PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the Complainant regarding deficiency in service and unfair trade practice on the part of Opposite Party as Opposite Party No.1 issued an illegal notice to the Complainant alleging a prior charge on the flat of the Complainant as Opposite Party No.2 did not pay the debt of the Opposite Party No.1, thereby causing mental and physical harassment to the Complainant.
2) The facts of the complaint as stated by the Complainant are that he is the member of a registered Co-operative Housing Society bearing Reg.No.MUM/W/GS/ TC/8222/2001-2002. (Mantri Pride Co-op. Hsg. Society) herein after mentioned as the said society for brevity). Opposite Party No.1 is a bank and Opposite Party No.2 is a construction company. Opposite Party No.2 is also the promoter of a project known as Mantri Pride.
3) Complainant purchased a flat from the Opposite Party No.2 as per the agreement dtd.06/09/99 between Opposite Party No.2 and Complainant for Rs.12,37,600/-. The agreement was duly registered with the concerned Registrar. Prior to the purchase of this flat, the Opposite Party No.2 had informed the Complainant that the land on which the flat was to be constructed belonged to a Ruparel joint family, Harish Ruparel, being the karta of the joint Hindu family.
4) By virtue of development agreement, dtd.06/08/93, and Power of Attorney, the Opposite Party No.2 alone have the right to settle the tenant’s contracts and allot flats/shops/offices etc. in the said building to be constructed and to enter into agreement with tenants and with purchasers to receive the sale price of the flats, shops, etc. The Complainant further stated that, the Complainant had purchased the said flat after verifying the title documents of the said flat. At this time the Opposite Party never mentioned anything about the encumbrance/charge much less of the alleged claim of Opposite Party No.1 over the property on which the flat of the Complainant is situated. There was no any public notice published in this regard. No any board of hypothecation was displayed on this property.
5) At the end of July, 2002 the Complainant received a notice dtd.17/07/02 from M.S. Bodhanwala, Solicitors of Opposite Party No.1 for recovery of alleged debt due from Opposite Party No.2. The Complainants were shocked to learn about the deed in respect of the immovable property and the construction there on (Mantri Pride) has been deposited with Opposite Party No.1 bank as and by way of 1st change of equitable mortgage in favour of Opposite Party No.1 with effect from 19/12/94. In this notice it was alleged that Opposite Party No.1 got prior charge on the properties and it entitled to sell the properties including flat no.402 of the Complainant in Mantri Pride building.
6) It is further submitted by the Complainant that Opposite Party No.1 had no documentary evidence to show and prove that it had objected the sale of the said flat when advertised for sale in the local newspapers by Opposite Party No.2.
7) It is further stated by the Complainant that after receipt of the above said notice of the Opposite Party No.1, the housing society, explained Opposite Party No.2 that the above said notice dtd.07/07/02 was illegal, irrelevant and not maintainable in Court of Law.
8) The Complainant has further alleged that, the Opposite Party No.2 illegitimately installed MTNL BTS equipments on B wing of the property and collected royalty of Rs.10,08,000/- (Rs.21,000/- per month) for last 4 years. He has not performed his statutory obligation of executing the land conveyance of the building in favour of the Complainant as per MOFA Act, 1963. Due to this the Complainant is forced to undergo mental agony.
9) The Complainant has further averred that, Opposite Party No.1 has filed its application for recovery of its loan tendered to Opposite Party No.2 before a Debt Recovery Tribunal of Pune vide O.A. No.72/02 without impleading the Complainant. Therefore, by sending the notice dtd.17/0702, the Opposite Party No.1 has threatened the Complainant of dispossessing him from his flat. Therefore, the Complainant has approached this Forum for restraining the Opposite Party No.1 and its officers from taking forceful possession of the said flat.
