Mohini Shelters Pvt. Ltd vs Sanjay Hari Nagpal

Heard Mr. Mohit P. Bhansali, Advocate, for Sanjay Hari Nagpal and Mr. Uday B. Wavikar, Advocate, for Mohini Shelters Pvt. Ltd., in both the appeals.

Both above appeals are cross appeals, arise out of the order of Maharashtra State Consumer Disputes Redressal Commission, dated 06.02.2014, passed in CC/11/72, partly allowing the complaint and directing the opposite party to handover possession of Flat No.501, in new building as per agreement, to pay compensation of Rs.ten lacs and compensation of Rs.one lac for mental agony and Rs.50000/- as cost of litigation.

The office has reported 2 days delay in filing FA/185/2014. The appellant has not filed any application for condonation of delay. In the interest of justice, delay in filing the appeal is condoned. The office has reported 29 days delay in filing FA/282/2014. The appellant has filed IA/3006/2014, for condonation of delay. Cause shown is sufficient. Delay in filing the appeal is condoned.

One “New Shri Ramanagar Cooperative Housing Society Ltd.”, CTS No.F/1532, 5th Road, Khar West, Mumbai-400052 was owner of a building, situated on plot 579 (area 723.20 sq. meter) at village Bandra, taluqa Andheri, district Mumbai Suburban. One “Vintage Apartments Cooperative Housing Society”, CTS No.F/1529, 5th Road, Khar West, Mumbai-400052 was owner of a building, situated on plot 580 (area 752.50 sq. meter) at village Bandra, taluqa Andheri, district Mumbai Suburban. These societies obtained Structure Feasibility Reports of its buildings and on its basis decided to reconstruct/redevelop the buildings in the meeting of general bodies of the societies. They invited redevelopment offers from qualified builders. M/s. Mohini Engineers and Contractors gave an offer for redevelopment, which was approved by general body of the societies on 26.08.2007. M/s. Mohini Engineers and Contractors transferred development rights to Mohini Shelters Pvt. Ltd. (the opposite party) on 29.08.2007. Both the societies agreed for construction of single building on plots 579 and 580, aforesaid and also amalgamation of two societies. A registered development agreement dated 31.12.2007 was executed between New Shri Ramanagar Cooperative Housing Society Ltd., Vintage Apartments Cooperative Housing Society and Mohini Shelters Pvt. Ltd. (the opposite party). The new building was constructed in the name of “Mohini Heights” on plots 579 and 580, aforesaid and new society is named as Mohini Heights Cooperative Housing Society.

Sanjay Hari Nagpal filed CC/11/72 for directing Mohini Shelters Pvt. Ltd. (i) to handover possession of the FlatNo.501 in building “Mohini Heights” as per approved plan, as per agreement, along with all the amenities, (ii) to pay Rs.25/- lacs with interest @18% per annum as compensation for deficiency in service, (iii) to pay Rs.620330/- as rent and penalty (iv) to pay cost and (v) any other relief which is deemed fit and proper in the circumstances of the case.

Sanjay Hari Nagpal stated that he and Late Mrs. Kamla Gopal Nagpal owned a flat in the building of New Shri Ramanagar Cooperative Housing Society Ltd., situated on plot 579 (area 723.20 sq. meter) at village Bandra, taluqa Andheri, district Mumbai Suburban. The opposite party impressed the complainant and other members of the societies with its redevelopment plan. The opposite party assured that additional area would be given in new construction and upon deposit of Rs.1960/- per sq.ft., the residents would be provided all the amenities along with open car parking space and corpus. On the assurance of the opposite party, the members of the society approved development agreement dated 31.12.2007. In lieu of his old flat No.A-04, the opposite party allotted flat No. 501 (carpet area 700 sq.ft.) in the new building being constructed by way of redevelopment. The Municipal Corporation approved layout plan and issued “Commencement Certificate” of new building on 31.05.2008. The opposite party had to pay Rs.300000/- on the date of vacation of the flat and advance rent for 11 months or till completion of new building i.e. 22 months from the date of “commencement certificate” at the rate of Rs.71/- per sq.ft. under development agreement dated 31.12.2007. If the construction is not completed within 22 months, then the opposite party was given grace period of 11 months but had to pay penalty of Rs.25000/- per month apart from rent to each flat owner. The opposite party paid Rs.38340/- for two months during May, 2008 to March, 2010. The period of 22 months expired in March, 2010. From April, 2010, the opposite party is liable to pay penalty also at the rate of Rs.25000/- per month. Without obtaining “Occupation Certificate” from Municipal Corporation and electricity and water connection, the opposite party started giving possession to the flat owners. The opposite party called the father and mother of the complainant at their office at Renaissance Club on 14.07.2010 in order to pacify. During meeting, the father and mother of the complainant was surreptitiously called upon to sign “possession letter”, “Affidavit cum Indemnity bond” and “cash payment receipts of Rs.954000/-“. The opposite party, thereafter, deliberately avoided meeting with the complainant and his family members, handover possession and pay balance amount of rent and penalty in accordance with development agreement dated 31.12.2007. The father of the complainant made a complaint to the jurisdictional police for not providing promised services but nothing was done. The complainant through his advocate gave a legal notice dated 30.09.2010, in this respect. The notice was served upon the opposite party but he avoided its reply. Mrs. Kamla Gopal Nagpal died on 16.11.2010, leaving behind her the complainant as her only heir and legal representative. Then this complaint was filed in January, 2011, claiming deficiency in service.

