State Consumer Disputes Redressal Commission
Mrs Lily Peter Lewis vs Mrs Indumati Atmaram Vaity on 10 February, 2016
1
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/11/254
Mrs.Lily Peter Lewis,
R/at : Room No.18,
2nd floor, Vaity Bhavan Navghar Road,
Mulund (East) Mumbai 400 081 and
Presently r/at 702, Girish Apartment CHS
Ltd., Off.Tata Colony, Navghar Road, Mulund
East,
Next to HDFC Bank Bylane, Mumbai 400 081.
Through Constituted Attorney
Mr.Solomon Peter Lewis
...........Complainant(s)
Versus
1. Mrs.Indumati Atmaram Vaity,
2. Mr.Nandkumar Atmaram Vaity,
3. Mr.Shashikant Atmaram Vaity,
4. Mr.Uday Atmaram Vaity
5. Mr.Vijay Atmaram Vaity,
6. Mr.Hemant Atmaram Vaity
7. Mrs.Godavari Atmaram Vaity
All r/at Block No.30, Vaity Bhavan, Navghar
Road, Mulund East, Mumbai 400 080.
8. Mr.Vithal Manik Patil,
r/at : Flat no.2, Gaurav Corner, 7th floor, 90
feet road, Mumbai East, Mumbai 400 081
and r/at 701, Shree Gaurav Apt., 7th floor, 90
feet road, Mulund East,
Mumbai 400 081.
9. M/s.G.V.D'Lima & Co.
Sambhava Chambers, 3rd floor, 20, Sir
P.M.Road, Fort, Mumbai 400 001.
10. Mr.Brian V. D'Lima
Proprietor, M/s.G.V.D'Lima & Co.
Sambhava Chambers, 3rd floor, 20, Sir
P.M.Road, Fort, Mumbai 400 001. ............Opponent(s)
BEFORE:
Justice Mr.A.P.Bhangale, HON'BLE PRESIDENT
Mr.Dhanraj Khamatkar, HON'BLE MEMBER
For the
Complainant: Adv.P.Y.Shankar
For the Opponent: Adv.R.M.Deshmukh for the opponent no.8.
2
ORDER
Per Justice Mr.A.P.Bhangale, Hon'ble President
1. The Complainant while claiming sum of Rs 78,63,900/- as damages alleges deficiency in service and unfair trade practice on the part of the opposite Parties . the Complainant claims the residential Flat admeasuring 632 Sq. Feet carpet area in the vicinity of Vaity Bhavan Building , Navghar Road , Mulund (east) Mumbai -81 or in the alternative flat market price 63,20,000/- + Compensation of Rs Ten lakhs as damages for mental agony , harassment and costs of the complaint.
2. It is case of the Complainant that the Complainant is tenant of Room No. 18 situated on Second floor , Vaity Bhavan Navghar road , Mulund (East) Mumbai 81. The opponent No. 1 to 7 are Landlords. Landlords wanted to develop the adjacent Plot bearing City Durvey No. 827 and 827/1, survey No. 67 , hissa No. 1 of Village Mulund, Bombay suburban district. Landlords had entered in to negotiation and offered residential flat to the Complainant in lieu of tenant permitting the demolishing of the balcony of the tenement in occupation of the Complainant. It is case of then Tenant that there was a Tri-party Agreement dated 30 April 1984 between the tenant, Landlords and the Developer (O. P. No. 8).The Building was constructed in the year 1994.But according to the complainant the O.P. No. 8 refused to hand over the Flat to the complainant pursuant to the agreement. Hence notices dated 8.11.1994 and 17.12.1994 were issued to O.P. No 8. But the O.P. No 8 denied the liability. The complaint is filed on 11.08.2011.
3. The opponents denied the claim challenging the very maintainability of the complaint and contended that it is not the consumer dispute cognizable by this State Commission but the 3 dispute between the Landlord and Tenant is cognizable by the Special Court Under the Maharashtra Rent Act which is exclusively competent to decide it .It is contended that the complaint is not maintainable before the State Commission as it relates to the complicated questions of fact and law and the dispute is very old between the landlord , Tenant and the Developer pursuant to the alleged tri-parte agreement dated 30 April 1984 as alleged between them .
