National Consumer Disputes Redressal
Madhugita Madhukar Sukhatme vs M/S. Yogesh & Yogesh Joshi & 2 Ors. on 26 June, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1378 OF 2018 1. MADHUGITA MADHUKAR SUKHATME ...........Complainant(s) Versus 1. M/S. YOGESH & YOGESH JOSHI & 2 ORS. R/o 506/1A-1B, Narayan Peth, PUNE - 411030 MAHARASHTRA 2. MR. YOGESH SHRIRAM JOSHI R/o 759/97B, Deccan Gymkhana, Prabhat Road, Lane No-2, PUNE - 411004 MAHARASHTRA 3. MR. YOGESH BALKRISHNA PETH R/o Plot No-78+79, Agasti Society, Flat No-601+0602, Walavekar Nagar, PUNE - 411009 MAHARASHTRA ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
FOR THE COMPLAINANT : MR. UDAY B. WAVIKAR, ADVOCATE
MR. VIKAS NAUTIYAL, ADVOCATE FOR THE OPP. PARTY : MR. ANIRUDHA VALSANGKAR, ADVOCATE
MS. YUGANDHARA PAWAR JHA, ADVOCATE
MS. LAVANYA DHAWAN, ADVOCATE
Dated : 26 June 2023 ORDER
1. Heard Mr. Uday B. Wavikar, Advocate, for the complainant and Mr. Anirudha Valsangkar, Advocate, for the opposite parties.
2. Mrs. Madhugita Madhukar Sukhatme has filed above complaint for directing the opposite parties to (i) provide office space for the condominium, watchman cabin, Fire refuge area on 8th floor, replace one lift with Stretcher lift; (ii) handover 9 remaining parking space i.e. 7 stilt parking and 2 open parking, within stipulated period; (iii) obtain "completion certificate" of the building 'Manas Apartment Condominium', within stipulated period, failing which pay penalty of Rs.5000/- per day; (iv) handover certified copy all the documents relating to construction of "Manas Apartment Condominium" and other facilities and amenities; (v) pay Rs.1250000/-as delay compensation, from 02.12.2014 to 13.01.2017 with interest @18% per annum, from 13.01.2017 till the date of payment; (vi) pay Rs.20000000/- with interest @ 18% per annum, from 15.12.2012 till the date of payment, as compensation for utilization of additional FSI, granted by PMC in lieu of the area given for road widening of approx..1400 sq.ft. equal to 2100 sq.ft. saleable area; (vii) pay Rs.12050000/- with interest @18% per annum from 13.01.2017 till the date of payment, as compensation, for short fall of the carpet area; (viii) pay Rs.50000000/-, as compensation for loss of income of four additional flats on 1st, 2nd 5th and 6th floors not build and burden of heavy taxes on large size flat, metal agony and harassment; (ix) pay Rs.5000000/- as litigation costs; and (x) any other relief which is deemed fit and proper in the facts and circumstance of the case.
3. The complainant stated that M/s. Yogesh & Yogesh Developers (opposite party-1) was a partnership firm, registered under Partnership Act, 1932 and Yogesh Shriram Joshi and Yogesh Balkrishna Pate (opposite parties-2 and 3) were its partners. The opposite parties (the developer) were doing business of development and construction of group housing project. The complainant was owner of an old building situated on Plot No.479/3, CTS No.1105/3 area 1096.69 sq. Mtrs., Mouje Bhamburda, Pune. The complainant decided to demolish and reconstruct above building. The complainant discussed for the plan of redevelopment with opposite party-2 in June, 2011. Opposite party-2 gave a redevelopment plan. The complainant discussed with other developers also in this respect. In April, 2012, opposite party-2 again came to the complainant with a revised plan. After discussion, the complainant approved the revised plan with some changes. The complainant entered into Development Agreement dated 03.12.2012 with the developer and also executed Power of Attorney in its favour on 03.12.2012. The complainant gave vacant possession of the old premises to the developer in mid of December, 2012 and shifted to the rented accommodation. The developer applied for sanction of the building plan of new building to Pune Municipal Corporation and in February, 2013 informed that some area had to vacate in southern side for road widening and a revised layout plan had to be submitted. The developer emailed a revised layout plan to the complainant, which was allegedly approved in October, 2013. After obtaining NOC from other departments for construction of the new building, 'bhoomi pujan' was done on 16.11.2013. The complainant consistently orally and through an email dated 09.03.2014 demanded for approved layout plan, but the developer did not supply. The developer did not have any communication with the complainant for 12 months. In April, 2015, the developer informed the complainant that they had customers lined up for 7th, 8th, and 9th floors and asked her to give up her right over these floor as contained in the Development Agreement but the complainant did not agree. Till April, 2016, the work upto 6th floor was completed and after RCC work of 7th, 8th and 9th floors, the construction was stopped and the developer started creating pressure upon the complainant to take 5th and 6th floors in lieu 8th and 9th