State Consumer Disputes Redressal Commission
Mrs Gauri Mahadev Bhave vs M/S Bhavya Infrastructures (I) Pvt Ltd on 10 August, 2017
RBT/CC/16/1174 IN CC/15/301 1/11
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint No.RBT/CC/16/1174 IN CC/15/301
Mrs.Gauri Mahadev Bhave,
R/at Flat 3, 1st Floor,
Renu C.H.S. Ltd.,
32, Shraddhanand Road,
Vile-Parle (E), Mumbai 400 057. .......Complainant(s)
Versus
1. M/s. Bhavya Infrastructures (I) Pvt. Ltd.
Having office at Bhavya Plaza Bldg.,
Road No.5, 6th Floor, Khar (E),
Mumbai 400 052.
2. Mr.Dinesh Rita Director of
M/s. Bhavya Infrastructures (I) Pvt. Ltd.,
Bhavya Plaza Bldg., Road No.5,
6th Floor, Room No.603, Khar (E),
Mumbai 400 052.
3. Renu C.H.S. Ltd.,
32, Shraddhanand Road,
Vile Parle (E), Mumbai 400 057,
Through its Secretary.
4. Mr.Dharmesh Jesani,
Flat No.301, Prabhu Aashish CHS,
Ram Mandir Road, Vile Parle (E),
Mumbai 400 057.
5. Mr.Chandravadan Anandji Parekh,
Flat No.9, 5th Floor Renu C.H.S. Ltd.,
32, Shraddhanand Road, Vile Parle (E),
Mumbai 400 057.
6. Mr.Vijay Shah,
Flat No.5, 3rd Floor, Renu C.H.S. Ltd.,
32, Shraddhanand Road, Vile Parle (E),
Mumbai 400 057. .......Opponent(s)
RBT/CC/16/1174 IN CC/15/301 2/11
7. Mr.Pushpvadan Shah,
Flat No.04, Third Floor ,
Renu C.H.S. Ltd.,
32, Shraddhanand Road, Vile Parle (E),
Mumbai 400 057.
BEFORE:
Hon'ble Mr.P.B. Joshi - Presiding Judicial Member
Hon'ble Mr.D.R. Shirasao - Judicial Member.
ORDER
Per Hon'ble Mr.D.R. Shirasao - Judicial Member:
(1) Complainant has filed this complaint for getting market value of deficit area given to her by the opponents along with interest on that amount. Complainants submitted that she is member of opponent No.3 - Renu Co-operative Housing Society Ltd. The building of the society had become old and was in dilapidated condition. Hence, all the members of the society decided to redevelop the building. In that respect resolution was taken in Annual General Meeting. As per resolution three tenders were invited by opponent no.3 for redevelopment of the building. Opponent no.3 had approved the tender of opponent no.1 for redevelopment of the building. In that respect Special General Body Meeting was taken on 28/10/2008 by the society. Thereafter, development agreement was executed on 15/05/2008 in between opponent no.3 through opponent nos.4, 5 and 6 who are the Chairman, Secretary and Treasurer of the opponent no.3 with the opponent no.1 through opponent no.2. At that time individual tri-parte agreement was also executed in between the complainant, opponent no.1 and opponent no.3. Complainant submitted that as per clause 2 of development agreement complainant was entitled to get 30% additional carpet area in the RBT/CC/16/1174 IN CC/15/301 3/11 newly constructed building. She submitted that the same fact is also mentioned in her individual tri-parte agreement. Complainant submitted that she had also purchased additional carpet area of 56 sq. meters from opponent no.1 and this fact is also mentioned in her agreement. Complainant submitted that the area of the original flat which was in her possession was 640.17 sq.ft. She was also entitled to get additional carpet area of 197.83 sq.ft. She had purchased 56 sq.ft. carpet area. Thus, she was entitled to get total carpet area of 894 sq.ft. She submitted that this fact is mentioned in her individual agreement. She submitted that by that agreement it was disclosed that flat no.3 situated on first floor of new building will be allotted to complainant. She submitted that after construction of new building when she had taken possession of her flat she had seen that carpet area of flat provided to her is 686 sq.ft. only. Hence, to remove the doubt she got measured of her flat through SIMCON Designers. Accordingly, they issued certificate that the area of the flat allotted to complainant is only 686 sq.ft. She submitted that, accordingly she issued notice to opponent no.2 for giving less area of flat and to pay the price of less area given to her. Opponent no.2 replied her notice on 03/02/2015. Thereafter, complainant had again issued a notice to opponent no.3 on 07/02/2015. She had also given report in that respect in police station and to Commissioner of Police. She had also made complaint to Deputy Engineer of B.M.C., Executive Engineer and Municipal Commissioner of B.M.C. She had also given report to Deputy Legal Metrology Department. She submitted that in her presence Legal Metrology Department had prepared panchanama of her flat and measured the same and found that the area of the flat is only 62.77 sq. meters. Complainant submitted that at the time of executing Development Agreement there was no concept of fungible area. Complainant submitted that as per new RBT/CC/16/1174 IN CC/15/301 4/11 D.C. Rules, complainant is also entitled to get additional 35% of carpet area. Hence, complainant submitted that she is entitled to get total carpet area of 1118.05 sq.ft. from the opponents. Complainant submitted that the market value of the residential flats in that area is not below Rs.35,000/- per sq.ft. Complainant submitted that, hence, she is entitled to get market value of less carpet area given to her which comes to 1.51 crore. She submitted that, however, she is restricting her claim to Rs.99 lacs for the purpose of jurisdiction of this Commission. Accordingly, the complainant has demanded market value of deficit carpet area given to her by opponents and restricted her claim to Rs.99 lacs.
