Advocate for the Complainant : Mr. A.G. Habib
Advocate for the Opposite Party no.1 : Mr. K. G. Nagawekar
Advocate for the Opposite Party no.2 : Mr. U. P. Warunjikar
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Per :- Mr. J. L. Deshpande, President Place : Bandra
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::::: JUDGMENT :::::
Facts giving rise to this complaint may be stated, in brief, as follows :-
[2] The Complainant was tenant of Room no.1, 1st floor of Cess building bearing house no.8-B, Mahtre Lane, Harishchandra Goregaonkar Road, Gamdevi, Mumbai – 400 007. The Opposite party no.1 is No Objection Certificate holder for redevelopment of the aforesaid building. The Opposite party no.2 is No Objection Certificate issuing authority under MHAD Act, 1956.
[3] There had been redevelopment agreement between the Complainant and the Opposite party no.1 on 5th May, 2006. Under which the Opposite party no.1 agreed to provide 225 sqft area as against 46.11 sq.meter i.e. 497 sq.ft carpet area. According to the Complainant, the Opposite party played mischief while recording area in the complaint. The Opposite party no.1 had agreed to deliver vacant possession of newly constructed building to the Complainant within 20 months from the date of agreement. The Complainant vacated the room on 10th May, 2006 but even after lacks of the 20 months the Opposite party no.1 fail to pay agreed rent and handover possession of the newly constructed flat as agreed under the agreement, dated 5th May, 2006. The Opposite party no.2 neglected the mischief played by the Opposite party no.1.
[4] The Opposite party no.1 has not obtained the occupation certification of the building and has not put the Complainant in possession of the flat it has caused the serious hardship and inconvenience to the Complainant. She is Senior Citizen running 83 years of the age. The Opposite party no.1 even did not reply a legal notice served upon him. The Complainant then filed the present complaint seeking directions against the Opposite parties to deliver possession of the flat admeasuring 46.11sq.meter in carpet area recovery of sum of Rs.25,000/- to the rent and Rs.2 lacs towards damages.
[5] The Opposite party no.1 filed his written statement and took stand that he has committed breach of agreement. According to him, he has constructed all the flats as per the specifications but he denies the allegations that the area of the room possessed by the Complainant was wrongly recorded in the agreement. According to him, area has been rightly recorded in the agreement and his ready and willing to deliver vacant possession of the flat to the Complainant.
[6] The Opposite party no.2 filed written statement and took stand that there was privity of contract between the Complainant and the Opposite party no.2 and the Complainant is not a consumer of the Opposite party no.2 and the complaint against the Opposite party no.2 is not maintainable before this Forum.
[7] The Complainant produced copy of the agreement as well as copy of legal notice. We have gone through the same.
[8] Following points arises for our considerations and our findings thereon are as follows :-
Sr.No. | Points | Findings |
1 | Whether the Complainant has proved that the Opposite party no.2 is guilty of deficiency in service ? | Yes |
2 | Whether the Complainant is entitled to the relief of direction to the Opposite party no.1 to deliver possession of the vacant premises, pay arrears of the rent and compensation ? | Yes |
3 | Whether the complaint is maintainable against the Opposite party no.2 ? | No |
4 | What order ? | complaint is partly allowed. |
REASONS FOR FINDINGS :-
[9] The Opposite party no.1 in his affidavit in reply has admitted that he is having No Objection Certificate for redevelopment of the building in which the Complainant was presiding. He has also not disputed redevelopment agreement. The Opposite party no.1 has not challenge relationship of Consumer and service provider and also not challenged maintainability of the complaint. In view of the agreement between the Complainant and the Opposite party no.1, it can be construed that the Opposite party no.1 agreed to provide services to the Complainant. That agreement between the Complainant and the Opposite party no.1 was on the basis of the scheme approved by the Opposite party no.2. Thus the Complainant became the consumer of the Opposite party no.1. Consideration was old premises against the promise of new premises. Therefore, the complaint is maintainable against the Opposite party no.1.