10) The Complainant has finally prayed that a) The Complainant be declared as the bonafide purchaser of flat No.B402 and Opposite Party No.1 has no right title and interest in the said flat. b) Opposite Party No.1, his officers, agents representatives be restrained from evicting the Complainant from the said flat. c) To restrain the Opposite Party No.1 from interfering with the peaceful possession and enjoyment of the said flat. d) Interim and Ad-interim reliefs in terms of prayers a to d. e) Cost of this complaint. f) Opposite Party No.2 to refund to the royalty earned from the MTNL to the tune of Rs.72,000/-. g) Opposite Party No.2 to pay compensation of Rs.5 Lacs for mental harassment on account of eviction notice issued by Opposite Party No.1, also the Opposite Party No.2 be ordered to honour and complete the statutory obligation of conveying the land and building’s interest unconditionally in favour of the Mantri Pride Co-op. Hsg. Society as per MOFA Act, 1963. h) Such other and further relief as nature and instances of the case may require.
11) During the pendancy of the complaint, the Complainant Shri. Keshav Madhav Bele expired. Hence, as per the amendment, his legal heirs a) Smt.Vrinda Keshav Bele b) Dr. Yogesh Keshav Bele, were brought on record vide amendment dtd.07/05/08.
As per 2nd amendment, para 12 (a) was added. As per this amendment it is alleged that the original Complainant Mr. Keshav M. Bele expired due to mental agony and torture suffered by him due to acts and/or omissions committed by Opposite Parties. The present Complainant lost the main Karta of the family. Therefore, the amount of compensation is amended to Rs.18 Lacs instead of Rs.5 Lacs as originally mentioned in prayer (g).
In the amendment clause (g1) it is prayed that an amount of Rs.20,000/- be paid towards the legal expenses of this proceedings.
12) The Complainant has attached the following documents alongwith the complaint -
a) A letter dtd.25/06/04 addressed to the Opposite Party No.1 from the Chairman/Secretay Ramesh Makhija with no
signature.
b) Xerox copy of clarification in a news paper, Economic Times issued by Opposite Party No.2 dtd.14/06/04.
c) Xerox copy of a letter dtd.29/03/04 from the Advocate of Opposite Party No.1 addressed to the Chairman, Mantri Pride
(The Society).
d)Xerox copy of a letter dtd.24/05/04 addressed to Opposite Party No.1 by the Society.
e)Copy of resolution of the Society passed on 23/06/04.
f)Letter dtd.21/06/04 from the Society to the Opposite Party No.2.
g)Letter dtd.11/06/04 from the Society to Opposite Party No.1.
h)Public notice given by Opposite Party No.1 dtd.10/06/04.
i)Letter dtd.14/08/02 from Opposite Party No.2 to the Complainant and other members.
j)Letter dtd.24/07/02 from the Society to Opposite Party No.2-Mantri Housing & Construction Ltd.
k)Letter dtd.17/07/02 from Bodhanwala & Co. addressed to the Complainant and other members.
l)Letter dtd.31/03/2000 from Opposite Party No.2 to Opposite Party No.1.
m)Letter dtd.29/02/2000 from Opposite Party No.1 to Opposite Party No.2.
n)Agreement dtd.06/05/99 for purchase of flat by the Complainant.
o)Other papers regarding the property on which the flat of the Complainant constructed.
13) The complaint was admitted and notices were served on the Opposite Parties. Opposite Parties appeared through their Ld.Advocates. Opposite Party No.1, on 14/10/04 filed preliminary objections to the complaint wherein it is averred by the Opposite Party No.1 that the complaint is not maintainable as the Opposite Party No.2 has filed a reference before BIFR which is pending. In terms of Sec.22 of the SICA Act no legal proceedings can lie or continue against the company which has filed reference before the BIFR. Hence, this complaint is required to be dismissed ab-intio as permission of BIFR has not been obtained for filing of this complaint.
14) The Complainant has no locustandi to file this complaint as the resolution dtd.23/06/04 passed by Mantri Pride Co-op. Hsg. Society Ltd. has not authorized the Complainant to file this complaint in his individual capacity and represent this society.