The opposite party filed its written reply and contested the complaint. He stated that after finalization of redevelopment scheme of M/s. Mohini Engineers and Contractors, Dr. Hari A. Nagpal and his family who had three flats in the building of New Shri Ramanagar Cooperative Housing Society Ltd. started creating hindrance in reconstruction work. Dr. Hari A. Nagpal, approached Vipul Parekh, the manager on 05.04.2007 and demanded one extra flat in the new building for his family. Vipul Parekh held a meeting with Dr. Hari A. Nagpal, his wife Dr. (Mrs.) Pushpa Hari Nagpal and Sanjay Hari Nagpal on 05.04.2007, in which, they justified their demand of one extra flat free of cost as 363 sq.ft. comes towards corpus fund and 200 sq.ft. comes towards advance rent and penalty for the flat of Dr. Hari A. Nagpal on ground floor which he would waive and the opposite party is offering 137 sq. ft. as additional area. He gave a writing in this respect on 19.10.2007. On next day, he gave a letter dated 20.10.2007, demanding Rs.4170080/- as loan and undertook that he would not claim possession, till repayment of loan with interest @18% per annum. The opposite party had to complete construction of new building within a time limit as he had to pay rent and penalty during the period of construction to the flat owners, he paid Rs.4170080/- to the complainant and agreed to give one extra flat to him under coercion on payment basis and agreed as follows:-

(a) Nagpal family had three flats of 540 sq.ft., viz (i) Flat No.01 on ground floor, admeasuring 540 sq.ft. in the name of Hari Nagpal. (ii) Flat No.03 on second floor admeasuring 540 sq.ft. in the name of Dr. (Mrs.) Pushpa Hari Nagpal. (iii) Flat No.04 on third floor, admeasuring 540 sq.ft. in the name of Kamala G. Nagpal and Sanjay Hari Nagpal.

(b) Four flats should be provided to Nagpal family with additional areas i.e. one extra flat.

(c) All the four flats will be internally connected with internal staircase.

(d) The fourth flat i.e. numbered as 4-A, which is subject matter of present complaint, which is non-existing premises in the old building, will be additional flat, on the representation that Dr. Nagpal has a right to consume 363 sq.ft. (this is not known to other members nor mentioned in the development agreement with 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 additional flat 4-A (subject flat) shall be paid by them (members of Nagpal family).

(f)  In view of these additional facilities of providing additional flat No.4A, they shall not claim rent of ground floor flat which will be given as commercial premises on 2nd floor in the name of complainant instead of residential flat.

(g) No rent or corpus will be paid for the 4th floor non-existing flat.

(h)  To show some uniformity in rent and corpus for each flat the amount of corpus and rent of fourth floor for each flat shall be shown to be given. However, in view of the fact that Nagpal’s was in need of money, the said payment so paid and received shall be treated as loan. Loan amount of Rs.4170080/- will be paid back with interest @18% from the date of receipt of such payment.

(i) Until all the payments of loan as above are repaid to the opposite party, the member of Nagpal’s family shall not claim possession of any of these flats.