4. We have heard submissions at the Bar. Seen affidavits- evidence on record as also copies of the documents sought to be relied upon.
5. The first and foremost question is as to whether the complainant is consumer within the the meaning of Section 2 (1)
(d) of the Consumer Protection Act . Consumer is necessarily a buyer of goods for paid or promised consideration but does not include a person who intends to obtain such goods for any commercial purpose or for re-sale. Complainant herein is a Tenant who is interested to enforce the terms of agreement dated 30 April 1984 with the landlord and the developer. The disputed questions of facts are whether the Tenant had agreed to demolition of the part of tenement in his possession so as to obtain in lieu of his consent for demolition of the portion of the tenement in his possession a residential flat in the building to be completed within 24 Months from the date of the agreement 30 April 1984 ? Whether the agreement to give flat in the newly constructed Building is binding between the Parties according to law? Whether there was privity of Contract between the Parties particularly between the developer and the tenant or in the alternative whether there was a breach of Contract on the part of the Landlord? Whether there was an obligation on the part of the Landlord and 4 developer to register the agreement dated 30 April 1984 with the Tenant? What would be effect of notices exchanged between the parties in the year 1995? Whether the claim is within Limitation according to law?
6. While considering these questions which are raised from the averments in the pleadings, we can not be oblivious of the fact that the dispute raised between the parties is the dispute between the tenant as consumer and the landlord-developer as a Trader/ service provider. We find that consumer dispute needs adjudication as to deficiency of service or unfair trade practice due to non-allotment of the flat in a newly constructed building by the landlord-developer
7. The argument that the case involve complicated issues of fact and law mentioned above between the tenant , Landlord and the developer who constructed building on behalf of the landlord and that it is is required to be judicially determined by the Competent Court under The Maharashtra Rent Control Act, 1999 (MAH. ACT NO. 18 OF 2000) (w.e.f. 31-3-2000) is misnomer.Maharashtra Rent Act is an Act to unify, consolidate and amend the law relating to the control of rent and repairs of certain premises and of eviction and for encouraging the construction of new houses by assuring a fair return on the investment by landlords and to provide for the matters connected with the purposes aforesaid under the Maharashtra Rent Control Act. Section 33 do provide for Jurisdiction of special courts as under -.
(1) Notwithstanding anything contained in, any law for the time being in force, but subject to the provisions of Chapter VIII, and notwithstanding that by reason of the amount of the claim or for 5 any other reason, the suit or proceeding would not, but for this provision, be within its jurisdictions,-
(a) in Brihan Mumbai, the Court of Small Causes, Mumbai,
(b) in any area for which a Court of Small Causes is established under the Provincial Small Causes Courts Act, 1887, such court, and
(c) elsewhere, the court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises and to decide any application made under this Act (other than the applications which are to be decided by the State Government or an officer authorised by it or the Competent Authority); and subject to the provisions of sub-section (2), no other court shall have jurisdiction to entertain any such suit, proceeding, or application or to deal with such claim or question. The issues required to be decided by the special Court are in relation to possession and rent of the tenement arising between the landlord and tenant which are required to be adjudicated upon the evidence that may be permitted to be led by the respective parties, before the competent Civil court statutorily established as Special court under The Maharashtra Rent Control Act to exclusively deal with the questions relating to possession and rent etc. of the tenement in possession of the Tenant . The argument is no doubt attractive but not convincing in the facts and circumstances brought to our notice that the tenant had agreed to surrender and surrendered the portion of his tenement to the landlord developer under the agreement with the landlord and developer of the adjacent property of the landlord -developer . The 6 landlord had therefore agreed to give a flat admeasuring 632 Sq Feet to the Tenant in a newly constructed Building.Landlord- developer was thus bound to hand over a flat to the tenant in the newly constructed Building .
