State Consumer Disputes Redressal Commission
Adesh Kumar Birendra Kumar Pandey vs Mr Kailashprasad S.Malpani, ... on 9 July, 2025
CC/14/25 Page 1 of 14
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/14/25
Adesh Kumar Birendra Kumar Pandey
Of Bombay, adult, Indian Inhabitant,
Aged 32 years, having his address at
Godown Stilt No. 'A' on the ground floor,
In A-Wing, in the building known as Shiv
Darshan, situate at Malpani Nagar, Behind
Saibaba Nagar, Saibaba Road, Borvali (W),
Mumbai - 400 092. ..... Complainant
Versus
1. Mr. Kailashprasad S. Malpani
Proprietor of M/s. Gopal Construction
having office at 72, A/B Malpani Chamber,
Gokhale Road (South),
Mumbai - 400 025
2. M/s. Gopal Construction
A Proprietory firm of Mr.Kailashprasad S.
Malpani, having office at 72, A/B. Malpani
Chamber, Gokhale Road (South)
Mumbai - 400 025. .... Opposite Parties
CC/14/25 Page 2 of 14
BEFORE:
Hon'ble Mr. Mukesh V. Sharma, Presiding Member
Hon'ble Ms. Poonam V. Maharshi, Member
PRESENT:
For the Complainant : Advocate Omprakash Pande
For Opposite Party : Advocate Ivor D'Cruz
JUDGMENT
(09-07-2025)
Per: Hon'ble Mukesh V. Sharma, Presiding Member
1. The present Consumer Complaint has been filed by the Complainant, seeking redressal for alleged deficiency in service by the Opposite Parties who sold him a premises which has subsequently been declared as unauthorised construction by the Municipal Corporation of Greater Mumbai (MCGM). Brief facts of the case is as follows :
2. The Complainant, an Indian inhabitant residing at Godown Stilt No. 'A', Ground Floor, A-Wing, Shiv Darshan Building, Malpani Nagar, Borivali (West), Mumbai - 400092, contended that he purchased the said premises from the Opposite Parties by executing a duly registered Agreement for Sale dated 31.08.2005 for a consideration of ₹1,51,000/-. The premises was described as a godown measuring approximately 450 square feet situated in the stilt portion of the building. The Complainant received possession of the premises on 30.08.2005 through a MVS+RRP CC/14/25 Page 3 of 14 possession letter issued by the builder. The said premises has been in exclusive use and occupation of the Complainant ever since, and he claims to have paid all requisite municipal taxes, society maintenance charges, and utility bills.
3. The Complainant further contended that the building was developed by the Opposite Parties under a project launched on the land bearing CTS No. 2 of Village Kandivali, Taluka Borivali, and advertised under the Maharashtra Ownership Flats Act, 1963 (MOFA). Trusting the representations of the builder that the construction was as per sanctioned plan and fully legal, the Complainant executed the purchase agreement and began using the premises as the sole location for storage and distribution of consumer goods.
4. However, much to his shock, the Complainant was issued a notice under Section 351 of the Mumbai Municipal Corporation Act by the Assistant Commissioner of the R/C Ward on 22.02.2006, alleging that the said godown constituted unauthorized construction, and he was directed to remove the same. Despite submitting a detailed reply dated 23.02.2006 asserting his lawful ownership and pointing out that he had purchased the premises from the builder through a registered agreement, the demolition order dated 02.08.2006 was passed.
5. Faced with imminent demolition, the Complainant filed L.C. Suit No. 3671 of 2006 before the City Civil Court, Mumbai, against the MCGM and the builder, seeking relief against the MVS+RRP CC/14/25 Page 4 of 14 demolition order. The said suit was dismissed on 08.04.2011. It is further alleged by the complainant that in the judgment of the Civil Court it was specifically recorded in findings against the builder (Opponent No. 1 herein) and directed the MCGM to blacklist the builder in perpetuity for his role in selling an unauthorised structure.
6. The Complainant had earlier filed First Appeal No. 889 of 2011 before the Hon'ble Bombay High Court challenging the dismissal of L.C. Suit No. 3671 of 2006. The Hon'ble High Court, by its order dated 20.04.2011, was pleased to grant interim relief, directing both parties to maintain status quo in respect of the suit premises. Thereafter, the said appeal came to be finally dismissed on 09.01.2014, and the order of the City Civil Court was confirmed.