After completion of the building, the complainant and his family were offered possession on repayment of loan of Rs.4170080/- with interest @18% per annum and construction cost of Rs.25/- of Flat No.401. Then Dr. Hari A. Nagpal and his wife Dr. (Mrs.) Pushpa H. Nagpal gave an affidavit in the shape of undertaking, dated 21.07.2010, which was signed by Sanjay Nagpal as witness that they would not claim possession of Flat Nos.201, 301 and 401, in “Mohini Heights” till they repay the loan amount and cost of construction of Flat No.401. There was no fourth floor in old building nor Dr. Hari A. Nagpal(HUF) had any flat on fourth floor as such no question of payment of its corpus or rent arose. “Commencement Certificate” was granted on 06.10.2008. Old construction had to be demolished totally in order to begin the new construction. As various occupants did not vacate the flats in old building timely as such the time limits for completion of construction could not be strictly adhered. It has been denied that Rs.38340/- was paid as rent to the complainant rather it has been stated that it was paid as loan. Some of the members of the societies have taken formal possession in order to supervise internal finishing works according to their choice. The construction was complete and the opposite party had applied for issue of “occupation certificate”. This complaint has been filed dishonestly supressing material facts, in order to avoid payment of money taken from the opposite party. The opposite party denied of any knowledge of the complaint dated 23.09.2010 filed before the police and of the legal notice dated 30.09.2010. The complainant is trying for unjust enrichment and no relief can be granted to him. The alleged agreement dated 31.05.2008 was obtained under coercion and could not be enforced. Neither New Shri Ramanagar Cooperative Housing Society Ltd. nor Mohini Heights Cooperative Housing Society Ltd. i.e. previous and present owner of the building are impleaded as a party in the complaint. The complainant was not a consumer of opposite party.

The complainant filed Affidavit of Evidence of Sanjay Hari Nagpal and documentary evidence. The opposite party filed Affidavit of Evidence Prakash Chawala, the director of the opposite party and Affidavit of Evidence of Anuja Kaushal, a handwriting and finger print expert and her report and other documentary evidence. Both the parties filed their written arguments. State Commission, vide impugned judgment dated 06.02.2014, held that Dr. Hari A. Nagpal and his family had three flats in the old building of New Shri Ramanagar Cooperative Housing Society Ltd. as proved from agreement dated 31.12.2007. From the papers produced by the opposite party, it is proved that the father of the complainant wanted to have one extra flat in new building for consideration and in lieu of it, he gave up monitory benefits as provided under agreement dated 31.12.2007. Subsequently the father of the complainant took loan of Rs.4170080/- from the opposite party as proved from the affidavit-cum-confirmation-cum-receipt dated 21.07.2010. The father of the complainant made a belated complaint dated 23.09.2010 to the police, alleging that their signatures on this affidavit were obtained by committing fraud but the police did not take any action on it. In the agreement dated 31.05.2008, reference of Share Certificate No.22, Shares Nos.106 to 110 were mentioned. Same Share Certificate No.22, Shares Nos.106 to 110 were mentioned in development agreement dated 31.12.2007 in the name of Dr. Hari A. Nagpal. On the basis of which, Dr. Hari A. Nagpal claimed Flat No.201, in new building in Consumer Complaint No.19 of 2011. The affidavit-cum-confirmation-cum-receipt dated 21.07.2010 was not executed by Sanjay Hari Nagpal nor in this affidavit, it has been stated that Sanjay Hari Nagpal would not take possession of his Flat No.501, in new building. There was no reason for the opposite party to withhold possession of flat No.501. On these findings, the complaint was partly allowed. Hence these appeals are filed.

Dr. Hari A. Nagpal claims Flat No.201, in new building in lieu of his Flat No.A-01, in the old building on the basis of agreement dated 31.12.2007. The respondent denied possession and took plea that in old building, there was neither fourth floor nor Flat No.4-A. Dr. Hari A. Nagpal(HUF) obtained agreement dated 31.05.2008 under coercion as he and his family were creating hindrance in reconstruction of new building and due to delay, he had to pay rent/penalty to various flat owners in two societies. Dr. Hari A. Nagpal(HUF) agreed to take fourth flat on payment of construction cost of Rs.25/- and waived to take corpus and rent of his flat on ground floor but now he did not agree to pay construction cost of the flat nor loan taken by him in the affidavit dated 21.07.2010, which was signed by Sanjay Hari Nagpal as a witness. By a separate judgment passed in FA/279/2014, we dismissed the appeal of Dr. Hari A. Nagpal(HUF) and held that agreement dated 31.05.2008 was obtained under coercion and without fulfilling its terms and conditions as reflected/admitted in the Affidavit dated 21.07.2010, it cannot be enforced. Now Dr. Hari A. Nagpal(HUF) cannot claim possession over new Flat No.401, in Mohini Heights.

