State Consumer Disputes Redressal Commission
Dr.Hari A. Nagpal vs Mohini Shelters Pvt. Ltd. on 6 February, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/11/19
1. Dr.Hari A. Nagpal
Flat No.01, A Wing, Plot No.579,
C.T.S. No.F/1532, 5th Road,
Khar (W), Mumbai - 400 052.
...........Complainant(s)
Versus
1. Mohini Shelters Pvt. Ltd.
Office at Plot No.6, Kumar Harshwardhan
Juhu
Versova Link Road, Andheri (W),
Mumbai - 400 053.
............Opponent(s)
BEFORE:
HON'ABLE MRS. Usha S.Thakare PRESIDING MEMBER
HON'ABLE MR. Narendra Kawde MEMBER PRESENT:
Complainant-Dr.Hari Nagpal present a/w. his Adv. Mr.Subodh Gokhale.
Mr.Shripad Moorthy, Adv. a/w. Ms.P.M. Bhansali, Adv. for the opponent.
-: ORDER :-
Per Mrs.Usha S. Thakare, Honble Presiding Judicial Member (1) The complainant has filed present complaint u/s.17 of the Consumer Protection Act, 1986 by alleging deficiency in service on the part of opponent as he failed to hand over the flat to him as per agreement.
(2) The complainant is a doctor who is senior citizen and resident of Mumbai. He claims himself to be a consumer and the opponent as a service provider. The opponent is a builder who undertook the task of re-development of flats and to hand over to the original members of the society.
(3) According to the complainant, the opponent had impressed upon the complainant and other members/owners of New Shri Ram Nagar Co-operative Housing Society Ltd. Concerning re-development of complainants society. The opponent assured the complainant and offered additional area to be given upon surrendering the entire area in respect of each flat. The opponent also assured to the complainant and members/owners that on payment of sum of `1960/- per sq.ft., all the members including complainant would be provided the amenities along with open car parking space and corpus.
The assurances of the opponent impressed the members of the society. Members of the society approved redevelopment and accordingly development agreement was executed on 31/12/2007 between New Shri Ram Nagar Co-operative Housing Society Ltd.and the opponent. The flat on second floor of new building was agreed to be allotted to the complainant on redevelopment. Accordingly, a separate agreement was entered into between the complainant and the opponent. It was agreed that the complainant would be allotted flat no.201 in lieu of original flat No.A-01 owned by the complainant prior to the redevelopment.
On 31/05/2008, IOD was granted to the opponent and the Municipal Corporation had given Commencement Certificate. The opponent had to hand over vacant and peaceful possession of a flat in the newly constructed building of the said society.
(4) It is further alleged by the complainant that in order to redevelop the building, the opponent had to pay advance rent for 11 months in accordance with clause No.xii of the said Development Agreement to the complainant @`71/- per sq.ft. for residential area till the completion of said building i.e. 22 months from the date of the development agreement. The opponent paid a sum of `62,100/- per month from May 2008 to March 2010. The opponent also agreed and confirmed to provide the complainant a flat in newly redeveloped building with a carpet area admeasuring 700 sq.ft. according to the registered approved plan with all facilities and amenities. As per terms of clause No.ix (a), (b) and (c), the complainant handed over vacant and peaceful possession of his flat and paid balance sum of `3,00,000/- to the opponent. The opponent was to complete the construction within a period of 22 months upon receipt of commencement certificate from the Municipal Corporation.
A further grace period of 11 months was granted, however, with a penalty as is crystal clear upon perusal of clause xvi of the said agreement. A penalty of `25,000/- was to be paid per month to each individual member/owner of the society till the completion of construction, obtaining occupation certificate and handing over the possession as per registered approved plan to the member/owner. Only sum of `62,100/- was paid for a period of two months from March 2010 since the 22 months deadline was expired in March, 2010. The opponent is liable to pay penalty of `25,000/- per month.
The opponent had handed over possession of the flats to the various other members of said society despite there was no approval from the Municipal Corporation and in absence of completion certificate and occupation certificate. Several members have preferred to accept the possession of their respective flats without the bare necessities of life i.e. electricity supply and water supply. Entire act on the part of opponent is prima-facie illegal with ulterior motive.
