Ratnaprabha S.Dandekar vs Nitin Walimbe

BY way of this revision petition, there is challenge to order dated 12th November, 2009 passed by State Consumer Disputes Redressal Commission, Mumbai (for short, ?State Commission?) vide which appeal preferred by the petitioner against order dated 27th November, 2007 passed by District Consumer Disputes Redressal Forum, Central Mumbai District (for short, ?District Forum?) was dismissed.

BRIEF facts are that petitioner/complainant filed a complaint against Mr. Nitin Walimbe, Constituted Attorney of M/s Sheela Shilpakar, the Builder/Developer-opposite party. According to petitioner, she occupied a tenement in Madhukala Bhuvan, R.K. Vidya Road, Dadar. It was a common office premises in Room No.12A on the Ground Floor. Landlord of the building came to meet Ms. Sheela Shilpakar for developing tenement. Petitioner agreed with the opposite party to surrender her present commercial tenement so that she would get new premises in the newly constructed building. Opposite party agreed to give her office premises as well as commercial residential premises on her paying Rs.1,90,000/- by cheque for 100 sq. ft. carpet area. It is the case of petitioner that Flat No.203 admeasuring 225 sq. ft. was given to her in lieu of old office premises, but opposite party had not given her 100 sq. ft. carpet area for office premises for which she had paid to the developer Rs.1,90,000/- extra. Hence, she filed complaint before District Forum Opposite party contested the complaint by filing written statement. According to opposite party, complainant had occupied office premises bearing Shop No.12A, admeasuring 7.6 sq. mers. (81.80 sq. ft.) carpet area situated on the ground floor. Developer executed agreement dated 13.3.2002 between Landlords and Ms. Sheela Shilpakar. Landlord agreed to give development right of the said premises to Ms. Sheela Shilpakar during the course of redevelopment of the said property. There was further agreement between the petitioner and developers whereby developer agreed to provide to the petitioner residential premises admeasuring 7.6 sq. ft. built-up area, free of cost in lieu of her old premises and further agreed to give additional residential area of 100 sq. ft. built-up at the rate of Rs.1900/- per sq. ft. It was mutually agreed between the parties to provide a single/composite residential flat of 270 sq. ft. built-up area, inclusive of 170 sq. ft. built-up area in lieu of petitioner?s tenanted premises and 100 sq. ft. built-up area, as purchased by petitioner and agreement to that effect was executed on 19.4.2003. Accordingly, flat No.202 on the second floor in newly constructed building renamed as Madhukala Bhuvan was provided to the petitioner. This agreement dated 19.4.2003 was confirmed by the deed of confirmation dated 6.10.2005. After taking possession of the said premises petitioner, however started making further claim and insisted that opposite party should give her commercial office premises of 100 sq. ft. for which she had given extra amount of Rs.1,90,000/-. Opposite party pleaded that the said property was being redeveloped by opposite party under Development Control Regulation No.33 (7) of the Development Control Rules for Greater Mumbai 1991. As per said regulation every tenant will have to release property for his existing tenement in following proportion: 1. For residential : Minimum 225 sq. ft. carpet and maximum 750 sq. ft. carpet area. 2. For commercial and office premises : Equivalent area of the tenant?s existing area.

The opposite party pleaded that for the office scheme, petitioner was entitled to get office premises of 7.6 sq. mtrs. carpet area. But for fulfilling the need of the petitioner for residential and commercial utility of the premises, petitioner arrived at a settlement and agreed to take residential premises of 270 sq. ft. of built-up area for the consideration of Rs.1,90,000/- and same was given to her and therefore, according to opposite party the complaint was false and frivolous and it should be dismissed with costs.

