State Consumer Disputes Redressal Commission
Mr. Chandrashekhar Ramchandra ... vs Madhusudan Patwardhan on 1 February, 2017
CC/13/401 1/4
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/13/401
Mr.Chandrashekhar Ramchandra Phansalkar,
R/at 401, Subh-Ashirwad,
74 Jayprakash Nagar, Goregaon (E),
Mumbai 400 063. .....Complainant(s)
Versus
1. Madhusudan Patwardhan,
Director/Partner,
2. Mr. Rakesh R. Shah,
Partner,
M/s. Ameya Properties, partnership firm,
Regd. Office at: 11, Audumbar,
19 Tilak Mandir Road,
Vile Parle (E), Mumbai 400 057. ......Opponent(s)
BEFORE: Hon'ble Justice Mr.A.P. Bhangale - President
Hon'ble Mr. D.R. Shirasao - Judicial Member
For the Advocate Mr.P.K. Deshmukh
Complainant:
For the Advocate Mr.Manoj K. Pandey
Opponent:
ORDER
Per Hon'ble Mr.Justice A.P. Bhangale - President:
1. Heard. Seen copies of documents including copy of the development agreement which is subject matter of the consumer dispute between the parties.
2. Complainant has prayed for possession of the flat no B-205 admeasuring 704 Sq. Feet carpet area plus Terrace at Kritarth Jeevan Co-operative Housing Society , 9/10 Lokmanya Tilak Road no. 1, Goregaon (West) Mumbai 400 062, in newly constructed Building built by Opposite Party . Complainant prayed for declaration that the OP is guilty of deficiency in service and unfair trade practice and for CC/13/401 2/4 direction to the Op to deliver possession of the aforesaid flat by executing the registered agreement for Sale thereof. Complainant also prayed for Compensation in the sum of Rs.One Lakh for mental harassment and litigation Costs in the sum of Rs .50,000/- . Complainant also prayed for Compensation of Rs 24414/- per Month with effect from 01.01.2014 till flat is delivered to the Complainant.
3. Complainant was owner- occupant of Flat No. C/10 , 1st floor , in old Building at 9-10 Lokmanya Tilak Road No. 1 off M.G. Road, Goregaon (West), Mumbai 400 062. Occupants had decided to demolish old Building and construct new building. Builder /Developer had agreed to deliver flat no. B-205 admeasuring 750 Sq Feet in new Building to be constructed by the OP, in place of the old and dilapidated building , pursuant to the Development Agreement duly registered dated 12.04.2007 for additional consideration of Rs.16,69,500/-. According to the Complainant the Builder is blameworthy for deficiency in service as he had failed to construct the building and abide by the obligation to pay the rents and compensation till the date of handing over the flat in the new Building . Compensation as claimed by the Complainant is sum of Rs.36,34,557/-.
4. Plan was handed over to the Complainant in respect of the Flat to be allotted to the Complainant. It was obligatory upon the Builder to handover the vacant possession of the new flat in reconstructed building as agreed within 18 months from the date of the Complainant vacating the old premises i.e. from 18.03.2007 with occupancy permission. OP thus committed breach of Contract /confidence and also statutory obligation. OP is guilty of unfair trade practice and deficiency in service in providing permanent alternative obligation.
CC/13/401 3/45. Complaint was defended on the ground of its maintainability, alleged forgery etc. OP denying the statutory obligation under the Maharashtra Ownership of Flats Act, 1963. According to the OP the figure of amount was changed in the development agreement from Rs.16,69,500/- to Rs.6,69,500 /-. Difference Rs.Ten lakhs less was made by complainant. On page 202 we find the calculations as well as total mentioned. Draft which carry signature and seal of the parties on each page is prima facie acceptable as sum appear mentioned is Rs.16,69,500/- as sum payable by the Member to the Developer for permanent alternative accommodation (Vide Page 202 in contradiction to unsigned photocopy at page 85 mentioned of Compilation before us). We are convinced that the Complainant was liable to pay sum of Rs.16,69,500/- and not less sum of Rs.6,69,500/- as contended by Advocate for the Complainant. Notwithstanding this narrow controversy as to amount of Rs. Ten Lakhs only the existence of the consumer dispute cannot be denied when entire documents are read in juxtaposition to each other. Builder/developer cannot disown the liability and obligations which arose under the Maharashtra Ownership of Flats Act as promoter to put the Complainant who had agreed for consideration to be placed in possession of the Flat B/205 in the reconstructed Building in lieu of the old premises parted with in favour of the Builder to enable him to demolish the old building to develop the property by reconstructing it.
6. In our view therefore the Builder Developer shall upon accepting while adjusting the sum payable by the complainant in the sum of Rs.16,69,500/- shall perform his statutory obligation to place the complainant in vacant possession of the Flat B- 205, Second Floor, admeasuring 712 Sq feet =66.15 Sq. Meters inclusive of Balcony and shall pay compensation in the sum of Rs.One lakh for mental CC/13/401 4/4 harassment and delay and litigation costs of Rs.50,000/- within 45 days failing which the interest shall be payable at the Rate of Rs.12% per annum till possession is delivered .
7. Hence order:
(a) Complainant shall be placed in possession of the flat no B-205 admeasuring 712 Sq Feet carpet plus Terrace at Kritarth Jeevan Co-operative Housing Society, 9/10 Lokmanya Tilak Road no. 1, Goregaon (West) Mumbai 400062 in newly constructed Building built by Opposite Party.
(b) Complainant is entitled for declaration that the OP is guilty of deficiency in service and unfair trade practice and for direction to the OP to deliver possession of the aforesaid flat by executing the registered agreement for Sale thereof.
(c) Complainant is entitled for Compensation in the sum of Rs. One Lakh for mental harassment and litigation Costs in the sum of Rs.50,000/-.
(d) Complainant is also entitled for Compensation of Rs.24,414/- per month with effect from 01.01.2014 till flat is delivered in possession to the Complainant with occupation certificate. Complaint is awarded accordingly.
Pronounced on 1st February, 2017.
[Justice A.P.Bhangale] President [D.R. Shirasao] Judicial Member