CC/14/298

BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, MAHARASHTRA, MUMBAI

Complaint Case No. CC/14/298

Mr.Sachchidanand Bhikaji Hatkar

Having address at 502, Vitthalesh CHS Ltd.
Damodar Mhatre Road, Dahisar (West),
Mumbai – 400 068. ...........Complainant(s)

Versus

M/s.Dharmesh Construction
Through its Proprietor
Mr.Dharmesh Jayantilal Paun
603, Shreeji Sharan,
Shantilal Modi Marg, Off. S.V. Road,
Kandivali (West), Mumbai – 400 067. ............Opponent (s)

BEFORE:
P. B. Joshi PRESIDING JUDICIAL MEMBER
A. K. Zade MEMBER

For the Mr.Uday B. Wavikar, Advocate for

Complainant: complainant.
For the Mr.Dharam Sharma, Advocate for
Opponent: opponent.
ORDER
Per Shri P.B. Joshi, Hon’ble Presiding Judicial Member
Complainant was occupying a room No.15 in Bhandare Chawl,
Mandapeshwar Road, Dahisar (West), Mumbai, admeasuring about 120
sq.ft. and was paying monthly rent of Rs.25/- to then owner-Smt.Padma
Chandrakant Bhandare & others. There is agreement between said
Smt.Padma Chandrakant Bhandare & Ors. and opponent-M/s.Dharmesh
Construction in respect of land admeasuring 1787.5 sq.mtrs. together with
structure standing thereon bearing Municipal Assessment Nos.9/9069(1)
and R/9869(2) bearing Survey No.10, Hissa No.7/1 corresponding to
C.T.S. No.118 situated at Revenue village Mandapeshwar, Taluka

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Borivali. The room of the complainant is part of said property. Opponent

proposed a scheme for redevelopment of said property by reconstruction
of new building thereon. Opponent offered to allot and hand over
possession of new residential area admeasuring 350 sq.ft. (built-up) in the
new building proposed to be constructed by the opponent on ownership
basis and free of cost in consideration of the complainant surrendering his
said tenement, his right, title and interest in favour of the opponent. Then
there was an agreement between complainant and opponent on 26/11/1999
to allot and hand over possession of self-contained flat bearing No.1
admeasuring 500 sq.ft. (built-up) comprising of a hall, a bedroom, a
kitchen and W.C. & Bathroom on First floor of ‘A’ wing of new building
proposed to be constructed by the opponent on the said land. It was also
agreed between the parties that the complainant to pay to the opponent,
price of 150 sq.ft. (built-up) additional area above 350 sq.ft. (built-up) of
the said flat @ Rs.1250/- per sq.ft. amounting to Rs.1,87,500/- at the time
of possession of the flat in the building proposed to be constructed. The
said agreement was registered on 26/11/1999. It was agreed that the
opponent to provide to the complainant B.M.C. approved transit
accommodation on the said property or in the nearest vicinity of the said
property.

2. The complainant surrendered his tenement to the opponent and

shifted to temporary alternate accommodation in the same compound. The
opponent demolished the existing structure and started developing said
land and obtained IOD on 18/08/2000 from the MCGM.

3. Since old alternate temporary accommodation room was hindrance

in development of ‘B’ wing, the complainant was asked to shift to another
temporary alternate accommodation room in the Chawl in the same
compound for which the opponent issued letter in March 2005. Said letter
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once again confirmed the allotment of flat No.1 on first floor of ‘A’ wing
to be constructed by the opponent. As per complainant, construction of
‘A’, ‘B’ & ‘C’ wings are almost complete. However, no possession of flat
is given to the complainant as agreed by the opponent and hence,
complainant has filed a consumer complaint with prayer that opponent be
held guilty for deficiency in service and unfair trade practice. Opponent
be directed to hand over to the complainant vacant and peaceful possession
of flat No.1 on first floor, ‘A’ wing, admeasuring 500 sq.ft. by accepting
Rs.1,87,500/- as agreed consideration. Alternatively, complainant prayed
that opponent be directed to hand over possession of any other flat in ‘B’
wing compromising of a hall, a bedroom, a kitchen and W.C. & bathroom
as described in the agreement by accepting Rs.1,87,500/-. Alternatively,
complainant prayed that opponent be directed to pay to the complainant
sum of Rs.70,21,500/- being present market value of the flat. Complainant
prayed that opponent be directed to pay to the complainant Rs.5 Lakhs
towards compensation for stress, inconvenience, harassment, mental
agony, etc. suffered by the complainant for last over 14 years.
Complainant also prayed for Rs.15,000/- towards legal and incidental
expenses incurred by him.