floors. Clause-11 of Development Agreement provides 24 months from the date of delivery of vacant possession for completing the construction and delivery of possession over new building subject to extension of maximum period of six months and thereafter, the developer was liable to pay penalty of Rs.50,000/- per month. This period expired in June, 2015. The complainant vide email dated 07.10.2015, demanded penalty. The developer through email dated 08.10.2015 wrote as "will revert back in a day or two". Shrivardhan Sukhatme, son of the complainant, through email dated 25.11.2015, asked for clarification on 5 points, namely (i) details of area lost in road widening; (ii) reason for revision of layout plan without consent of the owner; (iii) furnish photo copy of minutes of meeting, held in March/April, 2014; (iv) no confirmation regarding the 10th floor was taken; and (v) delay in completing the construction, but the developer did not respond. Shrivardhan Sukhatme, vide email dated 02.08.2016, requested to confirm on which floors, the developer was going to handover possession of the flats to the complainant and also informed that amount payable to the owner would be about Rs.15/- crores. The developer through email dated 17.08.2016, denied liability of any amount, stating that vacant possession of old building was handed over to them in November, 2013; Layout plan was revised with the consent of the owner; It was mutually agreed to take one flat on every floor; possession of Flat nos.1 and 2 were given in May, 2016 and Flat Nos.5, 6 and 7 was given in June, 2016 and on the basis of TDR, 10th floor was sanctioned and no compensation was payable. Shrivardhan Sukhatme, vide email dated 26.08.2016, asked to clarify the area lost in road widening; as per new rules applicable from January, 2016, additional TDR of 2300 sq.ft. was available; how FSI of 10th floor was utilised and about the benefits of changes in layout plan as per Development Agreement. The developer vide email dated 21.08.2016, instead of giving point-wise reply merely reiterated its earlier reply. The complainant, vide email dated 23.09.2016, informed that possession as handed over on the Flat Nos.1, 2, 5, 6 and 7 was without any amenities and only for fit-out and it cannot be considered as delivery of possession. "Occupation Certificate" was obtained on 13.01.2017, prior to it, there could not be a legal possession and the complainant is entitled for rent till then. The developer, vide email dated 28.09.2016, reiterated its previous stand that possession was handed over. The approved layout plan as attached with Development Agreement dated 03.12.2012 was revised on 03.11.2015 and again on 12.08.2016, in which material changes were made without any consent of the owner. For revision of layout plan on 12.08.2016, signature of the owner has not been obtained although Power of Attorney was effective for the period from 03.12.2012 to 02.12.2015 and it was never extended. The developer gave two cheques towards rent of September and October, 2016, which were dishonoured. The complainant engaged Mr. Shrikant Hadke, an architect for measurement of the site and the flats, who inspected the spot and measured the area. He submitted his report dated 11.02.2017, showing shortfall in area of 926.63 sq.ft. in the agreed built up area 11800 sq.ft., for which, the complainant was entitled for compensation. 1400 sq.ft. land was taken for road widening and in lieu of it additional FSI equal to 2100 sq.ft. saleable area was granted. As per ready reckoner, its value is Rs.2/- crores. By changing layout plan, the developer deprived the complainant from additional flats on each 1st, 2nd, 5th & 6th floors and gave single flat on five floors, which was burdensome to the complainant as it is difficult to let out and municipal taxes will be more. It will cause loss of Rs.20,00,000/- per year. If life of the building is considered 25 years, then the complainant is entitled for Rs.5/- crores as compensation in this head. By stopping construction of 8th & 9th floor the developer exercised undue pressure upon the complainant for taking possession over 5th & 6th floor. As per Development Agreement, the complainant was entitled for one parking place in the stilt + one open parking for each flat. The complainant is entitled to seven stilt parking + seven open parking but the developer has allotted only 5 parking. Under Regulation 36 of Development Control Regulations, the complainant is entitled 7 car parking spaces. Due date of possession was 02.12.2014 while "occupation certificate" was issued on 13.01.2017, therefore, the complainant was entitled for rent and penalty during this period. By unilaterally changing the layout plan, not responding to various queries and delaying possession, the developer has given mental torture to the complainant. Then this complaint has been filed on 28.05.2018, claiming deficiency in service.
