Document Fragment View

Matching Fragments

4. In the suit a permanent injunction has been prayed in respect of the suit parking lots mainly on the following grounds:
(a) As per the agreement for sale signed with every flat purchaser, the plaintiff intended to sell either residential flat/stilt parking space/open parking space in the said building on ownership basis.
(b) Each of the flat purchaser had executed a declaration/undertaking at the time of taking over possession of the respective flats in favour of the plaintiff, inter alia to the effect, that each purchaser unconditionally and irrevocably agreed that stilt parking spaces and open parking spaces shown in the plan belonged exclusively to the plaintiff, that they would have no claim of whatsoever nature to the same and that they will not object to the sale of the same by the plaintiff to any person, that the flat purchaser understands that he/she/they shall not be allowed to park his/her/their vehicle in the suit premises until and unless he/she/they has/have purchased from the plaintiff a stilt parking space or open parking space as shown in the plan and that each flat purchaser undertaken not to park his/her/their vehicle in the said property until and unless the same is purchased from the plaintiff.

Section 16.-The provisions of this Act, except where otherwise provided, shall be in addition to the provisions of the Transfer of Property Act, 1882, and shall take effect notwithstanding anything to the contrary contained in any contract.

Clauses of the model form of agreement, FORM-V Clause 2: The Flat Purchaser hereby agrees to purchase from the Promoter and the Promoter hereby agrees to sell the Flat Purchaser one Flat No. ... of the Type ... of carpet area admeasuring ... sq.metres (which is inclusive of the area of balconies) on Floor as shown in the floor plan thereof hereto annexed and marked Annexure D/shop No. .../ covered/ open Garage No... in the ...Building (herein referred to as "the Flat") for the price of Rs... including Rs. ... being the proportionate price of the common area and facilities appurtenant to the premises, the nature, extent and description of the common/limited common areas and facilities which are more particularly described in the Second Schedule hereunder written... Clause 4 -The Promoter hereby declares that the Floor Space Index available in respect of the said land is ... sq. mtrs. only and that no part of the said floor space index has been utilised by the Promoter elsewhere for any purpose whatsoever. In case the said floor space index has been utilised by the promoter elsewhere, then the Promoter shall furnish to the flat purchaser all the detailed particulars in respect of such utilisation of the said floor space index by him. In case while developing the said land the Promoter has utilised any floor space index of any other land or property by way of floating floor space index, then the particulars of such floor space index shall be disclose by the Promoter to the Flat Purchaser. The residual F.A.R. (F.S.I) in the plot or the layout not consumed will be available to the promoter till the registration of the society. Whereas after registration of the society the residual F.A.R. (F.S.I) shall be available to the society.