4. Opponent resisted the complaint by filing written version which is at

page-105to126 of complaint compilation. Opponent has admitted that
complainant was occupying said room as tenant and that there was
agreement between complainant and opponent for surrendering said room
in favour of opponent and that opponent will give flat in new building and
the agreement to that effect was executed. However, opponent denied that
there was any deficiency on the part of opponent. It was contended that
said agreement was tentative. Then the plan was changed and hence there
was no construction of ‘A’ wing. Opponent has raised contention that this

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Commission has no jurisdiction to entertain the complaint. It was

contended that complaint is time-barred. It was further contended that
complainant is not a consumer. It was also contended that complainant is
an investor and not consumer. It was contended that opponent is ready to
give possession of flat admeasuring 350 sq.ft. in ‘C’ wing or price of said
flat as per ready reckoner. Opponent prayed for dismissal of the
complaint.

5. Considering the rival contentions of the parties, considering the

record and keeping in view the scope of the complaint, following points
arise for our determination and our findings thereon are noted for the
reasons as below :-
Sr.No. Points Finding

1. Whether this Commission has Yes

jurisdiction to entertain the complaint?
2. Whether complaint is barred by No
limitation?
3. Whether complainant is a consumer? Yes

4. Whether there is deficiency on the part of

Yes
opponent?
Whether complainant is entitled for
5. possession of the flat as prayed for or for Yes, as per final
the flat alternatively prayed or for the order.
amount alternatively prayed for?
6. Whether complainant is entitled for Yes, as per final
compensation as claimed? order.
7. Complaint is partly
What order?
allowed.

REASONS :-

6. Point No.1 (Jurisdiction) :- It was contended that this Commission

has no jurisdiction to entertain the complaint as the services claimed are
not within subject matter of this Commission. It was contended by the

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opponent that the complainant was occupying a room as tenant and hence,
he is not a consumer, but it is a dispute between tenant and landlord and
hence, this Commission has no jurisdiction to entertain said dispute. We
find that said contention of Advocate for the opponent cannot be accepted,
the reason is that there was agreement between the parties whereby
complainant has agreed to surrender his old premises in old building to the
opponent and opponent agreed to give a new flat in new building to be
constructed by the opponent and hence, it is very clear that the relation
between the complainant as a tenant with opponent as landlord ceased
when they entered into said agreement and the complainant became
consumer and opponent became service provider.

7. Learned Advocate for complainant has submitted a judgment of

Hon’ble National Commission on this point (Revision Petition Nos.2589-
2590 of 2008 decided on 24/04/2012 in the case of Jagdishbhai M. Sneth
alias Soni V/s. Surbhih Realtors India Pvt. Ltd.). It was observed in the
said judgment that relationship of landlord and tenant got
subsided/extinguished on execution of development agreement and a new
relationship got blossomed in place of old relationship of landlord and
tenant.

8. It was contended by the opponent that this Commission has no

jurisdiction to entertain the complaint where complex question of facts and
law arises. It was contended that in this matter there is complex question
of facts and law and hence, complaint be dismissed as not maintainable.
We find no substance in this argument for the simple reason that this
Commission can very well decide even a complicated question of law and
facts. It is to be noted that a sitting or retired High Court Judge is the
President of this Commission and Principal District Judges are the Judicial
Members of this Commission and they can very well decide any
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complicated question of law and facts.

9. As far as summery proceeding is concerned, we would like to refer

judgment of Hon’ble Apex Court in the case of Dr.J.J. Merchant & Ors.
V/s. Shrinath Chaturvedi, reported in 2002 CTJ 757 SC (Oct.2002 Issue),
wherein it is observed by their Lordships that –
“It was next contended that such complicated questions of facts
cannot be decided in summary proceedings. In our view, this
submission also requires to be rejected because under the Act, for
summary or speedy trial, exhaustive procedure in conformity with
the principles of natural justice is provided. Therefore, merely
because it is mentioned that Commission or Forum is required to
have summary trial would hardly be a ground for directing the
consumer to approach the Civil Court. For trial to be just and
reasonable long drawn delayed procedure, giving ample
opportunity to the litigant to harass the aggrieved other side, is not
necessary. It should be kept in mind that legislature has provided
alternative, efficacious, simple, inexpensive and speedy remedy to
the consumers and that should not be curtailed on such ground. It
would also be totally wrong assumption that because summary trial
is provided, justice cannot be done when some questions of facts are
required to be dealt with or decided. The Act provides sufficient
safeguards.”

