State Consumer Disputes Redressal Commission
Mrs Kusum R Solomon vs M/S Mumbai Shelter Housing Development ... on 15 October, 2018
CC/15/293 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO. CC/15/293
Mrs.Kusum R. Solomon,
r/at : 303, 3rd floor, Emerald Apts.
Vakola, Santacruz East, Mumbai 400 054. - Complainant/s
Vs.
1] M/s.Mumbai Shelter Housing
Development Pvt.Ltd.
8, Andheri Ekta, Off.Four Bungalows,
Andheri West,Mumbai 400 053.
2] M/s.MangalPrabhat Co-operative
Housing Society,
Building no.9, Nehru Nagar,
Kurla East, Mumbai 400 024.
3] Mr.Vanraj Buchke
Chairman, MangalPrabhat CHS,
Building no.9, Nehru Nagar,
Kurla East, Mumbai 400 024.
4] Mr.Sanjay Naik,
Secretary, MangalPrabhat CHS,
Building no.9, Nehru Nagar,
Kurla East, Mumbai 400 024. - Opponent/s
BEFORE:
Mr.D.R. Shirasao, Presiding Judicial Member
Dr.S.K.Kakade, Member
For the complainant/s : Adv.Vikhil Dhoka a/w.Adv.Smt.S.Shetty
For the opponent/s : Adv.S.B.Prabhawalkar for the opponent
no.1.
Adv.Mahesh D. Sahsrabuddhe for the
opponent no.2 to 4.
CC/15/293 2
ORDER
Per Mr.D.R.Shirasao, Hon'ble Presiding Judicial Member [1] Complainant has filed this consumer complaint for getting amount of Rs.45 lacs from opponents along with costs and compensation and for getting amount of Rs.25 lacs from opponent no.2 to 4.
[2] Brief facts of the case are as under:-
Complainant was owner of flat bearing no.322 in building no.9, Mangalprabhat Co-operative Housing Society, Nehru Nagar, Kurla East, Mumbai 400 024 and she was also member of opponent no.2, Co- operative housing society. Opponent no.2 had given that building for re- development to the opponent no.1. In that respect, development agreement was executed in between the opponent no.2 and opponent no.1 on 20/03/2010 and same was registered. Subsequently, supplementary agreement was executed in between them on 09/08/2010 and it was also registered. As per these re-development agreements, opponent no.1 had agreed to provide permanent alternative accommodation to the flat owners of that building. As per these re- development agreements, opponent no.1 had failed to give requisite area of flat to the flat owners and had also not given rent to the flat owners who had given possession of the flats to the opponent no.1 for development of that building. In that respect, complainant had made grievance with the opponent no.1 by giving letter dated 06/08/2014 and 09/09/2014. Opponent no.1 replied those letters on 28/10/2014 and denied the same. Hence, complainant had given notice to the opponent no.1 in that respect through her advocate on 05/12/2014. However, opponent no.1 had not replied the same.
[3] It is the contention of the complainant that opponent no.1 vide their letter dated 24/01/2007 had submitted re-development proposal to the opponent no.2, society. Society had called a Special General Body Meeting on 18/02/2007. Members of the society had given consent for re-development of the building to be carried out by the opponent no.1. Opponent no.1 by their letter dated 05/09/2009 had revised the plan on CC/15/293 3 the basis of FSI policy of MHADA declared in the month of November, 2007. In that respect also, opponent no.2 had taken General Body Meeting on 16/01/2010 to discuss the draft development agreement. The same was approved in that meeting and re-development agreement was executed accordingly in between society and opponent no.1 on 09/08/2010. It is the contention of the complainant that although she had consented for that development agreement, she had not seen the development agreement. Subsequently, she had received development agreement and at that time for the first time she learnt that area of the flat in the re-development building will be of 484 sq.ft. only. It is her contention that she has given consent for the area of 560 sq.ft. in addition 120 sq.ft. balcony area. She had also observed that in this agreement, there was no mention of Corpus fund, rent, brokerage or shifting charges. Hence, she felt that in respect of approval of that agreement, there is collusion between the society and developer. Subsequently, supplementary re-development agreement was registered and it was executed in between society and developer. However, in that respect, no intimation was given to the complainant and consent was obtained from her. Hence, the complainant by giving letter dated 01/06/2010 withdrew her consent to the re-development scheme. In that respect, she had made complaint to the Dy.Registrar of Co-operative Societies and Dy.Registrar by passing order on 03/01/2009 dismissed the Managing Committee of the said society.
