MADHUGITA MADHUKAR SUKHATME Vs. YOGESH AND YOGESH JOSHI

JUDGEMENT

(1.) Heard Mr. Uday B. Wavikar, Advocate, for the complainant and Mr. Anirudha Valsangkar, Advocate, for the opposite parties.

(2.) Mrs. Madhugita Madhukar Sukhatme has filed above complaint for directing the opposite parties to (i) provide office space for the condominium, watchman cabin, Fire refuge area on 8th floor, replace one lift with Stretcher lift; (ii) handover 9 remaining parking space i.e. 7 stilt parking and 2 open parking, within stipulated period; (iii) obtain 'completion certificate' of the building 'Manas Apartment Condominium', within stipulated period, failing which pay penalty of Rs.5000.00 per day; (iv) handover certified copy all the documents relating to construction of 'Manas Apartment Condominium' and other facilities and amenities; (v) pay Rs.1250000.00as delay compensation, from 2/12/2014 to 13/1/2017 with interest @18% per annum, from 13/1/2017 till the date of payment; (vi) pay Rs.20000000.00 with interest @ 18% per annum, from 15/12/2012 till the date of payment, as compensation for utilization of additional FSI, granted by PMC in lieu of the area given for road widening of approx.1400 sq.ft. equal to 2100 sq.ft. saleable area; (vii) pay Rs.12050000.00 with interest @18% per annum from 13/1/2017 till the date of payment, as compensation, for short fall of the carpet area; (viii) pay Rs.50000000.00, as compensation for loss of income of four additional flats on 1st, 2nd 5th and 6th floors not build and burden of heavy taxes on large size flat, metal agony and harassment; (ix) pay Rs.5000000.00 as litigation costs; and (x) any other relief which is deemed fit and proper in the facts and circumstance of the case.