DISTRICT Forum on the basis of affidavits and documents placed on record, relying on agreement dated 19.4.2003 and relying on the deed of confirmation dated 6.10.2005, held that deed of confirmation was registered one. It clearly stipulated that additional 100 sq. ft. area purchased by the complainant will be included in of the area of 225 sq. ft. carpet area allotted to her. Nowhere in the agreement dated 19.4.2003 or in the deed of confirmation dated 6.10.2005, it was mentioned that 100 sq. ft. commercial area would be allotted to the petitioner additionally besides flat of 225 sq. ft. The minutes of the meeting dated 12.9.2000 were also produced on record, which clearly indicated that petitioner agreed to accept 125 sq. ft. on 2nd floor free of cost and to buy additional 100 sq. ft. DISTRICT Forum, therefore, held that there is no merit in the complaint and accordingly dismissed the complaint. Aggrieved by the order of the District Forum, petitioner filed an appeal before the State Commission, which was dismissed, vide the impugned order.

IT has been contended by learned counsel for the petitioner that petitioner is entitled to 100 sq. ft. of additional space as per deed agreement. On the other hand, it is contended by learned counsel for the respondent that there is no illegality or infirmity in the impugned order passed by the State Commission and petitioner is not entitled to any additional space of 100 sq. ft. at all. Short question to be seen is as to whether in addition to 225 sq. ft. space already allotted to the petitioner, is she entitled to 100 sq. ft. of additional space. No document has been filed by the petitioner to show that she in addition to 225 sq. ft. of space already allotted to her, she is further entitled to 100 sq. ft. of the build-up area.

BOTH the foras below have dealt with this issue in detail and their relevant findings are being reproduced as under : 11.District Forum in its order has observed ; ?8. Heard the Ld. Advocate Mr. Patwardhan for the complainant and Ld. Advocate Mr. M. Y. Dhuri for Opponent. At the time of arguments, both the advocates argued on the point whether as per the agreement, the Complainant is entitled to 100 sq. ft. an additional commercial area. For that purpose, both the advocates i.e. Advocate appearing for the Complainant and the Opponent took us through the Agreement dt. 19.4.03 and the Deed of Confirmation dt. 6.10.05. Clause 11 of the Agreement dt. 19.4.03 reads as under: 11:- The Developer has acceded the request of the Tenant/Occupant and has agreed to allot the residential premises admeasuring about 225 square feet carpet area in lieu of old shop premises admeasuring about 81.80 square feet carpet area on payment of Rs. 1,90,000( Rupees One Lakh Ninety Thousand only) by the Tenant towards the cost of additional 100 Sq. ft. area allotted to the tenant and on the basis what is known as ? ownership basis? in the proposed new building to be constructed on the said property on the terms and conditions mutually agreed upon by and between the Developers and the Tenant/Occupant which are reduced into writing as under;- In this agreement, it is further mentioned, ?Now this agreement witnesseth and it is hereby mutually agreed by and between the parties hereto as under: 1. 2. The Developer shall provide or allot to the Tenant/Occupant a Flat, admeasuring about 225 square feet of carpet area in proposed building, as an permanent alternate accommodation in lieu of her surrendering and vacating the said shop No. 12-A in the old structure i.e. Madhukala Bhuvan to the Developer for the purpose of development of the said property. The said flat is allotted on ownership basis to the tenant and the said tenant will pay a lump-sum amount of Rs. 1,90,000/-( Rupees One Lakh Ninety Thousand only) to the Developer towards the cost of additional area 100 sq. ft. to be allotted by the Developer to the Tenant/Occupant.? In the Deed of Confirmation, it is made clear as under: ? Whereas by an Agreement dated 19.4.2003 made between the Developer of the one part and Tenant to the other part, the Developer agree to give to the Tenant and the Tenant agrees to accept from the Developer admeasuring about 170 sq. ft. built-up area free of cost and 100 sq. ft. built up area purchased at the rate of Rs. 1900/- per sq. ft., the building called ? Madhukala Bhuvan? constructed by the Developer in lieu of the old Tenement No. 12-A on ground floor of old building called ? Madhukala Bhuvan.? 9. Thus from the Deed of Confirmation which is registered one, it is cleared that an additional 100 sq. ft. area purchased by the complainant is included in the area 225 sq. ft. carpet area of the flat allotted to the complainant. Nowhere in the agreement dated 19.4.2003 or deed of confirmation dated 6.10.2005, it is mentioned that an additional 100 sq. ft. commercial area was agreed to be allotted to the complainant on the ground floor as alleged by the complainant. 10. The complainant has produced on record a Xerox copy of the minutes of the meeting dated 12.9.2000 of the Madhukala Co. Op. Hsg. Society Ltd. (Proposed) wherein the options given by the complainant about his office Room No.12-A in Madhukala Bhuvan were discussed with her as follows: Point No.5: On second floor she demands 125.00 sq. ft. free and 100.00 sq. ft. carpet area. She is ready to pay @ Rs.3800/- per sq. ft. Point No.6: Area in her possession is 81.80 sq. ft. 11.These minutes of the meeting are signed by the Complainant also alongwith others. These Minutes of the Meeting clearly indicate that she was agree to accept 125 sq. ft. on second floor fee of cost and to buy additional 100 sq. ft. It made it clear that the area 100 sq. ft. for which the Complainant agreed to pay Rs. 1,90,000/- must have been included in the area 225 sq. ft. allotted to her. 12. Considering the terms and conditions of the Agreement, the Deed of Confirmation and the above minutes of the meeting, we are of the view that there is no merit in the complaint. The complainant is not entitled to additional 100 sq. ft. commercial area as alleged by her.?

