PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Opposite Party M/s. J.K. Construction Co. is a proprietary concern of Mr. J.K. Mehra and it is engaged in business of construction. It is submitted that the Complainant had entered into two agreement dtd.11/11/93 and 04/04/094 with the Opposite Party for purchase of flats bearing no.7 & 9 on the 4th & 5th floor respectively in Opposite Party’s building known as “Diamond Court” located at Plot No.90, Shere Punjab Colony, Andheri (E), Mumbai – 93. The Complainant had also entered into two agreements dtd.12/12/94 in respect of purchase of two stilt parking spaces nos.5 & 8 respectively with Opposite Party in aforesaid building “Diamond Court. The Complainant purchased aforesaid two flats and two stilt parking spaces from the Opposite Party in the year 1993-94 after due consideration of Rs.14,80,000/- as per terms and conditions made agreed between the parties. The Complainant has produced copies of agreement dtd.11/11/1993, 04/04/1994 & 12/12/1994 alongwith complaint at Annexure ‘C-1’ & ‘C-2’ in respect of two flats and ‘C-3’ & ‘C-4’ in respect of stilt parking spaces.
2) It is averred in the complaint that Opposite Party handed over possession of two flats nos.7 & 9 to the Complainant vide letter dtd.12/12/94. Further, the Opposite Party handed over possession of stilt parking nos.8 & 5 by their letter dtd.15/12/94. The Complainant has produced copies of aforesaid possession letters alongwith complaint.
3) According to the Complainant, as per the terms and conditions of Agreement of Sale dtd.11/11/93 & 04/04/94 (Clause 8) contained a provision that the Complainant was required to pay Rs.900/- per flat as monthly maintenance charges of the said flat. Monthly maintenance charges were to be paid taxes, salary of the person appointed by the Builder/Opposite Party, liftman, sweeper, insurance premium, etc. The Complainant was ready & willing to pay monthly charges of Rs.900/- to the Opposite Parties regularly. The Opposite Party was required to pay taxes to BMC from the maintenance so collected. It is submitted that the Opposite Party on their own again directed the Complainant to pay the taxes directly to the BMC and this was confirmed in the joint meeting held on 08/07/95 at the office of Opposite Party. In the said meeting in presence of Estate Agent Nirmal Singhji, the Opposite Party agreed that monthly maintenance paid by the Complainant shall be reduced to Rs.700/- per month from 01/01/1995 due to the fact that expenses regarding Municipal Taxes would be borne by the tenant directly. The Complainant has produced copy of Minutes dtd.08/07/95 allegedly singed by the Complainant and Opposite Party alongwith complaint at Annexure ‘C-7’.
4) It is submitted by the Complainant that she is regularly paying Gardner Mr. S.B. Solankhe, a monthly sum of Rs.2,000/- since the year 1995 till date on behalf of Opposite Party for maintenance of the common garden in the premises of the building. The amount payable by the Opposite Party to the Complainant is Rs.24,000/- per year being the amount paid to the gardener from January, 1995 till date. It is submitted by the Complainant that she has been paying for expenditure incurred on the manure, soil, pest treatments, plants and other materials and tools on behalf of the Opposite Party which is amounting to Rs.6,000/- p.a. from the year 1995 onwards till date. It is contended that by letter dtd.10/01/96, the Complainant made payment of monthly outgoing charges from 01/01/95 to 31/03/96 @ Rs.700/- per month to the Opposite Party. The Opposite Party did not object on receiving above payment however contend to send bills @ Rs.900/- p.m. which was contrary what was agreed at the meeting dtd.08/07/95.
5) It is alleged by the Complainant that Opposite Party have been collecting proportionate share of taxes in the maintenance bills since handing over possession of said flats to the Complainant. Inspite of being received proportionate share taxes till date Opposite Party did not pay BMC Taxes in respect of the Complainant’s flat. Therefore, the Complainant was required to pay Rs.1,63,032/- as BMC Taxes of her flats till today. Alongwith complaint the Complainant has Annexed Statement of Taxes paid to the BMC at Annexure ‘C-9’. It is submitted that to the Opposite Party’s letter dtd.13/11/2000, the Complainant send her reply notice through Advocate on 20/11/2000. Then the Opposite Party vide letter dtd.24/01/2001 illegally threatened the Complainant of terminating said Agreement of Sale by misconstruing Clause No.37 of Agreement in respect of Flat No.8 & 10 and stilt parking no.10 & 6. The Complainant produced correspondence between the parties at Annexure ‘C-10’.
