Jaspal Singh Puran Singh Nagi vs Vinamra Developer & Ors

Heard Mr. Mohan Babu Agarwal, Advocate, for the complainant, Mr. Jay Savla, Sr. Advocate, assisted by Ms. Stuti Sharma, Advocate, for the opposite parties.

Jaspal Singh Puran Singh Nagi has filed above complaint, for restraining the opposite parties from creating third party interest over new shop admeasuring carpet area as 56.53 sq.mtrs., on the ground floor, in proposed “Shanti Gold” building to be constructed on Plot No.6, TPS III, Santacruz, CTS No.228, 228/1, Santacruz (East), 7th Nehru Road, Mumbai-400055 and directing them to:-

(i) pay Rs.21570264/-, as accrued interest @21% per annum, on his investment of Rs.13534347/- as from 11.04.2014 and pendent-lite and future interest at the same rate; (ii) pay Rs.8432000/-, as dues of monthly rentals and pendent-lite and future rentals @Rs.136000/-, per month, under Permanent Alternate Accommodation Agreement dated 11.04.2014; (iii) pay Rs.2650000/-, towards loss of earning @Rs.500000/- per annum, (iv) pay Rs.15/- lacs, as costs of litigations, (v) to form the Condominium/Co-operative Society of the residents in the building and provide membership to the complainant in it;

or in alternative to (vi) provide similar shop of identical dimension in the same locality/adjoining building with all the amenities as agreed in Permanent Alternate Accommodation Agreement dated 11.04.2014 or (vii) pay Rs.38762400/- being current fair market value of the shop; and (viii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that M/s. Vinamra Developer (opposite party-1) was a partnership firm, initially formed through registered deed dated 29.06.2010, under Indian Partnership Act, 1932 and continue to exist with change of one partner and Ambrish Hasmukh Soni, Harshad Ratilal Soni and Chetan Narendra Dhakan (opposite parties-2 to 4) were its partners. The opposite parties were engaged in the business of development, construction and repairs of the buildings, investments in the property and such other business as mutually agreed between the partners. The complainant was searching a shop for earning his livelihood by way of self-employment. Through common acquaintance, the complainant came in touch of the partners of the firm, in January, 2011, who informed that they were intending to acquire the building “Rabab Manzil” situated at Plot No.6, TPS III, Santacruz, CTS No.228, 228/1, Santacruz (East), 7th Nehru Road, Mumbai-400055, which was in occupation of the tenants. The opposite parties created a rosy picture and advised the complainant that one of the tenant at ground floor had agreed to surrender its tenancy. Instead of taking tenancy straightway, the complainant should join as a partner in the firm by parting Rs.1.21 crores. On surrender of tenancy by the tenant of ground floor, they would handover that shop to the complainant. Believing upon the assurance of the opposite parties, the complainant paid Rs.1.21 crores to the opposite party and they inducted the complainant as a partner in the firm and thereafter handed over possession of the shop at ground floor of “Rabab Manzil” admeasuring carpet area of 414.15 sq.ft., on quarterly rent of Rs.2000/- to him. The complainant was intending to start his business in the said shop but the opposite parties advised for not doing any renovation work as they were intending for demolish the old building and reconstruct new building. The opposite parties submitted their building plan for redevelopment before Development Authority on 13.09.2013. The opposite parties executed Permanent Alternate Accommodation Agreement on 11.04.2014, which was registered as per Badar-I/Sr. No.3267 dated 11.04.2014, in favour of the complainant, in lieu of his shop in old building. The complainant handed over possession of the old shop to the opposite parties for its demolition and reconstruction. Clause-3 of Permanent Alternate Accommodation Agreement provides that in place of existing build-up area of 36.55 sq.mtrs., the opposite party shall provide 56.53 sq.mtrs. build-up area. Clause-4 provides 18 months period + 6 months grace period from the date of grant of “commencement certificate” for handing over possession of new shop. “Commencement certificate” was issued on 03.05.2014 and the period of 24 months expired on 02.05.2016. But the opposite parties did not handover possession of new shop. The opposite parties also promised to provide monthly rental during the construction period for temporary accommodation but they did not give any money in this head. The opposite parties committed deceptive trade practice and amended Layout Plan without consent and knowledge of the complainant, thereby reduced the built-up area of the shops at ground floor from 56.53 sq.mtrs. The complainant filed CC/2019/2016, on 21.12.2016 against the opposite parties before this Commission. Later on, the opposite parties promised to handover possession of shop with all accrued benefits. On their assurance, the complainant withdrew CC/2019/2016, vide order dated 26.10.2018, with liberty to file fresh complaint. The opposite parties, however, did not talk for settlement, after withdrawal of the complaint. The complainant gave a legal notice dated 27.05.2019 to the opposite party to handover possession of the shop or to give compensation. In spite of service of notice, the opposite parties did not respond, then this complaint was filed in June, 2019.

