State Consumer Disputes Redressal Commission
Smt Madhavi Anant Gaikwad vs Prakash Deepak Gaikwad & Ors. on 4 April, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/10/112
1. SMT MADHAVI ANANT
GAIKWAD
R/AT 602REDDY SHREE SHIVDATTA TOPIWALA WADI VILLAGE
PAHADI DAWAKHANA ROAD CTS NO 746 GOREGAON
(W) MUMBAI.
...........Complainant(s)
Versus
1. PRAKASH DEEPAK
GAIKWAD
R/AT 7 TH FLOOR REDDY
SHREE SHIVDATTA TOPIWALA
WADI VILLAGE PAHADI DAWAKHANA ROAD CTS NO
746 GOREGAON (W) MUMBAI.
2. M/S REDDY
CONSTRUCTION CO.
FLAT NO 10 REDDY
COMPOUND VALANAI COLONY ORLEM MALAD(W)
MUMBAI
3. SHRI PINNINTI
VEERA SHREERAM REDDY
FLAT NO 10 REDDY
COMPOUND VALANAI COLONY ORLEM MALAD (W) MUMBAI
............Opp.Party(s)
BEFORE:
Hon'ble Mr. S.R. Khanzode
PRESIDING MEMBER
Hon'ble Mr. Narendra Kawde MEMBER PRESENT:
K P MISHRA, Advocate for the Complainant R.S.Kumbhar, Advocate for the opponent No. 1.
Ms.Shraddha Jadhav, Advocate for opponent Nos.2&3.
ORAL ORDER Per Shri S.R. Khanzode, Honble Presiding Judicial Member This consumer complaint pertains to alleged deficiency in service on the part of builder and developer for not handing over the possession of shop premises and further deficiency in service is also alleged for delay in handing over the possession of the flat and for compensation.
2. Undisputed facts are that the complainant-Smt.Madhavi Anant Gaikwad who had proprietary interest in the part of the premises known as Gaikwad House was residing in part thereof as per terms of the settlement recorded between the parties while compromising Civil Suit No.2898/1989. Said settlement is witnessed by a document dated 09/07/2000.
Subsequent to it, property of Gaikwad House was decided to be developed by opponent No.1-Prakas alias Deepak Dattaram Gaikwad (hereinafter referred to as owner for convenience).
An agreement was reached between owner, the complainant-Smt.Madhavi Gaikwad (hereinafter referred to as complainant), and developer-builder, namely, opponent No.2-M/s.Reddy Construction Company of which opponent No.3-Shri Pinninti Veera Shreeram Reddy is a proprietor (opponent Nos.2&3 together are referred to as builder for convenience). Said agreement is dated 15/10/2003 and in it, for the convenience of both the parties, opponent No.1-Mr.Deepak Dattaram Gaikwad was described as the owner, status of complainant-Smt.Madhavi Gaikwad was shown as tenant residing in the Gaikwad House, and opponent Nos.2&3 were referred as developer/confirming party. As per said agreement it was agreed to give complainant a residential flat having 600 sq.ft. carpet area including balcony and bearing flat No.602 as described in schedule to the agreement and also a shop No.1 situated on the ground floor having area of 70 sq.ft. (carpet) and road facing and more, particularly, described in Schedule-III of the said agreement.
3. As per the above referred agreement, the complainant was provided with alternate accommodation situated near to the property of Gaikwad House. It is the contention of the complainant that though the newly built property was constructed in the year 2004, the possession of the flat was offered to her in the following year i.e. 2005. However, she did not occupy the flat as occupancy certificate was not obtained. However, thereafter, the opponents started harassing her by not paying for alternate accommodation which she was occupying and created the circumstances whereby the complainant was forced to accept the possession of flat No.602 situated on the 6th floor of the building and which she occupied on 01/02/2007. However, possession of the shop premises is remained to be given to her. As per the information collected by the complainant under the Right to Information Act, she came to know that the completion certificate to the building was obtained on 06/03/2008 while the occupancy certificate was issued by the Local Authority on 01/07/2008. Complaining the harassment for non-delivery of possession, delayed possession and further referring to her suffering due to not handing over the shop premises to her and resultant loss of income from the shop, the complainant on 20/07/2010 filed this complaint but only after issuing a legal notice through lawyer on 15/07/2010; and claiming the following reliefs :-
a) That this Honble Forum may be pleased to order and direct the Opposite Parties to pay jointly and/or severally to the Complainant a sum of `10,00,000/- or such other just and proper amount at such rate as this Honble Forum may deems fit and proper for the price of short coming in area in flat No.602 being 77 sq.ft. carpet (excluding balcony and staircase).
