Sanjeev Sehrawat vs Sunteck Realty Ltd

Heard Mr. S.B. Prabhavalkar, Advocate, for the complainants and Ms. Menaka Guruswamy, Sr. Advocate, assisted by Ms. Riddhi Sancheti, Advocate, for the opposite party.

Sanjeev Sehrawat and Mrs. Sonika Sehrawat have filed above complaint, for directing the opposite party to (i) execute an agreement in respect of Unit No.2003, carpet area 1201.37 sq.ft. on the 20th Floor of “Signia High”, with two car parking space, for a consideration of Rs.26832726/-, as per allotment letter dated 05.08.2010; or in alternative (ii) handover possession of an alternate premises of equivalent dimensions in same vicinity and execute conveyance deed after taking balance consideration of Rs.21500000/-; or in alternative (iii) give current market value of Unit No.2003, carpet area 1201.37 sq.ft.; (iv) pay interest @12% per annum on Rs.5373127/-, from the date of deposit of the amount till the date of handing over possession; (v) pay Rs.500000/-, as compensation for mental agony and harassment; (vi) pay Rs.100000/- as litigation costs; and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainants stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of multy-storey building. The opposite party launched a group housing project, in the name of “Signia High” at Western Express Highway, near Megathane Telephone Exchange, Borivali (East), Mumbai-400066, in the year 2010 and made wide publicity of its facilities and amenities. Believing upon the representation of the opposite party, the complainants booked a 3BHK flat i.e. Unit No.2003, tentative carpet area 1201.37 sq.ft. and two car parking space, total consideration of Rs.26832726/- on 05.08.2010 and deposited booking amount of Rs.4965000/-. They also paid Rs.208039/-, towards purchase of the said flat and Rs.207288/- towards service tax. In addition to aforesaid, the opposite party quoted the rate of Rs.500/- per sq.ft., towards floor rise. The opposite party supplied a copy of floor plan at the time of the booking, which was as per Development Control Regulations of Greater Bombay, 1991. The complainants were regularly making enquiries about the progress of the project time to time. The complainants sent a questionnaire to the opposite party, which was replied vide email dated 06.08.2012, informing that they would start execution of agreement within one month. Development Control Regulations of Greater Bombay, 1991 was amended w.e.f. 06.01.2012. The opposite party did not execute agreement within one month, then the complainants through email dated 05.01.2013, again inquired, then the opposite party informed that they were in regular touch of the concerned authority to obtain permission. When for a long time, the opposite party did not give any information then the complainants gave a legal notice dated 11.03.2014 and reminder dated 19.04.2014 to the opposite party, for execution of the agreement. The opposite party, through letter dated 27.08.2014, called the complainants for execution of the agreement but nothing was done. The complainants gave another legal notice dated 23.09.2014 to the opposite party, calling upon the opposite party to give status of commencement of construction and also for compensation for delay. The opposite party through letter dated 30.09.2014, annexing copies of IOD dated 09.06.2014 and CC dated 19.01.2011 with endorsement dated 11.08.2014, informed that all the necessary approvals/sanctions were obtained and called upon the complainants for execution of the agreement. The opposite party however did not supply draft of the agreement. The complainants through their advocate, vide letters dated 16.10.2014 and 20.12.2014, asked the opposite party to supply a draft of the agreement. The opposite party, vide letter dated 23.02.2015, called the complainants to inspect the agreement and other papers. Thereafter, a meeting was arranged with the opposite party on 17.10.2015. While inspecting the documents, it was noticed that usable area was reduced to the extent of 350 sq.ft. and height was reduced to 15 mtrs. The complainants, vide email dated 30.10.2015, communicated the issues discussed in the meeting and asked for its resolution. The opposite party, through letter dated 21.11.2015, informed that after revision of the map, allotment of the complainants had been changed to Unit No.1001 on 10th floor, carpet area 1655 sq.ft. for sale consideration of Rs.36447691/- and earlier allotment of Unit No.2003 was cancelled and they were asked to execute agreement of Unit No.1001, within 7 days. The complainants, vide letter dated 28.11.2015, protested the letter dated 21.11.2015, unilaterally cancelling earlier allotment and so called increase in carpet area. The opposite party forwarded a cheque of Rs.5373127/- vide letter dated 11.02.2016. The complainants, through letter dated 23.02.2016, requested the opposite party to recall cancellation letter and returned the above cheque. The opposite party acknowledged receipt of cheque in the letter dated 19.04.2016 but refused to recall termination. Then this complaint was filed on 23.05.2016, alleging unfair trade practice.