7. Being aggrieved, the Complainant then filed a Special Leave Petition (SLP) before the Hon'ble Supreme Court, which was also disposed of on 13.05.2014 without any interference. The Complainant has placed all these pleadings to show that although the civil courts decided the issue regarding legality of the structure under municipal laws, there was no adjudication on the issue of deficiency in service on part of the Opposite Parties. That issue still remained unaddressed. It is therefore in this context, and for seeking appropriate compensation and relief under the Consumer Protection Act, that the Complainant has filed the present complaint, which has also been amended with MVS+RRP CC/14/25 Page 5 of 14 permission of this Hon'ble Commission to include relevant developments.
8. The Complainant submitted that the Opposite Parties never obtained a sanctioned building plan covering the subject stilt godown nor took any steps to regularize the construction. Despite repeated representations and opportunity, the builder failed to resolve the issue, thereby causing continuing mental agony, economic loss, and rendering the Complainant without any alternative premises for livelihood. The Complainant claims to be a bona fide consumer, having paid full consideration, and having purchased the premises for self-use and not for resale or speculative commercial activity. He has further alleged that the deficiency is ongoing in nature because the Opposite Parties never procured Occupancy Certificate for the said structure and deliberately misrepresented the status of construction.
9. After admission of consumer complaint notices were duly issued to the Opposite Parties. The Opposite Parties appeared through their advocates and filed their Written Statement, raising various preliminary objections and opposing the complaint in its entirety.
10. The Opposite Parties contended that this Hon'ble Commission lacks jurisdiction to entertain the complaint, as the Complainant does not fall within the definition of "consumer" under Section 2(d) of the Consumer Protection Act, 1986. It was further submitted that the reliefs claimed in the complaint go MVS+RRP CC/14/25 Page 6 of 14 beyond the scope of what can be granted by this Commission and are thus not maintainable.
11. The Opposite Parties also raised the plea of limitation, contending that the cause of action, if any, arose in the year 2006 when the notice under Section 351 of the MMC Act was issued, and that the present complaint filed in 2013 is barred by the law of limitation. They further submitted that the Complainant had earlier filed Consumer Complaint No. 127 of 2006, which was returned with liberty to file before the appropriate District Forum, and that the current complaint is therefore barred by res judicata.
12. In addition, the Opposite Parties denied that the Complainant paid any amount beyond what was mentioned in the registered Agreement for Sale dated 31.08.2005, which reflects the consideration amount of ₹1,51,000/-. It was also submitted that the Complainant is using the premises for commercial purposes, namely for storage and distribution of goods, and hence is not entitled to protection under the Consumer Protection Act.
13. Based on the pleadings, documents, and rival submissions placed on record, the following issues arise for our consideration along with our findings:
Sr. Issues Findings No. Whether the Complainant is a 'consumer'
1. Yes under Section 2(1)(d) of the Act?
MVS+RRP CC/14/25 Page 7 of 14 Whether the complaint is barred by
2. No limitation?
Whether the complaint is barred by the
3. No principle of res judicata?
Whether the Opposite Parties are guilty of
4. Yes deficiency in service?
Whether the Complainant is entitled to any
5. Yes reliefs?
As per final
6. What order?
order REASONING Issue No. 1: Whether the Complainant is a 'consumer' under Section 2(1)(d) of the Act?
14. The Complainant has placed on record a duly executed and registered Agreement for Sale dated 31.08.2005, evidencing the purchase of the suit premises--Godown Stilt No. 'A', Ground Floor, A-Wing, Shiv Darshan Building, situated at Malpani Nagar, Borivali (West), Mumbai--for a consideration of ₹1,51,000/-. Possession of the premises was handed over by the Opposite Parties on 30.08.2005, as supported by a possession letter issued by them. The Opposite Parties have challenged the Complainant's status as a 'consumer' on the ground that the premises was allegedly used for commercial purposes. They also asserted that the Complainant and his family are engaged in providing security services and have other business interests. However, the mere fact that the premises may have been used MVS+RRP CC/14/25 Page 8 of 14 for storing goods in connection with the Complainant's livelihood does not automatically disqualify him from being a 'consumer' under the Act.
