only the actual cost of certain amenities provided and shall refund/adjust the amount in respect of promised amenities not provided.
v. Parties to bear their respective litigation costs.
vi. All payments to complainant under this order shall be made within three months from the date of this order.
The pending IAs, if any, also stand disposed off.