(5) The complainant further added that in order to specify the complainant, he was called upon by the opponent at his office on 14/07/2010. In the course of said meeting, the complainant was surreptitiously called upon to sign a possession letter, affidavit-cum-indemnity bond and cash payment vouchers equivalent to the balance corpus fund amounting to `9,54,000/-. The opponent thereafter deliberately avoided to meet the complainant/or to hand over the possession of his flat. The opponent failed and neglected to pay rent and penal amount and/or to hand over vacant and peaceful possession of the flat. The opponent neither handed over keys in respect of flat nor documents on which complainants signatures were sought surreptitiously and fraudulently. The opponent failed and neglected to provide the services despite being bound by the said agreement. Subsequently, the complainant through his advocate addressed a letter dated 30/09/2010 to opponent informing about the failure in providing services in terms of the agreement. The opponent failed and neglected to reply the said letter. The opponent committed breach of agreement and failed to provide services as per agreement. The complainant has not only suffered monetary loss but also undergone tremendous mental agony. Therefore, he has filed the present consumer complaint for claiming possession of the flat in newly constructed or redeveloped building as per registered approved plan, sum of `25,00,000/- with interest towards compensation and `8,33,900/- by way of rent and penalty. The complainant has also claimed costs and other suitable reliefs.
(6) The opponent has resisted the claim of the complainant by filing written version and has denied all adverse allegations. It is submitted that the complainant has not come with clean hands before this Commission and suppressed material facts. The complainant did not join the New Shree Ram Nagar Co-operative Housing Society Ltd. as a member. As such, he is not entitled for alternate accommodation. New Shree Ram Nagar Co-operative Housing Society (the said society) was the owner of the property under development along with another society named, Vintage Apartment Co-operative Housing Society Ltd. This society is a necessary party in the present complaint.
Both the societies are now merged and new society under name of Mohini Heights Co-operative Society has been formed and registered. Now, it has become owner of the property including flats therein and thus is necessary party. For want of necessary party, the complaint needs to be dismissed with heavy costs. The complainant has no locus-standi to file the complaint. He does not have an independent cause of action. The said society has entered into an agreement for development with this opponent along with Vintage Apartment Co-operative Housing Society Ltd., co-owner at adjacent plot. The opponent is a developer. Under said agreement, new composite building is to be constructed and flats are to be given to the society for its regular disclosed members. The complainant cannot have a cause of action against this opponent on the basis that the complainant is a member of the said New Shree Ram Nagar Co-operative Housing Society Ltd. The agreement between the complainant and the opponent is not under the provisions of Maharashtra Ownership Flats Act and not as a promoter. The opponent cannot be considered as a service provider. The basic privity of contract is between the said society being the owner of the property and this opponent as a developer. The complainant cannot be a consumer.
The opponent cannot be termed as service provider.
(7) Without prejudice, it is further submitted by the opponent that the complainant has filed present consumer complaint along with three other complaints bearing nos. C/11/17, C/11/18 and C/11/72 by making similar incorrect and false allegations. The complainant has suppressed material facts which are in his personal knowledge only with a view to pressurize this opponent to submit to the illegal demands of the complainant himself, his wife and son. The complainant, his wife and son had three premises in a building of the said New Shree Ram Nagar Co-operative Housing Society.
The particulars of the premises and the area of the premises are clearly mentioned in the agreement for development executed between New Shree Ram Nagar Co-operative Housing Society Ltd., Vintage Co-operative Housing Society Ltd. and this opponent. The complainant had certain dispute with society. There were litigations between the family members of the complainant and society.
They were not co-operative with the society and were holding up the development. The complainant was taking undue advantages. He had represented to have premises on the 4th floor which in fact was never in existence and got an agreement executed referring him as Dr.Hari A. Nagpal (HUF). It is apparent from the conduct of the said Dr.Hari A. Nagpal, the complainant herein who is instrumental in getting the complaints filed and claims to have issued a common notice through M/s. Kamal & Co. dated 30/09/2010. Said notice was never received by the opponent. Somehow, all the members of the complainants family wanted to stall development and extract more money or space unequal to other members of the society.
(8) It is further submitted that complainant Dr.Hari Nagpal and other two members, Pushpa Hari Nagpal and Sanjay Hari Nagpal had a meeting with the opponent and arrived into a settlement at the behest of the present complainant. In the said meeting, it was held between the complainant, his family members and this opponent as under :-
(a) That Nagpal family has three flats of 540 sq.ft. viz.
i. Flat no.01 on ground floor admeasuring 540 sq.ft. in the name of Hari Nagpal (complainant herein).
ii. Flat no.04 on third floor admeasuring 540 sq.ft. in the name of Late Kamala G. Nagpal and Sanjay Hari Nagpal.
iii. Flat no.03. on second floor admeasuring 540 sq.ft. in the name of Dr.(Mrs.)Pushpa Hari Nagpal.
(b) Four flats should be provided to Nagpal family with additional areas (one extra flat).
(c) All the four flats will be internally connected with internal staircase.
