State Consumer Disputes Redressal Commission
Adv Holly John vs Mr. Rajiv Shah (Partner) on 7 January, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/16/1163
Mrs.Molly John
Flat no.9, 3rd floor, Cindrella CHS Ltd.
CTS No.250, Village -Valnai
Lourdes Colony, Orlem
Malad (West), Mumbai 400 064 .....Complainant
Versus
1.Mr.Rajiv Shah (Partner)
Partner of M/s.U.K.Properties
Regd.office at 3-jimit,
Marve Road,
Malad (West), Mumbai 400 064
2. Mr.Kishor B.Shah (Partner)
Partner of M/s.U.K.Properties
Regd.office at 3-jimit,
Marve Road,
Malad (West), Mumbai 400 064 ...Opponents
BEFORE: D.R.Shirasao, Presiding Judicial Member
Dr.S.K.Kakade, Member
ORDER
Per Hon'ble D.R.Shirasao, Presiding Judicial Member
1. Complainant has filed this complaint against opponents for getting compensation on account of deficit area of flat given to her along with costs and compensation. Complainant submitted that she was occupying flat no.9 situated on third floor of building known as 'Cindrella Co-op. Housing Society Ltd.'. The society had given that building for redevelopment to opponents. In that respect development agreement was executed in between the society and opponents on 16/12/2010. The said agreement was rectified and a 1 Supplemental agreement was executed on 09/07/2012. After this agreement opponents had agreed to give flat to complainant of 708.75 sq.ft. in lieu of her old flat of 525 sq.ft. In that respect opponents had also executed agreement in favour of complainant on 25/12/2012. In that agreement also opponents agreed to provide flat of 708.75 sq.ft. carpet area excluding flower bed fungible area to complainant. Opponents had handed over possession of the flat to the members of the society including complainant on 28/02/2015. It is the contention of complainant that when she had taken possession of flat, she learnt that the area of her flat is less than the carpet area 708.75. sq.ft. Hence, she got her flat measured through registered Architect by name J.P.Fernandes and Associates. As per report given by the Architect dated 30/04/2014, carpet area of her flat is only 624.08 sq.ft. Complainant submitted that as such she has received less carpet area of 84.67 sq.ft. from the opponents. She had informed this fact to opponents by letters dated 05/05/2014 and 06/05/2014. She also submitted that opponents had not taken cognizance of the same and had not given any compensation to her in respect of giving less carpet area of the flat. It is the contention of complainant that in the first week of July 2016, opponents assured complainant for amicable settlement of the problem in respect of giving less area of flat to her. However, as opponents had not given compensation in respect of less area of flat to complainant, complainant filed this complaint against opponents for getting amount of Rs.20,58,495/- in respect of less area of flat of 111.27 sq.ft. @ Rs.18,500/- per sq.ft. prevailing in the area on the date of filing of complaint along with interest, costs and compensation.
2. Opponents contested the complaint by filing their written version on record. Initially they submitted that in the development agreement there is an arbitration clause and as such, complaint filed by the complainant before this Commission is not tenable. They admitted that society of 'Cindrella Co-op.
2Housing Society Ltd.' had given building for redevelopment to them. They admitted that in that respect development agreement was executed in between them and the society and in that respect again a supplemental agreement was executed. They admitted that complainant was in possession of one flat in that building having carpet area of 525 sq.ft. They also admitted that they have also executed agreement in favour of complainant for handing over flat to her in a newly constructed building. In respect of giving carpet area of flat to the individual members of the society, General Body Meeting was taken on 01/04/2012 and in that meeting it was agreed by all the members of the society to accept carpet area of 709.36 sq.ft. from the opponents. Opponents submitted that accordingly flat of that much carpet area has already been given to flat owners and they are in possession of the same. They specifically denied that complainant has given flat of less carpet area. They submitted that complainant had received possession of flat on 17/02/2014 and since then complaint is not filed within two years and hence the same is not within limitation. They also submitted that previously complainant had filed complaint against opponents bearing no.376/2016 and the same was dismissed for want of pecuniary jurisdiction on 19/10/2016. They submitted that as per agreement with complainant, they have given carpet area of flat to complainant and as such, they have not given any deficiency in service to complainant and hence, complaint filed by the complainant be dismissed.
3. Considering rival contentions of the parties, evidence adduced by them on record and documents filed by them on record, following points arise for our determination and we record our findings thereon as under:-
Sr.No. Points Finding
1 Whether complainant is consumer of Yes
opponents?
2 Whether opponents have given deficiency No
3
in service to complainant?
3 Whether complainant is entitled to get No
compensation from opponents in respect
of less area of flat along with costs and
compensation?