6) It is submitted that Opposite Party is not interested in refunding the aforesaid amount spend by the Complainant on behalf of Opposite Party therefore, she has filed this complaint. The Complainant has requested to declare that Opposite Party is guilty of deficiency in service and of unfair trade practice. The Complainant has requested to direct Opposite Party to pay to the Complainant an amount of Rs.1,63,032 paid by the Complainant to the BMC alongwith interest @ 18% p.a. Further, the Complainant has requested to direct Opposite Party to pay an amount of Rs.24,000/- p.a. since January, 1995 onwards till date in respect of the salary paid to the gardener on behalf of the Opposite Party alongwith 18% interest. The Complainant has requested to direct Opposite Party to pay an amount of Rs.6,000/- p.a. since January, 1995 onwards till the date alongwith 18% interest in respect of expenditure incurred in the development and maintenance of garden in the said premises on behalf of Opposite Party. During pendency of this proceeding the Complainant filed an application for amendment of complaint. The amendment application was allowed by this Forum. By the amendment the Complainant raised contention that on examination of BMC record, it was found that stilt parking no.8 allotted to the Complainant by the Opposite Party does not exist. The Complainant has requested to direct Opposite Party to refund to the Complainant an amount of Rs.15,000/- paid by the Complainant towards price of stilt parking no.8. The Complainant has claimed Rs.50,000/- as a compensation for mental agony and Rs.10,000/- towards legal charges incurred by the Complainant. Alongwith complaint the Complainant has produced copy of the documents alongwith Annexure ‘C-1’ to ‘C-9’ collectively and filed her affidavit in support of the complaint.
7) The Opposite Party has filed written statement and thereby resisted claim of the Complainant contending inter-alia that the complaint is misconceived, bad in law, time barred and therefore, deserves to be dismissed with cost. It is contended that there is no cause of action to the complaint and the Complainant has filed this complaint with malafide intention. Allegations made in the complaint are false and therefore, complaint is liable to be rejected with cost.
8) It is submitted by Opposite Party that there is no deficiency in service or unfair trade practice on the part of Opposite Party. Therefore, complaint is not entitled to recover any amount or any other relief claimed. The Opposite Party has admitted that he has sold two flats and two stilt parking spaces to the Complainant by executing Agreement of Sale Dees produced by the Complainant.
9) It is the case of the Opposite Party that as per the terms and conditions of the Agreement for Sale, it was agreed between the parties that the Complainant to pay Rs.900/- p.m., per flat as maintenance charges to the Opposite Party. For some period the Complainant paid maintenance charges as stated above and thereafter committed default in paying the same. According to Opposite Party, he has not attended the alleged meeting held on 08/07/1995. Opposite Party has denied that he agreed to accept maintenance amount @ Rs.700/- p.m. instead of Rs.900/- p.m. Opposite Party has specifically denied his signature in Minutes of the alleged meeting held on 08/07/95 and disputed the document produced by the Complainant at Annexure ‘C-7’.
10) It is submitted by the Opposite Party that BMC Taxes debited on occupied flat whereof approximately R.1,200/- p.m. per flat and the same were payable by the flat owners. Therefore, the Complainant is liable to pay BMC Taxes. It is contended that as the Complainant failed to pay legal arrears the Opposite Party was constrained to issue legal notice to the Complainant and as per the clause 37 of the agreement both the parties are at liberty to take necessary action.
11) It is submitted that there is no deficiency in service on the part of Opposite Party. Complaint is barred by law of limitation because of admittedly the Complainant took possession of the disputed flat on 11/11/93, 04/04/94 and 12/12/94. However, present complaint is filed in the year 2001 i.e. 7 years after taking of possession of flats. Therefore, complaint deserves to be dismissed with cost. It is submitted that Complainant is not entitled to claim any refund. Opposite Party has not committed any unfair trade practice. The Complainant has filed this complaint only with intention to harass the Opposite Parties and therefore complaint be dismissed with cost.
12) The Complainant has filed affidavit-in-rejoinder and thereby denied the allegations made in the written statement. Opposite Party has filed affidavit of evidence and written argument. The Complainant has also filed written argument. The Complainant’s application for amendment was allowed by this Forum. In the amendment application the Complainant has raised contention that entire stilt parking no.8 was allotted to the Complainant by the Opposite Parties alongwith excess thereof. However, on examining the record of the BMC it was found that said street area does not exists. Open space that the Opposite Party tried to pass on as a so called stilt area was in fact not a stilt at Hall and further had no access to it. The total payment made by the Complainant for the promise stilt to the Opposite Party was Rs.15,000/-. The Complainant has requested to direct Opposite Parties to refund Rs.15,000/- to the Complainant.