15) It is also alleged by the Opposite Party No.1 that the reliefs claimed by the Complainant are in the nature of a suit and such reliefs can not be granted by the Consumer Forum. No deficiency in service has been pleaded in the complaint.
16) It is also submitted that the Opposite Party No.1 and Complainant do not have any privity of contract between himself and the Opposite Party No.1-bank. Therefore, the Opposite Party No.1 is not a necessary party to the complaint.
17) It is further stated by the Opposite Party No.1 that, it has claimed mortgage of the property on which the building has been constructed. The mortgage has been created in favour of the Opposite Party No.1 bank much prior to the alleged agreement for sale executed between the Complainant and Opposite Party No.2. Hence, the Complainant and other members are deemed to have purchased their flats subject to the mortgage. Opposite Party No.1 has filed a suit which is pending in the DRT Pune. Finally the Opposite Party No.1 has prayed that this complaint be dismissed with cost.
18) The Opposite Party No.1 vide its application dtd.16/01/06 has requested that the reply filed by it be considered as its written statement. The Complainant vide his application dtd.13/02/07 has stated that he is pressing only for prayers (e) and (g) of the complaint and thereby waiving the other prayers as a,b,c,d,f and h.
19) The Opposite Party No.1 also filed its written argument on 16/11/05 reiterating that it has lawfully filed the case before DRT Pune for recovery of debts from Opposite Party No.2 under Securitization Act. Under this Act no Civil Court has jurisdiction to decide the issue. However, after filing the above case for recovery of the debt from Opposite Party No.2, the Opposite Party No.2 has repaid the debts of Opposite Party No.1 and hence, nothing survives in the complaint. The Opposite Party No.1 has therefore, withdrawn the proceeding under Securitization Act. Therefore, this complaint has become infructuous. The Opposite Party No.1 has reiterated the other points stated in its reply filed dtd.14/10/04.
20) The Opposite Party No.2 filed its written statement wherein it is stated that Opposite Party No.2 has promoted the project “Mantri Pride”. The Complainant and other few people purchased the flats in the said project by executing an agreement (dtd.06/09/99). The possession of the flat (B402 of the Complainant) was given to the Complainant on 05/09/99.
21) It is also clarified by the Opposite Party No.2 that the society of the purchasers were formed on 11/06/2001 and as per article 12 of the agreement of sale “the conveyance shall be done by the promoter of the society within 5 years of its formation. The complaint was filed by the Complainant in his individual capacity before completion of 5 years.
22) Opposite Party No.2 has further stated that the notice sent by Opposite Party No.1 to the Complainant was malafide and illegal. In this respect Opposite Party No.2 had immediately informed the society the facts of the case and thereafter there was no eviction of the purchasers or the Complainant as threatened by Opposite Party No.1. Therefore, alleged mental agonies or torture suffered by the Complainant are creation of his own mind and it is imaginary. The Opposite Party No.2 had ensured that Opposite Party No.1 is not allowed to disturb the possession of the Complainant or other purchasers at any cost. The Opposite Party No.2 has pointed out that except Complainant no other purchaser has suffered mental agony nor the society has felt any need to proceed against Opposite Party No.2.
23) The Opposite Party No.2 has submitted that it has already cleared the loan of Opposite Party No.1 and there is no dues outstanding against Opposite Party No.2. Opposite Party No.1 has discharged Opposite Party No.2 from all obligation vide no due certificate on 30/03/05 and subsequently, the society has also signed the agreement dtd.12/04/05 with Opposite Party No.2 bringing to an end all pending disputes.
24) In para 15 of the written statement the Opposite Party No.2 specifically stated that, no hypothecation or change was created by Opposite Party No.2 in favour of Opposite Party No.1.