14. Section 3(2) of the MOFA states that a promoter, who constructs or intends to construct a building of flats, shall disclose the nature of fixtures, fittings and amenities provided or to be provided, in writing the precise nature of the organisation of persons to be constituted and to which title is to be passed, and the terms and conditions governing such organisation of person, who have taken or are to take flats, when the flats are advertised for sale, disclose in the advertisement the extent of the carpet area of the flat including the area of the balconies which should be shown separately, the nature, extent and description of the common areas and facilities, and the nature, extent and description of limited common areas and facilities, if any. As per Section 4 of MOFA all these particulars which are set out in Section 3 are required to be provided for in the agreement that is to be signed between the builder / promoter and the flat purchasers. As per Section 4(1), the agreement between the promoter and the flat purchasers shall be in the prescribed form. As per Section 11 of the MOFA, a promoter shall take all necessary steps to complete his title and convey to the organisation of persons his right, title and interest in the land and building and execute all relevant documents of title relating to the property which may be in his possession or power. Clause 4 of the Model Agreement states that the residual FSI in the plot or the lay out not consumed will be available to the promoter till the registration of the society and whereas after the registration of the society, it shall be available to the society and not to the builder. The time limit for registration of the society is fixed under Rule 8 of the MOFA Rules, 1964. Clause 13 of the Model Agreement states that unless it is otherwise agreed to by and between the parties, the promoter shall, within four months or registration of the society or Limited Company, cause to be transferred to the Society or Limited Company all the right, title and the interest of the Vendor/Lessor/Origianl owner / Promoter and/or the owners in the aliquot part. Section 16 of the MOFA states that its provisions, except where otherwise provided, shall be in addition to the provisions of the Transfer of Property Act, 1882, and shall take effect notwithstanding anything to the contrary contained in any contract. Thus on the touchstone of these provisions, it is very clear that the rights arising from the agreement signed under the MOFA between the promoter and the flat purchasers cannot be diluted by any contract or an undertaking to the contrary. When the plans are sanctioned by the Corporation, it is obligatory on the part of the promoter to follow the DCR and the agreement signed under the MOFA between the developer and the flat purchaser must be in conformity with the model form of agreement (Form V) prescribed by the State Government. The said model agreement does not contemplate the flat purchasers to separately purchase the enclosed but covered parking spaces i.e. the stilt parking spaces. In the instant case the PW-1 admitted before the trial Court that Clauses 3-B, 3-C and 3-D of the model agreement were deleted while signing the agreement (Exh.A) between the developer and flat purchaser. It cannot be presumed that every flat purchaser was in the know of the clauses of the model agreement and its binding nature. The builders tend to encash on this ignorance and seek all sorts of undertakings which are contrary to the provisions of MOFA, DCR and the model agreement. When such is the requirement of law, any undertaking furnished by the flat purchasers cannot have a binding effect as it would be contrary to the guarantees available to the flat purchasers under the MOFA. There is no estoppel against the statute as is well-known and, therefore, the trial Court rightly held that the individual undertakings furnished by the flat purchasers were contrary to the provisions of MOFA and were illegal. They were also contrary to the DCR. Consequently, such undertakings will not be binding either on the flat purchasers of the Society.

15. In the instant case when the defendant -Society was registered on 8/10/2003 under Clause 13 of the Model Form of Agreement, the promoter was duty bound within four months from the said date, to transfer to the society his rights, title and interests with the buildings along with land appurtenant thereto in favour of the society. This was not done and instead the plaintiff -company retained its hold on the stilt parking spaces which were enclosed by fabricated structure and kept under lock and key. This was totally illegal and void ab initio. As noted earlier, the stilt parking space is a common parking area available and the developer is obliged to provide the same under the DCR when the carpet area of the flat is 350 sq.mtr. It is not an additional premises / area that he is authorised to sell either to any flat purchaser or to any outsider. It is part and parcel of the Society building and it cannot be a separate premises available for sale. As soon as the Corporation issues the occupation certificate and the society is registered, the building as well as the stilt parking spaces, open spaces and all common amenities become the property of the society and four months time is provided, if any other period is not mentioned in the agreement, under clause 13 of the model form of agreement and it is binding on the developer. Hence the stilt parking spaces cannot be put on sale by the developer as he ceases to have any title on the same as soon as the occupation certificate is issued by the Corporation and it will become a property of the society on its registration. Furnishing undertaking by the flat purchasers is an act which is forced upon by the developer and it is commonly known, if the flat purchaser refuses to furnish such an undertaking, he would be informed that the flat is not available for sale. Asking for an undertaking as was sought in the instant case and furnished by the individual flat purchaser is nothing sort of exploitation by the developers and that too by resorting to the methods contrary to the provisions of law. As per Rule 8 of the MOFA Rules, the promoter shall submit an application to the Registrar for registration of the Co-operative Society within four months from the date on which the minimum number of persons required to form such society have taken flats. But this provision is followed in breach invariably by the developers and one hardly comes across an instance where the developer has taken steps as soon as eleven flat purchasers have signed agreements for purchase of the flats. There are instances that even after the occupation certificate is issued by the Corporation and the flat purchasers have occupied the flats, the developers do not take any steps for registration of the Co-operative Society even for years together and thus hold on to their interests in the property (except the unsold flats/shops or garages), which they are not entitled in law.