b) That this Honble Forum may be pleased to order and direct the Opposite Parties to pay jointly and/or severally to the Complainant a sum of Rupees Two Lakhs being the compensation for the discomfort and inconvenience suffered and physical and mental torture and agony undergone by the Complainant and her family for not providing amenities and facilities agreed and assured by the Opposite Parties as per annexure Exhibit E-3-B of the Agreement dated 15/10/2003.
c) That this Honble Forum may be pleased to order and direct the Opposite Parties to complete the amenities and facilities as per annexure ExhibitE-3-B of the Agreement dated 15/10/2003 as agreed but failed to provide in respect of flat No.602 and on failure may be further ordered and directed to pay jointly and/or severally to the Complainant a sum of Rupees Three Lakhs being the costs, charges and expenses to execute the same by the Complainant.
d) That this Honble Forum be pleased to order and direct the Opposite Parties jointly and/or severally to hand over to the Complainant the Shop premises being the Shop No.1 of carpet area of 70 sq.ft. on the ground floor of Reddys Shree Shivdatta (Reddys Shree Shivdatta Gaikwad House), Topiwala Wadi, Village Pahadi, Dawakhana Road, CTS No.746, Goregaon (West), Mumbai-400 062 as shown by shaded portion in the annexure E-6 of the Agreement dated 15/10/2003.
e) That this Honble Forum may be pleased to order and direct the Opposite Parties to pay jointly and/or severally to the Complainant a sum of Rupees Six Lakhs and Sixty Thousand @ sum of Rupees Ten Thousand per month along with interest thereon or such other sums as this Honble Court may deems fit and proper being the financial loss as and by way of income from the said shop suffered in the event the opposite party would have given the possession of the shop within six months from the date of agreement dated 15th October 2003 as agreed therein.
f) This Honble Forum be pleased to grant an order and injunction restraining the Opposite Parties from dealing with, disposing off, transferring of and conveying and/or further parting with possession of the said shop to any other third party and/or taking any further steps in respect of the said Shop No.1 of an area of 70 sq.ft. (carpet) on the ground floor of Reddys Shree Shivdatta (Reddys Shree Shivdatta Gaikwad House), Topiwala Wadi, Village Pahadi, Dawakhana Road, CTS No.746, Goregaon (West), Mumbai-400 062 to any third party except the Complainant.
4. The owner resisted the complaint as per his written version dated 29/03/2011 and its supporting affidavit dated 07/09/2010. Sum and substance of the defence of the owner, as relevant for the present controversy is that he claimed novation of agreement dated 15/10/2003 but non-delivery of the shop premises is not in dispute. Similarly, shortfall in the area of 77 sq.ft. (since flat No.602 situated on 6th floor is less in area than what was agreed i.e. 600 sq.ft. carpet area) is also not in dispute.
In this context, the owner comes with the case which is referred in his affidavit dated 07/09/2010 as under :-
(b) With reference to Paragraph Nos.9(b) of the complaint, it is true that flat of 600 sq.ft.
carpet area was agreed to provide. I however say that after the Plans were submitted, and as per the Plan BMC was not sanctioned the flat of 600 sq.ft. carpet area, therefore, the opponents negotiated with the complainant and the complainant agreed for acquiring Flat No.602 admeasuring 523 sq.ft. carpet area which was provided to her accordingly. I say that a lumpsum amount was paid to her in cash as agreed by her towards giving up her right in 77 sq.ft. carpet area for less area in flat and shop admeasuring 70 sq.ft. which also was not approved by BMC.
(c) With reference to Paragraph Nos.9(c) of the complaint, I deny that 70 sq.ft. carpet area shop was to be provided to the complainant. As stated above, after the negotiation took place between the complainant and the opponent and in the said negotiation the complainant agreed to give up her right in the balance area of the flat and the shop which was paid to her in cash.
5. Subsequent to an action of the owner whereby he tried to blame the builder for carving out the short area flat and also for not providing shop No.1 as initially agreed, by changing the sanctioned plan; the builder further resisted the consumer complaint as per their written version dated 27/11/2010.
Sum and substance of their opposition as relevant for the present controversy, is that the builder admits their obligation to provide a residential premises i.e. flat No.602 on the 6th floor to the complainant along with shop No.1 having area of 70 sq.ft. situated on the ground floor. But according to them, as per the agreement, they had handed over to the owner an area of 4245 sq.ft. (built up) as under :-
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Sr.No. Flat/Office/Shop No. Floor Area in Sq.ft. B.U.A.
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1.
Entire Ground floor Ground 1078.00
2. 101 & 103 First 517.00
3. 501 & 502 Fifth 982.00
4. 602 Sixth 523.00
5. 701 Seventh 1145.00
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Total = 4245.00
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6. It is the obligation of the owner to hand over the agreed area flat and shop to the complainant. Subsequently, the owner realizing the shortfall in the area allotted to the complainant, the owner requested the builder to allot flat No.601 in lieu of flat No.602 situated on the 6th floor of said newly constructed building and agreeing to it, the arrangements were made which are witnessed by further agreement dated 29/10/2007 between owner and the builder.