In view of discussions, it is very clear that this Commission has

jurisdiction to entertain the complaint. Hence, we answer Point No.1 in
affirmative.

10. Point No.2 (Limitation) :- Learned Advocate for opponent has

contended that agreement was executed between the parties on 26/11/1999

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and consumer complaint is filed in the year 2014 and hence, it is time-
barred. Said argument of Advocate of the opponent cannot be accepted for
the simple reason that here consumer complaint is filed for possession of
the flat for which there was an agreement between the parties and when
claim is for possession of the flat then it is a continuous cause of action.
Hence, consumer complaint is well within limitation. Hence, we answer
Point No.2 in negative.

11. Point No.3 (Consumer) :- It was contended by Learned Advocate

for opponent that the complainant is not a consumer as he is an Investor.
Complainant has another flat. We find that said contention of Advocate
for opponent cannot be accepted in absence of any evidence to show that
the complainant is an Investor. Apart from that here it was a
redevelopment scheme. The complainant was occupying old premises and
there was agreement of redevelopment for which complainant has vacated
old premises and opponent has agreed to give new flat in new building to
be constructed by the opponent. Thus, it is very clear that the complainant
is a consumer.
12. Advocate for opponent has contended that complainant has not paid
any consideration and he is not a consumer as contemplated under the
Consumer Protection Act, 1986. We find that said argument cannot be
accepted for the simple reason that as per agreement, complainant has
surrendered his old premises for getting new premises in new building to
be constructed by the opponent. Thus, surrendering of old premises is
itself a consideration and hence, it is very clear that complainant is a
consumer as contemplated under the Consumer Protection Act, 1986.
Hence, we answer Point No.3 in affirmative.

13. Point No.4 (Deficiency) :- It is material to note that agreement

between the parties for redevelopment is admitted fact. Said agreement is
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at page-20to31 of complaint compilation. Said agreement was executed

on 26/11/1999 and possession was to be given within twenty-four months
as mentioned in Para 8 of the agreement. Admittedly, till today no
possession is handed over to the complainant and hence, there is clear-cut
deficiency on the part of the opponent. Hence, we answer Point No.4 in
affirmative.

14. Point No.5 (Entitlement) :- In view of answers of above points, we

find that the complainant is entitled for possession of the flat as agreed.
However, it is admitted position that the flat was booked in ‘A’ wing.
However, no flats are constructed in ‘A’ wing. Advocate for the
complainant has submitted that ‘B’ wing is constructed and there is a flat
of 500 sq.ft. ‘B’ wing is in the same premises and hence, flat admeasuring
500 sq.ft. in ‘B’ wing be given to the complainant and complainant is
ready to pay amount for extra area of 150 sq.ft. Learned Advocate for the
opponent has submitted that all flats in ‘B’ wing are sold and he is ready to
give flat from ‘C’ wing, which is admittedly of the area of 350 sq.ft.
Complainant is not ready to accept said flat of 350 sq.ft. which is in ‘C’
wing. Advocate for the complainant has submitted that flat in ‘B’ wing is
available. It is only given on rent or licence and hence, possession of the
flat in ‘B’ wing admeasuring 500 sq.ft. be given to the complainant.
Considering said submission and fact that opponent has not filed on record
any document to show that all the flats in ‘B’ wing are sold, we find it
proper to accept contention of the complainant that flat in ‘B’ wing is
available for giving to the complainant. Even otherwise when opponent
had agreed to give flat of 500 sq.ft. in ‘A’ wing, he has not constructed
said ‘A’ wing. In such circumstances, it was necessary for the opponent to
give one flat from ‘B’ wing of 500 sq.ft. to the complainant. He has no
right to sell all the flats from ‘B’ wing when he had already agreed with

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the complainant to give a flat of 500 sq.ft. and hence, we find it proper to
hold that complainant is entitled for flat in ‘B’ wing admeasuring 500
sq.ft. on payment of balance consideration as calculated hereinbelow.

15. Advocate for the complainant has argued that if it is found that no
flat can be given to the complainant, then he may be given present market
value of the flat of 500 sq.ft. in the said premises which is as per
complainant is Rs.70,21,500/- on the date of filing of complaint.
Considering the said submission, we find that it will be proper to pass the
order about amount to be given to the complainant by opponent
alternatively of the flat at the option of complainant. To support said
amount, the complainant has filed Ready Reckoner for the year 2017. As
per said Ready Reckoner, rate of per sq.ft. is Rs.13,240/- approximately.

