National Consumer Disputes Redressal
M/S. Jalada Promoters vs Shridhar Hari Kuwaleker on 18 May, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 172 OF 2015 (Against the Order dated 30/01/2015 in Complaint No. 413/2013 of the State Commission Maharashtra) 1. M/S. JALADA PROMOTERS THROUGH ITS PROPRIETOR, MR. AVINASH LAXMAN BARVE, R/O. A-10, TULSHIBAGWALE, COLONY, PARVATI, PUNE-411009 MAHARASHTRA ...........Appellant(s) Versus 1. SHRIDHAR HARI KUWALEKER R/O. 1, BHALCHANDRA APPT. KOHINOOR COLONY, SAHAKARNAGAR, NO. 2, PUNE-411009 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Appellant : Mr. Preshit Surshe, Advocate For the Respondent : Mr. Vikas Nautiyal, Advocate
: Mrs. Megha Joshi Nautiyal, Advocate
Dated : 18 May 2022 ORDER
1. Heard Mr. Preshit Surshe, Advocate, for the appellant and Mr. Vikas Nautiyal, Advocate, for the respondent.
2. Aforementioned appeal has been filed from the order of State Consumer Disputes Redressal Commission, Maharashtra at Mumbai dated 30.01.2015, passed in Consumer Complaint No.413 of 2013, whereby the complaint was allowed with cost of Rs.25000/- and the appellant was directed to handover possession of Flat No.4, carpet area 640 sq.ft. to the respondent, or in alternative to pay Rs.2586400/- with interest @9% per annum from 23.09.2013 within 90 days. After 90 days, interest @12% per annum was payable.
3. Shridhar Hari Kuvalekar (the respondent) filed CC/413/2013, for directing M/s. Jalada Promoters (the appellant) (i) to handover possession of Flat No.4, carpet area 640 sq.ft. in the building known as "Kuvalekar Wada" at 583-A and 718, Budhwar Peth, Pune-2 or (ii) to pay value of the said flat according to current Government Ready Reckoner, (iii) to award Rs.50000/- as the cost of litigation and (iv) any other relief which is deemed fit and proper be awarded to the complainant.
4. The complainant stated that M/s. Jalada Promoters (the appellant) was a proprietorship firm and engaged in the business of developing and constructing residential and commercial building. The complainant had ancestral property at Budhwar Peth Pune bearing CS No.583-A (area 296 sq.mtrs.). Said property was partitioned by his father Hari Gundopant Kuvalekar on 19.03.1983, in which, 1/3rd share in northern side was taken by the father and 2/3rd share in southern side was given to the complainant and his brother Chandrakant Hari Kuvalekar. Hari Gundopant Kuvalekar died on 02.04.1993 and his share was inherited by the complainant, Chandrakant Hari Kuvalekar and five sisters. The complainant and his brother constructed two shops of 20' X 10' in southern side. The complainant, his brother and five sisters entered into a development agreement 01.03.1995 with the opposite party and also executed a Power of Attorney in favour of Avinash Laxman Barve, for raising a three storied building. Avinash Laxman Barve got the layout map sanctioned from Pune Municipal Corporation, for three storied building. As against the development agreement dated 01.03.1995 and sanctioned map, the opposite party raised construction on third floor also. The complainant raised an objection in raising construction on third floor, then the opposite party promised to give Flat No.4 (admeasuring 640 sq.ft.) on third floor to the complainant and also issued allotment letter to the complainant of this flat. After completing construction of the building, the opposite party transferred the said flat to a third party. The complainant gave a notice dated 31.03.2015 to the opposite party for giving possession of the said flat but the opposite party did not give any reply nor gave possession of the said flat. Then the complaint was filed, complaining deficiency in service.
5. The opposite party filed its written reply and contested the complaint. The material facts as stated in the complaint have not been disputed. It has been stated that in southern side of CS No.583-A, 15 ft. wide road i.e. Ambedkar Road was situated. In northern side of CS No.718 (583-B) was situated and thereafter 50 wide, Ganesh Road was situated. CS No.718 (583-B) belonged to Suhas Kuvalekar. The opposite party obtained CS No.718 (583-B) from Suhas Kuvalkar and amalgamated it in CS No.583-A then the entire property came on 50 ft. wide Ganesh Road and layout map was passed by Pune Municipal Corporation. Prior to agreement dated 01.03.1995, there was a Memorandum of Understanding between the opposite party, the complainant and his brother Chandrakant Hari Kuvalekar, under which, no money was payable to the sisters of the complainant. Sampada Sahkari Bank has encroached over CS No. 583-A and 583-B, in the width of one feet. In the southern side 10 feet wide land was taken in road widening, due to which substantial area has been reduced. As per agreement, the complainant had to pay the cost of staircase, parapet wall and other additional construction worth Rs.50000/-. In order to avoid payment, this complaint has been malafide filed to pressurise the opposite party.
6. The complainant filed Affidavit of Evidence of Shridhar Hari Kuvalekar and documentary evidence. The appellant did not adduce any evidence and after filing written reply did not appear before Sate Commission. State Commission, after hearing the complainant, by judgment dated 30.01.2015, held that the opposite party agreed to give one flat to the complainant in lieu of the construction raised over third floor and issued allotment letter dated 29.04.1998, whereby Flat No.4, carpet area 640 sq.ft. was allotted to the complainant as such the opposite party is liable to handover possession Flat No.4, carpet area 640 sq.ft. to the complainant. On these findings the complaint was allowed and order as stated above has been passed. Hence this appeal has been filed.
7. The counsel for the appellant submitted that the flat which came into existence due to additional construction was allotted to Manish Athale in June 1997, who cancelled the allotment on 12.08.1997. This additional construction was not in the share of the respondent under the agreement dated 01.03.1995. After taking possession of the flats of his share the respondent signed a "No Objection Certificate" on 08.12.1998, in favour of the appellant. The respondent did not assert any right over additional construction nor raised any dispute upto 2013. The alleged allotment letter dated 29.04.1998 was fabricated thereafter and then the complaint was filed on its basis. The complaint has been illegally allowed without examining terms and condition of agreement dated 01.03.1995.
8. I have considered the arguments of the counsel for the parties and examined the record. Admittedly the appellant has raised construction over third floor, contrary to the agreement dated 01.03.1995. As the appellant raised additional construction as such in all probability he might have agreed to give share to the complainant in additional construction and issued allotment letter dated 29.04.1998. The appellant did not challenge the genuineness of allotment letter dated 29.04.1998 in his written reply. For the first time, the appellant cannot be permitted to raise any such plea. State Commission has not committed any illegality in relying upon allotment letter dated 29.04.1998. So far as reduction of area due to encroachment by Sampada Sahkari Bank and in road widening are concerned, under Clause-10 of the agreement dated 01.03.1995, the appellant has agreed that the vendor would not be liable for any reduction of Floor Space Index etc.
ORDER
In view of the aforesaid discussions, the appeal is dismissed.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER