State Consumer Disputes Redressal Commission
Mrs Varsha Madhusudan Dharap vs Shri Bhalchandra Kashinath Patil on 5 December, 2017
C/13/167
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/13/167
Mrs.Varsha Madhusudan Dharap
Presently residing at C/3,
Amol C.H.S. Ltd.
Neelam Nagar, Mulund (East),
Mumbai - 400 081. ...........Complainant(s)
Versus
1. M/s.Kamalnath Universal Pvt. Ltd.
Through the Director
Shri Bhalchandra Kashinath Patil
C-7/6, M.I.D.C. Pawane
Thane-Belapur Road,
Behind Savita Chemicals,
Navi Mumbai - 400 705.
2. Municipal Corporation of
Greater Mumbai Through
Ld. Commissioner
Municipal Head Office,
Mumbai - 400 001. ............Opponent (s)
BEFORE:
P. B. Joshi PRESIDING JUDICIAL MEMBER
D.R. Shirasao JUDICIAL MEMBER
For the Complainant a/w. Advocate
Complainant: Mr.Ashutosh Marathe.
For the Mr.T. Radhakrishna, Advocate a/w.
Opponent: Mr.Ajay Vitthal Shinde, Advocate for
opponent No.1.
ORDER
Per Shri P.B. Joshi, Hon'ble Presiding Judicial Member Complainant is a member of Purvanchal Co-op. Housing Society Ltd. situated at Navghar Road, Mulund (East), Mumbai-400 081 and bearing CTS No.689 of Village Mulund (East), within the limits of Mumbai Municipal Corporation. Said Society entered into redevelopment agreement with the opponent/builder. The individual agreement was also entered into between opponent and all occupants in the building including Page 1 of 9 C/13/167 complainant. It was agreed that opponent will give Rs.5 Lakhs as corpus fund to each of the members of the society. It was also agreed that in the new building after redevelopment, the opponent will give the flat of the area which was in possession of each member plus 100 sq.ft. As per complainant she is entitled for flat admeasuring 540 sq.ft. It was agreed to give rent to each of the occupants in the old building. It was agreed to hand over possession in the new building in March 2011. It was contended that opponent has not completed the construction and has not handed over possession of the flat, has not paid corpus fund and has paid rent for some period and did not pay for further period. Thus, there is deficiency in service on the part of opponent and hence, consumer complaint is filed claiming possession of flat, rent from December 2012 amounting to Rs.60,000/- and Rs.24,000/- as additional rent per month from March 2012. Complainant prayed for Rs.3 Lakhs as corpus fund as Rs.2 Lakhs were already paid.
2. Opponent No.1/builder resisted the complaint by filing written version which is at page-471to483 of complaint compilation. Opponent has admitted about redevelopment agreement with the society and the individual agreement with all the member of the society including complainant. Opponent also admitted that it was agreed to give flat to the complainant having carpet area of 539.38 sq.ft. however, denied that it was agreed to give usable area of 169.96 sq.ft. Opponent has admitted about rent to be paid. Opponent has contended that it is necessary to change the plan and for that consent of society is necessary and society is not giving consent with ulterior motive so that opponent should not use the balance F.S.I. It was contended that balance F.S.I. is right of opponent to use it in manner the opponent wants and the complainant cannot tell the manner in which the opponent should use it or ask for it. Opponent has contended that area of Dry Balcony behind Kitchen as per amended plan is to be used Page 2 of 9 C/13/167 as carpet area. It was contended that opponent is bound to give the flat area as agreed in the agreement but the manner in which it has to be given cannot be directed by the complainant. Opponent has contended that initially it was agreed to give corpus fund of Rs.5 Lakhs to each of the members of the Society. However, it was subsequently agreed by the Society to waive corpus fund completely. However, opponent is ready to give Rs.2 Lakhs as corpus fund. It was contended by the opponent that building completion certificate cannot be obtained because of want of NOC from the Society. Opponent has contended that there is no deficiency on the part of opponent and prayed for dismissal of the complaint.
3. Considering the rival contentions of the parties, considering the record and keeping in view the scope of the complaint, following points arise for our determination and our findings thereon are noted for the reasons as below :-
Sr.No. Points Finding
1. Whether this Commission has Yes
jurisdiction to entertain the complaint?
2. Whether there is deficiency in service on Yes
the part of opponent/builder?
Whether the complainant is entitled for
3. possession of the flat having area of 540 Yes
sq.ft. as agreed in the agreement?
Whether complainant is entitled for
4. Rs.60,000/- as rent from December As per final order.
2012?
Whether the complainant is entitled for
5. Rs.24,000/- per month as additional rent As per final order.
from March 2012?