The opposite parties-1 to 3 filed their joint written reply on 02.06.2019 and contested the complaint. The opposite parties stated that the complainant filed CC/2019/2016, for identical relives, which was dismissed with liberty to approach appropriate forum/High Court as per the provision of law, vide order dated 26.10.2018. The complainant filed Criminal Complaint No.102/SW/2016, before Additional Chief Metropolitan Magistrate, Bandra (East), Mumbai, under Section 403, 405, 406, 415, 418, 420 IPC read with Section 13, 13-A and 14 of Maharashtra Ownership of Flats Act, 1963 against the opposite parties and some other persons also, which is pending. The opposite parties filed S.C. Suit No.2499 of 2017 against the complainant, for declaration that the complainant had no right to claim any permanent alternate accommodation on the basis of documents dated 01.03.2012, 21.08.2013 and 11.04.2014 and other consequential relieves, in which, the complainant had filed his written statement on 13.10.2017. In view of these litigations, CC/2019/2016 was withdrawn to approach High Court. Fresh complainant before this Commission is not maintainable. The firm Vinamra Developers was formed on 29.07.2010, in which initially Ambrish Soni, Harshad Soni, Chetan Dhakan and Girish Soni were partners. The firm purchased an old building “Rabab Manzil” situated at Plot No.6, TPS III, Santacruz, CTS No.228, 228/1, Santacruz (East), 7th Nehru Road, Mumbai-400055 on 26.05.2011. In the building “Rabab Manzil”, there were 4 shops on ground floor, which were in possession of the tenants. The complainant approached the opposite parties and showed his inclination to join the firm as a partner. The complainant invested Rs.21/- lacs on 22.12.2011 and Rs.one crore on 01.02.2012 in the firm. The complainant was inducted as a partner in the firm and Girish Soni was retired through deed of Reconstruction cum Retirement cum Admission cum Partnership dated 30.01.2012. Smt. Savita Shah and others (heirs of original tenant Late Jayantilal D. Shah), an existing tenant of Shop No.1 at ground floor, were willing to surrender their tenancy for a consideration of Rs.289/- lacs. The firm utilised money of the complainant and gave a cheque of Rs.one crore and another undated cheque of Rs.189/- lacs to Smt. Savita Shah and others on 01.02.2012 on which, they executed surrender deed in favour of the firm on 02.02.2012. As the amounts paid by the complainant were utilized for making payment to Smt. Savita Shah and others, the firm executed a deed of tenancy dated 01.03.2012, of Shop no.1, for Rs.120/- lacs, in favour of the complainant, by way of security of his money. For reconstruction of the building, the partners had to invest more money but the complainant declined to invest any amount further. The complainant, therefore, retired from the partnership of the firm on 21.10.2013. As per accounts of the firm, on the retirement from the firm, Rs.125/- lacs had to be returned to the complainant but at that time the firm was not in position to return entire amount as such it was agreed that till full amount is not returned, the tenancy of shop No.1, in favour of the complainant would remain with him by way of security. For sanction of building plan for reconstruction, no objection from the tenants for possession and demolition and deed of Permanent Alternate Accommodation in their favour were necessary as such Permanent Alternate Accommodation deed dated 11.04.2014 was executed in favour of the complainant. The opposite parties returned total Rs.142.5 lacs to the complainant in between 14.05.2013 to 23.04.2015. Deed of tenancy dated 01.03.2012 and Permanent Alternate Accommodation deed dated 11.04.2014 in favour of the complainant  were by way of security of his money till its repayment. On repayment of money to the complainant, his tenancy and Permanent Alternate Accommodation deed dated 11.04.2014 were discharged. The complainant cannot claim any right on its basis. The complainant is unnecessarily harassing the opposite parties in various litigations. The complaint has no merit and liable to be dismissed.

