EDWARD FERNANDES Vs. ARKADE DEVELOPERS PVT. LTD.

JUDGEMENT

(1.) Heard Mr. Parmanand Yadav, Advocate, for the complainant and Mr. Amol V. Deshmukh, Advocate, for the opposite party.

(2.) Edward Fernandes has filed above complaint, for directing the opposite party to (i) handover possession of Apartment No.103, in the project "Arkade Adornia"; (ii) pay Rs.568000.00 with interest @18% per annum, from the date of agreement till the date of payment; (iii) pay rent @Rs.35500.00 per month from April, 2016 till the delivery of possession, with interest @18% per annum; (iv) pay penalty @Rs.10.00 per sq.ft. per month of the area from April, 2016 till the date of possession with interest @18% per month; (v) rectify the defects of counter top wash basin, kitchen door, intercom point & instrument and provide intercom connection; (vi) to provide deficit one toilet in the flat as per the FDA and approved plan provided to the condominium dated September, 2013 as provided to other flat owners above his flat; (vii) pay the outgoings such as maintenance, electricity, water charges, property tax etc. up to the date of possession; (viii) pay stamp duty and registration charges and get the agreement dtd. 12/3/2015 registered; (ix) pay Rs.20.00 lacs, as compensation for mental agony and harassment; (x) pay Rs.2.00 lacs, as litigation costs; and (xi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

(3.) The complainant stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of commercial/residential buildings. There was an old building, named as "Bhagirath" at CTS-442 area 2525 sq.mtrs., Jaiprakash Nagar, Pahadi School, Road No.2, Goregaon (East), Mumbai- 400063, consisting total 44 apartments and one garage, in 4 floors, i.e. 11 apartments and one garage on ground floor, 10 apartments at first floor, 10 apartments at second floor and 10 apartments at third floor and 3 apartments at fourth floor. The original owners had sold all the Apartments to the occupiers. The complainant and his wife Mrs. Priscilla J Fernandes were owners of Apartment No.A-8 area 710 sq.ft. Mrs. Priscilla J Fernandes died on 5/12/2015, leaving behind her, the complainant and two daughters, as her heirs. The daughters surrendered their rights in favour of the complainant. Association of Apartment Owners of Bhagirath Condominium, in its special body meeting dtd. 28/1/2007 decided for demolition and reconstruction of old building and invited quotations from qualified builders. General body of Association in its meeting dtd. 13/12/2008, resolved to give the work of demolition and reconstruction to the opposite party and terms and conditions were finalized. M/s. Arkade Developers Private Limited entered into Development Agreements dtd. 5/1/2010, 27/12/2010 and 5/3/2011 with different set of apartment owners. As the work of demolition and reconstruction was delayed, Association of Apartment Owners of Bhagirath Condominium revised the terms and conditions, which was accepted by the opposite party through its letter dtd. 25/10/2012. In pursuance thereof, new set of agreements were executed between the opposite party and flat owners. The opposite party entered into fresh agreement dtd. 19/12/2012 with the complainant and his wife. In pursuance of new agreements, all the flat owners of "Bhagirath" handed over vacant possession of their flats to the opposite party till April, 2014. Building plan was approved on 7/9/2013, then the opposite party allocated flats to different flat owners and notified a list in September, 2014, in which, the complainant was allotted Flat No.103 area 923 sq.ft. Thereafter, the opposite party issued allotment letter dtd. 26/11/2014 of the above flat to the complainant. Clause 8 of the agreement provides 24 months period from the date of receiving keys of all vacant flats with grace period of six months to complete construction of new building. The opposite party executed a new agreement dtd. 12/3/2015, in respect of the Flat No.103 in the new building "Arkade Adornia" but this deed was not executed on requite stamp papers nor it was registered. The period of 24 months expired in March, 2016 and grace period of six months expired in September, 2016. But the opposite party delayed construction of new building. The opposite party issued cheque relating to rental of the month of September, 2015, in wrong name and same was not replaced in spite of repeated request of the complainant. The opposite party stopped payment of rental from May, 2016. The opposite party obtained part "occupation certificate" on 7/2/2017 and intimated the complainant on 8/2/2017, for taking possession. The complainant visited the flat and found that the plaster work in the flat was going on, flooring was not finished and there was no water and sewerage connection. The opposite party malafide in order to avoid liability of rental, issued letter dtd. 8/2/2017. The condominium society applied for regular water connection in the building on 27/2/2017 and 21/3/2017.The condominium society, through letter dtd. 28/2/2017, raised various objections and demands in terms of the agreement, from the opposite party on behalf of the flat owners. In spite of service of the letter, the opposite party did not respond. The society gave reminder dtd. 20/3/2017 but did not receive any reply. The opposite party through letter dtd. 26/5/2017 informed that full occupation certificate was received on 17/5/2017. Then the complainant, vide letter dtd. 5/6/2017, requested for handing over possession without demur to his other rights as per agreement but the opposite party did not respond. The opposite party wrote a letter dtd. 19/6/2017 to the Secretary, Redevelopment Committee that possession of the building was handed over to the Committee on 9/6/2017 and he would withdraw his security w.e.f. 30/6/2017. Then this complaint was filed on 17/8/2017, alleging following deficiencies in service:--