(d) The fourth flat i.e. numbered as 4A, will be an additional flat, which is non existing premises in the old building, on the representation that, Dr.Nagpal has a right to consumer 363 sq.ft. (this is not known to other members nor informed under the development agreement with the owner society) and an additional area at 200 sq.ft. i.e. 363 + 200 + 25% addition i.e. 137 sq.ft. making a total of 700 sq.ft. to be given to Dr.Nagpal in the name of Dr.Hari A. Nagpal HUF (i.e.father, mother and son).
(e) That construction cost of the additional flat 4A (subject flat) shall be paid by then (members of Nagpal family).
(f) In view of these additional facilities of providing additional flat no.4A they shall not claim rent for ground floor flat which will be given as commercial premises on 2nd floor in name of the complainant instead of residential flat.
(g) That no rent or corpus will be paid for the 4th floor non existing flat.
(h) That to show some uniformity of rent and corpus for each flat the amount of corpus and rent of fourth floor flat shall be shown to be given. However, in view of the fact that Nagpal was in need of money the said payment so paid and received shall be treated as loan. The loan amount which comes to be `41,70,080/- will be paid back with interest at 18% from the date of receipt of such payment.
(i) That until all the payments of loan as above are repaid to the developer the member of Nagpal family shall not claim possession of any of these flats.
All the pointes referred above are the matter of record, recorded in writing and duly signed by the member of the complainants family in their writing dated 05/04/2007, 19/10/2007 and 20/10/2007. With this clear understanding agreed between the parties, the parties proceeded and executed necessary agreement. However, after the completion of the building and receipt of the money from this opponent, the complainant and his family member have, with a sheer dishonest intention, made false allegations and filed the present complaint.
(9) It is added that all the members of the complainants family are educated and qualified persons. The present complainant had written a letter voluntarily on 20/10/2007 referring to a meeting with this opponent on 05/04/2007 which was much prior to the execution of the agreement. The complainant on 20/10/2007 requested for the financial assistance for `41,70,080/- as a loan which was promised to be returned by him with interest, at the rate of 18% per annum and was further agreed to bear the construction costs of the flat being flat no.4A i.e. fourth flat which was referred to as flat no.401. In furtherance, the complainant and his family members executed affidavit on 21/07/2010 which is self-explanatory. This document shows falsity of the complainants case.
(10) It is admitted that IOD was granted by the Municipal Corporation. The commencement certificate was granted on 06/10/2008.
However, it was not possible for the opponent to adhere on time period of 22 months, unless and until all the members including the complainant not only of his society, but also of Vintage Apartment Co-operative Housing Ltd. vacate and hand over peaceful possession of their respective flats in their occupation, permitting the opponent to demolish the building. This opponent has paid to the complainant an amount, which otherwise he is not entitled to, as loan as recorded in the letter of complainant, a substantial amount. But it was shown as rent so as to keep the records of transaction as suggested by the complainant himself. It is incorrect and inappropriate on the part of the complainant to say that the sum of `62,100/- is paid by the opponent to the complainant as monthly rent.
In order to keep the account to tally, the said amount were shown as rent, but was in fact a loan at the specific request of Nagpal family in particular of the complainant. The agreement solely based on the understanding. Therefore, the same should not be read in isolation. It is because of the complainant and his family members, their adamant nature, hostile approach, litigation against the society and their total non-co-operation has caused the delay. Other members agreed to take formal possession with a view to carry out their respective internal work on satisfying that the occupation certificate is only applied for and the same is under consideration of the Municipal Corporation. The complainant has also been asked to take possession on settlement of the accounts, particularly the repayment of `41 lacs with interest and further payment of construction costs of `25,00,000/- in respect of the flat no.401. After receipt of amount, after issuing the necessary receipts and after signing necessary papers, for the first time the complainant is coming out with false and frivolous story. The question of payment of rent or any penal amount does not arise as there is no reason for the opponent to make any discrimination like other members. Not a single member has ever demanded nor was paid nor there was any intended delay on the part of the opponent. The members of the family of the complainant were repeatedly requested to take the keys after payment of the amount. Instead of discharging their obligations, the present complaint is filed maliciously. There was no flat on 4th floor nor the complainant had premises for which he would have claimed for an alternate flat. Therefore, there is no question of giving corpus or rent for temporary shifting. The complainant cannot take advantage of his own fraud or wrong. The agreement for flat on 4th floor was totally unenforceable, without consideration cannot be enforced and hence null and void. The family members of the complainant have played fraud by getting the agreement in respect of fourth floor flat executed. The complainant and his family members made this opponent to pay at `3,000/- per sq.ft. towards alternate accommodation compensation.
Other members of the society, who have similarly placed, were received `2,800/-
per sq.ft. The amount of `3 lacs towards corpus which was agreed to be paid was taken by the complainant and his family members in advance. They forced the opponent to submit to their illegal demands. Hence, the complaint is liable to be dismissed with costs.