(2) It appears that, as initially the complainant had demanded total market value of deficit carpet area given to her of Rs.1.51 crore, this Commission by passing order on 08/08/2016 returned back the complaint of complainant for presenting the same in the appropriate Forum as this Commission has no jurisdiction to entertain the same. It appears that against that order the complainant had preferred First Appeal No.1242 of 2016 before the Hon'ble National Commission and submitted that complainant has already restricted her claim to Rs.99 lacs. It appears that, hence, Hon'ble National Commission permitted complainant to amend prayer clause of the complaint and set aside the order passed by this Commission directing this Commission to decide the same on merit. Hence, complaint of complainant is registered in this Commission.
(3) Opponent no.1 contested the complaint by filing their written version on record. They denied rival contentions made by the complainant against them. They submitted that the complainant is not a consumer as per provisions of the Consumer Protection Act, 1986. They submitted that the details of the agreement will be RBT/CC/16/1174 IN CC/15/301 5/11 required to be considered in the case and same is not permissible under the summary jurisdiction of this Commission. Hence, they submitted that for that purpose complainant has to approach before the Civil Court. They also submitted that, although the agreement of redevelopment of building had taken place in the year 2009, the complainant has filed this complaint in the year 2015 and the same is not within limitation. They specifically denied that the complainant is entitled to get total carpet area of 894 sq.ft. They specifically denied that, as per new development Rules complainant is entitled to get additional 35% carpet area. They specifically denied that as per current market value of the flat complainant is entitled to get amount of Rs.1.51 lacs. Hence, they submitted that the claim of the complainant is not tenable and the same be dismissed.
(4) Except opponent no.1 no other opponents have filed their written version on record.
(5) In view of 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 given below:-
Sr.No. Points Finding
(i) Whether complainant is a : Yes
'consumer'?
(ii) Whether opponents have given : Yes.
deficiency in service to the
complainant?
(iii) Whether complainant is entitled to : Yes. As per final get amount from the opponents? order.
(iv) What order? : As per final order.
RBT/CC/16/1174 IN CC/15/301 6/11
REASONS:
(6) Heard Ld.Advocate Mr.K.H. Holambe-Patil for the complainant.
He submitted that the complainant owned a flat in old building and the same was having carpet area of 640.17 sq.ft. The said building was given for redevelopment to opponent nos.1 and 2. In that respect development agreement was executed in between the society and the builder. At that time tri-parte agreement was also executed in between the complainant, builder and society. He submitted that, as per that agreement complainant was entitled to get new flat in the redeveloped building. As per that agreement complainant was entitled to get 30% more carpet area in new building. He submitted that the complainant had purchased 56 sq.ft. of carpet area from opponent no.3. Hence, she was entitled to get total carpet area of 894 sq.ft. Complainant got flat in new building. However, it was of 686 sq.fts. only. She got the same measured from SIMCON Designers and he confirmed the same. He submitted that, hence, complainant is entitled to get market price in respect of less carpet area given to her. He submitted that at the time of redevelopment the builder has made further construction beyond the development agreement and as per new D.C. Rules complainant is entitled to get additional carpet area of 35%. Hence, he submitted that as the complainant has received 432.05 sq.ft. of less carpet area, she is entitled to get market value of the said area from the opponents. He submitted that the market value of the flats in that area is Rs.35,000/- per sq.ft. Hence, he submitted that the complainant is entitled to get the amount of Rs.1.51 Crore from the opponents. However, she is restricting his claim to Rs.99 lacs. He submitted that, in respect of the claim complainant has filed relevant RBT/CC/16/1174 IN CC/15/301 7/11 documents on record. Hence, he submitted that the complaint filed by the complainant be allowed.
(7) Heard Ld.Advocate Mr.A.M. Sayed for the opponent nos.3 to 6. He submitted that the complainant is not entitled to get additional FSI as per new D.C. Rules. He submitted that, if complainant is entitled to get that area then all the members of the society will also be entitled to get that much area.
(8) Heard Opponent no.7 Mr.P.J. Shah. He submitted that, at the time of redevelopment of building in respect of additional construction made by the builder no objection was taken by the society although this fact was brought to the notice of the society. Hence, he submitted that complainant and society is not entitled to get additional carpet area as per new D.C. Rules.
(9) Ld.Advocate appearing for the opponent nos.1 and 2 remained absent and had not advanced arguments in the case.