[4] The contention of the complainant is that as she had withdrew her consent for re-development of the building, she refused to vacate her flat. The developer, opponent no.1 started demolishing the building although she had not handed over possession of her flat to the opponent no.1. Because of the same, there was danger to the life of the complainant and she had suffered injuries as parts of debris fell on her. In that respect, she had undergone medical treatment in Sion Hospital. She had also given report in that respect against the opponent no.1 in Nehru Nagar, Kurla East Police Station CC/15/293 4 [5] Complainant submitted that as she was not ready to vacate her flat, opponent no.1 executed a separate agreement in her favour for giving permanent alternative accommodation to her on 29/07/2011. After execution of the agreement, complainant had vacated her flat in favour of the opponent no.1 on 29/07/2011. As per re-development agreement, possession of the flat was to be given to the complainant within a period of 2 years. However, she had not received flat in re- developed building till 03/08/2013. Hence, it is her contention that for delayed possession, opponent no.1 is liable to pay damages of Rs.1,500/- per day to the complainant. Opponent no.1 had given an amount of Rs.6,31,000/- to the complainant towards 3 years rent in advance. However, since August 2011, opponent no.1 had not given any rent to the complainant. Hence, complainant had claimed rent @Rs.21,500/- per month from the opponent no.1 for a period from August 2011 to July 2014 along with interest on that amount and also submitted that opponent no.1 should pay rent to her until possession of flat is given to her.
[6] It is the contention of the complainant that in the month of August 2014, sample flat was made ready by the opponent no.1 and daughter of the complainant inspected the same. At that time, she learnt that carpet area of the flat is only 560 sq.ft. and 120 sq.ft. of balcony area was not provided in that flat as per development agreement. In that respect, complainant made grievance with society by giving letter dated 05/08/2014 and she had given notice in that respect to the opponent no.1 on 05/12/2014.
[7] In is the contention of the complainant that opponent no.2 society had arranged a Special General Body Meeting on 25/12/2014 and in that meeting, all the members of the society had given no objection for not providing of 120 sq.ft. by the opponent no.1. As the project was suffering from loss. Complainant submitted that her daughter had attended that meeting. However, she was not allowed to participicate the meeting and to raise any question in that respect with opponent CC/15/293 5 no.1. Hence, it is the contention of the complainant that the opponent no.1 has given less area of 120 sq.ft. of balcony area and 90 sq.ft. carpet fungible FSI to the complainant and other members of the society. Hence, she is entitled to get an amount of Rs.45 lacs in respect of the same as per market value of that area. Hence, in that respect, complainant had filed this consumer complaint against opponents and she has claimed an amount of Rs.45 lacs in respect of less area of the flat from the opponent no.1 along with interest on that amount along with costs and compensation and she has claimed an amount of Rs.25 lacs being damages from opponent o.2 as they had deprived complainant from getting her right.