The complainant filed Rejoinder Reply and Affidavit of Evidence of Jaspal Singh Nagi and documentary evidence and additional documentary evidence. The opposite parties filed Affidavit of Evidence of Ambrish Soni. Both the parties have filed their written synopsis.

We have considered the arguments of the parties and examined the record. The counsel for the opposite parties raised preliminary issue relating to maintainability of the complaint on the ground that the complainant filed CC/2019/2016, for identical relives, which was dismissed with liberty to approach appropriate forum/High Court as per the provision of law, vide order dated 26.10.2018. He submitted that fresh complaint is not maintainable before this Commission again. As by the order dated 26.10.2018, the complainant was given liberty to approach appropriate forum as such it cannot be said that fresh complaint before this Commission is not maintainable.

Relying upon the judgments of Supreme Court in Lilavati Kirtilal Mehta Trust Vs. Unique Shanti Developers, (2020) 2 SCC 265 and Shrikant G. Mantri Vs. Punjab National Bank, (2022) 5 SCC 42, the counsel for the opposite parties submitted that dispute between the parties related to the shop, which was for doing business which is a commercial purpose. If the case of the opposite parties is accepted, it was a dispute between the partners of the firm. In both the case, the complainant cannot be treated as a consumer and the complaint is not maintainable. The complainant derived his right under Permanent Alternate Accommodation deed dated 11.04.2014, under which services of the opposite parties for reconstruction of the building has been availed. “Building construction” is included in the term “service” as defined under Section-2(o) of Consumer Protection Act, 1986. So far as commercial purpose is concerned, the complainant took plea that he had obtained the shop for earning his livelihood by way of self-employment. This fact has not been controverted. Supreme Court in Sunil Kohli Vs. Purearth Infrastructure Ltd., (2020) 12 SCC 235, held that if shop/commercial space is obtained for earning livelihood by way of self-employment, then it is not a commercial purpose.

The complainant stated that the firm Vinamra Developer was owner of the building “Rabab Manzil” situated at Plot No.6, TPS III, Santacruz, CTS No.228, 228/1, Santacruz (East), 7th Nehru Road, Mumbai-400055. The complainant approached the opposite parties for a shop on rent in this building. The opposite parties let out Shop no.1, situated at ground floor, on taking premium of Rs.120/- lacs and executed a deed of tenancy dated 01.03.2012 in favour of the complainant. The opposite parties were intending to demolish old building and construct new building in the name of “Shanti Gold”. The opposite parties executed registered Permanent Alternate Accommodation Agreement dated 11.04.2014, in favour of the complainant, in lieu of his shop in old building. The complainant handed over possession of the old shop to the opposite parties for its demolition and reconstruction under the above agreement. Clause-3 of Permanent Alternate Accommodation Agreement provides that in place of existing build-up area of 36.55 sq.mtrs., the opposite parties shall provide 56.53 sq.mtrs. build-up area. Clause-4 provides 18 months period + 6 months grace period from the date of grant of “commencement certificate” for handing over possession of new shop. “Commencement certificate” was issued on 03.05.2014 and the period of 24 months expired on 02.05.2016. Therefore, the complainant is entitled to a shop at ground floor in new building “Shanti Gold” of 56.53 sq.mtrs built-up area and other consequential relieves. So far as induction of the complainant as partner in the firm “Vinamra Developers” is concerned, the complainant never intended for becoming partner of the firm. It was own manoeuvring of the opposite parties-2 to 4, who inducted the complainant as partner in the firm.

