PRESENT
Complainant by Adv. J.H. Kuril
Opponent No. 1 to 3 by Adv. Vasant Patil
Opponent No.4 absent
ORDER
(Per- Mr. S. S. Vyavahare, Hon’ble President.)
1) The complainant has filed this complainant under Section 12 of the Consumer Protection Act, against the opponents for getting compensation alleging deficiency of service on their part.
2) Facts giving rise to the present complaint in short are as under.
3) Opponent No.1 deals in construction work under the name & style Ashtasiddhi Construction Co. Pvt. Ltd. of which opponents No.2 & 3 are the partners. Opponent No.4 is a co-operative housing society registered under co-operative society Act 1960. The offices of opponent No.1 to 4 are situated on the address mentioned in the complaint.
4) The complainant who resides at Mulund-East is a member of opponent No.4. The residential building where complainant was residing was in delipidated condition. The complainant who was managing committee member of opponent No.4 has suggested carrying out repairy work of said building. However subsequently the opponent No.4 has decided to redevelop the said building and therefore development work of said building was assigned to opponent No. 1 to 3. The development agreement was entered into between the members of opponent No.4 and opponent No.1 on 02/07/2013. It is a contention of the complainant that he was having flat of 479 sq. feet in old building prior to redevelopment. On 14/09/2003 opponent No.4 informed to the complainant that, he would be given a flat admeasuring 465 sq feet in redeveloped building. It is further contentions of the complainant that inspite of said undertaking given by opponent No.4, the opponents by keeping the complainant in dark has entered into fresh agreement of redevelopment of the building on 30/07/2004. In the redeveloped building the area of complainant’s flat was shown as 421 sq. feet. The complainant protested the said area of the flat shown in the development agreement and claim flat of 479 sq. feet.
5) It is further contention of the complainant that while executing redevelopment agreement the opponent No. 1 to 4 have agreed to allot 2+4 parking places for existing owner of the society. The complainant was having his parking place in the building prior to redevelopment of the building. However, opponent No.1 to 4 they have not allotted any parking place nor paid any compensation for the same to the complainant. It is further contention of the complainant that opponent No.4 has agreed to pay the rent for alternate accommodation which opponent No.4 has failed to pay from January-2007 to July-2007. According to complainant alleged act on the part of the opponents amounts to deficiency of service and therefore complainant has filed his complaint and claim compensation for less area provided to him, monthly rent from January-2003 to July-2003, compensation for parking place and for mental harassment.
6) Opponent No.1 to 3 & 4 have filed their separate written statement and resisted the claim by stating that, complainant’s complaint is false, frivolous and not based on true facts. The opponents have denied all adverse allegations made by the complainant in respect of deficiency of service. According to opponents the complaint is barred by limitation and principal of res-judi-cata. While admitting the membership of the complainant with opponent No.4 the opponents also admit that complainant was having his flat in old building which was in dilapidated condition. The opponents do not dispute that the redevelopment work of the said building was assigned to opponent No.1 to 3. However, opponent No.1 to 4 categorically deny that a complainant was having his flat admeasuring 479 sq. feet in old building. While admitting the agreement dated 02/07/2003 the opponents submit that, it was unregistered agreement and therefore terms of contract in a form of memorandum of agreement and memorandum of understanding was reduced in writing. Since, it was unregistered documents reliance cannot be placed on it. The opponents further submit that, when the actual measurement of complainant’s flat was recorded in presence of members of opponent No.4 and the opponents the said measurements reproduced in the agreement dated 30/07/2004. According to opponents the actual area possessed by the complainant was 421 sq. feet only. Even complainant was very much aware of these facts. Moreover, the complainant who has obtained the possession of his flat in 2007 did nit filed his complaint within two years. Therefore complaint is barred by limitation.
7) It is further contention of the opponents that complainant has filed dispute before C-operative court by filing dispute No. II 948/2005. However, the co-operative court dismissed the said dispute vide order dated 04/10/2005. The complainant challenged the said judgment before C-operative Appellate Authority by filing Appeal No 102/2005. However said appeal was dismissed 08/03/2006. The complainant has also approached to the arbitrator. Therefore according to opponents since the complainant has exhausted remedy having larger jurisdiction due to which the dispute of the complainant got finality. Therefore this complainant is his by principal of re-judi-cata. Therefore opponents pray to reject the complaint.
6) On respective contentions of the parties following points arises for our considerations. Our findings are recorded against the same.