(11) To substantiate claim of the compensation, the complainant has relied on his own affidavit of evidence and counter affidavit, agreement executed between New Shree Ram Nagar Co-operative Housing Society Ltd. and Vintage Apartment Co-operative Housing Society Ltd. and the opponent, agreement between the complainant and the opponent pertaining to the flat no.201, old flat no.A-01.
Notice issued by the complainant to the opponent through M/s.Kamal & Co., Advocates, Solicitors & Notary, report to Police and letter of Notary are also relied. To give counter blow, the opponent has relied on the affidavit of evidence of Director, Prakash Chawala of the opponent builder. The opponent has also placed his reliance on the agreement between the societies and opponent, letter dated 29/10/2007, letter dated 20/10/2007 issued by Dr.Hari Nagpal, affidavit-cum-confirmation receipt of executed by family members of the complainant, Writing of discussions on 05/04/2007 between the parties, reply of the complainant to the interrogatory, affidavit of hand writing expert, Anuja Kaushal and her report.
(12) Heard learned counsel Mr.Subodh Gokhale-advocate for the complainant and learned counsel Mr.Shripad Moorthy a/w.P.M.Bhansali for the opponent.
(13) Development agreement executed by New Shri Ram Nagar Co-operative Housing Society Ltd., Vintage Apartment Co-operative Housing Society Ltd. and M/s.Mohini Shelter Pvt.Ltd. on 31/12/2007 is not at all disputed. On the other hand, this document is relied by both the parties.
It is admitted that New Shri Ram Nagar Co-operative Housing Society Ltd. entered into agreement with the opponent for redevelopment of the property of the said society in accordance with redevelopment agreement. Redevelopment was to be completed within 22 months from the date of agreement i.e. 31/12/2007. The opponent has entered into individual agreement with the complainant and other members of the society. He agreed to give flat no.201 of an area admeasuring 700 sq.ft. to the complainant out of newly constructed flat, and agreed to pay advance rent for 11 months @`71/- per sq.ft. in respect of total area i.e. 700 sq.ft. Municipal Corporation of Greater Mumbai granted IOD and Commencement Certificate to the opponent. Possession of the agreed flat was not handed over to the complainant even after expiry of 22 months. All these facts are not disputed.
(14) Complainant-Dr.Hari A. Nagpal was member of New Shri Ram Nagar Co-operative Housing Society Ltd.
He had a flat in the said society bearing no.A-01 of an area admeasuring 540 sq.ft. He was holding shares bearing No.106 to 110 under Share Certificate No.022 in respect of flat no.01, Wing A, ground floor, having carpet area admeasuring 540 sq.ft. He agreed to hand over his flat to the opponent for redevelopment. The opponent agreed to hand over flat no.201 in new building situated on 2nd floor to the complainant in pursuance of redevelopment agreement. In agreement, penalty clause is provided. These facts are not in dispute. The complainant has denied the execution of documents on which reliance is placed by the opponent. It is the stand of the complainant that the documents filed by the opponent are forged documents and they do not bear signatures of the complainant or his family members.
(15) Dr.Hari A. Nagpal was having flat No.01 on ground floor admeasuring 540 sq.ft. in the society. His wife Dr.Pushpa Hari Nagpal was having flat No.03 on second floor in the society having area admeasuring 540 sq.ft.. Sanjay Hari Nagpal and Kamala G. Nagpal jointly were having flat No.04 on 3rd floor in the society having area admeasuring 540 sq.ft. It appears that only three flats were in the name of the complainant and his family members in the society. In the agreement between the society and the opponent, there is no whisper of any other flat in name of Dr.Hari A. Nagpal or his family members or in name of Dr.Hari Nagpal as HUF.
(16) In agreement between opponent and Dr.Hari A. Nagpal, property schedule is given. In 4th schedule, flat bearing no.01, total area of 540 sq.ft. situated on ground floor of New Shri Ram Nagar Co-operative Housing Society Ltd. is mentioned. In 5th schedule, flat bearing no.201 on second floor of the said proposed building of total carpet area admeasuring about 700 sq.ft. is mentioned. It is clear from the agreement that the opponent agreed to give flat no.201 situated on 2nd floor to the complainant, Dr.Hari A. Nagpal in lieu of old flat bearing No.A-01 on ground floor under agreement of redevelopment.
(17) It is urged on behalf of the complainant that in spite of agreement, complainant-Dr.Hari Nagpal did not get flat no.201 having carpet area admeasuring 700 sq.ft. even after handing over old flat for redevelopment.
Said agreement is not fulfilled.