4. The opposite parties (the developer) filed its written reply on 26.12.2018 and contested the complaint. The developer stated that initially a memorandum of understanding was executed between the parties on 11.07.2012, under which 15000 sq.ft saleable area was in the share of the complainant and 13000 sq.ft. saleable area was in the share of the developer. Draft of Development Agreement was finalized and signed by the parties on 03.12.2012. As per development agreement, 11800 sq.ft. built-up (15225 sq.ft. saleable area) came in the share of the complainant. The Power of Attorney was coupled with interest in the land and was irrevocable and it is incorrect to say that it was valid till 02.12.2015. The developer applied for sanction of layout plan, which was sanctioned vide commencement certificate No.0909/13 dated 15.06.2013, for six floors of the building, for a period of one year. The complainant had to give vacant possession of the building within three months of the agreement. The complainant decided to demolish the building at her own level, which took time and she gave vacant possession in November, 2013. The construction was started on 16.11.2013. Then it was noticed that due to road widening plan, Pune Municipal Corporation introduced a lot of regulatory requirements and some land of this plot had to be given for road widening, which necessitated revision of the layout plan. With a view to construct the building as per revised layout plan, the developer purchased TDR admeasuring 232.26 sq.mtrs. granted by Pune Municipal Corporation vide DRC No.004282 dated 01.12.2014 and agreement dated 26.12.2014 and again TDR admeasuring 372.38 sq.mtrs. granted by Pune Municipal Corporation vide DRC No.004333 dated 20.05.2015 and agreement dated 15.07.2015. The developer submitted revised layout plan, for approval of Municipal Corporation Pune, which were approved vide CC No.0741/2014 dated 11.06.2014, CC No.1655/2015 dated 28.08.2015 and CC No.2459/2015 dated 03.11.2015, for construction up to 9th floor. The fact that a part of the land had to be left for road widening was in knowledge of the complainant at the time of agreement but she had concealed this fact from the developer. Under clause-1(a) of the Development Agreement, the developer has right to revise layout plan. Revised layout plans were sent to the complainant through email. The complainant and her son approved the revised layout plans, from time to time. The developer sent a supplementary agreement to the complainant for her signature through email dated 01.10.2014 but the complainant did not respond. For obtaining additional FSI under amended Development Regulation, again a revised layout plan was submitted with the consent of the complainant and her son, which was approved on 12.08.2016, vide CC No.1290/2016. Then 10th floor was constructed. As per initial layout plan, two flats on each floor had to be constructed as such Flat No.101 and 102 and Flat No.201 and 202 were given in the share of the complainant. However, after leaving land for road widening and as per revised layout plan, one flat on each floor has been constructed. As per revised plan and mutual agreement, flats on 1st, 2nd, 7th, 8th and 9th floor were proposed to the complainant. Later on, the developer proposed to exchange flats at 5th and 6th floor with 8th and 9th floor. Harshvardhan Sukhatme initially demanded Rs.50/- lacs for each flats to be changed, vide email dated 04.02.2015, but through email dated 04.05.2015, agreed to take flats on 5th & 6th floor in place of 8th and 9th floor. The developer replied the email of the complainant dated 07.10.2015 through email dated 10.10.2015. The developer replied email dated 05.08.2016 of the complainant, through email dated 17.08.2016. Various communications between the parties prove that the complainant had not only knowledge of revisions of the map but revisions were done with her consent. Under Development Agreement, the developer had to give 11800 sq.ft. built-up area (15225 sq.ft. saleable area), inclusive of balcony and car parking, while the complainant has taken possession of 12920 sq.ft. built-up area (16040 sq.ft. saleable area), i.e. additional 1120 sq.ft built-up area (815 sq.ft. saleable area). The complainant took possession of Flat Nos. 101 and 201 in May, 2016 and Flat Nos.501, 601 and 701 in June, 2016. The developer has constructed 10 covered car parking for ten flats. The complainant was given possession over 5 car parking. The developer entered into an agreement for sale dated 09.03.2016 with Yogesh Balkrishna Pate and Mrs. Priya Yogesh Pate, for sale of the flat at 10th floor which had been signed by the complainant as consenting party. Shrivardhan Sukhatme, the son of the complainant also acted as the broker for sale of other flats by the developer to various buyers. After completing construction, the developer applied for issue of "occupation certificate". The developer submitted Deed of Declaration as per provisions of Maharashtra Apartment Ownership Act, 1970 dated 03.10.2016 (registered on 05.10.2016). The complainant filed an objection dated 27.10.2016, before Pune Municipal Corporation and objected issuance of "occupation certificate". However, "occupation certificate" was issued on 13.01.2017. The developer has paid rent of alternate accommodation to the complainant till November, 2016. The building has been constructed as per approved plans. The developer has provided office space near staircase. Watchman cabin and fire refuge area have also been provided. The developer has installed lift and provided rain water harvesting. The developer was ready to rectify the painting works, if necessary. The developer has replied the notice of the complainant dated 13.02.2017 through reply dated 17.02.2017. Preliminary objections that (i) the transaction between the complainant and the developer is commercial transaction and consumer complaint is not maintainable. (ii) The complaint raised complicated issues of fact which need to be adjudicated by civil court. (iii) Development agreement contained an arbitration clause as such the complainant be relegated for arbitration, and (iv) The complaint has been filed concealing material facts. The complaint is liable to be dismissed.
