State Consumer Disputes Redressal Commission
Shridhar Hari Kuwalkekar vs M/S.Jalada Promoters on 30 January, 2015
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/13/413
Shridhar Hari Kuwalkekar,
R/o. 1, Bhalchandra Appt.,
Kohinoor Colony, Sahakarnagar No.2,
Pune - 9.
...........Complainant(s)
Versus
M/s.Jalada Promoters,
through its Proprietor,
Avinath Laxaman Barve,
R/o. Tulasi Bagwale Colony,
Sahakarnagar no.2., Pune 411 009.
............Opp.Party(s)
BEFORE:
HON'BLE MR. Shashikant
A. Kulkarni PRESIDING MEMBER
HON'BLE MR. Narendra
Kawde MEMBER
For the Complainant:
Adv.Umesh Mangave
along with Adv.Santosh Patil
For the Opp. Party:
None
ORDER
(Per Honble Shri Shashikant A. Kulkarni, Presiding Judicial Member ) [1] Complainant executed an agreement dated 01/03/1995 along with members of joint family with the opponent builder/developer to hand over his ancestors property bearing no.583/A admeasuring 296 sq.mtrs [32 x 7 mtrs] located at Budhawar Peth, Pune comprising of an old and new building as per the description given in the agreement at Annexure A for development and for obtaining a flat after completion of development to be carried out by the opponent builder/developer.
[2] Said agreement also consists the condition that the complainant as original owner of the property shall issue NOC to be forwarded to the Pune Municipal Corporation to develop the property through opponent. Further to implement the letter and as spirit of the agreement, power of attorney was executed by the complainant in favour of the opponent on 02/03/1995 thereby authorising the opponent to act on behalf of the complainant. NOC of the complainant and assistance to the power of attorney, namely, the opponent, the opponent obtained approval of Pune Municipal Corporation to the development/construction plans. Under the stipulations of the main agreement between the parties, after completion of development of the project, the flat admeasuring 640 sq.ft. was to be handed over to the complainant against the consideration of the property handed over to the opponent.
[3] It is the grievance of the complainant that though the project has been completed as per the approved municipal plan, all his efforts proved futile to get the possession of the agreed flat. Aggrieved by the denial of the opponent, the complainant has filed the consumer complaint seeking direction to deliver vacant and peaceful possession of the flat admeasuring 640 sq.ft. or alternatively compensation equal to market value. In addition, an amount of Rs.50,000/- as costs of litigation.
[4] Opponent appeared by filing written version and thereafter failed to appear and prosecute the matter. The opponent averred that the access to the said property being a commercial unit as per the Pune Municipal Corporation rules, revised plan was required to get sanctioned from the Municipal Authorities.
[5] The property was jointly held by the complainant and other family members which was divided into south-north without any access in the newly revised sanctioned plan. Only five commercial units were allotted and one each for the complainant and other family members were unauthorisedly incorporated in the plan and without his efforts in submission of revised plan, the shop premises which were handed over to the opponent for development also would have been demolished. While obtaining municipal approval for revised plan, no burden was shifted to the complainant while acting as power of attorney of the complainant though he has spent lot of money in the process. Other contentions raised in the written version that the property was jointly held by the family members and complainant alone has filed this consumer complaint. Opponent prayed for dismissal of the consumer complaint as there is no merit.
[6] Heard learned counsel Mr.Umesh Mangave along with Mr.Santosh Patil-Advocate for the complainant as the opponent has failed to appear after filing the written version though several opportunities were given to file affidavit evidence and brief notes of arguments thereafter. We have perused record placed before us.
[7] Admitted facts are that development agreement dated 01/03/1995 has been entered into between the parties with lead members of the joint family with the opponent. Opponent agreed to develop the property by filing extra FSI and TDR to develop available property and in lieu of that one residential flat having area of 640 sq.ft. was promised to be handed over to the complainant after completion of the project. However, it appears that though the project was complete, but after constant persuations, the opponent failed to deliver vacant and peaceful possession of the flat as per the stipulation of the agreement.
Thereafter, opponent also issued allotment letter dated 29/04/1998 to hand over flat with carpet area 640 sq.ft.. Deed of declaration also has been executed between the parties on 16/06/2006 thereby agreeing to name association of flat owners as Harida Apartments in the developed project among other several agreed stipulations.
Besides what is pleaded as defence in the written version is that no other document whatever has been brought on record by the complainant. Therefore, the contentions raised in consumer complaint supported by the development agreement for the purpose of contract to hand over the possession of flat bearing no.4 admeasuring carpet area of 640 sq.ft. cannot be disbelieved.
[8] Complainant has filed supportive affidavit to prove the deficiency on the part of the opponent for their failure to perform the agreement.
During the course of the agreement, it was submitted by the learned counsel of the complainant that in case there is no genuine difficulty to hand over the flat in that event compensation at the market rate supported by ready reckoner may be considered to settle the consumer complaint.
[9] Copy of ready reckoner is taken on record since it is a public document.
As per the ready reckoner, the rates of the residential premises for the year 2014 published by the government are estimating to Rs.50,000/- per sq.fts. Complainant filed the valuation report based on ready reckoner estimating to Rs.25,86,401.25 for the agreed flat admeasuring 640 sq.ft., which is duly certified by the concerned sub-registrar office in which the property of the complainant is located.
[10] In case opponent finds difficult to abide agreed terms to hand over possession of the flat of the agreed area because of certain difficulties like road widening in the written version, it would be proper to this Commission to consider the grant alternate prayer of compensation, as there is no documents to show that the opponent has complied terms and conditions of the development agreement. Complainant being very senior citizen, case was heard expeditiously.
[11] Since the complaint is based on substantive merit, we are inclined to allow the complaint to consider the prayers of the complainant for possession of flat or alternate prayer as raised in consumer complaint. We hold accordingly and pass the following order.
ORDER
1. Consumer complaint is partly allowed.
2. Opponent is directed to hand over vacant and peaceful possession of the flat no.4 admeasuring carpet area of 640 sq.ft. in the developed project to the complainant within a period of 90 days from the date of this order.
OR Alternatively, opponent shall pay compensation of Rs.25,86,400/- together with interest @9% p.a. from the date of this complaint i.e.23/09/2013 within a period of 90 days, failing which rate of interest shall be enhanced to 12% p.a. on the amount ordered to be paid till its realization.
3. Opponent shall bear their own costs and pay costs of Rs.25,000/- to the complainant.
4. Certified copies of this order be furnished to the parties.
Pronounced Dated 30th January, 2015.
[HON'BLE MR. Shashikant A. Kulkarni] PRESIDING MEMBER [HON'BLE MR. Narendra Kawde] MEMBER PGG