//ORDER ON INTERVENER APPLICATION DTD. 05/01/2021 FILED BY MR. SARABJEET BALEDIN CHOUDHARY//
Per :- Smt. Sneha Mhatre, President
The Complainant Tribhuvan Baledin Choudhary has mentioned in his complaint that he with his wife children were in actual use, occupation and lawful possession and were residing with his father late Baledin Ghisoo who died on 10th July 1987; in the tenanted premises being Room No.3 - 4429 (1) situated in Chawl known as ‘Shiv Ashish chawl’ at Saat Rasta, Jacob Circle, Maulana Azad Road, Mumbai – 400 011, the said property was undertaken for redevelopment by the Landlord/Opposite Party. The Complainant has stated that the rent receipt stood in the sole name of the Complainant who continued to live in the old tenanted premises with his family, when the Opposite Party decided to demolish of the existing structure of the said building and to construct the new building, the Complainant surrendered his tenancy rights in lieu of this, the Opposite Party decided to give him on ownership basis a flat No. 701, approx.400 sq.ft. situated at 7th Floor, Shiv Ashish Building, for which on 28/01/2014, the Opposite Party executed an Agreement with the Complainant, and it was registered at the office of Sub.Registrar, Mumbai-3.
The Opposite Party constructed new building and after completion of the construction of the new building and after obtaining O.C. (Occupation Certificate), the Opposite Party started handing over the flats to all the tenants with whom the agreements were entered into, but failed to give possession of the said flat to the Complainant and also not paid the rent from August 2016 to the Complainant, due to which, the Complainant is staying on Leave & License basis and was compelled to pay the rent from his own sources and till filing of complaint, the Complainant has stated that he has paid Rs.7,42,500/- towards the rent from his own source. Alleging it as deficiency in service, the Complainant has filed the present complaint against the Opposite Party and has prayed to direct the Opposite Party to handover possession of the said flat to the Complainant. (2) To pay to the Complainant a sum of Rs.7,42,500/- an aggregate sum of rent from Sept.2016 till February 2020 to the Complainant by the Opposite Party. (3) To pay to the Complainant a sum of Rs.5,00,000/- towards the compensation for the deficiency of service and unfair trade practice. (4) Rs.2,00,000/- towards the damages and Rs.2,00,000/- towards special damages for mental agony (5) To direct the Opposite Party to pay Rs.17,000/- per month towards the rent from February 2020 till actual possession of the said flat is handed over to the Complainant.(6) To pay to the Complainant an interest @24% p.a. to be calculated on each of the principle sum which remain outstanding and has been paid by the Complainant towards the rent & (7) For cost of complaint Rs.15,000/-, (8) Any other relief as the nature & circumstances of case may require.
[2] The Opposite Party has filed written statement on 25/01/2021 and has denied all the allegations made by the Complainant against them and has submitted that the Opposite Party is not aware as to whether the rent receipt was transferred fraudulently or not. The original tenant Baledin Ghisoo (Complainant’s father) died and the rent receipt was transferred in the name of the Complainant, but that time the Opposite Party was not in picture, the said property is conveyed to the Opposite Party by Asha Chandru Bharwani in the year 2004. As the Complainant declared to the Opposite Party that he is the tenant and except him nobody else had / have any right, title or interest of whatsoever nature in the said premises as mentioned in the Agreement on 28/01/2014, the Opposite Party has further stated that Opposite Party executed Agreement with the Complainant but since now there are parties claiming interest in the said premises the said Agreement dated 28/01/2014 is automatically null and void. The Opposite Party has denied that some outstanding rent is payable by them to the Complainant for alternate accommodation till handing over the possession of the said flat to the Complainant. The Opposite Party has also submitted further that one Mr. Chunnilal Baledin Kanojiya who is Complainant’s step brother and the Sarabjeet Choududhary (who is a real brother of the Complainant) are claiming for the share in the said tenanted premises and have also filed a civil suit.
[3] Intervener Mr. Sarabjeet Baledin Choudhary who is a real brother of the Complainant has also claimed a share of the said property stating that the original old tenanted Room No.3, F:GRD –P25C Shiv Ashish Chawl was standing in the name of the father of the Applicant and the Complainant i.e. Mr. Baledin Ghisoo as lawful tenant thereof. During the life time of the father of Applicant and the Complainant, the Complainant and the Applicant were staying in the said room premises and even after death of their father, the Applicant and Complainant were staying together. The Applicant has stated that he and the Complainant are decendent of the said late Baledin Ghisoo, the name of the Applicant and the Complainant has been recorded in the family registered maintained by the Competent Authority at Uttarpradesh. The Applicant has mentioned that the Applicant and the Complainant had/have equal and joint right in respect of the said room premises and the Applicant and the Complainant has jointly acquired/inherited all the legal right and joint interest and claim in the said room premises after the death of their father late Baledin Ghisoo. The Applicant has submitted that the Complainant has executed an Agreement on 28/01/2014 with the Opposite Party, for providing permanent alternate accommodation free of cost area approx. 400 sq.ft. in lieu of the said room premise No. Room No.3, F:Grd P-25C in Shiv Ashis Chawl without the knowledge of the Applicant and has without the knowledge of the Applicant and has prepared a false ration card with connivance of one Mr.Mithailal, in his exclusive name. The Applicant has also stated that he has demanded his share from the Complainant of the said premises several times but the Complainant refused for it. The Applicant has further stated that the Applicant came to know about the present case from the Opposite Party and then the Applicant has filed the present Intevener application, to join the Applicant as the Opposite Party No.2 in the present complaint and direct the Complainant to amend the complaint accordingly and to serve amended copy, as the Intervener has not given up his right, title, interest and share in respect of Room No.3 or in the permanent alternate accommodation to be given in lieu of the said Room No. 3 in favour of any person/Complainant herein.
[4] The Opposite Party has given ‘No Objection’ on the Intervener Application filed by Mr. Sarbajeet Choudhary, but the Complainant has raised objection as the {1} Opposite Party is not a consumer {2} Forum has no jurisdiction to entertain the present application as it is to be entertained by the Civil Courts only, & as the Opposite Party has executed Agreement dtd. 28/01/2014 with only Mr. Tribhuvan Baledin Choudhary hence, the Complainant has mentioned that Intervener can not interfere/intervene in the present complaint and it is to be dismissed with exemplary cost of Rs.50,000/- to be paid by the Intervener to the Complainant. The Complainant has stated that Chunilal Kanojiya has not got any interim relief in the Civil Court, as it was rejected by the Civil Court by order dtd. 03/05/2019 but the Opposite Party has submitted in the written statement that the said order is challenged before the High Court.
[5] Thus on perusal of the documents filed by the Complainant as well as by the Intervener and the Opposite Party, it feels necessary to incorporate the Intervener as the Opposite Party No.2 in the present complaint, to decide the present complaint on the basis of merits. In view of this, we allow the Intervener application to join the Intervener as the Opposite Party No.2 of the complaint and direct the Complainant to amend the complaint accordingly and to serve the copy of amended complaint on next date to the Opposite Party Nos. 1 and 2.