On the other hand, the opposite parties stated that the complainant approached the opposite parties and showed his inclination to join the firm as a partner. The complainant invested Rs.21/- lacs on 22.12.2011 and Rs.one crore on 01.02.2012 in the firm. The complainant was inducted as a partner in the firm and Girish Soni was retired through deed of Reconstruction cum Retirement cum Admission cum Partnership dated 30.01.2012. Smt. Savita Shah and others (heirs of original tenant Late Jayantilal D. Shah), an existing tenant of Shop No.1 at ground floor, agreed to surrender their tenancy for a consideration of Rs.289/- lacs. The firm utilised money of the complainant and gave a cheque of Rs.one crore and another undated cheque of Rs.189/- lacs to Smt. Savita Shah and others on 01.02.2012 on which, they executed surrender deed in favour of the firm on 02.02.2012. As the amount paid by the complainant was utilized for making payment to Smt. Savita Shah and others, the firm executed a deed of tenancy dated 01.03.2012, of Shop no.1, for Rs.120/- lacs, in favour of the complainant, by way of security of his money. For reconstruction of the building, the partners had to invest more money but the complainant declined to invest any amount further. The complainant, therefore, retired from the partnership of the firm on 21.10.2013. As per accounts of the firm, on the retirement from the firm, Rs.125/- lacs had to be returned to the complainant but at that time the firm was not in position to return entire amount as such it was agreed that till full amount was not returned, tenancy of shop No.1, in favour of the complainant would remain with him by way of security. For sanction of building plan for reconstruction, no objection from the tenants for possession and demolition and deed of Permanent Alternate Accommodation in their favour were necessary as such Permanent Alternate Accommodation deed dated 11.04.2014 was executed in favour of the complainant. The opposite parties returned total Rs.142.5 lacs to the complainant in between 14.05.2013 to 23.04.2015. Deed of tenancy dated 01.03.2012 and Permanent Alternate Accommodation deed dated 11.04.2014 in favour of the complainant were by way of security of his money till its repayment. On repayment of money to the complainant, his tenancy and Permanent Alternate Accommodation deed were discharged.

In the light of rival contentions of the parties following facts are relevant for deciding the controversy involved in this complaint:-

(a) Smt. Savita Shah and others surrendered their tenancy of Shop No.1 for Rs.289/- lacs on 02.02.2012. There could be no reason for giving tenancy of the same shop to the complainant for Rs.120/- lacs on 01.03.2012, except by way of security as the money paid by the complainant i.e. Rs.21/- lacs on 22.12.2011 and Rs.100/- lacs on 01.02.2012, were utilized for making payment to Smt. Savita Shah.

(b) The complainant stated that he had obtained the shop for earning his livelihood by way of self-employment. He obtained the lease of the shop on 01.03.2012. Permanent Alternate Accommodation Agreement was executed on 11.04.2014. During this period of more than two years, the complainant did not utilize the shop for doing business.

(c) The lease deed dated 01.03.2012 provides rent of the shop as Rs.2000/- per month but the complainant never paid any rent during this period of more than two years.

(d) Till filing CC/1920/2016, the complainant did not claim monthly rental for temporary alternate accommodation.