Receipt of an old flat under agreement of redevelopment itself is consideration for opponent builder.
The opponent failed to hand over possession of the flat no.201 to the complainant. The terms of the agreement show that the complainant is a consumer. The opponent builder is a service provider. There is deficiency in service as the flat no.201 is not handed over to the complainant in spite of agreement. The complainant is entitled to receive possession of flat no.201 on 2nd floor of the newly constructed building and the opponent builder/service provider is liable to give the said flat to the complainant.
(18) It is the case of opponent that Dr.Hari Nagpal and his family members wanted to have extra flat in the new building from the opponent.
Without getting the flat he was not ready to co-operate with opponent as well as with the society.
The opponent was interested in development of new building as per agreement with the society.
Therefore, it was agreed to give flat No.401 from new building to the complainant for consideration.
Therefore, agreement was executed.
Terms were settled. For the sake of convenience, non-existing flat was shown as flat No.4A in old building. This fact was not disclosed to other members of the society, so that other members should not claim additional flat from new building for consideration.
(19) Learned Counsel Mr.Moorthy has drawn our attention to the affidavit of Mr.Prakash Chawala filed on behalf of opponent, affidavit of Handwriting Expert, report of Handwriting Expert and reply of interrogatory given by the complainant, and documents filed by the opponent.
(20) Director of the opponent, namely, Mr.Prakash Chawala in his evidence submitted that the complainant and his family had only three flats in Shri Ramnagar Co-op. Housing Society. Flat bearing No.01, 540 sq.ft. on the ground floor was in the name of Dr.Hari Nagpal, flat bearing No.03, 540 sq.ft. on second floor was in the name of Late Kamala G. Nagpal and Sanjay Hari Nagpal and flat bearing No.04, 540 sq.ft. on third floor was in the name of Dr.(Mrs.)Pushpa Hari Nagpal. There was no flat numbered as 4A. Complainant-Dr.Hari Nagpal had right to consume 363 sq.ft. (this is not known to other members nor informed under the development agreement with the owner society) and an additional area of 200 sq.ft. and 25% sq.ft. addition making it total 700 sq.ft. to be acquired by Dr.Hari Nagpal, H.U.F. a newly created person. Family promised to give construction cost for the same. Since, there was no such flat No.4A in old building, question of giving any rent or compensation would not arise and for providing additional facilities. Therefore, the complainant and his family members had agreed not to claim rent for ground floor flat and instead of ground floor flat, commercial premises on second floor should be provided. No corpus fund or rent for non-existing fourth floor flat, no monthly compensation for the alternate accommodation in lieu of flat would be given. It was an arrangement for transaction for the purpose of account. The amount paid to be treated as loan of `41,70,800/-. The complainant has now turned down his promise made in writing and is taking undue advantage.
(21) The documents filed by the opponent are denied by the complainant. It is to be noted here that the agreement between the society and the opponent took place on 31/12/2007. In the said agreement, all the three flats owned by family of complainant are described. There is no whisper about flat No.4A on fourth floor in the name of Dr.Hari Nagpal as H.U.F. In short there was no agreement about alleged flat between society and the opponent. But it is an admitted fact that the opponent has executed an agreement in favour of Dr.Hari Nagpal as H.U.F. and agreed to allot flat No.401 from newly constructed building having area of 700 sq.ft. to Dr.Hari Nagpal as H.U.F. for consideration.
(22) Present complainant has filed another complaint bearing No.17/2011 in the capacity as H.U.F. for getting possession of flat No.401 with monetary relief against the present opponent. Wife of complainant Dr.(Mrs.) Pushpa Nagpal has filed complaint No.18/2011 for possession of flat No.301 along with monetary relief. Son of complainant, namely, Mr.Sanjay Nagpal has filed complaint No.72/2011 for claiming possession of flat No.501 with monetary relief in view of agreement.
(23) It appears from the documents that the complainant and his family members wanted to have extra flat. Therefore, discussions were going on between the complainant and the opponent.
On 05/04/2007 discussion was taken place between the parties which was reduced into writing. It is prior to execution of agreement between complainant and opponent. So also on 19/10/2007 at 07.15 p.m. note was prepared which is signed by Mr.Vipul Parikh on behalf of opponent and Dr.Hari Nagpal, present complainant.
Signature of complainant over said note is not disputed. This document is also prior to agreement between the parties.