13) This Forum by order dtd.22/07/03 has dismissed the complaint with no order as to cost, observing that “the dispute between the parties is of civil nature and this Forum is not competent to decide the same. Opposite Parties have urged that the complaint is time barred, but we find no substance in it, because the allegations of deficiency in service and other disputes are continues one.”
Being aggrieved by the order of this Forum, the Complainant had preferred an appeal bearing Appeal No.1291 and 1292 of 2003 before the Hon’ble State Commission. The Hon’ble State Commission by order dtd.17/12/03 allowed the appeal by passing order as follows -
“O R D E R
1. Appeals are allowed and their respective impugned orders dated 22nd July, 2003 are set aside.
2. Matters are remitted to the South Mumbai District Forum for consideration afresh on merits except point of
Limitation in accordance with the provisions of the Law and the Rules and on giving proper opportunities to the
parties thereunder.
3. Appellants’ Advocate shall furnish copy of the order herein to the South Mumbai District Forum immediately.
4. By consent the date of appearance before the South Mumbai District Forum by parties is fixed on 7th January, 2004
on which date the parties shall ensure then appearances before the District Forum without fail and seek the
direction with regard to the fixation of date of hearing.
5. It is made clear and distinctly understood to the parties that no further notices for appearance will be required to
be issued by the District Forum to the parties.
6.The District Forum shall proceed to dispose of the complaints totally uninfluenced by its earlier findings or any
observations of ours in the judgement herein concerning the merits of the matters treating the same as our prima-
facie views and observations thereof.
7. District Forum to ensure expeditious disposal of the matters after remand.
8. As far as these appeals are concerned, no order as to costs.
9. office shall furnish copies of the order to the parties.”
After remind Opposite Party No.1 produced document dtd.20/09/06 is in the form of letter signed by the flat owners including present Complainant and it is addressed to Mr. J.K. Mehra. The letter is signed by the present Complainant alongwith other flat owners. Relevant portion of the letter is as under -
“Dear Sir,
As desired by you, we jointly state that:
1. There are no amounts due to be received by any one of us from the builders.
2. Whatever amount was paid to the builders towards deposits, other charges etc. etc. at the time of Flat purchase by each one of us stands adjusted and settled up to date.
3. We the flat owners have no complaint regarding construction, amenities provided in the building and any other matter of whatsoever nature.
4. We all are fully satisfied and are happy that we purchased the flats in a building constructed by you.”
The Complainant has filed reply to the Opposite Party’s letter dtd.05/08/2011 submitting that application made by the Opposite Parties are irrelevant and mischievous and is made with intention to cause delay in hearing of the matter. The Complainant had denied letter dtd.20/09/06 submitting that letter has no relevance to the present dispute. It is alleged that the Opposite Parties are trying to divert attention of the Hon’ble Forum. It is alleged that Opposite Party No.1 obtained aforesaid letter from the flat owners submitting that it was requirement for formation of the society. The letter issued on 20/09/06 was for the purpose of getting the society registered.
14) The Complainant has filed written argument. The Opposite Parties have also filed written argument. We heard oral submissions of Ld.Advocate Mr. Wavikar for the Complainant and Opposite Party – J.K. Mehra. Mr. J.K. Mehra has submitted that his written argument may be treated as his oral argument.
15) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Parties ?
Findings : No
Point No.2 : Whether the Complainant is entitled for reliefs from Opposite Parties as prayed for ?
Findings : No
Reasons :-
Point No.1 :- The Opposite Party Mr. J.K. Mehra is the Proprietor of M/s. J.K. Construction Co. which is engaged in business of building construction. It is admitted fact that the Complainant by two agreements dtd.11/11/93 and 04/04/094 purchased flat no.7 & 9 on the 4th & 5th floor respectively in the building known as “Diamond Court” at Plot No.90, Shere Punjab Colony, Andheri (E), Mumbai – 93 from the Opposite Party. The Complainant has produced copy of the agreement dtd.11/11/93 in respect of flat No.7, copy of Agreement of Sale dtd.04/04/94 in respect of sale of Flat No.9. The Complainant has produced copy of agreement in respect of stilt parking no.8 and copy of Agreement dtd.12/12/94 n respect of Stilt parking no.5. According to the Complainant, she purchased above said flats and stilt parking spaces from the Opposite Party in the year 1993-1994 after payment of due consideration of Rs.14,80,000/- and the Opposite Party handed over possession of said flat to the Complainant on 12/12/94. Possession of stilt parking no.8 & 5 was handed to the Complainant vide letter dtd.15/12/94. Said letters are produced by the Complainant alongwith complaint at Annexure ‘C-5’ & ‘C’6’. The aforesaid facts are admitted by the Opposite Parties.