(e) The opposite parties gave Rs.5/- lacs on 14.05.2013, Rs.2/- lacs on 14.05.2013, Rs.5/- lacs on 23.06.2014, Rs.20/- lacs on 15.07.2014, Rs.3/- lacs on 05.08.2014, Rs.10/- lacs on 14.08.2014, Rs.10/- lacs on 10.11.2014, Rs.2/- lacs on 28.11.2014, Rs.13/- lacs on 28.11.2014, Rs.20/- lacs on 29.11.2014, through cheques to the complainant. The complainant accepted these cheques without any objection. Which proves that the opposite parties were returning dues to the complainant, which was payable to him on his retirement from the firm on 21.10.2013. These payments were not denied.

(f) In Criminal Complaint No.102/SW/2016, before Additional Chief Metropolitan Magistrate, Bandra (East), Mumbai, under Section 403, 405, 406, 415, 418, 420 IPC read with Section 13, 13-A and 14 of Maharashtra Ownership of Flats Act, 1963, the complainant did not take plea of tenancy of the shop. Contrary to it, he stated that he was induced to invest in the firm of the opposite parties. Relevant portion of the criminal complaint are quoted below:

(i) In or about January, 2011, accused No.5 (Mr. Raj Sinha) (the property broker) introduced the complainant to Accused No.1, the Firm (Vinamra Developers) and its partners and induced me to invest in their Firm’s business as their firm was in need of finance for their redevelopment project of “Rabab Manzil” building situated at Plot No.6, TPS III, 7th Nehru Road, Santacruz (East), Mumbai.

(ii) Upon scrutiny of the documents provided by Accused Nos.2, 3 and 4 (Ambrish Hasmukh Soni, Harshad Ratilal Soni, Chetan Narendra Dhakan), I declined to invest any money in Accused No.1, firm since right and title of the said “Rabab Manzil” and land beneath it was with Accused No.6 M/s. Varni Construction- the “Land Vendors”. Thereafter, Accused No.2, 3 and 4 took me to the office of Accused No.6 and introduced me to its partners in particular Accused Nos.7 and 8 who assured me about the integrity and fair dealing of Accused Nos.2, 3 and 4 and informed me that they have been dealing regularly with Accused Nos.2, 3 and 4 in many other land transactions. In order to win my trust and confidence Accused Nos.7 and 8 informed me that they are in process of executing a conveyance deed to transfer all right, title and interest in “Rabab Manzil” in favour of Accused No.1 firm.

(iii) Accordingly the conveyance deed was executed and registered with Sub-Registrar of Assurances on 15.06.2011. Thereafter, the Accused Nos.7 and 8 made assurances and induced me to invest my money with Accused No.1 firm. I further say that all the above said Accused Nos.2, 3, 4, 5, 7 and 8 abetted and induced me to part with the sum of Rs.1.21 crores which was received in the Accused No.1 firm. Subsequently, Accused No.1 Partnership Firm was reconstituted and I became a partner of Accused No.1 Partnership firm on 30.01.2012.

(iv) I say that I was abetted and induced by the Accused Nos.1 to 8 to become partner in Accused No.1 firm by investing Rs.1.21 crores in their firm. Thereafter upon working for a few months with Accused No.1 firm and its other partners namely Accused Nos.2, 3 and 4, I realized that their dealings were unethical since they were contemplating to use loopholes in the Development Control Regulations of Municipal Corporation of Greater Mumbai which if exposed would eventually be deemed as misappropriation of FSI. Also Accused Nos.2, 3 and 4 were involved in making gross misrepresentations for borrowings funds from the parties in market.

For the reasons mentioned above, the case as set up by the  opposite parties that (i) the deeds of tenancy dated 01.03.2012 and Permanent Alternate Accommodation dated 11.04.2014 in favour of the complainant were by way of security of his money till its repayment. (ii) The opposite parties returned total Rs.142.5 lacs to the complainant in between 14.05.2013 to 23.04.2015 and cleared entire dues of the complainant as payable to him on his retirement from the firm. (iii) On repayment of money to the complainant, his tenancy and Permanent Alternate Accommodation deed were discharged, appears to correct.

ORDER

In view of aforesaid discussions, the complaint is dismissed.