(24) The opponent has harped upon the document i.e. affidavit-cum-confirmation-receipt dated 21/07/2010. According to the opponent this affidavit-cum-confirmation-cum-receipt is executed by Dr.Hari Nagpal and Dr.(Mrs.)Pushpa Nagpal and Dr.Hari Nagpal as H.U.F. and it is signed by Mr.Sanjay Nagpal as witness. This document clearly shows that complainant and his wife have received all the sum payable as per development agreement dated 31/12/2007 pertaining to flat No.201, 301 and 401. The complainant and his wife declared and confirmed that they would not claim possession of flat Nos.201, 301 and 401 as mentioned in letter dated 20/10/2007. In view of this affidavit-cum-confirmation-cum-receipt, complainant-Dr.Hari Nagpal and his wife are not entitled to claim relief as claimed by them. By giving reply to the interrogatory, complainant has denied his signature on affidavit-cum-confirmation-cum-receipt and letter dated 20/10/2007 issued by Dr.Hari Nagpal. It is urged that signatures of the complainant and family members were obtained on this document surreptitiously.
(25) In affidavit-cum-confirmation letter there is a whisper of agreement dated 31/12/2007 between society and the opponent. It is agreed between the parties that the flat belonging to Nagpal family should be interconnected with internal staircase as per the record.
It is brought to our knowledge that said interconnection is shown in plan and accordingly flats of Nagpal family are constructed. It is clear that agreement is as per understanding between the parties.
(26) The complainant-Dr.Hari Nagpal and his wife confirmed that there are no dues pending between themselves and the opponent in confirmation letter dated 21/07/2010. They declared that they would not claim possession of flat Nos.201, 301 & 401 as mentioned in letter dated 20/10/2007 till they repay the loan amount and cost of construction of flat No.401. Admittedly, there was no flat No.4A. Therefore, handing over of old flat cannot be a consideration for giving alternate flat from new building to the complainant.
Therefore, we find substance in the say of the opponent that complainant had given up monetary reliefs and he was ready to pay cost of construction of flat No.401. Said amount was shown as loan amount.
This transaction can be ascertained from the letter dated 20/10/2007 written by Dr.Hari Nagpal to the opponent.
(27) Letter dated 20/10/2007 clearly exhibits that on 05/04/2007 complainant-Dr.Hari Nagpal agreed for not accepting rent for ground floor flat, but by letter dated 20/10/2007 he requested to give rent towards ground floor flat No.01 and also rent and corpus towards flat No.4A. He claimed that he is going through the financial crisis and is in urgent requirement of funds. He assured that he will return `14,90,400/- towards the rent of flat at ground floor flat No.01 and `15,76,400/- towards the corpus and `11,03,280/- towards the rent of flat No.4A totaling to `41,70,080/- along with 18% interest per annum. He further agreed that he will return said amount with interest after he receives all the amount receivables. He further assured that he would not claim possession till the time he repays above mentioned amount and would pay the consideration of newly constructed flat on mutual agreed terms.
(28) The mutual agreed terms between the parties are not put forth by the complainant. The complainant had received rent, corpus fund to meet out his financial difficulties. Nothing is on record to substantiate that complainant-Dr.Hari Nagpal returned the amount of `41,70,080/- with interest to the opponent. The complainant and his family members are educated persons and they will not sign the document without understanding them. On 21/07/2010 in Affidavit-cum-Confirmation-cum-Receipt, the complainant and his wife have confirmed the letter dated 20/10/2007.
(29) Complainant-Dr.Hari Nagpal has denied his signature on document dated 20/10/2007 and 21/07/2010. Therefore, opponent had sent these disputed documents to the Handwriting Expert. Handwriting Expert-Mrs.Anuja Kaushal examined the disputed documents and submitted her report. Handwriting Expert Mrs.Anuja Kaushal led her evidence by filing affidavit and proved the report issued by her.
(30) Witness-Mrs.Anuja Kaushal is a professional specialist in Criminology and Forensic Science with specialization in Finger Print and Documents, in particular, expert opinion on handwriting and questioned document etc. She is in this profession for last nine years.
(31) It is revealed from the evidence of Handwriting Expert that Mr.P.N. Bajaj, representative of opponent has approached to her on 05/11/2012 with following documents :-
(i) Mutual agreement letter dated 19/10/2007 signed by Dr.Hari Nagpal - Accepted.
(ii) Letter dated 20/10/2007 signed by Dr.Hari Nagpal - Disputed.
(iii) Consent declaration dated 17/01/2008 signed by Dr.Hari Nagpal - Accepted.
(iv) Consent declaration dated 17/01/2008 signed by Dr.Pushpa Nagpal - Accepted.
(v) Consent declaration dated 17/01/2008 signed by Mr.Sanjay Nagpal - Accepted.
(vi) Consent declaration dated 03/05/2008 signed by Dr.Hari Nagpal - Accepted.