6. Whether complainant is entitled for Rs.3
Yes
Lakhs as corpus fund?
Whether complainant is entitled for
7. Rs.1,81,972/- on account of not No
constructing service slab behind
Page 3 of 9
C/13/167
bathroom?
Whether complainant is entitled for
8. interest amount of Rs.22,80,960/- from As per final order.
March 2011?
Whether complainant is entitled for
9. completion certificate and other statutory Yes certificates?
Whether complainant is entitled for Rs.1
10. Lakh on account of legal charges and Yes other incidental expenses?
11. Complaint is partly What order?
allowed.
REASONS :-
4. Point No.1 (Jurisdiction) :- Learned Advocate for the opponent has contended that in view of Real Estate (Regulation & Development) Act, 2016 (in short 'RERA'), this Commission has no jurisdiction to entertain the complaint. He has referred to Section 79 of RERA. However, after going through said section, we find that, that bar of jurisdiction is in respect of civil court. This is not a civil court. This is a Consumer Commission. Consumer complaint was filed before this Commission under the Consumer Protection Act, 1986 and it is at the final stage of pronouncement of judgment. Thus, we find that there is no substance in the argument of the opponent that this Commission has no jurisdiction.
Thus, it is clear that this Commission has jurisdiction. Hence, we answer Point No.1 in affirmative.
5. Point No.2 (Deficiency) :- It is admitted position that the property of the society was taken for redevelopment by the opponent and complainant is one of the member in the society. It is also admitted position that as per the agreement, construction was not completed and possession was no given. Rent was agreed to be given after vacating old premises by the old occupants including complainant till new flat in new building is handed Page 4 of 9 C/13/167 over. Rent is paid only till June 2015. It is not disputed by opponent. Corpus Fund was to be given by the opponent to the complainant. Part of it was paid. Thus, we find that there is deficiency on the part of opponent. Hence, we answer Point No.2 in affirmative.
6. Point No.3 (Possession) :- It is admitted position that the agreements were executed between opponent and society as also opponent and individual flat owners including complainant. It is admitted that as per agreement opponent agreed to give flat in the new building of the area of old flat plus 100 sq.ft. Thus, as per agreement between the complainant and opponent, complainant is entitled for 540 sq.ft. flat. Opponent is not disputing about it. However, opponent has contended that how it is to be given cannot be dictated by the complainant and the opponent will decide how that area can be given. Learned Advocate for the complainant has submitted that when the agreement was executed between the parties, there is no concept of fungible F.S.I. In 2012 by amending DC Rules, concept of fungible F.S.I. was introduced. Now, opponent is trying to take disadvantage of that and contending that he will give area by considering concept of fungible F.S.I. Learned Advocate for the complainant has submitted that opponent is trying to give area which is not included in the F.S.I. i.e. Dry Balcony and other part by including it in the F.S.I. under the concept of fungible F.S.I. It means opponent will convert that area in the F.S.I. which is not included in F.S.I. but it is to be given to the complainant. Complainant is not ready for that as that part is also to be given to the complainant and excluding that the carpet area of 540 sq.ft. is to be given. Construction is already done. However, area is less. Learned Advocate for the complainant has submitted that F.S.I. is available with the opponent and area of the flat of the complainant can be increased by using F.S.I. available with the opponent by doing some additional construction adjacent to the flat and that is possible as per the Architect Page 5 of 9 C/13/167 and even as per the Corporation as the Corporation is also made a party to the proceeding for that purpose. The dispute is only about whether area agreed is to be given by taking benefit of fungible area or without fungible area. In view of above discussion, we find that the opponent cannot take benefit of fungible area and he has to give area as agreed without using concept of fungible area. It is material to note that the opponent at the time of arguments submitted written submissions under the signature of opponent-Shri Bhalchandra Kashinath Patil and it is also signed by Advocate of the opponent. In that opponent has admitted that he is willing to give area alleged to be less by utilising available F.S.I. Thus, it is clear that the opponent is now ready to give area of flat as agreed without taking benefit of fungible F.S.I. The less area is to be added to the flat out of unutilised and available F.S.I. with the opponent. Hence, we answer Point No.3 in affirmative.
7. Point Nos.4&5 (Rent) :- Complainant has claimed in the complaint rent of Rs.60,000/-. After considering submissions of both parties, it is clear that rent upto June 2015 is given as Advocate for the complainant has conceded the position at the time of arguments. Thus, complainant is entitled for rent since July 2015 till handing over of the possession.