POINTS
Does the complainant prove that opponents have indulged in deficiency of service by providing less area of his flat in redeveloped building? No.
Whether complaint is hit by principal of res-judi-cata? Yes.
Whether complainant is entitled to get compensation? No.
What order? As per final order
REASONS
Admitted Facts
7) Before going to evidence on record it will not be out of place to go through some of the facts which are undisputed.
8) It is not disputed position that, the complainant is a member of opponent No.4 It is also admitted position that the building where complainant was residing and opponent No.4 was operating as co-operative housing society was agreed to redevelop and redevelopment was given to opponent No 1 to 3. It is not dispute position that the agreement dated 02/07/2003 is unregistered document.
9) In order to prove deficiency of service on the part of opponent. The complainant alleging conspiracy between opponent No. 1 to 3 and office bearers of opponent No.4. In order to prove said conspiracy and deficiency of service on the part of opponent No. 1 to 4, the complainant has relied on his evidence affidavit, written arguments and agreement dated 03/07/2003 and the letter executed by opponent No. 4 to him. By relying on these documents the complainant has tried to bring on record that the area of his residential flat in old building as 479 sq, feet. Since the opponents have agreed for the said areas and agreement to that effect was entered into on 02/07/2003. According to complainant since the said agreement is signed but opponent No.1 to4 and the opponents cannot deny of area of complainant’s flat as 479 sq. feet. Inspite of this fact complainant was given less area of 421 sq. feet. Moreover the complainant was not given parking place and rent for alternate accommodation and therefore alleged act on the part of opponents shows deficiency of service.
10) On the other hand the opponents by relying on the complainant and appeal proceeding filed by the complainant against opponents before Co-operative Court have come with a case that present complaint is hit by principal of res-judi-cata since the complaint and appeal filed by the complainant before Co-operative court has been rejected by said authority. Therefore said dispute has reached to finality. Moreover, according to the opponents they were ready to give rent or alternate accommodation to the complaint as per the area possessed by Him. Since the complainant was demanding rent for alternate accommodation of more area he has refused to accept the rent offered to him. Lastly, the opponents have also attracted our attention on the date of possession of the flat and submitted that; complainant has taken the possession of his flat on 05/02/2007 and has filed his complainant in 2013. Therefore complaint is barred by limitation.
11) After going through respective submissions and documents filed on record it is seen that though the agreement dated 02/07/2003 though shows that area of flat possessed by the complainant is 479 sq. feet, It is significant to note that it is unregistered documents. Though the said agreement is signed by the opponents it will not help the complainant since it is unregistered document. It is pertinent to note that the opponents have come with specific contention that, area possessed by each flat owner was measured in presence of members of opponent No.4 and opponent No.1 to 3 and actual area possessed by the complainant was mentioned in the redevelopment agreement dated 30/07/2004. Therefore on the background of this specific stand the complainant ought to have produced the agreement of sale or sale deed of his original flat to show that he was possessing a flat admeasuring 479 sq. feet. Leaving aside this aspect, the record show that, the complainant has filed co-operative dispute before the judge of Co-operative Court. The said dispute was decided against the complainant on 04/10/2005. The complainant has challenged the said order by filing appeal No. 102/2005 before Maharashtra State Co-operative Appellate Court. Said appeal was also dismissed by appellate court on 08/03/2006. Thereby said dispute reached finality. Section 11 of Code of Civil Procedure says that “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the said title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by the Court”.
12) Since, the present dispute between complainant and opponents in which the substantial issue was already decided by competent court and said dispute has reached finality, therefore, principal of res-judi-cata is applciable to the present complaint. Principal of Res-judi-cata is applicable in the complaint under Consumer Protection Act is settled position of Law. Therefore we are of the opinion that present complaint is barred by principal of res-judi-cata.
13) Though the opponents have strongly contended that, the complainant is barred by limitation since the complaint was not filed within two years from the date of possession. We do not agree with the submissions advanced by the learned counsel for the opponents because the complainant has acquired the possession under protest and secondly the present complaint has continuous cause of action because the contention of the complainant is that he is given less area of flat than what he has possessed. It is not disputed position that complainant was given flat of admeasuring 421 sq. feet only. Therefore cause of action to the complaint is continuous cause of action. Therefore from the above discussion we are of the opinion that since the complaint is hit by principal of res-judi-cata and complainant is deserved to be dismissed and complainant is not entitled to get any compensation.
ORDER
Compliant is dismissed.
No order as to cost.