4 What order? As per final order
4. As to point no.1:-
In this case it is admitted fact that complainant was occupying flat no.9 situated on third floor of building known as 'Cindrella Co-op. Housing Society Ltd.' having carpet area of 525 sq.ft. The society had given this building for redevelopment to opponents. Accordingly, development agreement was executed in between society and opponents on 16/12/2010. In that respect a Supplemental agreement was also executed in between them on 09/07/2012. Thereafter, opponents had executed individual agreement with complainant on 25/12/2012 for giving flat in the reconstructed building. It is the contention of complainant that she has already received possession of flat in reconstructed building. However, the same is of less area and hence for getting compensation on that count complainant has filed this complaint against opponents. Hence, we are of the opinion that complainant is 'consumer' of opponents and entitled to file this complaint against opponents. Hence, we answer point no.1 for determination in affirmative.
5. As to Point nos.2 & 3:-
Learned advocate appearing for opponents has mainly contested the complaint on the ground that complaint filed by the complainant is not within limitation and it is the contention of opponents that she received possession of 4 flat on 17/02/2014. As against this it is the contention of complainant that complainant had received possession of flat on 28/02/2015. The contention of complainant cannot be accepted that she received possession of flat on 28/02/2015 as she had already got her flat measured through registered Architect M/s.J.P.Fernandes and Associates on 30/04/2014 and given letter about the same to the opponents on 05/05/2014 and 06/05/2014. Complainant has not filed any other documentary evidence on record to show that she received possession of flat on 28/02/2015. Under such circumstances, contention of opponents appears probable and can be accepted that possession of flat was given to complainant on 17/02/2014. Since the complaint was to be filed within a period of two years, however the same is filed on 08/11/2016 and hence the same is beyond the period of limitation. Complainant has not filed any application for condonation of delay along with the complaint. It is the contention of complainant that in the first week of July 2016, opponents had assured her for amicable settlement and hence as there was no amicable settlement, she filed this complaint on 08/11/2016 and, as such, it is within limitation. However, in that respect she has not filed any oral or documentary evidence on record and hence contention of the complainant cannot be accepted that there were any such talk of settlement of dispute in between complainant and opponents in first week of July 2016 and as such complaint filed by complainant is within limitation. Looking to these facts of the case we are of the opinion that the claim made by the complainant in respect of less area of flat is not within limitation and hence the same cannot be considered.
6. Learned advocate appearing for opponents has also contested the complaint on the ground that in respect of giving carpet area of the flat to the members of the society, a General Body meeting of the society was taken on 01/04/2012. In that meeting all the members had agreed to take possession of area of 709.36 sq.ft. carpet area of the flat. In that respect opponents have filed 5 copy of the Minutes of the Special General Body meeting of the society taken on 01/04/2012. Hence it has become clear that finally the members of the society had accepted to take carpet area of 709.36 from opponents and opponents finally executed agreement with complainant on 25/12/2012 and agreed to give flat of carpet area of 708.75 sq.ft. to complainant. It is the contention of opponents that they have given that much area of flat to complainant. It is the contention of complainant that area of her flat is only 624.08 and she has received 84.65 less carpet area from the opponents. In that respect she has mainly relied on the Architect's report of J.P. Fernandes and Associates dated 30/04/2014 filed on record. However, in support of this report, no one from J.P. Fernandes and Associates have filed an affidavit on record. In this case it is admitted fact that this measurement was not taken by the Architect in presence of the opponents. In view of the same, the measurement done by the Architect cannot be accepted and on the basis of the same it cannot be accepted that the flat which is in possession of complainant is only of 624.08 sq.ft. carpet area. In this case it is particular to note that in respect of less area of flat, except complainant, no other members of the society has taken objection. Hence, it appears probable that as per decision taken in General Body meeting of the society, opponents have agreed to give possession of 709.36 sq.ft. carpet area to all the members of the society. Opponents have given possession of flat to complainant of carpet area as per agreement. We are of the opinion that complainant has failed to prove that she has received less carpet area of her flat and as such she is entitled to get compensation on that ground. Moreover, we are of the opinion that the claim of the complainant is also not within limitation and hence we are of the opinion that complainant has failed to prove that opponents have given any deficiency in service to complainant and hence she is entitled to get compensation on that count. Under such circumstances, we are of the opinion that complaint filed by the complainant is to be dismissed. Hence, we proceed to pass the following 6 order:-
ORDER Consumer complaint filed by the complainant is hereby dismissed. Parties to bear their own costs.
Copies of the order be furnished to the parties.
Pronounced on 7th January, 2019.
[D.R.Shirasao] Presiding Judicial Member [Dr.S.K.Kakade] Member Ms 7 8