It is also alleged by the builder that the area of flat No.601 which is in the use of the complainant, is about 622 sq.ft. of carpet area and the same is situated on the 6th floor of the building and these facts are deliberately suppressed by the complainant.
7. At the outset, it may be mentioned here that subsequently, at the later on stage, both owner and builder had changed their respective stand, supra, to some extent. The builder, particularly, averred and to which there is no contradiction from the owner that it is flat No.602 situated on the 6th floor is actually occupied by the complainant. In his affidavit, accordingly Mr.Pinninti Veera Sreeram Reddy-opponent No.3, builder stated as under:-
2. I say that, after filing the written statement it has been revealed that the residential premises admeasuring about 622 sq.ft.s. which is being allotted given to the Opposite Party No.1 by me bears Flat No.602 on the 6th floor, of the building known as Reddys Shree Shivdatta Apartment and in discharge of my obligations under Agreement for Sale dated 01/08/2003 I have handed over to the Opposite Party No.1 constructed area admeasuring about 4542 sq.fts. plus 99 sq.fts. in the said newly constructed building Reddys Shree Shivdatta Apartment (including the area of the tenants of pre-existing structure along with the complainant) and the possession of Flat No.602 has been given by me to the Opposite Party No.1 on 29th October, 2007.
3. I say that, error in mentioning the Flat number i.e. Flat No.601 instead of Flat No.602 (handed over to the Opposite Party No.1) has been crept due to oversight and more particularly due to the information provided to me by the Opposite Party No.1 and accordingly, in discharging of my obligation under the said Agreement for Sale dated 01/08/2003, I have handed over to the Opposite Party No.1 possession of the constructed area, as follow:-
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Sr.No. Flat/Office/Shop No. Floor Area in Sq.ft. B.U.A.
-------------------------------------------------------------------------------
1.
Entire Ground floor Ground 1078.00
2. 101 & 103 First 517.00
3. 501 & 502 Fifth 982.00
4. 602 (wrongly numbered Sixth 523.00 as 601)
5. 701 Seventh 1145.00
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Total = 4245.00
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8. We heard both the parties.
Perused the record.
9. Copies of the settlement dated 09/07/2000 witnessed by Memorandum of Understanding i.e. M.O.U. dated 09/07/2000 and more particularly, agreement dated 15/10/2003 along with annexures as well as notice dated 15/07/2010 and reply to it given on 31/07/2010; agreement between owner and builder dated 29/10/2007; are on record. The agreement dated 29/10/2007 is not disputed by the owner and the builder. However, according to complainant said agreement represents a fraudulent act on the part of the builder and the owner to prejudice and deprive her of her rights.
10. It may be pointed out that there is no clear evidence led to establish that flat No.602 is having 622 sq.ft. carpet area. In fact it ultimately emerged as an undisputed fact that flat No.602 situated on 6th floor of the building and which is in possession of the complainant is having less area by 77 sq.ft. The owner come with the case that in lieu of said less area and for a commercial area i.e. of shop No.1 there was a settlement between him and the complainant and he had compensated the complainant by paying cash in lieu thereof.
However, he failed to substantiate his such case. No particulars as to the date, time, the amount of cash agreed to be paid and when paid are mentioned. The complainant in her affidavit dated 28/02/2011 categorically denied any such fresh agreement or receiving cash in lieu of less area of the flat or for shop. Thus, we find that the case pleaded by the owner, as referred above, in respect of less area of the flat and for shop premises No.1 cannot be believed.
11. As far as builder is concerned, in view of tripartite agreement dated 15/10/2003, he cannot escape from his liability/obligation of providing particular area of flat and particular area of shop to the complainant.
12. One has to consider the obligation in favour of the complainant which the builder and the owner had to fulfill. Referring to the composite obligation in respect of residential premises as well as shop premises, the possession of the flat was received by the complainant, supra. However, possession of the shop premises is yet to be received and therefore, cause of action as related to deficiency in service (on that count) on the part of builder and the owner being continuous, the complaint would not be barred by limitation. Therefore, we find no reason to take into consideration the application for condonation of delay made at the later stage which according to the complainant was made by way of abundant precaution only.
13. In view of the circumstances mentioned by the complainant, she had to accept possession of flat No.602 which she did on 01/02/2007 when inconvenient circumstances were created against her to continue to reside in the alternate accommodation provided. The occupancy certificate was actually obtained later on 01/07/2008 and copy thereof, which is obtained by the complainant under the Right to Information Act, is also placed on record. Obviously, there is delay in handing over the possession and till occupancy certificate is obtained, her physical possession (de-facto possession) cannot be held as legal one (de jure). Therefore, until said possession is legalized, she had to face inconvenience and had to suffer from stress in occupying the premises against the statutory provision viz. the one under the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA in short). Therefore, she is entitled for compensation on account of deficiency in service which is established against the builder as well as against the owner. A useful reference on the point can be made to a decision of the National Commission in the matter of Ashish Shelters & Developers Pvt. Ltd. V/s. Satish V. Chandorkar decided on 29/08/2002 (Corum : D.P.Wadhavaji, President and Members Rajyalaxmi Rao and B. Taimani).