25) The Opposite Party No.2 has further averred that it had obtained even a stay from Recovery Tribunal against the illegal action of the Bank (Opposite Party No.1). Finally the Opposite Party No.2 has stated that the Complainant is not entitled to any relief since the bank has already issued the no due certificate and released the property. Regarding the compensation for mental harassment, prayed by the Complainant, the Opposite Party No.2 has submitted that the notice issued by the bank does not demand any eviction but, only informs the Complainant about the mortgage/charge with respect to the property. The claim of the bank has been settled. All the disputes raised by the Complainant are settled and as such the complaint deserves to be dismissed.
26) The Opposite Party No.2 has further averred that as per the agreement between the Complainant and the Opposite Party No.2, Opposite Party No.2 is permitted to execute the conveyance within a period of 5 years from the date of formation of the society. The society has been formed on 11/06/01 and it will meet its obligation and complete the conveyance before the scheduled date.
27) The Opposite Party No.2 has further submitted that it has already written a letter to the society in respect of the deed of conveyance and it is pending with the office of the Superintendent of Stamp Bombay. In view of the settlement between the Opposite Party No.2 and the Society, regarding the sharing of compensation received by Opposite Party No.2 from MTNL, prayer of the Complainant ‘f’ becomes infructuous. Thus, the Complainant has not suffered any loss, so Complainant is not entitled to any compensation or reliefs claimed by him in the complaint.
28) The Opposite Party No.2 has filed the xerox copy of the agreement dtd.12/04/05 between Opposite Party No.2 and the Mantri Pride Co-op. Housing Society Ltd., Declaration of Opposite Party No.1 to releasing the Mortgage on Mantri Pride, certificate from Opposite Party No.1 dtd.30/03/05, and letter of Opposite Party No.2 to the Society dtd.27/10/05.
29) After filing the preliminary objections, by Opposite Party No.1 and written statement by Opposite Party No.2, the complainant has filed reply dtd.11th November, 2004, Letter dtd.04/03/05 alongwith the copy of the order of Hon’ble Chief Metropolitan Magistrate Esplanade Court, Mumbai, dtd.23/09/04. Written argument dtd.11/03/05 filed on 19/04/05, Reply dtd.16/01/06, Reply dtd.19/12/05 filed on 02/06/06, A last application dtd.13/02/07 wherein the Complainant has stated that “he is pressing for prayers(e) &(g) of his complaint and thereby waiving the other prayers being prayers a.b,c,d,f & h”. Thus, during the proceedings of this complaint since 13/02/07, the Complainant has pressed only prayers (e) and (g) only.
30) We heard the Ld.Advocate for the Complainant, Opposite Party No.1 and Opposite Party No.2. We also perused all the documents submitted by all the 3 parties and our findings are as follows –
31) The Complainant has filed the complaint on 17/07/04. The complaint filed by the original Complainant Shri. Keshav Madhav Bele is signed by the Complainant himself but this complaint is not verified by any competent authority. Even all the above mentioned applications submitted by the Complainant are not properly verified and they are not supported with any affidavit. They are only singed by the Complainant. According to the Complainant, he purchased flat from Opposite Party No.2 in the year 1999 but in July, 2002 the Complainant received a notice from Advocate of Opposite Party No.1 informing the Complainant that Opposite Party No.1 has filed an application against Opposite Party No.2 for recovery of a loan given to Opposite Party No.2. The Advocate has further informed the Complainant that his client has a prior charge on the flat & other property etc.