Point No.(i):
(10) Perused record of the case and documents filed on record. On perusal of the same it has become clear that the complainant was member of Renu Co-operative Housing Society Ltd. - Opponent no.3 and the carpet area of the flat was 640.17 sq.ft. This building was given for redevelopment to opponent nos.1 and 2 by the Society. In that respect development agreement was executed in between the building and the society. At that time a tri-parte agreement was also executed in between the builder, society and the complainant. As per this agreement, complainant was entitled to get a flat no.3 on First Floor of redeveloped building of carpet area of 894 sq.ft. It is the contention of the complainant that, however, flat RBT/CC/16/1174 IN CC/15/301 8/11 which was given to her is admeasuring only 686 sq.ft. Hence, she has claimed market value in respect of less carpet area of flat given to her. She has also claimed market value in respect of additional F.S.I. for which she is entitled from the opponents as in that respect tri-parte agreement was executed between the complainant, builder and the society. Hence, we are of the opinion that the complainant is a 'Consumer' of opponents and she is entitled to file this consumer complainant against them. Hence, we answer point no.(i) in affirmative.
Point No.(ii):
(11) It is the contention of the complainant that in old building she owned a flat having carper area of 640.17 sqft. As this building was given for redevelopment as per development agreement she was entitled to get 30% more carpet area of flat in new building. It is the contention of the complainant that she had also purchased 56 sq.ft.
carpet area from opponent no.3. Hence, she was entitled to get flat in the new building admeasuring 894 sq.ft. It is the contention of the complainant that this fact is mentioned in the tri-parte agreement which was executed in between the complainant, builder and the society. She has filed that agreement on record. It is the contention of the complainant that the flat which was given to her is admeasuring 686 sq.ft. only. She got it measured from SIMCON Designers who had confirmed this fact. It is not the case of the opponents that the area of the flat given to complainant in new building is as per agreement. Hence, it has become clear that the complainant has received less area of flat in new building. We are of the opinion that the complainant is entitled to get market value of the area of flat which was not given to her. As the opponents have RBT/CC/16/1174 IN CC/15/301 9/11 not given that price to complainant we are of the opinion that opponents have given deficiency in service to the complainant. Hence, we answer point no.(ii) in affirmative.
Point No.(iii):
(12) From tri-parte agreement filed on record complainant was entitled to get the flat having carpet area of 894 sq.ft. It is the contention of the complainant that the flat which is given to her in the new building is having area of 686 sq.ft. She got it confirmed from SIMCON Designers. Hence, it is her contention that she has received less carpet area of 208 sq.ft. in the flat. The opponents have not adduced evidence on record to rebut this fact. Hence, we are of the opinion that the complainant is entitled to get market price of this much area from the opponents.
(13) It is the contention of the complainant that at the time of development of the building the builder has created extra F.S.I. and hence, complainant as per new D.C. Rules is entitled to get 35% of more carpet area. The Ld.Advocate appearing for the complainant for that purpose relied on D.C. Rules. However, there is no evidence on record that the Municipal Corporation has sanctioned this extra F.S.I. to the builder. We are of the opinion that unless Corporation confirms this extra F.S.I. to the builder, complainant will not be entitled to get this extra F.S.I. from the builder. Hence, we are of the opinion that the contention of the complainant cannot be accepted that she is entitled to get 35% more carpet area.
(14) Hence, it has become clear that the complainant is entitled to get market price of 208 sq.ft. only. In respect of market price complainant has filed sale instances on record. As per these sale RBT/CC/16/1174 IN CC/15/301 10/11 instances flats are purchased for different values. The Ld.Advocate appearing for the complainant has considered the market value as per the actual price paid while purchasing these flats. However, we are of the opinion that market value cannot be ascertained on the basis of actual amount paid while purchasing the flats. However, the same can be ascertained only on the basis of the ready reckoner of that area. As per all these sale instances it has become clear that at that time the prevailing ready reckoner rate was of Rs.1,58,900/-
per sq. mtr. We are of the opinion that, if market value is considered of Rs.1,60,000/- per sq.mtr., the complainant is entitled to get amount of Rs.32,00,000/- only for 20 sq. mtr. area. We are of the opinion that as opponents had not given flat to complainant as per tri-parte agreement executed between the complainant, society and builder, all opponents are responsible for giving this amount to the complainant. Hence, we are of the opinion that the complainant is entitled to get this amount from all the opponents jointly and severally. Hence, we answer point no.(iii) accordingly and proceed to pass the following order:
ORDER
(i) Complaint is partly allowed.
(ii) It is hereby declared that opponent nos.1 to 7 have jointly and severally given deficient service to complainant by giving less area of 20 sq. mtrs. of flat in redeveloped building.
(iii) The opponent nos. 1 to 7 are jointly and severally directed to pay amount of Rs.32,00,000/- to the complainant in respect of that area according to market value of the same. Opponents to give this amount to complainant within one month from passing of this order RBT/CC/16/1174 IN CC/15/301 11/11 otherwise opponents will have to pay interest on this amount at the rate of 7% per annum from the date of order till realization of amount by complainant.
(iv) Considering circumstances of the case parties to bear their own costs.
Pronounced on 10th August, 2017.
[P.B.Joshi] Presiding Judicial Member [D.R. Shirasao] Judicial Member ep