5. The complainants filed Rejoinder Reply, Affidavit of Evidence of Madhugita M. Sukhatme. The opposite parties have filed affidavit of evidence of Yogesh Shriram Joshi and additional affidavit on 22.03.2023 by which the partnership deed as reconstructed from time to time including reconstructed on 09.05.2016 is filed. The opposite parties have also filed their short synopsis of arguments.
6. We have considered the arguments of the counsel for the parties and examined the record. So far as preliminary objection that the development agreement dated 03.12.2012 is a business to business transaction is concerned, Supreme Court in Faqir Chand Gulati Vs. Uppal Agencies Private Limited and another, (2008) 10 SCC 345 and Bunga Daniel Babu Vs. M/s. Sri Vasudeva Construction, (2016) 8 SCC 429, held that for constituting "joint venture" there must be (i) Joint ownership and control of property; (ii) Sharing of expenses, profit and losses, and having and exercising some voice in determining division of net earning; (iii) Community of control over, and an active participation in management and direction of business enterprise and (iv) Intension of parties express or implied; (v) Fixing of salary by joint agreement. These ingredients are missing in the present case therefore, the development agreement dated 16.01.2013 cannot be termed as business to business transaction. The relation of the complainant with opposite party is a relation of "consumer" and "service provider" and the consumer complaint is maintainable. The other preliminary objection relates to arbitration clause No.35 of the development agreement. The Arbitration and Conciliation Act, 1996 does not exclude the jurisdiction of Consumer Forum. It is well settled that when two remedies are available, then the complainant can choose any one of them.
7. The complainant has alleged that the opposite parties have not provided office space for condominium and proper watchman cabin. The developer in his written statement has stated that the space for office condominium has been provided by the side of staircase on the ground floor and fire refuse area has also been provided. Similarly, watchman cabin has also been constructed. So far as lift and escalator is concerned, the lift has been provided. Complainant did not make any effort to appoint a Local Commissioner to rebut the above facts as such contention raised by the opposite parties has not been falsified by the complainant.
8. The complainant alleged that in the development agreement the complainant was allotted 7 flats, therefore, she is entitled for 7 flats and 7 car parking. The opposite parties stated that the complainant knew the fact that a portion of land has to be left for road widening but concealed this fact. In the development agreement dated 03.12.2012, 7 flats have been allotted in which 2 flats on 1st floor and 2 flats on 2nd floor have been allotted but later on it was realised that after leaving the land for road widening it is not possible to construct 2 flats on each floor, therefore, the layout plan was revised and single flat on each floor has been constructed. Due to revision of layout plan the number of flat as originally allotted to the complainant was revised from 7 to 5. However, in order to fulfil the built up area the developer has purchased additional FSI and in place of 6 floor building, 9 floor building was constructed and built up area which was agreed to be provided to the complainant in the development agreement was 11,800 sq. ft. (15225 sq.ft. saleable area) but actually the complainant was given 12,920 sq. ft. built up area (16,040 sq. ft. saleable area). Thus, the area has not been reduced. In spite of the fact that the area of the land has been reduced, as per development agreement the entire price of the land has been given to the complainant and there is no grievance in this respect.