15. The Complainant has categorically stated in his pleadings that the premises was acquired for personal business use and as the sole means of earning livelihood for himself and his family. There is nothing on record to show that the premises was being used for large-scale commercial profit-making activity or that it was acquired for resale or investment. Hence, in the absence of any cogent evidence to rebut the Complainant's claim of personal use and self-employment, this Commission holds that the Complainant qualifies as a 'consumer' within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.
Issue No. 2: Whether the complaint is barred by limitation?
16. From the records, it is not in dispute that the Complainant had entered into a registered Agreement for Sale dated 31.08.2005 with the Opposite Party No.1 for purchase of a stilt godown bearing No. 'A' on the ground floor of A-Wing in the building known as Shiv Darshan, situated at Malpani Nagar, Borivali (W), Mumbai - 400092. The Complainant has also placed on record a possession letter dated 30.08.2005 issued by the builder, confirming delivery of possession of the suit premises. This registered agreement is not denied by the Opposite Parties.
MVS+RRP CC/14/25 Page 9 of 14
17. It is further an admitted fact that on 22.02.2006, the Municipal Corporation of Greater Mumbai (MCGM) issued a notice under Section 351 of the Mumbai Municipal Corporation Act, alleging that the structure purchased by the Complainant was unauthorised. The Complainant, through his advocate, replied to the said notice on 23.02.2006, stating that he was a bonafide purchaser under a registered agreement. However, the Assistant Commissioner of R-C Ward passed a demolition order dated 02.08.2006, directing removal of the alleged unauthorised construction. The Complainant thereafter filed L.C. Suit No. 3671 of 2006 before the Hon'ble City Civil Court, Mumbai, challenging the said order. The said suit came to be dismissed on 08.04.2011, and in its judgment, the Hon'ble Civil Court specifically recorded that the builder had sold an unauthorised structure to the Complainant and even directed the blacklisting of the builder in perpetuity. The Complainant filed First Appeal No. 889 of 2011 before the Hon'ble Bombay High Court, which was initially admitted and interim stay/status quo was granted on 20.04.2011. The appeal was then finally dismissed on 09.01.2014. Thereafter, the Complainant filed a Special Leave Petition before the Hon'ble Supreme Court, which also came to be dismissed on 13.05.2014, and thus the judgment of the Civil Court has attained finality.
18. Thus, it is an admitted and conclusively adjudicated fact that the structure in question was unauthorised and that the builder, i.e., Opposite Parties, sold the said premises to the MVS+RRP CC/14/25 Page 10 of 14 Complainant without obtaining lawful sanction or Occupancy Certificate from the competent authority.
19. Coming to the question of limitation, the Opposite Parties have raised a strong objection that the present complaint is barred under Section 24A of the Consumer Protection Act, 1986, arguing that the cause of action had arisen in the year 2006 itself, when the MCGM issued notice under Section 351 and the Complainant was made aware of the alleged illegality of the structure. It was also contended that the Complainant had earlier filed Consumer Complaint No. 127 of 2006, which was returned on 25.09.2008 by this Hon'ble Commission with liberty to file it before the appropriate District Forum within four weeks. The Opposite Parties submitted that the Complainant failed to do so within the prescribed time, and therefore, the present complaint filed in the year 2014 is beyond limitation. However, we do not find merit in this objection. Firstly, it must be clarified that when a complaint is returned for presentation before the appropriate forum, such as was done by this Commission in 2008, no findings are recorded on limitation, and the issue of limitation cannot be deemed to have been adjudicated or curtailed by the earlier return order. The power to conclusively decide the bar of limitation lies with the forum where the complaint is ultimately presented and adjudicated on merits. Secondly, and more importantly, the cause of action in the present case is not one-time or static. The deficiency alleged by the Complainant against the Opposite Parties are that they sold an unauthorised structure without obtaining proper sanction or MVS+RRP CC/14/25 Page 11 of 14 Occupancy Certificate and their continued failure to regularise the same, is of a continuous nature. There is no material on record to show that the Opposite Parties, who are service providers took corrective measures to resolve the issue or mitigate the hardship faced by the Complainant. As long as the deficiency remains unremedied, the Complainant continues to suffer loss and legal disadvantage, which gives rise to a continuing cause of action. In view of the settled legal position and upon going through the entire factual matrix, we are of the considered view that the present complaint is well within limitation, and the earlier return of the complaint cannot restrict the Complainant's right to seek adjudication on merits before the appropriate forum. Hence, Issue No. 2 is answered in the negative.