[10] However, there was no privity of the contract between the Complainant and the Opposite party no.2. The Complainant has not averred that the Opposite party no.2 has played any role in the disputed transaction. In the written statements as well as in the written arguments, the Opposite party no.2 has taken stand that the complaint against the Opposite party no.2 is not maintainable and this contention in another matter was upheld by Hon’ble State Commission. In the rejoinder, the Complainant has not referred to this contention of the Opposite party no.2. It has not been shown as to how the complaint is maintainable against the Opposite party no.2. Moreover, in appeal no.483/1996 Hon’ble State Commission in its judgment, dated, 16th Dec.1998 as held that in view of Section 177, 82 and 86 of MHADA Act, jurisdiction of Civil Court as well as Consumer Forum has been excluded. We, therefore hold that the complaint is not maintainable against the Opposite party no.2.
[11] The Complainant has produced copy of the agreement dated 5th May, 2006 entered into by the Complainant with the Opposite party no.1. It is in respect of disputed premises. According to the Complainant, the Opposite party has played mischief while recording area in the agreement and in fact she is entitled to area of 46.11 sq.meter i.e. 497 sq.ft. carpet but wrongly it has been mentioned at 225 sq.ft.
[12] We have gone through the copy of the agreement. It is seen that area mentioned therein is 225 sq.ft carpet area. It has not been mentioned that the area was 46.11 sq.meter or 497 sq.ft. carpet. The agreement were signature of the Complainant as well as two witnesses. One of the witnesses has given signature of Mr. Nilesh N. Naik and presumably he is a son of the Complainant. The Complainant has not filed affidavit of any witness to prove that the area was wrongly recorded in the agreement. Moreover, this Forum is not vested with jurisdiction to decide question of cheating, forgery, or coercion. Therefore, we will have to go by area as recorded in the agreement which is 225 sq.ft. carpet area.
[13] Admittedly, the Opposite party no.1 has not deliver the possession of this much area to the Complainant in the newly constructed building. Therefore, there is deficiency in service on the part of the Opposite party no.1 and he is liable to put the Complainant in possession of the flat having area of the 225 sq.ft. carpet area.
[14] The Complainant has claimed relief of recovery of arrears of rent from July, 2008 to November, 2008 i.e. for the period of five months. There is provision in the agreement that the builder- Opposite party no.1 shall pay rent in sum of Rs.5,000/- per month till possession of the newly constructed premises is delivered to the Complainant. The Opposite party has not produce the material to show that rent for the aforesaid period has been paid to the Complainant. Therefore, the Complainant is entitled to recover the arrears of the rent in sum of Rs.25,000/- and direction regarding future rent.
[15] The Opposite party no.1 had agreed to deliver vacant possession of the premises within 20 months from the agreement. The agreement was entered into on 5th May, 2006. Period of 20 months elapsed in December, 2007. The Opposite party no.1 did not deliver the possession in December, 2008. The Complainant is Senior Citizens running 83 years of age. According to the Complainant, she is residing with her son-in-law which has created embarrassing situation. She has suffered mental agony and torture. We, therefore, think it proper to direct the Opposite party no.1 to pay compensation in sum of Rs.50,000/- to the Complainant.
For the forgiving reasons, we partly allow the complaint and proceed to pass the following order.
::::: ORDER :::::
(1) The complaint is partly allowed against the Opposite party no.1 and dismissed against the Opposite party no.2.
(2) The Opposite party no.1 shall handover vacant possession of 225 sq.ft. carpet area to the Complainant in the newly constructed building as per the agreement dated 5th May, 2006.
(3) The Opposite party no.1 shall pay Rs.25,000/- to the Complainant towards arrears of the rent and shall pay Rs.5,000/- per month from December, 2008 till delivery of the possession of the flat to the Complainant.
(4) The Opposite party no.1 shall pay compensation in sum of Rs.50,000/- to the Complainant.
(5) The Opposite party no.1 shall pay costs in sum of Rs.2,000/- of this litigation to the Complainant.
(6) Four weeks time given to the Opposite party no.1 to comply with this order.
(7) Parties be informed, accordingly.