14. Considering the admitted position that instead of agreed 600 sq.ft.
carpet area flat, the complainant has received actually a flat which is less in area by 77 sq.ft.. We find that since the plan of the building cannot be changed, the complainant would be entitled to get monetary compensation for said less area from the builder and the owner who are jointly and severally responsible to pay.
15. As earlier pointed out the builder tried to submit that he had handed over the entire area agreed to be delivered to the owner and from said area only it is for the owner to carve the area to be given to the complainant as per agreement dated 15/10/2003 and as such they cannot be held responsible for any deficiency in service on that count. The owner submitted later on that since it is builder who played mischief while getting revised plan sanctioned and did not carve out necessary area and therefore, he is not responsible for any deficiency in service on that count. In fact it is a privity of contract between owner and builder which governed the issue since the builder alleged that it is the owner who permitted him to revise the plan. For their such mutually inconsistent stand which are also self-destructive, we find the complainant should not suffer who is a lady and fighting litigation with her in-laws for considerable long time after death of her husband. There is a reason to believe that the owner and the builder, for their selfish reason, gloved hands with each other against the complainant and apprehensions expressed by the complainant to that extent cannot be said as unfounded. Therefore, both the builder and the owner are jointly and severally liable to compensate the complainant.
16. Coming back to the shortfall of the area and related deficiency in service on the part of owner and builder, the complainant stated that she could be compensated at the market rate @ `13,000/- per sq.ft. and claimed `10 Lakhs on that count. Complainant-Smt.Madhavi Anant Gaikwad in her affidavit also referred to the same. There is no evidence in rebuttal led by the builder or the owner on the issue. Therefore, we find it safe to accept her such contention. Since she is deprived of the flat area of 77 sq.ft., she needs to be compensated suitably and we find it is just and proper to award her compensation considering rising prices of residential area in Mumbai to the extent of claim made i.e. of `10 lakhs on this count.
17. The complainant is entitled to get possession of the shop premises from the owner and/or the builder. However, we further find that if for any compelling reason, it is not possible for them to hand over possession of the shop premises, then alternatively, the complainant must be suitably compensated and we find her claim of `21 Lakhs accordingly would be a just compensation and which could be awarded in the given circumstances i.e. prevalent market prices of which due notice could be taken on the basis of market rates in different localities mentioned in Saturday Property Supplement in Times of India.
18. We already held that the complainant is entitled to compensation for mental torture and agony on account of delay in delivery of possession of the flat and not getting possession of the shop premises at all. Having suffered agony for getting less area flat and also for not getting possession of the shop, in the background of such present circumstances, we find that `2 Lakhs would be a just compensation which the complainant is entitled to receive on this count.
19. Before parting with the judgement, we may observe that once the deficiency in the form referred above is removed (by handing over possession/or monetary compensation), the complainant may move the builder as well as the owner to form the Society or suitable Condominium, etc., as may be agreed between them.
20. For the reasons stated above, we hold accordingly and pass the following order :-
-: ORDER :-
1.
Consumer complaint is partly allowed.
2. The opponents, jointly and severally do pay compensation of `10 Lakhs towards less area of the flat and `2 Lakhs towards mental agony and sufferance of the complainant to the complainant. This compensation be paid within period of 45 days from today and failing which it shall carry interest @ 18% p.a. till its realization.
3. The opponents, jointly and severally do hand over possession of 70 sq.ft.
commercial carpet area situated on ground floor, facing road as synonymous to description of shop No.1 in the original plan to the complainant from the building known as Reddys Shree Shivdatta constructed on land bearing CTS No.801/1 to 801/6, 746/3 and 746/4, Survey No.104(pt) admeasuring about 423 sq.mtrs. at Village Pahadi, Goregaon Taluka Borivali, Mumbai.
ALTERNATIVELY The opponents, jointly and severally shall pay a compensation of `21 Lakhs to the complainant along with interest @ 18% p.a. from the date of filing of this complaint i.e. 20/07/2010 till its realization.
4. The opponents to bear their own costs and to pay costs of `25,000/- to the complainant.
5. Copies of the order be furnished to the parties.
At this stage Advocate Shri R.S. Kumbhar for opponent No.1 and Advocate Ms.Shraddha Jadhav for opponent Nos.2&3 requested to keep this order in abeyance for 60 days, the request stands rejected.
Pronounced Dated 4th April 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER dd