The opposite party have filed its written reply on 26.08.2016 and contested the matter. The opposite party stated that the application form contained terms and conditions, in which, it has been clearly stated that the company shall have right to effect such alterations in the layout plan and in alteration, change of the position of the unit, its number, dimension, height and area may be possible and the allottee has to accept it. If the area is decreased/increased, the price of the unit would vary accordingly. The application was a provisional registration for a unit in the project and unit number was tentative. It was made clear that layout was only applied till then and it was not sanctioned. Layout plan was sanctioned and “commencement certificate” was issued on 19.01.2011. Development Control Regulations of Greater Bombay, 1991 was amended w.e.f. 06.01.2012. As per amendment, Floor Space Index was changed. As a result of the opposite party submitted revised layout plan. Due to which, the project was delayed. The revised IOD was issued on 09.06.2014, revised layout plan was approved on 22.07.2014 and endorsement dated 11.08.2014 was incorporated in CC dated 19.01.2011, which was communicated to the complainants through letter dated 27.08.2014. The opposite party through letters dated 30.09.2014 and 07.11.2014, informed the complainants that all other approvals were obtained and available for inspection. The opposite party required the complainants to inspect the documents, execute and register the agreement. After several communications, the complainants inspected the documents on 17.04.2015. As per amended, DCR, 1991, the opposite party obtained higher FSI, due to which carpet area of the flats were increased. In terms of the application form, the complainants have to pay price of increased area. In revised layout plan, unit of the complainants was also changed. Re-Application Understanding Letter was sent to the complainants on 21.11.2015, in which, earlier allotment of Unit No.2003 was cancelled and new Unit No.1001 was allotted to them and the complainants were requested to sign it and returned within 7 days. The complainants instead of signing Re-application, challenged various recitals, which were already verified on 17.04.2015, in their legal notice dated 28.11.2015 and called upon to execute agreement in respect of Unit No.2003. The opposite party forwarded a cheque of Rs.5373127/- vide letter dated 11.02.2016 as the complainants did not sign Re-Application and his earlier allotment was cancelled. This Commission, vide order dated 11.07.2016, directed the opposite party to maintain status quo in respect of Unit No.1001, subject to the complainants making payment as per terms of application dated 05.08.2010 and the opposite party was directed to issue a revised allotment letter, in respect of Unit No.1001. The opposite party issued revised allotment letter dated 19.07.2016, in respect of Unit No.1001, to the complainants. However, the complainants, thought their advocate, vide letter dated 02.08.2016 informed that they would be in position to make payment on execution of registered agreement. The complaint has been filed on false allegations and is liable to be dismissed.

The complainants have filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Sanjeev Sehrawal. The opposite party has filed Affidavit of Evidence of Mehul Tolia and Affidavit of Admission/Denial of documents of Amit Karle and documentary evidence. Along with Affidavit  filed on 20.12.2022, the opposite party has filed copies of various documents, stating that Municipal Corporation Greater Mumbai is sued “part occupation certificate” on 27.03.2018 and “full occupation certificate” on 26.02.2019 of the building “Signia High”. Out of total 81 units, 79 units were sold by December, 2021 and Signia High Co-operative House Society Ltd. was formed and registered under Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, in May, 2022. The opposite party sold Unit No.1001 to Mr. Vipul B. Thakkar on 29.07.2022 and handed over possession to him on 26.08.2022. Both the parties have filed their written synopsis.

We have considered the arguments of the counsel for the parties and examined the record. This Commission, vide order dated 11.07.2016, directed the opposite party to maintain status quo in respect of Unit No.1001, subject to the complainants making payment as per terms of application dated 05.08.2010 and the opposite party was directed to issue a revised allotment letter, in respect of Unit No.1001. The opposite party issued revised allotment letter dated 19.07.2016, in respect of Unit No.1001, to the complainants with demand of Rs.20423856/- in terms of application dated 05.08.2010. However, the complainants, vide letter dated 02.08.2016, informed that they would be in position to make payment on execution of registered agreement. Thus the complainants are defaulters and they are not entitled for relief of possession of the unit in the building “Signia High”, on this ground alone.

The application for registration/enrolment submitted by the complainants on 05.08.2010 contained as follows:-“I/We have clearly understood and agreed that this application does not constitute any offer of allotment or any Agreement to sell and I do not become entitled to the provisional and/or final allotment of a unit notwithstanding the fact that the Director may have issued a receipt in acknowledgement of the money tendered with this application, which binds us alone and to the extent stated below casting no objection or bonding on your part for allotment of any unit. It is only after I sign and execute the Allotment/Sub-lease/Assignment Agreement, on Developers standard format, agreeing to abide by the terms and conditions laid down therein that the allotment will become final and binding upon the developer”. The application form also contained terms and conditions, in which, it has been clearly stated that the company shall have right to effect such alterations in the layout plan and in alteration, change of the position of the unit, its number, dimension, height and area may be possible and the allottee has to accept it. If the area is decreased/increased, the price of the unit would vary accordingly. The application was a provisional registration for a unit in the project and unit number was tentative. On its basis the complainants cannot claim that even after variation of the area, they are not liable pay for increased area and only that amount which was agreed at the initial stage was payable.

In the written synopsis, the complainants has challenged that there was no increase in area, in the revised layout plan. No such objection was raised before the opposite party before filing the complaint nor in the complaint. At this stage, without any report of architect in respect of area, we do not consider it proper to permit the complainants to raise this plea. However, in the present case, the variation of the consideration is about 30% more, which is on higher side, as such, the complainants are entitled for refund of their amount with interest.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund the entire amount deposited by the complainants with interest@9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment.