Smt. Geeta Jayant Thakur Vs. Shri Harivadan Maganlal Bhat and Another - Court Judgment

Per Shri P.N. Kashalkar, Honble Presiding Judicial Member

This complaint has been filed by the complainant-lady against two O.Ps. who agreed to give new flat in lieu of tenement surrendered by her in view of proposed development being carried out by O.P.Nos.1and2.

The facts to the extent material may be stated as under:-

O.Ps. and complainant, her mother and sister entered into an Agreement of Sale whereby O.Ps. purchased a land having constructed portion on Survey No.26, Hissa No.2 at Dombivali admeasuring 1034.50 sq. mtrs. which was given in possession for Rs.1,50,000/-. Out of which, Rs.75,000/- payable in cash and in lieu of balance amount of Rs.75,000/-, builder was to give on first or second floor, two Room Kitchen residential flat, which would be liked by complainant, her mother and her sister. The said flat was being given in possession within 36 months from the date of approval of plan by the Local Municipal Corporation. If at all the possession is not given within 36 months as aforesaid, the builder had agreed to pay interest on the amount of Rs.75,000/- after expiry of 36 months till the possession of the flat is actually given to the complainant. After execution of Sale Deed, complainant, her mother and her sister had given possession of the old structure to the builders. Complainants mother Smt. Manik Prabhakar Rath expired on 18/05/1996 and her sister expired on 08/06/1986. As such she is the sole surviving legal heir amongst three joint owners. Builders Shri Bhat and Shri Bhandari together constructed new building and completed in 1996. But, as per agreement, the complainant was not given residential flat and they constructed whole building by constructing non-residential complex. After the death of her mother, complainant came to Mumbai and approached the builders. The builders offered her non-residential flat at 4th floor of the building and threatened that if she does not take that premises, she would not get anything. She then sent registered notice through Advocate Shri Pramod J. Pawar on 14/01/1997. Even after notice, the flat as per agreement was not given by builders and therefore, she filed consumer complaint for getting possession of residential flat as per agreement of sale deed dated 27/02/1981 and 31/03/1982 and prayed that she should be given residential flat of 500 sq. ft. on 1st or 2nd floor in new building constructed by the builders and should also be paid interest from the date of execution of sale deed to the date of delivery of possession on Rs.75,000/- @ 12% p.a. She also claimed Rs.5 Lakhs as compensation.

O.Ps. builders filed written statement and contested the matter. According to O.P.Nos.1and2, the complainant has been sending notices through various persons just to harass them. O.Ps. pleaded that by an agreement dated 27/02/1981 Smt. Manik Prabhakar Rath and Ms.Megha Prabhakar Rath and complainant herein agreed to sell to O.P.Nos.1and2, 1237 sq. yards land in Survey No.26, Hissa No.2 at Village Gajbhandan Patharli at Dombivali (East) for Rs.1,50,000/-. As per agreement, part of consideration was paid in cash and remaining half consideration was to be adjusted towards cost of flat admeasuring about 500 sq. ft. being given to the vendors on first or second floor in the proposed new building. O.Ps. pleaded that Rs.75,000/- in cash was paid to the complainant under Conveyance Deed dated 31/03/1982, which was duly registered. The complainant claimed that she was entitled for 1237 sq. yards, but complainant was in actual possession of 850 sq. mtrs. of the said land. Hence, the complainants conveyed to the O.Ps. only 850 sq.mtrs. of land with old building standing thereon. O.Ps. pleaded that in October 1993 Kalyan-Dombivali Municipal Corporation was established and said property came within the limits of Kalyan-Deombivali Municipal Corporation, Dombivali Division. The said property was forming part of reservation site No.57 in the development plan of Kalyan-Dombivali Municipal Corporation. Hence, O.Ps. were required to surrender half portion of the land to the Municipal Corporation on 31/03/1993 and thereafter, reservation in respect of remaining part of land was duly deleted. O.Ps. pleaded that dispute was pending between Municipal Corporation and the builders in District Court as well as in the High Court and finally, Kalyan-Dombivali Municipal Corporation granted building permission on 20/01/1995 and sanctioned building plan of the proposed new building to be erected on the said land. In the building construction plan, the Corporation directed there would not be any residential unit and this fact was told to the complainant. So, complainant agreed to take one office premises on 4th floor of the new building then under construction. O.Ps. pleaded that thereafter, O.P.No.1 purchased Stamp Paper for value of Rs.23,000/- for preparing agreement with complainants, but the complainants were uncooperative and delayed the execution of said agreement. O.Ps. pleaded that on several occasions, complainant had visited the premises and complainant knew that building was required to be constructed without any residential block as per commencement certificate issued by the Local Municipal Authority. O.Ps. pleaded that they had agreed to give to the complainant a flat of 500 sq.ft. on first or second floor of the said proposed building. But, it was not possible to give the same to the complainant as building was required to be constructed under revised plan as sanctioned by Kalyan-Dombivali Municipal Corporation. The complainants were fully aware of the proceeding and the reasons for delay in construction of the said building. O.Ps. pleaded that they were always ready and willing to give to the complainant a commercial premises on first floor of the said building. In our view the said commercial premises is much more valuable than the admeasuring 500 sq.ft. area of residential flat. Instead of taking same, they pleaded that complainant has filed a false complaint and is claiming damages of Rs.5 Lakhs and is also claiming interest on Rs.75,000/- @ 12% p.a. though they are always willing and ready to give commercial premises to the complainant in the said building.

Parties filed affidavits and documents.

We heard submissions of Mr.Prashant Beri, Advocate for the complainant and Mr.S.B. Prabhawalkar, Advocate for O.Ps.

In the course of arguments, Shri S.B. Prabhawalkar, Learned Counsel for O.Ps. made a statement at the Bar that his client was still ready and willing to offer admeasuring 465 sq. ft. commercial premises on the rear side of first floor in the suit building, if the complainant is not pressing for any other relief. Counsel for the complainant turned down this request.

The only issue that arises for consideration is :-

ISSUE FINDINGS

1. Whether there has been deficiency in service on the Yes part of O.Ps. in not giving possession of residential premises in the building newly constructed by O.Ps. on the piece of land sold by complainant to the O.Ps.?

2. What order, if any As per final order.

REASONS

ISSUE NOs.1and2 :- There is no dispute between the parties that there was an Agreement of Sale between the parties initially on 27/02/1981 and then Sale Deed executed by and between the parties on 31/03/1982. As per that Sale Deed, cash amount of Rs.75,000/- was payable to the complainant and in lieu of another Rs.75,000/-, builder was to give residential flat having two room kitchen on first or second floor of the new proposed building. It was to be given in possession within 36 months from the date of sanction of plan by the Municipal Corporation. It is an admitted position that out of three joint owners, only one is surviving and she is complainant herself. So, as per the agreement, residential flat is required to be given by the O.Ps.-builders to the complainant admeasuring around 500 sq. ft. on first or second floor of the new building already constructed by the O.Ps. builders at the site. Amount of Rs.75,000/- was already paid and for remaining amount of Rs.75,000/-, this residential premises on first or second floor in the new proposed building was offered, which he mentioned in the Agreement of Sale and Sale Deed. The only dispute between the parties is that according to the builder, Kalyan-Dombivali Municipal Corporation while sanctioning plan did not sanction construction of residential premises in the proposed building and therefore, builder was handicapped in giving residential premises to the complainant. Hence, he made an offer of commercial premises on the rear side of the first floor of newly constructed building.

The complainant is adamant. She is not prepared to take it she is exhibiting an attitude of Skylok of Merchant of Venus play written by Shakespeare. Either she has to accept commercial premises offered by the builders/O.Ps. or she has to take money equivalent in lieu of flat not being given by the O.Ps./builders. But, she can not say that she would only take residential premises on first or second floor of building, which is not constructed at all because of ban imposed by the Kalyan-Dombivali Municipal Corporation. When this is so, though there is deficiency in service on the part of O.Ps. they are still ready and willing to give commercial premises to the complainant in lieu of residential premises as agreed earlier. So, while recording the fact that there is deficiency in service on the part of O.Ps./builders, to meet ends of justice, we direct the complainant either to accept commercial premises in the building already constructed on the rear side of first floor in the suit building or she will have to accept moneys as per market rate prevalent in Dombivali. We would like to give complainant two options either to take commercial premises as offered by O.Ps./builders or to accept some compensation in lieu of residential flat not being given by the builders. We make it clear that the builders impossibility to give residential flat stems from the fact that Kalyan-Dombivali Municipal Corporation has sanctioned plan and has given commencement certificate to the O.Ps. only to construct non-residential commercial premises. This was done in terms of development plan as sanctioned by the Government of Maharashtra for Kalyan-Dombivali Municipal Corporation area. So, what is impossible cannot be asked to be performed by O.Ps. Therefore, it is fit to direct the O.Ps. to give commercial premises of 465 sq. ft. on the back side of first floor of newly constructed building as offered by Mr.S.B. Prabhawalkar to the complainant or we direct that O.Ps.-builders shall give a sum of Rs.20 Lakhs in lieu of flat, which the builders had agreed to give her in terms of Sale Deed dated 31/03/1982. Thus, we record our findings against the builders holding that there is deficiency in service on their part, but while allowing complaint, we pass following order to meet ends of justice. Hence, the following order :-

Order:

1. Complaint is partly allowed.

2. O.Ps./builders are directed to give possession of 465 sq. ft. commercial premises on the first floor which is on the rear side of the newly constructed building at Dombivali, if complainant is willing to take the same.

OR

We direct O.Ps./builders to pay Rs.20 Lakhs to the complainant as compensation in lieu of residential flat which the builder is unable to give to the complainant.

3. Besides, we also direct O.Ps./builders to pay further amount of Rs.5 Lakhs for mental agony suffered by the complainant for all these years.

4. Complainant is entitled to get cost of Rs.5,000/- from the builders. O.Ps./builders to bear their own cost.

5. Copies of the order be furnished to the parties.