We have considered the arguments of the counsel for the parties and examined the record. Execution of registered development agreement dated 31.12.2007 between New Shri Ramanagar Cooperative Housing Society Ltd., Vintage Apartments Cooperative Housing Society and Mohini Shelters Pvt. Ltd. for construction of new building on plot No.579 and 580 is not disputed. In prefatory paragraph-8 of the agreement dated 31.12.2007, it has been mentioned that New Shri Ramanagar Cooperative Housing Society Ltd. consisted 12 members distributed in 3 different wings of the old structure. Their Share Certificate Numbers and Distinctive Share Numbers were mentioned. Mrs. Kamla Gopal Nagpal and Sanjay Hari Nagpal had a Flat No.A-04 area 540 sq.ft. in wing A, their Share Certificate Number-21 and Distinctive Share Numbers-101 to 105 were mentioned. On the basis of agreement dated 31.12.2007, Sanjay Hari Nagpal is claiming Flat No.501 and other benefits provided under the agreement, in new building in CC/72/2011 as well as in FA/282/2014. The opposite party denied possession of Flat No.501, in the building Mohini Heights on the grounds that Dr. Hari A. Nagpal and his wife Dr. (Mrs.) Pushpa H. Nagpal had given an affidavit in the shape of undertaking, dated 21.07.2010, which was signed by Sanjay Nagpal as witness stating that they would not claim possession of Flat Nos.201, 301 and 401, in Mohini Heights” till they repay the loan amount and cost of construction of Flat No.401. As we denied right of Dr. Hari A. Nagpal(HUF) over Flat No.401 as such payment of its construction cost is no more in controversy.

The opposite party took plea that Dr. Hari A. Nagpal vide letter dated 20.10.2007, demanded Rs.4170080/- as loan and undertook that he would not claim possession, till repayment of loan with interest @18% per annum. On which, the opposite party paid a loan of Rs.4170080/- to Dr. Hari A. Nagpal as admitted by him and his wife in the Affidavit-cum-confirmation-cum-receipt dated 21.07.2010. In the Affidavit dated 21.07.2010, it has been mentioned that “we further state, declare, confirm, undertake and affirm that we will not claim possession of the flat nos.201, 301, 401 as mentioned in the letter dated 20th October, 2007 till we repay the loan amount and cost of construction of flat no.401”.

It has not come anywhere in this affidavit as to what was the loan amount and when it was paid. What was mode of payment? No receipt relating to payment of Rs.4170080/- was produced by the opposite party. When the opposite party was paying such a heavy amount of loan, then in all probability, the opposite party would pay through cheque and get its receipt from Dr. Hari A. Nagpal. It is alleged on one day prior to 20.10.2007, Dr. Hari A. Nagpal agreed to waive his corpus money and advance rent for obtaining one more flat in new building and one day later, he demanded loan of Rs.4170080/-. There was no previous good relation between the parties. On the other hand, according to own allegation of the opposite party, Dr. Hari A. Nagpal was blackmailing him for one extra flat in new building. In such circumstance the story of payment of loan of Rs.4170080/- to Dr. Hari A. Nagpal without obtaining any receipt from him is not probable and does not inspire confidence. Payment of loan of Rs.4170080/- to Dr. Hari A. Nagpal is not proved. The opposite party cannot withheld benefits as provided under development agreement dated 31.12.2007 to Dr. Hari A. Nagpal and other members of his family. It has been informed that under interim order dated 04.06.2016, possession over Flat No.501 was given to Sanjay Hari Nagpal as Mrs. Kamla Gopal Nagpal died on 16.11.2010, leaving behind her Sanjay Hari Nagpal as her only heir and legal representative. There is no dispute in this respect. Sanjay Hari Nagpal is also entitled to other benefits of corpus money and rent and penalty according to the agreement dated 31.12.2007. However, he is not entitled for any compensation for mental agony and harassment as his father himself had created a situation of dispute and in the affidavit dated 21.07.2010, Sanjay Hari Nagpal was witness.

ORDER

In view of the aforesaid discussions, FA/185/2014 is dismissed. FA/282/2014 is partly allowed. The opposite party shall pay corpus money and rent and penalty till delivery of possession of Flat No.501 to Sanjay Hari Nagpal in terms of the agreement dated 31.12.2007, adjusting the amount payable for the amenities and the amounts paid towards compensation and mental agony and harassment within a period of two months from this judgment. The parties shall bear their own costs.