It is alleged by the Complainant in the Agreement of Sale dtd.11/11/93 and 04/04/94 in Clause No.8 there is a provision regarding payment of monthly maintenance @ 900/- per flat towards taxes, salary of the person appointed by the Promoter, liftman, sweeper and other outgoing charges. She was ready and willing to pay monthly maintenance charges of Rs.900/- p.m. regularly. It is alleged that Opposite Party was required to pay taxes to BMC from the maintenance so collected. Therefore, Opposite Party on their own directed the Complainant to pay taxes directly to BMC and this was confirmed at joint meeting held on 08/06/95 at the office of Opposite Party. It is submitted on behalf of Complainant that after prolonged discussion Opposite Party agreed to reduce maintenance charges from Rs.900/- p.m. to Rs.700 p.m. from 01/01/95 and as the Municipal Taxes would be borne by the flat owners. The Complainant has produced copy of the so called minutes of meeting dtd.08/06/95 singed by the Complainant and Opposite Party at annexure ‘C-7’. The Opposite Party has denied the allegations made in the complaint and also denied so called signature below the alleged minutes of meeting contending that no such meeting was held. Opposite Party has denied his so called signature. The Complainant has not produced original document. Xerox copy of the document produced on record appears to be doubtful and unsafe to rely.
The Complainant has prayed to direct Opposite Party to refund an amount of Rs.1,63,032/-paid by the Complainant to the BMC alongwith 18% interest. The Opposite Party has denied the aforesaid claim of the Complainant. The Complainant has not produced any documentary evidence to support her claim that she had paid an amount of Rs.1,63,032/- to the BMC. It was possible for the Complainant to produce BMC Tax receipt or any other documentary evidence to prove that she has paid BMC Taxes. The Complainant has not produced available reliable documentary evidence to support her contention. It is submitted on behalf of Opposite Party that flat owner from the date of taking of possession of the said flat is liable to pay BMC Taxes. In this case even according to the Complainant she received possession of her two flats and two stilt parking in the month of Dec., 94. She had purchased flats and stilt parking by Registered Sale Deed. Considering evidence on record we do not find any substance in the Complainant’s claim for recovery of Rs.1,63,032/- paid towards BMC Taxes.
The Complainant has claimed recovery of Rs.2,400/- p.m. since January, 1995 from the Opposite Party in respect of salary paid to the Gardener on behalf of Opposite Party alongwith 18% interest. It is averred in the complaint that the Complainant has regularly paid to the Gardener Shri. S.B. Solankhe a monthly salary since 1995 till date on behalf of Opposite Party for the maintenance of common garden in the premises of the building. The Complainant has produced document styled as confirmation singed by Mr. S.B. Solankhe in which he has confirmed that he has received from Mrs. V.S. Shetty during the year 1999 Rs.24,000/-, during the year 2000 of Rs.24,000/-, during the year 1997 of Rs.24,000/-, during the year 1998 Rs.24,000/-, during the year 1999 of Rs.24,000/- and during the year 2000 of Rs.24,000/-. Further it is stated that he has received certain amount as reimbursement for expenses incurred from time to time for manure soil, pest treatment etc. The Opposite Party has disputed aforesaid claim of the Complainant. It was necessary on the part of Complainant to prove that Gardener Shri. S.B. Solankhe was appointed by the Promoter – Opposite Party to maintain common garden. In the complaint the Complainant not stated about the exact location of the common garden. There is nothing on record to prove that the Complainant paid salary to the Gardener on behalf of Opposite Party. It is submitted by the Opposite Party that there is no writing to support claim of the Complainant that she was authorized by the Opposite Party to pay salary to the Gardener. The Complainant has not filed affidavit of Gardener Shri. S.B. Solankhe. As mentioned above absolutely there is no evidence to show that Gardener was appointed by the Opposite Party. Therefore, Complainant’s claim for recovery of the aforesaid amount from the Opposite Party towards salary allegedly paid to the Gardner cannot be accepted.
The Complainant has not adduced any documentary or other reliable document to support claim of Rs.6,000/- p.a. since January, 1995 till date in respect of expenditure in the development of maintenance of garden in the said premises. Firstly the Complainant has not explained how many flats are situated in the Diamond Court Building. Further there is nothing on record that she was authorized by the Opposite Party to make such expenditure. Therefore, the Complainant is not entitled to recover the said amount from the Opposite Party.
