Builder must specify delivery date in deed and pay all outgoings including maintenance charges before purchaser takes the possession of the property after issuance of the completion certificate
A
property developer is legally bound to mention a firm date of delivery of possession of flat in
the agreement for sale with the buyer. Such dates cannot be the date
before the developer secures completion certificate for the property from the
local body.
The National Consumer Disputes Redressal Commission (NCDRC) has
held this in a significant ruling, which also upheld the flat purchaser's right
to inspect title deed documents, approvals to building plan and layout and
encumbrances on property before signing an agreement with the builder.
The ruling by a two-member bench of Justice VK Jain and expert
member BC Gupta on May 6 reaffirmed the developer's legal obligation to specify
in each advertisement or brochure, the common areas and facilities available to
all apartment owners. Not making such indication amounts to inducing purchase
of property by giving a false impression, thereby committing unfair trade
practice, the commission held.
The commission further opined that it
is developer and not purchaser who has liability to pay all outgoings including
not only property tax but also the maintenance charges. it is wholly unfair for
the purchaser to pay the tax or maintenance charges before he obtains the title
to the property or takes the possession of the property after issuance of the
completion certificate.
In a dispute over signing of a lop-sided agreement favouring the
developer, the NCDRC directed Mumbai-based Sahajanand Hi Tech Construction
Private Limited to pay Rs 10 lakh compensation and Rs 25,000 cost to Pimple
Saudagar resident Rajeev Nohwar for deficiency in service and unfair trade
practice. The developer had argued that other flat purchasers had signed the
same agreement without raising any objection. Modifying the agreement for the
complainant would lead to an anomalous situation vis-a-vis use of common areas.
The NCDRC ruled that if the complainant was willing to sign the
agreement and pay the remainder amount, the developer shall pay him Rs 10 lakh
compensation within four weeks. Alternatively, if the complainant was not
willing to execute the agreement then the firm shall refund him over Rs 1.58
crore with 12% pa interest along with Rs 10 lakh compensation.
On June 24, 2014, Nohwar had booked a 1,660sq ft flat at Lodha
Belmondo project being developed by the construction firm at Gahunje off the
Pune-Mumbai express way, for a price of over Rs 1.68 crore. In August 2014, the
firm sent a pre-termination notice to Nohwar following a dispute over signing
of the agreement and payments.
Nohwar had sought clarifications from the firm over common areas
and facilities shown in its publicity brochure. He was unwilling to sign the
agreement because the draft did not specify the date of delivery of possession
and he was asked to declare that he had satisfied himself with all approvals
and encumbrances on the property before execution of the agreement although, he
was not shown the title deed and approval documents.
The draft agreement also provided that maintenance charges and
property tax were payable from the date of offering the flat for fitouts. A
perpetual deed between Sahajanand and Lodha Ideal Buildcon Private Limited over
golf course, gym and other facilities was not shown to him.
Nohwar moved the National commission challenging the developer's
pre-termination notice on the grounds that certain clauses in the draft
agreement were not in consonance with the provisions of the Maharashtra
Ownership of Flat Act (MOFA) and the Maharashtra Apartment Ownership Act.
The bench referred to provisions under MOFA while holding that
the complainant was justified in refusing to sign the agreement as the
developer was under obligation to make full and true disclosure of all
encumbrances on property besides providing copies of title deeds, approved
plans and layouts to the buyer before signing of agreement.
Since the law requires the
promoter to obtain the completion certificate before giving possession, the
promoter while executing the agreement has to stipulate a specific date of
delivery, the commission ruled.
Details
of judgment
|
Case
No.
|
Complainant
|
Respondent
|
Complainant
Advocate
|
Respondent
Advocate
|
Date of
Disposal
|
|
Shri RAJEEV
NOHWAR & ANR.,
|
M/s
SAHAJANAND HI TECH CONSTRUCTION PVT. LTD.,
|
M/s LAW &
LEGAL,
|
M/S. R.S.
PRABHU & CO.
|
2016-05-06
|
Judgment
can be accessed at http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FCC%2F346%2F2014&dtofhearing=2016-05-06