(vii) Affidavit-cum-Confirmation-cum-Receipt 21/07/2010 signed by Dr.Hari Nagpal and Dr.Pushpa Nagpal and witness Mr.Sanjay Nagpal - Disputed.
(32) Expert had examined signatures of Dr.Hari Nagpal on documents i.e. Affidavit-cum-Confirmation-cum-Receipt dated 21/07/2010 and letter dated 20/10/2007 by following prescribed procedure for examination of documents. After examining those documents along with other documents, she issued a report dated 15/11/2012 along photographs of disputed and admitted signatures. Disputed signatures were marked as D1toD9 and admitted signatures were marked as A1toA15. Expert also examined genuineness of signature of Mr.Sanjay H. Nagpal and then she had given her report. Handwriting Expert Mrs.Anuja Kaushal opined that disputed signature marked as D1toD9 on different documents matched with the admitted set of signatures marked as A1toA15. Report of the Handwriting Expert shows that signatures on the documents i.e. Affidavit-cum-Confirmation-cum-Receipt is signed by Dr.Hari Nagpal. Construction of the flats of Nagpal family is as per the agreement and they are internally connected. Handwriting Expert is an independent and qualified person. Expert has no reason to give false report.
(33) The complainant in his complaint at para 10 pleaded that in order to specify the opponent called upon the complainant at their office at Renaissance Club on 14/07/2010 and during the course of said meeting surreptitiously called upon to sign a possession letter, affidavit-cum-indemnity bond and cash payment vouchers equivalent to balance corpus fund amounting to `9,54,000/-. It is also pleaded that complainant thereafter addressed a letter to the concerned Police Station for the fraud perpetrated by the opponent for fraudulently obtaining signatures of the complainant on the documents. These pleadings show that documents bear the signatures of the complainant. Police never called the authorities of the opponent nor initiated any action against them. Copy of said report is on record.
(34) The complainant has filed on record copy of F.I.R. dated 06/09/2010. Police received said report on 23/09/2010. The complainant filed report against Mr.Prakash Chawala, Head of opponent, who is a builder. It is alleged that he had meeting with Mr.Prakash Chawala at Renaissance Club on 14/07/2010 regarding possession of flat No.201 (owner-Dr.Hari Nagpal), flat No.301 (owner-Dr.Pushpa Nagpal), flat No.401 (owner-Dr.Hari Nagpal, H.U.F.). The complainant and his family members were surprised to find that Manager Mr.Vipul Parikh was talking to them about possession instead of Mr.Prakash Chawala. Manager-Mr.Vipul Parikh prepared possession letters, affidavit-cum-indemnity bond and cash payment vouchers which according to him were mandatory for the complainant to sign so that Manager could send completed documents for signature of builder-Mr.Prakash Chawala before handing over possession of the flats. It is submitted that under pressure of need of getting flats, the complainant agreed to sign the documents under protest. After signatures of all three owners on documents and cash payment vouchers, Manager-Mr.Vipul Parikh took the documents to builder-Mr.Prakash Chawala for his signature. He came back within ten minutes and told that Mr.Prakash Chawala is not available in the office. Manager-Mr.Vipul Parikh stated that signatures of opponent would be taken and copies of all the documents would be handed over to the complainant and his family members. It is alleged that unfortunately complainant and his family members never received keys of the flats, duly signed copies of possession letters and affidavits as well as copies of payment vouchers. There were several calls on mobile, but Mr.Prakash Chawala or Manager-Mr.Vipul Parikh did not respond. Grievance raised by the complainant before Police in F.I.R. that the builder has harassed them for flats and also cheated them. By filing F.I.R. complainant sought help of Police. Contents of F.I.R. dated 23/09/2010 clearly shows that complainant and his wife-Pushpa Nagpal singed certain documents when meeting was held with Mr.Prakash Chawala and his Manager. It can be inferred that documents filed on record by the opponent bear signatures of the complainant-Dr.Hari Nagpal and his wife-Pushpa Nagpal. This fact is fully corroborated by the evidence of Handwriting Expert.
(35) There is delay of two months in filing report to Police against acts of opponent. Of course, Police did not initiate any action against the builder or his Manager.
Report filed by the complainant was received by Police on 23/09/2010. On 23/09/2010 the complainant has filed another report with Additional Police Commissioner of Police, Bandra. In said report there is a whisper of earlier F.I.R. dated 06/09/2010. It is submitted that Addl. Commissioner of Police was kind enough to forward letter/F.I.R. to Carter Road Police Station for further investigation. It is alleged that they were expecting a call from Carter Road Police Station for investigation and resolving the matter. Unfortunately, Police handed over physical copy of letter to the builder without even talking with the complainant. By seeing copy of F.I.R., builder has now more indignant and adamant in his attitude. He says that meet now at Carter Road Police Station only instead of at his office. All these submissions in letter to Addl. Commissioner of Police show that complainant wanted that filing of report should not be disclosed to opponent.
