State Consumer Disputes Redressal Commission
Sanjay Hari 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/11/72
1. Sanjay Hari Nagpal
Flat No.04, 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-Mr.Sanjay 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 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 fifth 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.501 in lieu of original flat No.A-04 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 `38,340/- 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 `38,340/- 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, his father was called upon by the opponent at his office on 14/07/2010. In the course of said meeting, father of 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 key 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 No.501 in newly constructed or redeveloped building as per registered approved plan, sum of `25,00,000/-
with interest towards compensation and `6,20,330/- 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/11/19 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 father and mother. The complainant, his father and mother 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. Father of 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. They were taking undue advantages. They had represented to have premises on the 4th floor which in fact was never in existence and got an agreement executed referring Dr.Hari A. Nagpal (HUF). It is apparent from the conduct of the said Dr.Hari A. Nagpal, 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 Dr.Hari Nagpal and other two members, Pushpa Hari Nagpal and complainant-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 the 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 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.
Father of the 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. Father of 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 `38,340/- 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 complainants father 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.501, old flat no.A-04. 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 father of complainant-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.501 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-Sanjay Nagpal was member of New Shri Ram Nagar Co-operative Housing Society Ltd.
He had a flat in the said society bearing no.A-04 of an area admeasuring 540 sq.ft. He was holding shares bearing No.101 to 105 under Share Certificate No.021 in respect of flat no.04, Wing A, third 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.501 in new building situated on 5th 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) Complainant-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. Father of complainant-Dr.Hari A. Nagpal was having flat No.01 on ground floor admeasuring 540 sq.ft. in the society. Mother of complainant-Dr.Pushpa Hari Nagpal was having flat No.03 on second 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 complainant or his family members or in name of Dr.Hari Nagpal as HUF.
(16) It is urged on behalf of the complainant that 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.501 is not handed over to the complainant in spite of agreement. The complainant is entitled to receive possession of flat no.501 on 5th floor of the newly constructed building and the opponent builder/service provider is liable to give the said flat to the complainant.
(17) It is the case of opponent that Dr.Hari Nagpal-father of complainant 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 Dr.Hari Nagpal-father of 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.
(18) 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.
(19) 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. Father of 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 father of 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 father of complainant has now turned down his promise made in writing and is taking undue advantage.
(20) Opponents have relied on several documents. Important document is dated 21/07/2000. It is an Affidavit-cum-Confirmation-cum-Receipt.
According to the opponents said document is signed by Dr.Hari Nagpal, father of present complainant, Dr.Pushpa Nagpal, mother of complainant and Dr.Hari Nagpal as H.U.F. This complainant has signed said document as witness. Said document clearly shows that Dr.Hari Nagpal and Dr.Pushpa Nagpal have received all the sum payable as per development agreement dated 31/12/2007 pertaining to flat No.201, 301 and
401. Dr.Hari Nagpal and Dr.Pushpa Nagpal declared and confirmed that they would not claim possession of flat Nos.201, 301 and 401 as mentioned in earlier letter dated 20/10/2007. In view of this affidavit-cum-confirmation-cum-receipt, Dr.Hari Nagpal and his wife-Pushpa Nagpal might not be not entitled to claim reliefs till repayment of loan and construction cost of flat No.401.
(21) It is to be noted here that the alleged documents are not executed by the complainant-Sanjay Nagpal. While deciding other complaints filed by Dr.Hari Nagpal and Dr.Pushpa Nagpal, it was decided that said document is executed by Dr.Hari Nagpal and Pushpa Nagpal and it was signed by Sanjay Nagpal as witness. Signing the document as witness is altogether different from executing the document. By signing document as witness, complainant-Sanjay Nagpal did not give up his monetary claim or never assured that he would not claim possession of his flat bearing No.501. There is valid agreement between complainant-Sanjay Nagpal and opponent. In agreement between New Ram Nagar Co-operative Housing Society and opponent, it is mentioned that present complainant-Sanjay Nagpal was having flat bearing No.04 area 540 sq.ft. on third floor. Opponent agreed to give flat No.501, area 700 sq.ft. to complainant-Sanjay Nagpal. As per the agreement between the parties, opponent assured to hand over flat to complainant-Sanjay Nagpal within 22 months after getting I.O.D. and commencement certificate from the Municipal Corporation. Opponent assured to pay advance rent of 11 months @ 71/- per sq.ft. for residential area. In agreement there is a penalty clause. Opponent agreed to pay `25,000/- per month to each member of society till receipt of possession as per approved plan. Complainant-Sanjay Nagpal did not receive his dream house within stipulated period.
There was no reason for the opponent to with hold the possession of flat No.501 till repayment of loan by Dr.Hari Nagpal and construction cost of additional flat No.401. There was no sufficient and sound reason for the opponent in not giving flat to Sanjay Nagpal for which he was entitled.
Certainly, there is a deficiency in service on the part of opponent. Complainant-Sanjay Nagpal is entitled to receive possession of flat No.501, area 700 sq.ft. in lieu of his old flat from the opponent.
Nothing is on record to show that total rent and penalty were paid by the opponent to the complainant-Sanjay Nagpal as per agreement. Complainant-Sanjay Nagpal has suffered mental pain and agony. He is therefore entitled for amount of `10 Lakhs towards compensation. He is entitled for cost of litigation also. Opponent is liable to hand over possession of flat and also amount of compensation with 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.501 to the complainant-Mr.Sanjay Nagpal as per agreement between the parties.
3. Opponent is directed to pay compensation of `10 Lakhs to the complainant.
4. Opponent is directed to pay compensation of `1 Lakh to the complainant for mental agony.
5. Opponent is further directed to pay `50,000/- to the complainant towards cost of litigation and bear their own costs.
6. Opponent is directed to comply this order within a period of sixty days from the date of this order.
7. 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.