AFFIRMING the order of District Forum, State Commission observed ; ?We are finding that complainant was given possession of Block No.203 having 270 sq. ft. built-up area which included 170 sq. ft. in lieu of tenanted premises and 100 sq. ft. area additionally purchased by complainant for Rs.1,90,000/-. As per the agreement dated 19.4.2003 there is no mention of 100 sq. ft. commercial premises in any of the clauses. The deed of confirmation dated 6.10.205 also mentions that tenant agreed to accept from the developer about 170 sq. ft. built-up area free of cost and 100 sq. ft. built-up area purchased @ 1,900/- per sq. ft. and both together would be numbered as Flat No.203 on the second floor of the building called Madhukala to be constructed by the developer in lieu of old tenement of 12A which complainant was having on ground floor of tenanted premises. In the circumstances, we are finding that the complainant?s claim for extra commercial premises of 100 sq. ft. in lieu of her surrendering of non-residential tenement of 12-A, is the prayer not tenable in law. She had approached MHADA and MHADA has clearly stated that in place of old tenement of 12A commercial, she was entitled to get from builder 10.90 sq. meter (117.28 sq. ft.) non-residential premises. But, when complainant preferred to get residential premises of 270 sq. ft. from the builder/developer, she has been put in possession of Flat No.203 on the second floor having built-up area of 270 sq. ft. But nowhere builder had ever agreed to give her commercial premises as she alleged. One thing is certain that she was entitled to get commercial premises of equivalent area in lieu of surrendering her tenanted premises -Room No.12-A on the ground floor. But, she opted for residential premises and she has been given residential premises of 270 sq. ft. which included 170 sq. ft. free of cost and 100 sq. ft area on additional payment of Rs.1,90,000/-. In our view, therefore, order passed by Forum below is just and proper and it is sustainable in law. There is no substance in the appeal preferred by original complainant?. It is well settled that a person can tell lie but documents can?t. In the present case, there is overwhelming documentary evidence on record which goes against the petitioner and there is no reason to disbelieve these documents.

In view of agreement dated 19th April, 2003 and deed of confirmation dated 6th Oct., 2005 which have been admitted by the petitioner also, there is no merit in the present petition.

RECENTLY, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that; ?Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.? Since, two foras below have given detailed and reasoned order which does not call for any interference by this Commission, the present petition is not maintainable and same is hereby dismissed with cost of Rs.10,000/- (rupees ten thousand only).

PETITIONER is directed to deposit the cost of Rs.10,000/- in the Consumer Legal Aid Account of this Commission, within thirty days. In case, petitioner fail to deposit the said cost within the prescribed period, she shall also be liable to pay interest @ 9% p.a., till realization. List the matter for compliance on 26.8.2011.