Ld.Advocate for the Complainant has not pointed out any term & condition in the registered Agreement of Sale in respect of the flats purchased by the Complainant to the effect that inspite of execution of registered Agreement of Sale of flat and after handing over possession of the flat to the Purchasers, the Promoter is liable to pay BMC Taxes. Absolutely there is no evidence on record to support contention that the Complainant has paid BMC Taxes of the relevant period. It was possible for the Complainant to produce receipts of BMC Taxes or any of the relevant documents to support her contention but the Complainant has failed to produce available documentary evidence before this Forum. For want of evidence, we do not find substance in the claim of the Complainant that she is entitled to recover Rs.1,63,032/- from the Opposite Party towards BMC Taxes.
In the complaint para no.2 d), the complainant has specifically stated that on 12/12/94, he received possession of Flat No.7 & 8 and the Opposite Party also handed over possession of stilt parking no.8 & 5 to her vide letter dtd.15/12/94. The Complainant has produced aforesaid letter regarding handing over stilt parking alongwith annexure C-6. In the said letter the Complainant has acknowledged that she has received possession of stilt parking nos. 5 & 8 in presence witnesses from the Opposite Party. During pendency of this complaint the Complainant filed an application for amendment of complaint on 10/05/04 and by proposed amendment she raised contention that entire stilt park no.8 was allotted to her by the Opposite Party alongwith access thereof. However, on examining the record of BMC it was found that the said stilt area does not exists. The Open space that the Opposite Party tried to pass on as so called stilt area was in fact not a stilt and further it had no excess. On that ground the Complainant has prayed for recovery of price of stilt park no.8, Rs.15,000/- from the Opposite Party. As mentioned above by Registered Agreement of Sale, the Complainant has purchase stilt park and by letter dtd.15/12/94 acknowledged receipt of actual possession of stilt park no.5 & 8. About more than 9 years after receipt of possession of stilt parking the Complainant has raised contradictory plea in the amendment application. The amendment application was allowed. The Opposite Party has resisted claim of the Complainant contending that Complainant is falsely alleging that possession of stilt park no.8 was not given to her. The Complainant has not produced any record of the BMC in support of her contention that stilt park no.8 is not in existence. The Complainant has purchased still parking by Registered Agreement and she has received actual possession of the same said stilt parking on 15/12/94 from the Opposite Party therefore, plea raised by the Complainant in the amended complaint appears to be afterthought and false.
It is important to note thatby order dtd.17/12/03 the Hon’ble State Commission in Appeal set aside decision of this Forum and remanded the matter for fresh trial. Thereafter, the Opposite Party alongwith application dtd.05/08/2011 has produced letter dtd.20/09/06 which is signed by the Complainant and other flat owners in favour of Opposite Party. The Complainant has filed written say and contended that Promoter J.K. Mehra, for registration of the society obtained aforesaid writing dated 20/09/2006 from the Flat Purchasers. The Complainant has not denied her signature below the said letter. The letter is addressed to Mr. Mehra, Proprietor of J.K. Construction in which the Complainant and other flat purchasers have clearly stated that “There are no amounts due to be received by any of us from the builders.” Further it is stated that “We he flat owners have no complaint regarding construction, amenities provided in the building and any other matter of whatsoever nature.” It is well settled that admission of advisory is treated as best evidence. The contents of letter dtd.20/09/06, clearly discloses that Complainant and other flat owners admitted that they are no amounts due to be received from the builder and they have no any other complaint against builder. It is contention of the Complainant that aforesaid letter was obtained by the Opposite Party for the purpose of registration of society. In the entire letter there is no mention regarding registration of the society. The Complainant has not filed affidavit of any other signature of the said letter to support her contention. On the contrary it is clear from the letter that on 20/09/2010, Opposite Party was not liable to pay any amount to the Complainant and other flat purchasers who are signatory to the said letter. The allegations made in the amended complaints are afterthought appears to be false. Therefore, we do not find any substance in the allegation made by the Complainant in this complaint. Therefore, we hold that the Complainant has failed to prove deficiency in service on the part of Opposite Party. In the result point no.1 is answer in the negative.
Point No.2 : As discussed abovethe Complainant is not entitled to recover any amount mentioned in the complaint from the Opposite Party. The Complainant has failed to prove deficiency in service or unfair trade practice on the part of Opposite Parties. Therefore, complaint is liable to be dismissed. In the result we answer point no.2 in the negative.
For the reasons discussed, complaint is deserves to be dismissed therefore, we pass following order -
O R D E R
i.Complaint No.134/2001 is hereby dismissed.
ii.No order as to cost.
iii.Certified copies of this order be furnished to the parties.