[8] Opponent no.1 contested complaint by filing their written version on record. They submitted that they had given re-development plan in respect of that building to the opponent no.2 society. Opponent no.2 has approved the same in their General Body Meeting. They had offered carpet area of 520 sq.ft. to each of the flat owner along with additional area of 80 sq.ft. balcony. They had also offered an amount of Rs.1 lac as non-refundable deposit and monthly rent of Rs.10,000/-. They submitted that this agreement was further revised by them and agreed to give area of 560 sq.ft. + balcony area of 120 sq.ft. to each flat owner and to give an amount of Rs.1 lac towards non-refundable deposit and monthly rent of Rs.14,000/-. Accordingly, re-development agreement was executed on 09/08/2010. In view of the same, all the flat owners had vacated their flats except the complainant. As complainant had not vacated her flat, they could not get commencement certificate in respect of that building. As the complainant refused to vacate her flat initially, they had intended to make complaint to the MHADA for getting summary eviction of the complainant. However, thereafter, they tried to amicably resolve the problem with the complainant. After series of meetings with the complainant, complainant had agreed to vacate the flat only after receipt of an amount of Rs.37 lacs by way of security deposit from the opponent no.1. Accordingly, opponent no.1 had given said amount to the complainant and thereupon the complainant had CC/15/293 6 vacated her flat. Thereafter, the complainant had executed agreement with opponent no.1 on 29/07/2011 and the same was registered. However, complainant refused to insert this clasue in agreement as the income tax liability may attract against her. They submitted that in the meantime, D.C. regulations were changed and the additional area of 120 sq.ft. of dry balcony had not been made permissible. In view of the modified rules, they had given intimation to the opponent o.2 society and thereupon the opponent no.2 had taken a special general body meeting of all the flat owners on 25/11/2014. In that meeting, it was decided by all the members of the society not to insist for additional area of 120 sq.ft. of carpet area and requested to the opponent no.1 to supply carpet area of 560 sq.ft. only. Hence, it is the contention of the opponent o.1 that they have given that much area to all the members of the society. As such they have not given any deficiency in service to the complainant and hence consumer complaint filed by the complainant is not tenable. They also submitted that in respect of re-development of that building agreement had taken place between the opponent no.1 and opponent no.2 and as such complainant is not consumer of the opponent no.1. They also submitted that claim made by the complainant is beyond the pecuniary jurisdiction of this Commission.
[9] Opponent no.2 to 4 also contested the complaint by filing their written version on record. They also submitted that complainant has suppressed material facts from this Commission. She has done numerous unlawful acts and deeds with the sole intention to stop the redevelopment process. She refused to vacate her flat although all other flat owners had vacated their flats. Only because of the complainant, work of re-development of building was prolonged. She has made false allegations against society and the member of the society. The same cannot be considered under this consumer complaint and for that purpose, she will have to take recourse against them under provisions of Maharashtra Co-operative Societies Act, 1960. The complainant is not a consumer of the opponent no.2 to 4 and she cannot claim any relief against them by filing this consumer complaint. No agreement is CC/15/293 7 executed in between the complainant and opponent no.2 to 4. Hence, she cannot claim damages on the basis of those agreements from opponent no.2 to 4. They submitted that as per new D.C. regulations, area of 120 sq.ft. balcony area was not permissible. In that respect, information was given to the opponent no.2 society general body meeting of the society. All the members of the society had taken decision not to insist for that area with opponent no.1. Accordingly, resolution was passed by all the members of the society. Hence, complaint filed by complainant be dismissed.
[10] Considering rival contentions of the parties, following points arise for our determination and we decided the same for the reasons given as below :-
Sr.No. Points Finding
Whether complainant is a consumer of the
1. opponent no.1 ? Yes
Whether opponent no.1 has given deficiency
2. in service to the complainant? No
Whether the complainant is entitled to get
3. reliefs as claimed from the opponents? No
4. As per final
What order?