(3.) The complainant stated that M/s. Yogesh and Yogesh Developers (opposite party-1) was a partnership firm, registered under Partnership Act, 1932 and Yogesh Shriram Joshi and Yogesh Balkrishna Pate (opposite parties-2 and 3) were its partners. The opposite parties (the developer) were doing business of development and construction of group housing project. The complainant was owner of an old building situated on Plot No.479/3, CTS No.1105/3 area 1096.69 sq. Mtrs., Mouje Bhamburda, Pune. The complainant decided to demolish and reconstruct above building. The complainant discussed for the plan of redevelopment with opposite party-2 in June, 2011. Opposite party-2 gave a redevelopment plan. The complainant discussed with other developers also in this respect. In April, 2012, opposite party-2 again came to the complainant with a revised plan. After discussion, the complainant approved the revised plan with some changes. The complainant entered into Development Agreement dtd. 3/12/2012 with the developer and also executed Power of Attorney in its favour on 3/12/2012. The complainant gave vacant possession of the old premises to the developer in mid of December, 2012 and shifted to the rented accommodation. The developer applied for sanction of the building plan of new building to Pune Municipal Corporation and in February, 2013 informed that some area had to vacate in southern side for road widening and a revised layout plan had to be submitted. The developer emailed a revised layout plan to the complainant, which was allegedly approved in October, 2013. After obtaining NOC from other departments for construction of the new building, 'bhoomi pujan' was done on 16/11/2013. The complainant consistently orally and through an email dtd. 9/3/2014 demanded for approved layout plan, but the developer did not supply. The developer did not have any communication with the complainant for 12 months. In April, 2015, the developer informed the complainant that they had customers lined up for 7th, 8th, and 9th floors and asked her to give up her right over these floor as contained in the Development Agreement but the complainant did not agree. Till April, 2016, the work upto 6th floor was completed and after RCC work of 7th, 8th and 9th floors, the construction was stopped and the developer started creating pressure upon the complainant to take 5th and 6th floors in lieu 8th and 9th floors. Clause-11 of Development Agreement provides 24 months from the date of delivery of vacant possession for completing the construction and delivery of possession over new building subject to extension of maximum period of six months and thereafter, the developer was liable to pay penalty of Rs.50,000.00 per month. This period expired in June, 2015. The complainant vide email dtd. 7/10/2015, demanded penalty. The developer through email dtd. 8/10/2015 wrote as 'will revert back in a day or two'. Shrivardhan Sukhatme, son of the complainant, through email dtd. 25/11/2015, asked for clarification on 5 points, namely (i) details of area lost in road widening; (ii) reason for revision of layout plan without consent of the owner; (iii) furnish photo copy of minutes of meeting, held in March/April, 2014; (iv) no confirmation regarding the 10th floor was taken; and (v) delay in completing the construction, but the developer did not respond. Shrivardhan Sukhatme, vide email dtd. 2/8/2016, requested to confirm on which floors, the developer was going to handover possession of the flats to the complainant and also informed that amount payable to the owner would be about Rs.15.00 crores. The developer through email dtd. 17/8/2016, denied liability of any amount, stating that vacant possession of old building was handed over to them in November, 2013; Layout plan was revised with the consent of the owner; It was mutually agreed to take one flat on every floor; possession of Flat nos.1 and 2 were given in May, 2016 and Flat Nos.5, 6 and 7 was given in June, 2016 and on the basis of TDR, 10th floor was sanctioned and no compensation was payable. Shrivardhan Sukhatme, vide email dtd. 26/8/2016, asked to clarify the area lost in road widening; as per new rules applicable from January, 2016, additional TDR of 2300 sq.ft. was available; how FSI of 10th floor was utilised and about the benefits of changes in layout plan as per Development Agreement. The developer vide email dtd. 21/8/2016, instead of giving point-wise reply merely reiterated its earlier reply. The complainant, vide email dtd. 23/9/2016, informed that possession as handed over on the Flat Nos.1, 2, 5, 6 and 7 was without any amenities and only for fit-out and it cannot be considered as delivery of possession. 'Occupation Certificate' was obtained on 13/1/2017, prior to it, there could not be a legal possession and the complainant is entitled for rent till then. The developer, vide email dtd. 28/9/2016, reiterated its previous stand that possession was handed over. The approved layout plan as attached with Development Agreement dtd. 3/12/2012 was revised on 3/11/2015 and again on 12/8/2016, in which material changes were made without any consent of the owner. For revision of layout plan on 12/8/2016, signature of the owner has not been obtained although Power of Attorney was effective for the period from 3/12/2012 to 2/12/2015 and it was never extended. The developer gave two cheques towards rent of September and October, 2016, which were dishonoured. The complainant engaged Mr. Shrikant Hadke, an architect for measurement of the site and the flats, who inspected the spot and measured the area. He submitted his report dtd. 11/2/2017, showing shortfall in area of 926.63 sq.ft. in the agreed built up area 11800 sq.ft., for which, the complainant was entitled for compensation. 1400 sq.ft. land was taken for road widening and in lieu of it additional FSI equal to 2100 sq.ft. saleable area was granted. As per ready reckoner, its value is Rs.2.00 crores. By changing layout plan, the developer deprived the complainant from additional flats on each 1st, 2nd, 5th and 6th floors and gave single flat on five floors, which was burdensome to the complainant as it is difficult to let out and municipal taxes will be more. It will cause loss of Rs.20,00,000.00 per year. If life of the building is considered 25 years, then the complainant is entitled for Rs.5.00 crores as compensation in this head. By stopping construction of 8th and 9th floor the developer exercised undue pressure upon the complainant for taking possession over 5th and 6th floor. As per Development Agreement, the complainant was entitled for one parking place in the stilt + one open parking for each flat. The complainant is entitled to seven stilt parking + seven open parking but the developer has allotted only 5 parking. Under Regulation 36 of Development Control Regulations, the complainant is entitled 7 car parking spaces. Due date of possession was 2/12/2014 while 'occupation certificate' was issued on 13/1/2017, therefore, the complainant was entitled for rent and penalty during this period. By unilaterally changing the layout plan, not responding to various queries and delaying possession, the developer has given mental torture to the complainant. Then this complaint has been filed on 28/5/2018, claiming deficiency in service.