16. As discussed above, complainant is entitled for a flat admeasuring

500 sq.ft.(350 + 150 sq.ft.). For 350 sq.ft. complainant had already
surrendered his old tenement and hence, he is entitled for 350 sq.ft. area in
new flat without paying anything. Thus, present value of that area comes
to Rs.46,34,000/- (350 x 13240 = 4634000). As far as remaining 150 sq.ft.
area is concerned, complainant was to pay Rs.1250/- per sq.ft. at the time
of possession of the new flat. As possession is not given, the complainant
has not given that amount. However, opponent had agreed to give
additional area of 150 sq.ft. in the new building in addition to 350 sq.ft. as
against old tenement. So, we have to calculate what amount the
complainant shall now pay for additional area of 150 sq.ft. as well as what
amount the complainant is entitled for if possession of the flat is not given.
For that purpose, we have to consider Ready Reckoner for the year 2001
when possession was agreed to be given. Rate in that year was Rs.1800/-
per sq.ft. However, complainant was to pay only Rs.1250/- per sq.ft. as he
was occupying old premises and surrendering old premises, said about ⅓
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(1800/3 = 1200) concession was agreed to be given by the opponent to the

complainant. As the complainant has not given said amount of Rs.1250/-
per sq.ft., the complainant is not entitled for entire present value of said
150 sq.ft. However, he is certainly entitled for some amount for that area.
Same concession is to be considered while considering the balance amount
to be paid by the complainant and present amount to be given by the
opponent to the complainant if possession is not given. Hence,
complainant is entitled for possession of flat in ‘B’ wing admeasuring 500
sq.ft on payment of balance consideration of Rs.13,24,000/- (13240 x 150
= 19,86,000/- minus 6,62,000/- i.e. ⅓ concession agreed to be given &
discussed above). At the option of complainant, alternatively at the same
ratio, complainant is entitled for Rs.46,34,000/- (13240 x 350 =
46,34,000/-) as against old tenement plus Rs.6,62,000/- (⅓ of 13240 x 150
= 6,62,000/- as against concession of additional area which was agreed to
be given to the complainant) totalling Rs.52,96,000/- (Rupees Fifty Two
Lakhs Ninety Six Thousand only) if possession is not given by the
opponent. Hence, we answer Point No.5 accordingly.

17. Point No.6 (Compensation) :- Complainant has claimed Rs.5 Lakhs

as compensation for the stress, inconvenience, harassment, mental agony,
etc. suffered by him. It is very clear that even after surrendering old
premises, the complainant did not get new premises till date. He was
required to knock the doors of this Commission for getting reliefs. Thus,
he must have suffered mental agony, inconvenience, harassment and
hence, he is entitled for some amount on that count. We find that while
granting this amount, other reliefs granted are also to be considered.
Keeping in mind those reliefs which we have discussed above, we find it
proper to grant Rs.2,00,000/- (Rupees Two Lakhs only) as compensation
on this count to the complainant. Hence, we answer Point No.6

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accordingly.

18. Point No.7 :- In view of answers of Point Nos.1to6, consumer

complaint deserves to be allowed partly. Hence, we pass the following
order :-
-: ORDER :-
1. Consumer complaint is partly allowed with costs quantified at
Rs.25,000/- (Rupees Twenty Five Thousand only) payable by
opponent to the complainant.
2. Opponent is directed to hand over possession of flat in ‘B’ wing
admeasuring 500 sq.ft. built-up area in the building constructed on
plot of land bearing C.T.S. No.118 of Village Mandpeshwar at Bapu
Bagwe Road, Dahisar (West), Mumbai to the complainant within
one month from the date of payment of remaining consideration of
Rs.13,24,000/- (Rupees Thirteen Lakhs Twenty Four Thousand
only). If the opponent refused to accept the amount, then
complainant should deposit the amount in this Commission under
intimation to the opponent and from that date within one month
possession should be handed over to the complainant.

ALTERNATIVELY AT THE OPTION OF COMPLAINANT

Opponent is directed to pay amount of Rs.52,96,000/- (Rupees Fifty

Two Lakhs Ninety Six Thousand only) to the complainant within
one month from the date of option informed by the complainant to
the opponent in writing.
3. Opponent is also directed to pay Rs.2,00,000/- (Rupees Two Lakhs
only) as compensation on account of mental agony suffered by the
complainant within one month from the date of order.
4. Opponent is directed to comply the above order within time

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mentioned above, failing which the aforesaid amounts shall carry

interest @ 12% p.a. till realisation.
5. Copies of the order be furnished to the parties.
Pronounced
Dated 23rd January 2018
[ P. B. Joshi ]
PRESIDING JUDICIAL MEMBER

[ A. K. Zade ]
MEMBER
dd

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