order
-: REASONS :-
POINT NO.I, II and III :-
[11] Heard learned advocate appearing for the complainant. He
submitted that complainant was owner of flat bearing no.322 in building no.9 of Mangaprabhat Co-operative Housing Society, Nehru Nagar, Kurla. Society had given this building for development to the opponent no.1. In that respect, initially agreement was executed in between opponent no.2 and opponent no.1, on 20/03/2010 and supplementary agreement was executed on 09/08/2010. He submitted that as per these agreements, opponent no.1 had agreed to give flat of carpet area of 560 sq.ft. to each of the flat purchaser along with 120 sq.ft. of balcony CC/15/293 8 area. However, when opponent no.1 had constructed model flat, at that time complainant learnt that area of the flat is only 560 sq.ft. and 120 sq.ft. balcony is not provided by the opponent no.1. In that respect, she had taken objection with society and opponent no.1. However, she learnt that members of the opponent no.2 society had given consent to the opponent no.1 for not providing 120 sq.ft. of balcony area and agreed to accept 560 sq.ft. of flat only from the opponent no.1. He submitted that hence, it appears that in respect of giving carpet area of flat, there is collusion between opponent no.2 and opponent no.1. In respect of flat of the complainant, opponent no.1 has executed agreement in favour of the complainant on 29/07/2011. On the basis of that agreement, complainant had vacated her flat in favour of the opponent no.1. He submitted that on seeing the model flat, it has become clear that complainant is not getting 120 sq.ft. carpet area of the balcony from the opponent no.1. He submitted that hence complainant is entitled to get market price of that much area of Rs.45 lacs from the opponent no.1.
He also submitted that opponent no.2 to 4 by making collusion with opponent no.1 deprived her right in respect of flat. Hence, complainant is entitled to get amount of Rs.25 lacs as damages from the opponent no.2 to 4. He submitted that as per development agreement, opponent o.1 was duty bound to give rent to the complainant. At the time of execution of agreement, opponent no.1 had given consolidated amount of rent for three years. However, thereafter he has not paid rent to the complainant. Complainant is entitled to get the same till possession of the flat is given by the opponent no.1 to the complainant. Hence, he submitted that complainant has proved that she is consumer of the opponent no.1 and entitled to get reliefs from opponent o.1 as he had given deficiency in served to her by not giving possession of flat to her. He submitted that complainant is entitled to get damages from the opponent no.2 to 4. Hence, consumer complaint filed by the complainant be allowed.
[12] Heard learned advocate appearing for the opponents. They submitted that as per original re-development agreement, opponent no.1 CC/15/293 9 had agreed to give area of 560 sq.ft. to each of the flat owner. At that time, he had also agreed to give additional 120 sq.ft. of balcony if permitted by the Corporation. They submitted that however as per new D.C. regulations, this area of 120 sq.ft. was not getting available for the opponent no.1. Hence, he showed his inability to provide the same to the flat owners. In that respect, opponent o.2 had taken meeting of all the flat purchasers and they consented for the same and agreed to take carpet area of 560 sq.ft. only from the opponent no.1. They submitted that complainant cannot take any contrary decision and claim amount in that respect from the opponent no.1. They submitted that there is no collusion between the opponent no.1 and 2. Hence, complainant is not entitled to get any amount from the opponent no.2 to 4. In respect of re- development of that building, there is no agreement in between the complainant and opponent no.2 to 4. As such, complainant is not consumer of opponent no.2 to 4 and cannot claim any relief from them by filing this consumer complaint. They submitted that complainant was not ready to vacate her flat and in that respect opponent no.1 had to take special efforts and he had paid an amount of Rs.37 lacs as security deposit to the complainant and thereafter complainant had vacated her flat. They also submitted that complainant has filed this consumer complaint only on the basis of model flat prepared by the opponent no.1. Complainant is yet to take possession of her flat. Hence, demand of money made by the complainant in respect of less area of flat is premature. She can claim the same as and when she receives possession of flat from the opponent no.1. Hence, they submitted that they have not given any deficiency in service to complainant. Hence, complaint filed by complainant be dismissed.
[13] Perused record of the case. On perusal of the same, it has become clear that the complainant was owner of flat no.322 in building no.9 of Mangalprabhat Co-operative Housing Society, Nehru Nagar, Kurla. Society had given this building for re-development to the opponent no.1. In that respect initially agreement of re-development had taken place in between opponent no.2 and opponent no.1 on 20/03/2010 and CC/15/293 10 supplementary agreement was executed in between them on 09/08/2010. It appears that as per these agreements, opponent no.1 had agreed to give 560 sq.ft. and balcony area of 120 sq.ft. to each of the members of the society. Accordingly, all the flat owners/members had vacated their premises and handed over the same to the opponent no.1. It appears that complainant was not ready to vacate her flat. Hence, opponent no.1 had conciliated the matter with complainant and had given an amount of Rs.37 lacs to her as security deposit. Thereafter, complainant executed agreement with opponent no.1 on 29/07/2011 and vacated her flat.