32) From the papers submitted by the Opposite Party No.2 and Opposite Party No.1 it is seen that a dispute arose between them in respect of repayment of the loan taken by the Opposite Party No.2 to construct the building on Plot No.1 B162 Chinchpokali and Opposite Party NO.1 has taken steps to recover the said loan from Opposite Party No.1. During the course of time Opposite Party No.2 settled the dispute and Opposite Party No.1 released the mortgaged property in March, 2005. The Opposite Party No.2 also settled the disputes with the Co-op. Housing Societies, as a result of which the Complainant also vide his letter dtd.13/02/07 has prayed to this Forum that he is pressing only prayers ‘e’ and ‘g’ and waiving prayers a,b,c,d and f, h of the complaint. Now it is important to see prayers ‘e’ & ‘g’. Prayers ‘e’ is regarding cost of this complaint and prayer ‘g’ is regarding compensation for Rs.5 Lacs for mental harassment on account of eviction notice issued by Opposite Party No.1. It is also prayed that the Opposite Party No.2 be ordered to honour and complete the statutory obligation of conveying the land and building interest unconditionally, in favour of the Mantri Pride Co-op. Housing Society as per MOFA Act.
33) During the course of this proceeding, the heirs of the original Complainant were brought on record and they amended the prayer (g) and prayed that the amount 5 Lacs be substituted with 18 Lacs. The amount of cost for legal expenses be Rs.20,000/-. In addition to this the heirs of the original Complainant added para 12(a) stating that the original Complainant died on 24/03/07 due to mental agony and torture suffered by him due to the acts and omissions committed by the Opposite Parties. The present Complainants lost Mr.K.M. Bele (original Complainant) due to the deficiency in service and unfair trade practice adopted by the Opposite Parties and therefore, Opposite Parties be ordered to pay Rs.18 Lacs as compensation. Thus, the present Complainants have prayed for 18 Lacs compensation twice vide para 9 amended as well as para 12 (a) also.
34) In this case we have noted that the original Complainant had made a prayer of Rs.5 Lacs for the deficiency in service and unfair trade practices of Opposite Parties. For the same cause of action the present Complainants are praying for 18 Lacs.
35) It is also noted that the cause for filing the complaint was issuance of a notice to the Complainant by Opposite Party No.1 informing him that it has moved the DRT to recover the loan from Opposite Party No.2 and it has a charge on the property of the Complainant. This cause of action was removed when Opposite Party No.2 repaid the loan and Opposite Party No.1 released the property from the mortgage. From the papers and pleadings it is seen that Opposite Party No.2 is in constant contact with the (Mantri Pride Co-op. Hsg. Society) in this respect. Even in the prayer it is prayed to pay compensation of Rs.5 Lacs for mental harassment and unbearable agony suffered by the Complainant on account of eviction notice issued by Opposite Party No.1, however, when we perused notice Opposite Party No.1 there is no eviction notice. It was the notice that it has applied in D.R.T. Pune to recover the loan from Opposite Party No.1 and it will take necessary steps to recover the same when these notices were issued to all the members of the society, they approached the Opposite Party No.2 and Opposite Party No.2 has assured them vide its letter dtd.14/08/02 as follows-
“we would like to submit that we have appeared in the said matter i.e. o.a. No.72/02 (Recovery suit filed by Opposite Party No.1). The said proceedings have been stayed by the Hon’ble Dept Recovery Tribunal, Pune and Hon’ble Tribunal has also directed the bank not to publish any publication in the said regards in any newspapers”. The Opposite Party No.2 has also clarified various other points and refuted the points mentioned in the notice issued by the Opposite Party No.1 to the Complainant and other purchasers. Therefore, from the papers it is seen that the Opposite Party No.2 repaid the loan, and Opposite Party No.1 released the mortgage of the property. Opposite Party No.1 bank issued the no due certificate on 30/03/05. The issues of the amount received from MTNL and conveyance was settled with the society. Under such circumstances the cause of action does not exist and Complainant has no more case to get any compensation. The Complainant has already waived his prayers a,b,c,d,f and h as they become infructuous. Consequently the other prayers i.e. e and g, 12(a) as amended by the present Complainants also became infructuous. Therefore, we do not find any merit in this complaint and hence, the order -
O R D E R
i)Complaint No.166/2004 is hereby dismissed with no order as to cost.
ii)Copy of this order be furnished to both the parties.