Issue No. 3: Whether the complaint is barred by the principle of res judicata?
20. On the question of res judicata, reliance was placed by the Opposite Parties on the dismissal of earlier suits filed by the Complainant. However, a bare perusal of the civil court records makes it evident that those proceedings involved different causes of action and different reliefs. The civil suit was filed against the municipal authorities seeking relief against demolition and for declaration of lawful possession. The present complaint, on the other hand, seeks relief against the builder for deficiency in service under the Consumer Protection Act. It is well settled law that the remedy under the Consumer Protection Act is additional MVS+RRP CC/14/25 Page 12 of 14 and distinct, and the mere pendency or dismissal of a civil suit would not preclude a consumer from approaching this Commission for independent reliefs. Hence, Issue No. 3 is answered in the negative.
Issue No. 4: Whether the Opposite Parties are guilty of deficiency in service ?
21. The core allegation in the present complaint is that the Opposite Parties constructed and sold an unauthorised structure to the Complainant without disclosing the lack of sanction or Occupancy Certificate, and not taken any steps to regularise it. These facts are not only supported by the Complainant's documents but also stand established by the findings of the Civil Court in L.C. Suit No. 3671 of 2006. It is also not the case of the Opposite Parties that they obtained any post- facto regularisation. No document is placed on record to show that they had the structure sanctioned by the Building Proposal Department or that they had any permission from the municipal authority in respect of the stilt godown. The builder's failure to comply with statutory obligations under the Maharashtra Ownership Flats Act (MOFA), including securing Occupancy Certificate for the suit premises and ensuring lawful construction, amounts to a clear and established deficiency in service. Therefore, Issue No. 4 is answered in the affirmative.
Issue No. 5: Whether the Complainant is entitled to any reliefs?
MVS+RRP CC/14/25 Page 13 of 14
22. The Complainant has suffered not only monetary loss but also continuous harassment and litigation due to the unauthorised nature of the premises. He has established that he paid the full consideration and was led to believe that the premises was legally constructed. The builder's conduct has resulted in the demolition of the premises, causing serious prejudice to the Complainant who claimed has no alternative premises for livelihood. Considering the overall facts and circumstances of the case, including the prolonged mental agony, financial hardship, litigation expenses incurred by the Complainant, and the substantial escalation in property prices over the years, we are of the considered view that the Complainant is justly entitled to refund of the entire amount paid along with interest, as well as adequate compensation for the loss and harassment suffered, and costs of litigation. Hence, Issue No. 5 is answered in the affirmative and to answer Issue No. 6: What order ? We proceed to pass following order.
Final Order
1. The consumer complaint is hereby partly allowed.
2. The Opposite Parties are jointly and severally directed to refund the amount of ₹1,51,000/- (Rupees One Lakh Fifty-One Thousand only) received from the Complainant under the registered Agreement for Sale dated 31.08.2005, along with interest at the rate of 18% per annum from the date of payment till the date of realization.
MVS+RRP CC/14/25 Page 14 of 14
3. The Opposite Parties are jointly and severally directed to further pay to the Complainant a sum of ₹5,00,000/- (Rupees Five Lakhs only) towards compensation for mental agony, harassment, and loss caused due to deficiency in service.
4. The Opposite Parties are jointly and severally directed to also pay to the Complainant a sum of ₹1,00,000/- (Rupees One Lakh only) towards litigation costs.
5. The Opposite Parties shall comply with this order within 60 (sixty) days from the date of this order, failing which the entire awarded amount shall carry interest at the rate of 18% per annum from the date of default till final payment.
6. Certified copy of this order be provided to the parties free of cost as per rules.
[Mukesh V. Sharma] Presiding Member [Poonam V. Maharshi] Member MVS+RRP