9. The fact that the land had to be left for road widening has not been challenged by the complainant. The only allegation has been made that the developer has reduced the map from time to time without any notice and consent of the complainant. By virtue of clause 1 of the development agreement, all rights relating to redevelopment, transfer and assignment of the property has been vested irrevocably in the developer and clause 1 (a) entitled the developer to get the layout sanctioned and revised or amend the plan from time to time from Pune Municipal Corporation. Therefore, for revision of the layout plan no consent has been required from the complainant from time to time. Similarly, Clause 1 (k) of the agreement entitled the developer to purchase additional TDR which has been done by the developer at his own cost from time to time. In view of the changed layout plan and imparting some portion of the land for road widening, redevelopment agreement in respect of 7 flats and 7 car parking cannot be enforced, particularly when the built up area of the complainant has not been decreased rather it has been increased.
10. The complainant claimed delay compensation for the delayed period. Under Clause 11 of the agreement, 24 months period from the date of vacant and peaceful possession of entire property by the complainant has been provided to complete the construction. The opposite parties have stated that the vacant possession of the premises has been handed over in November, 2013 although the opposite parties have obtained layout plan sanctioned and commencement certificate on 15.06.2013 but due to delay in handing over vacant peaceful possession they could not start construction after obtaining the commencement certificate, rather "Bhoomi Poojan" was done on 16.11.2013, therefore, 24 months period as to be counted from 16.11.2013 and had expired on 15.11.2015. The developer has revised the map due to imparting the land for road widening. Revision of map was also withheld for a quite long time and it was sanctioned on 03.11.2015, therefore, the construction was delayed for about one year and the developer has paid rent to the complainant till November, 2016 although possession has been given over floor Nos.1 & 2 in May, 2016 and flat Nos.5, 6 and 7 in June, 2016. The fact of taking possession has not been disputed by the complainant. The complainant, however, alleged that she was entitled for compensation till obtaining the occupation certificate which was obtained on 13.01.2017. The developer has stated that after completing the construction, the developer has applied for issue of occupation certificate and has also filed deed of declaration on 13.10.2016. The issuance of occupation certificate has delayed as the complainant has filed objection before Pune Municipal Corporation and has prayed for recalling the sanction of revised layout plan as well as withhold the occupation certificate, therefore, she is not entitled for compensation after taking possession. The filing of the objection for issue of occupation certificate has not been denied by the complainant as such the complainant is not entitled for delay compensation inasmuch as according to the development agreement the rent was paid till November, 2016 although handing over of peaceful possession has been delayed by the complainant herself.
11. The complainant has claimed Rs.2 crores for unauthorised utilization of additional FSI granted by Pune Municipal Corporation. In this respect, as stated above, due to road widening the FSI has been reduced. In order to complete the FSI, the developer has purchased TDR from time to time by paying to the Pune Municipal Corporation. The complainant has been given the full built up area as per development agreement. The complainant has not given any details as to whether the FSI purchased by the developer has exceeded the original FSI as per sanctioned plan dated 15.06.2013. The allegation in this respect is vague and no relief can be granted. The built up area has not been reduced, therefore, no compensation can be granted to the complainant.
12. The complainant has claimed Rs.5 crores for reducing 4 additional flats. As stated above that this was not the deliberate action of the developer rather due to imparting land for road widening, the number of flats have been reduced as the revised layout plan permits only one flat on each floor. The Supreme Court in M/S Interglobe Aviation Ltd vs N. Satchidanand held that in case there is no negligence in providing the facilities, the compensation cannot be claimed. In this case, there was no negligence on the part of the developer rather it was statutory provision that only one flat on each floor could be constructed, therefore, the complainant is not entitled for any compensation in this head.
13. So far as the sanction of layout plan on 12.06.2016 by CC No.1290/2016 for construction of 10th floor is concerned, the complainant has stated that the power of attorney was valid for a period of 3 years only and expired on 02.12.2015. This revised layout plan has been obtained by fraud upon the statutory authority as well as upon the complainant. So far as the complainant is concerned, the complainant has signed the agreement for sale dated 05.03.2016 which was in respect of 10th floor, therefore, it was well within the knowledge of the complainant that the developer was going to construct the flat at 10th floor. At this stage when the developer has obtained revised layout plan on 12.06.2016, then the complainant cannot be permitted to raise any ground in this respect.
13. So far as the claim of the complainant for handing over certified copies of all documents/approved plans for construction of the building "Manas Apartment Condominium" is concerned, if the developer has not provided these documents, he shall provide all these documents to the complainant within four weeks from the date of this judgment.
ORDER
In view of the aforesaid discussion, the complaint is disposed of directing the opposite parties to provide the certified copy of all the documents relating to construction of "Manas Apartment Condominium" to the complainant within a period of four weeks from the date of this judgment.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ................................................ DR. INDER JIT SINGH MEMBER