8. The second argument is that the complaint and the reliefs sought that the Complaint is not only inordinately delayed without any sufficient cause but also appears result of an afterthought on the part of the Tenant-Complainant to prosecute the landlord before the wrong forum. It is also argued that the Complainant cannot come within the ambit of the definition of the term 'Consumer ' within meaning of the consumer Protection Act, 1986.
9. We can not agree with this submission because the provisions of the Consumer Protection Act , 1986 are in addition to other laws and not in derogation of existing laws. The tenant is held as 'consumer' within the meaning of the definition under Section 2(1)(d) of the Act and complaint by the Tenant is held maintainable. In Regional provident Commissioner Vs. Shiv Kumar Joshi reported in III(1989) CPJ 36 it was held that surrender of the shop to the landlord by the tenant was for consideration and failure to provide shop by the landlord-Builder was held as deficiency in service .Reference was also made to buttress this submission by making reference to the ruling in Sonia Bhatia Vs State of U.P. reported in 1981 (2) SCC 585.
10. In the case before us the Landlord-developer wanted to develop the property and took consent of the Tenant for development of the adjacent property in lieu of the promise to hand over a flat in a newly constructed building to the tenant. Thus new relationship arose under the development agreement between the parties as flat purchaser and the Builder. Landlord as 7 Owner - developer of the Building was bound to deliver the flat in a newly constructed building to the tenant-consumer as promised under the agreement.in the facts and circumstances of the case therefore the relationship between the parties as Tenant and landlord was immaterial.Because the complaint was not filed by the Tenant-Complainant in his capacity as tenant but as a beneficiary under the development agreement with the landlord- Builder.Hence compklaint before this state commission is maintainable .
11. Third argument to contest the complaint is that under Section 24A of the Consumer protection Act, 1986 prescribes period of limitation to admit complaint .It has to be filed within two years from the date of the cause of action unless sufficient cause for delay is explained and reasons are recorded for condoning delay before admitting or entertaining the complaint. This argument is rightly rebutted on behalf of the Complainant on the ground that there was continuing cause of action for the complainant-tenant to approach this State Commission to enforce the transaction with the Builder-developer who promised to give flat to the tenant in lieu of his surrender of his balcony for demolition thereof which enabled the landlord to develop his adjacent property. The landlord developer could not have constructed the new building but for surrender of the portion of the tenement by the Tenant. But the landlord developer avoided the continuing obligation to serve or fulfill the promise made in the development agreement with the tenant. There was a continuing cause of action in favour of the tenant as consumer to acquire the flat promised by the developer landlords. There was a clear deficiency in service and unfair trade practice on the part of the landlords developer who avoided to abide by their obligation to 8 provide flat to the tenant as agreed in the development agreement with the tenant .When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immoveable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in sub-clause (ii) of clause (r) of Section 2 as unfair trade practice
12. For all the reasons stated therefore the Complaint is held maintainable according to law for protecting the consumer before this State Commission.
13. Hence Complaint is partly allowed as under ;-
ORDER
a) The opposite party no 1 to 8 are held jointly and severally responsible for deficiency of service and unfair trade practice hence they are ordered to provide to the complainant a flat admeasuring 632 Sq Feet carpet area as agreed in the development agreement in the vicinity of Vaity Bhavan Building Navghar Road , Mulund, Mumbai -81 OR Opposite party shall if no flat is provided to the Complainant , shall be jointly and severally responsible to pay sum of Rs 63,20,000/- to the Complainant with just and reasonable interest at the rate of Rs 9%per annum on the unpaid sum from the date of the complaint till entire payment of the sum to the Complainant .
b) Costs of the complaint is quantified in the sum of Rs 10000/-
9only payable jointly and severally by Opposte Parties No. 1 to 8 to the complainant.
Pronounced Dated 10th February, 2016.
[Justice A.P.Bhangale] PRESIDENT [Dhanraj Khamatkar] MEMBER pg