It is not made clear as to why the complainant wanted to suppress filing of F.I.R. from the opponent.
His conduct is suspicious. It is difficult to hold that signatures of the complainant and his wife were obtained on affidavit-cum-confirmation-cum-receipt surreptitiously.
(36) Affidavit-cum-Confirmation-cum-Receipt is a notarized document. Document was notarized before Notary Mr.C.L. Sharma. On 22/11/2011 complainant through Learned Counsel Mr.Ashutosh Marathe made inquiry from Mr.C.L. Sharma, Advocate & Notary pertaining to Affidavit-cum-Confirmation-cum-Receipt and Mr.C.L. Sharma replied said query. Notary Mr.C.L. Sharma, aged 88 years has submitted that document was sent to him for notarization by M/s.Mohini Sheltors Pvt. Ltd. (opponent) through their office clerk. Clerk informed to Shri Sharma that - your clients had come to their office, where they signed and executed the document. Clerk of the opponent further informed that they would come to office of the notary for signing in Notarial Register. Clerk of the opponent left the document. Notary Mr.Sharma waited for clients of Advocate Mr.Marathe (complainant and his wife). They did not come to sign the Notarial Register. Therefore, after ascertaining that clients of Advocate Mr.Marathe i.e. Dr.Hari Nagpal & Mrs.Pushpa Nagpal had signed all the pages of the document and fixed their photographs before two witnesses, in a good faith, he notarized the document on 21/07/2010. As the documents were old, it was not possible for the Notary to remember about such an old matter.
(37) Reply of Notary Mr.C.L. Sharma shows that document dated 21/07/2010 was notarized before him.
When said document was sent to notary it was signed by complainant-Dr.Hari Nagpal and his wife. Photographs of complainant-Dr.Hari Nagpal and his wife-Pushpa Nagpal are there on said document. The only inference is that the document dated 21/07/2010 bear signatures of Dr.Hari Nagpal and his wife Pushpa Nagpal. Dr.Hari Nagpal has also signed the document in capacity of H.U.F. (38) Mr.Sanjay Nagpal has signed the document as witness. In this complaint, he does not come forward to file his affidavit to state that signatures on the document are not of his father and his mother and they never signed the document before him. Best witness is withheld by the complainant.
(39) In view of above discussions, we are of the view that document titled as Affidavit-cum-Confirmation-cum-Receipt dated 21/07/2010 is genuine document executed by the present complainant-Dr.Hari Nagpal and his wife Pushpa Nagpal.
This document is executed subsequent to the agreement between opponent and society and opponent and present complainant. It established that Dr.Hari Nagpal, Dr.Pushpa Nagpal and Dr.Hari Nagpal as H.U.F. undertook and declared and confirmed that they would not claim possession of flat Nos.201, 301 & 401 till they repay the loan amount and construction cost of flat No.401. Confirmation finds in letter dated 20/10/2007. Nothing is on record to substantiate that complainant and his wife has repaid the loan and construction cost of flat No.401.
The complainant and his wife are highly educated persons; certainly, they cannot be easily cheated.
Considering their qualification and status they would not have easily signed the document. Explanation of complainant-Dr.Nagpal about signature on documents is not acceptable.
(40) The complainant is entitled to claim possession of flat Nos.201 from new building from opponent in view of agreements. However, in view of document i.e. affidavit-cum-confirmation-cum-receipt, he is not entitled for any monetary relief. There was clear-cut agreement about flat No.201 between complainant and the opponent. Opponent should have given possession of the flat to the complainant.
Opponent could have withheld possession of flat No.401 for loan amount and construction of cost. So far as flat No.201 there is deficiency in service on the part of the opponent. The complainant was required to file litigation. Hence, opponent is liable to pay compensation for mental agony suffered by the complainant and cost of litigation. With this view, we pass the following order:-
-:
ORDER :-
1.
Complaint is partly allowed.
2. Opponent is directed to hand over possession of flat No.201 to the complainant-Dr.Hari Nagpal as per agreement between the parties.
3. Opponent is directed to pay compensation of `1 Lakh to the complainant for mental agony.
4. Opponent is further directed to pay `50,000/- to the complainant towards cost of litigation and bear their own costs.
5. Opponent is directed to comply this order within a period of sixty days from the date of this order.
6. Copies of the order be furnished to the parties.
Pronounced Dated 6th February 2014.
[HON'ABLE MRS.
Usha S.Thakare] PRESIDING MEMBER [HON'ABLE MR.
Narendra Kawde] MEMBER pgg/dd.