AJIT SINGH Vs. EVERSHINE BUILDERS PVT. LTD.

JUDGEMENT

(1.) Heard Mr. Kapil Mitra, Advocate, for the complainant, Mr. Vinod Gautam, Advocate, for opposite party-1 and Ms. Vandana Sehgal, Advocate, for opposite party-2.

(2.) Ajit Singh has filed above complaint for directing the opposite parties to (i) handover possession of the apartment allotted to him complete in all respect, as per specifications; (ii) pay delay compensation in the form of interest @12% per annum on his deposit from 7/1/2009 till the date of offer of possession; (iii) disclose internal area of the apartment and area of common amenities and facilities etc. (iv) refund the amount realized from him for the excess area with interest @12% per annum from the date of deposit till the date of refund; (v) refund the amount realized for car parking space with interest @12% per annum from the date of deposit till the date of refund and provide adequate car parking space free of cost; (vi) refund the amount of premium paid for an apartment on 24th floor with interest @12% per annum from the date of deposit till the date of refund; (vii) to refund total amount of service tax realized from him with interest @6% per annum from the date of deposit till the date of refund; (viii) pay Rs.500000.00 as compensation for unilaterally changing his allotment; (ix) pay Rs.100000.00 per year for delayed period, for disruption of living arrangement, mental agony and harassment; (x) pay Rs.300000.00 as litigation costs; and (xi) any other relief which is deemed fit and proper in the facts and circumstance of the case.

(3.) The complainant stated that M/s Evershine Builders Pvt. Ltd. (opposite party-1) was a company, registered under the Companies Act, 1956 and M/s Monarch and Qureshi Builders (opposite party-2) was a partnership firm, registered under Indian Partnership Act, 1932. They were engaged in the business of development and construction of group housing project. The opposite parties launched a group housing project in the name of 'Evershine Cosmic', at CTS Nos.567, 567/1 to 144, 574, 574/1 to 86, 575, 575/1 to 52, 576, 577 and 578 (area 23213.60 sq.mtrs.), Village Oshiwara, Andheri (West), Taluka Andheri, Mumbai, in the year 2005 and made wide publicity of its facilities and amenities. The complainant, who was residing in a rented accommodation, booked Flat No.2403, 24th Floor, Tower Wing-C, price 10907190/- in above project and deposited booking amount of Rs.500000.00 on 7/1/2006. As per demand of opposite party-1, the complainant deposited Rs.4962930.00 till May, 2010. The opposite parties, vide letter dtd. 16/6/2010, informed that due to differences between them, now the construction would be upto 17th floors in wings A, B and C as such Flat No.2403, 24th Floor allotted to the complainant would be adjusted towards available flat below 17th floor. The complainant, vide letter dtd. 16/6/2010, opted for allotment of Flat No.1603, on 16th floor, Wing-A and transfer his money for that flat, which was allotted by the opposite parties by another letter dtd. 16/6/2010, which also contained 'construction link payment plan'. The opposite parties executed an Agreement for Sale dtd. 13/11/2010, in favour of the complainant. Opposite party-1, vide letter dtd. 29/11/2010, demanded Rs.1517463.00, informing that due to differences between them, Civil Suit No.1335 of 2010 was filed in the High Court, which was decided in terms of settlement. Thereafter, they are proceeding with construction with rapid speed. Clause-17 of the agreement provides that letter for possession would be delivered on or before 31/12/2013, subject to receiving permission from statutory authority. As per demand, the complainant deposited instalments regularly on time. The complainant deposited total Rs.10507865.00 till May, 2012 and only 5% of the consideration, which was payable at the time of offer of possession, remained to be paid. On 28/2/2014, opposite party-1 informed that the flat is ready for possession and called upon the complainant to make some adhoc payments of Rs.1443623.00 but admitted that 'occupation certificate' was not issued. On inspection, the complainant found that Wing-A was far away from completion. Neither construction was completed nor 'occupation certificate' was obtained and possession was handed over but the opposite parties sent bills relating to Property Tax, Maintenance charges, Repair fund, Sinking Fund etc. on 1/5/2016, which was protested by the complainant through email dtd. 9/5/2016. The complainant, through email dtd. 11/5/2016, actual date for delivery of possession but the opposite party did not respond. The flat was initially allotted on 7/1/2006 and the opposite parties were regularly realizing instalments since then. Sec. 3(2)(f) of Maharashtra Ownership of Flats(Regulation of the Promotion, Construction, Sale, Management and Transfer) Act, 1963 (for short the MOFA), provides that if period of handing over is not specified, then three years period from the date of allotment would be maximum period for handing over possession. Sec. 4 of the MOFA requires for execution of registered agreement if 20% or more of the consideration is collected. The Collector Mumbai, Suburban District, in his order dtd. 27/3/2006, while granting permission to change the land use, also given three years period for raising construction. The opposite parties have illegally realized charges for 'car parking space', although 'car parking space' is being provided under stilt area, which is 'common area' and its price has already been realized. The opposite parties have charged consideration for 1990 sq.ft. 'super area', while carpet area is 1242 sq.ft., which amount to loading 60% on carpet area. Details of 748 sq.ft area has not been provided. As per brochure, the opposite parties have committed to provide swimming pool, fully equipped health club, landscaped garden but none of these amenities are available. The opposite party did not pay compensation for delay in possession. Then this complaint was filed on 21/7/2016, alleging deficiency in service.