8. As per agreement, rent of Rs.12,000/- per month is the agreed rent to be paid to the complainant by the opponent. As referred above, rent is paid at that rate till June 2015. Complainant is claiming rent for further period with additional rent of Rs.2,000/- for twelve months and again additional rent of Rs.2,000/- for further twelve months and so on. However, there is no agreement to that effect. Even Advocate for the complainant has conceded for said position. Thus, we find that complainant is entitled for monthly rent of Rs.12,000/- per month since July 2015 till handing over of possession. Hence, we answer Point Page 6 of 9 C/13/167 Nos.4&5 accordingly.
9. Point No.6 (Corpus Fund) :- It is clear from the agreement that opponent has agreed to give Rs.5 Lakhs as Corpus Fund to each of the members of the society. Out of that Rs.2 Lakhs were given by the opponent as complainant admitted to that effect. Complainant is claiming remaining Rs.3 Lakhs of Corpus Fund. Opponent has not disputed about agreed Corpus Fund of Rs.5 Lakhs and that Rs.2 Lakhs were paid. However, it was contended that opponent requested the society to waive Corpus Fund as opponent is in financial difficulties and it was accordingly waived by the society. However, we find that there is nothing on record to support said contention. Complainant is disputing about said contention. Thus, in absence of any document to support contention of opponent and in absence of any evidence to accept the said contention, it is very clear that opponent is liable to pay Rs.3 Lakhs as Corpus Fund to the complainant. Hence, we answer Point No.6 in affirmative.
10. Point No.7 (Service Slab) :- Complainant is claiming service slab behind bathroom. However, we find that there is nothing about it in the agreement. Even Advocate for the complainant has conceded said position. Hence, complainant is not entitled for the same. Hence, we answer Point No.7 in negative.
11. Point No.8 (Interest) :- Complainant is claiming amount of Rs.22,80,960/- on account of interest from March 2011 till possession is handed over. We find that as per agreement, complainant is entitled for rent from the date of vacating old premises till she gets new premises and hence, there is no question of interest on the value of the flat as contended by the complainant. However, we find that as rent is not paid since July 2015 which opponent should have given every month, complainant is Page 7 of 9 C/13/167 entitled for some amount on account of failure to pay rent every month. Complainant is also entitled for Rs.3 Lakhs as Corpus Fund. So, we find that if opponent failed to pay said Corpus Fund and up-to-date rent within two months from the date of this order, complainant is entitled for interest on that entire amount @ 12% p.a. from the date of this order till realisation and continuing to pay interest even on future rent amount, if not paid on or before 10th of every month. Hence, we answer Point No.8 accordingly.
12. Point No.9 (Statutory Certificates) :- It is the statutory duty of the opponent to obtain completion certificate and all statutory certificates in respect of property and hand over to the complainant. Hence, complainant is entitled for all those documents/certificates. Hence, we answer Point No.9 in affirmative.
13. Point No. 10 (Legal Charges) :- Complainant has claimed Rs.1 Lakh on account of legal charges and other incidental expenses. We find that it will be just and proper to grant Rs.1 Lakh to the complainant on account of legal and other incidental expenses to the complainant. Hence, we answer Point No.10 accordingly.
14. Point No.11 :- In view of answer of Point Nos.1to10, complaint deserves to be allowed partly. Hence, we pass the following order :-
-: ORDER :-
1. Consumer complaint is partly allowed.
2. Opponent/builder is directed to hand over possession of flat admeasuring 540 sq.ft. carpet area in new building as per agreement to the complainant without using fungible F.S.I. within two months from the date of this order.
3. Opponent/builder is directed to pay to the complainant rent of Rs.12,000/- per month since July 2015 within two months from the Page 8 of 9 C/13/167 date of this order and continue to pay Rs.12,000/- per month till handing over of possession, failing which the entire amount shall carry interest @ 12% p.a. from the date of this order till realisation and continuing to pay interest even on future rent amount, if not paid on or before 10th of each month.
4. Opponent/builder is directed to pay to the complainant Corpus Fund of Rs.3 Lakhs within two months from the date of this order, failing which the amount shall carry interest @ 12% p.a. from the date of this order till realisation.
5. Opponent/builder is directed to obtain completion certificate and other statutory certificates and handed over to the complainant within two months from the date of this order, in default opponent/builder should pay Rs.500/- per day from the date of this order till compliance.
6. Opponent/builder is also directed to pay to the complainant Rs.1,00,000/- (Rupees One Lakh only) on account of legal and other incidental expenses.
7. Copies of the order be furnished to the parties.
Pronounced Dated 5th December 2017.
[ P. B. Joshi ] PRESIDING JUDICIAL MEMBER [ D. R. Shirasao] JUDICIAL MEMBER dd.
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