[14] It appears that in the meantime, D.C.regulations were changed and in view of the same, opponent no.1 was not in position to give additional carpet area of 120 sq.ft. to the members of the society. Hence, he had informed about the same to opponent no.2. Accordingly, opponent no.2 society had taken general body meeting of all the flat owners. In that meeting, all flat owners agreed to take carpet area of 560 sq.ft. only in respect of flat from the opponent no.1. They agreed not to insist for remaining 120 sq.ft. of balcony area with the opponent no.1. Hence, it has become clear that complainant cannot separately claim any amount in respect of 120 sq.ft. of area from the opponent o.1. In this case, it is also particular to note that complainant has made this claim against opponent no.1 only on seeing model flat prepared by the opponent no.1. Complainant has not received possession of the flat from opponent no.1 and at this stage it is not confirmed how much area of flat she will get from the opponent no.1. Hence, demand of amount in respect of less area by the complainant from the opponent no.1 is premature at this stage. Hence, complainant is not entitled to get the same.
[15] It is the contention of the complainant that she is entitled to get rent from opponent no.1. As per agreement executed between opponent no.1 and complainant, opponent no.1 agreed to give rent to complainant. He has given an amount of Rs.6,32,000/- by way of advance rent of CC/15/293 11 three years to the complainant from the month of August 2011 to July 2014. However, it is the contention of complainant that opponent no.1 has not given further rent to her. As opponent no.1 has not given possession of flat to complainant as per agreement. Complainant is entitled to get the rent from opponent no.1 as per agreement dated 29/07/2011 executed between opponent o.1 and complainant till she receives possession of flat from opponent no.1. Hence, we are of the opinion in that respect complainant has proved that she is consumer of the opponent no.1 and opponent no.1 has given deficiency in service to her by not paying rent to her.
[16] It is the contention of the complainant that in respect of development of building, opponent no.2 society has made collusion with opponent o.1 and deprived her from getting her rights from the opponent no.1. However, she failed to prove any such collusion in between opponent no.2 and opponent no.1. Moreover, complainant is not consumer of opponent no.2 to 4. No agreement is executed in between complainant and opponent no.2 to 4. Hence, she cannot claim relief against opponent no.2 to 4 by filing this consumer complaint. On perusal of the record, it has become clear that as per new D.C.regulations, opponent no.1 is not in a position to give area of 120 sq.ft. area of balcony to the flat owners. He has explained this position in general body meeting taken by the opponent no.2, in which all the flat owners agreed for the same and decided not to insist for additional 120 sq.ft. area from opponent no.1. Looking to these facts of the case, it cannot be considered that for this purpose, opponent no.2 has made any collusion with the opponent no.1. Hence, we are of the opinion that complainant is not entitled to get any amount by way of damages from the opponent no.2 to 4. So also, complainant is not entitled to get any compensation from the opponent no.1. Hence, we answer Point No.1 to 3 accordingly and proceed to pass the following order.
ORDER (1) Consumer complaint is hereby partly allowed.
CC/15/293 12(2) Opponent no.1 is directed to give rent to the complainant as per agreement executed in between the opponent no.1 and complainant on 29/07/2011 along with interest @9% p.a. till the date of this order and further to give amount of rent to the complainant till possession of the flat is given to the complainant.
(3) Opponent no.1 is also directed to pay an amount of Rs.1,000/- to the complainant towards costs of this litigation within one month from the date of this order, otherwise amount shall carry interest @9% p.a. from the date of this order till realization of the amount by the complainant.
(4) Copies of this order be furnished to the parties forthwith.
Pronounced on Dated 15th October, 2018.
[D.R. Shirasao] Presiding Judicial Member [Dr.S.K.Kakade] Member pg