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Judgment
Building No. 47-X in Shree Ganesh Nagar, Lalbaug, Mumbai was owned by Municipal Corporation of Greater Mumbai and Room No. 34 in the aforesaid building was occupied by the complainant / Respondent No.1 namely Mr. Ram Prasad Thakur Pardeshi. The tenancy of the aforesaid room / flat was in the name of one Mr. Anaji Mahadev Ambekar. Respondent No.2 Lalbaugcha Raja CHS Ltd. is a society formed by the tenants of the Municipal Corporation, for the purpose of the redevelopment of the aforesaid property. The scheme for development of the said property was approved by the Municipal Corporation. Under the approved plans, the said building was to be demolished and reconstructed. It appears that pursuant to an arrangement with Mr. Anaji Mahadev Ambekar, the complainant who was in possession of room / flat No.34 of the aforesaid building, applied to the Corporation for transfer of the tenancy of the said room / flat in his name. The complainant then entered into an agreement with Appellant No.1 company for purchase of a flat in the proposed new building, and paid a consideration of Rs.8,50,000/- in three instalments between 19.7.2001 to 17.9.2001. On 23.5.2002, appellant No.1 allotted flat No.606 in building No.4 to the complainant and possession of the said flat was also delivered to him. However, no agreement in respect of the said flat was executed in favour of the complainant. He therefore approached the concerned State Commission by way of a consumer complaint, seeking execution of the agreement in respect of flat No.606 of building No.4 in his favour and registration of the said agreement. He also sought compensation amounting to Rs.53,529/- on account of delay on the part of the appellant in delivering possession of the flat to him. Mr. Sunil Pandurang Mane, who was a Director of the appellant No.1 company but had expired before institution of the complaint was impleaded as opposite party No.2 in the complaint. The society was impleaded as opposite party No.3 in the complaint. The complainant also sought a direction to the society to admit him as its member. He also sought reimbursement of Rs.2,00,000/- lacs, alleged to have been spent by him in getting the interiors and fittings and furniture in the flat allotted to him, besides reimbursement of Rs.10,200/- alleged to have been paid as membership fee of the society.
The complaint was resisted by the appellant which denied having received Rs.8,50,000/- from the complainant. It was alleged that in fact, the complainant had struck a deal with Mr. Anaji Mahadev Ambekar for purchase of tenancy rights in respect of room No.34 in building No.47-X and Mr. Sunil Pandurang Mane had only acted as a Mediator between the complainant and Mr. Anaji Mahadev Ambekar. It was also alleged in the reply filed by the appellant that the payment of Rs.8,50,000/- represented the amount which the complainant had to pay to Mr. Anaji Mahadev Ambekar. It was however, admitted that the flat No.606 in building No. 4-G had been allotted to the complainant in lieu of room No.34 in building No. 47-X. It was further stated in the reply filed by the appellant that the complainant had also applied to the Municipal Corporation for transfer of the tenancy of room No. 34 in building No. 47-X in his favour.
The society, in the reply filed before the State Commission inter-alia stated that Mr. Anaji Mahadev Ambekar was the tenant of the Municipal Corporation in respect of room No.34 in building No. 47-X and he had entered into an agreement with the complainant for transferring the said room to him. Mr. Anaji Mahadev Ambekar had accordingly executed an affidavit on 25.7.2001 relinquishing all his rights in respect of room No.34 in building No.47-X in favour of the complainant and had also requested the Municipal Corporation of Greater Mumbai to transfer the tenancy of the said room in favour of the complainant. A similar request was made by the complainant to the Municipal Corporation. It was also stated in the reply filed by the society that the room No.606 in building No.4-G was allotted to Mr. Anaji Mahadev Ambekar. The tenancy of room No.34 in building No.47-X, according to the society has not been transferred by the Corporation in the name of the complainant.
The State Commission vide its order dated 08.10.2014 directed as under:
Opponent Nos. 1 & 2 are directed to execute the agreement in respect of flat No. 606 on 6 th floor, ''G wing'' of building No.4 of Lalbaugcha Raja Cooperative Housing Society Ltd. Lalbaug, Mumbai in favour of the complainant within four months from the date of this order.
Opponent Nos. 1 & 2 shall pay Rs.50,000/- to the complainant as compensation for harassment caused.
Opponent Nos. 1 & 2 shall pay Rs.15,000/- as costs of the litigation to the complainant and bear their own costs.
No relief against opponent No.3 can be granted as not within the scope of this consumer complaint.
Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of this appeal.
It is not in dispute that the appellant had received a sum of Rs.8,50,000/- form the complainant and had issued a letter allotting flat No.606 in building No. 4 G to him. It is also not in dispute that the appellant had sent a letter dated 25.10.2001 to the employer of the complainant informing that the complainant had purchased a flat from them and that possession of the said flat would be given to him in December, 2001. Admittedly, allotment letter dated 23.5.2002, was also issued by the appellant to the complainant, allotting the aforesaid flat to him for a consideration of Rs.8,50,000/-. The appellant also issued three receipts, two for Rs. 3,00,000/- each and one for Rs.2,50,000/- to the complainant. Thus, the entire sale consideration for the allotted flat stood paid to the appellant. It is also an admitted case of the complainant and the appellant that the possession of the aforesaid flat has also been delivered to the complainant. Having received the sale consideration, allotted the flat and handed over possession of the said flat to the complainant, the appellant cannot refuse to execute the requisite agreement in favour of the complainant. However, since the room /flat which the complainant claimed to be occupying in building No.47-X was let out, by the Municipal Corporation to Mr. Anaji Mahadev Ambekar and not to the complainant, the said agreement cannot be directed to be executed without the Municipal Corporation first approving the transfer of the tenancy of room No. 34 in building No. 47-X from Mr. Anaji Mahadev Ambekar to the complainant. If the appellant is made to execute the agreement without transferring of the tenancy, of the erstwhile, room No. 34 in building No.47-X in favour of the complainant that would adversely affect the rights and interests of the Municipal Corporation, which owned building No.47-X, without the said Corporation being a party to the complaint. The order passed by the State Commission needs to be modified to the aforesaid extent.
For the reasons stated hereinabove, the appeal is disposed of with the following directions: (i) The appellant Vighnaharta Builders & Projects Pvt. Ltd. shall execute the agreement in respect of flat No.606 in G-Wing of building No.4 of Lalbaug Cooperative Housing Society Ltd. Lalbaug, Mumbai in favour of the complainant within one month of the Municipal Corporation either transferring the tenancy of room / flat No.34 in Building No.47-X, Shree Ganesh Nagar, Lalbaug, Mumbai in favour of the complainant or issuing a ''No Objection Certificate'' for execution of the said agreement;
(ii) The appellant Vighnaharta Builders & Projects Pvt. Ltd. shall pay compensation and cost of litigation awarded by the State Commission to the complainant within three months from today.
(iii) The Legal Representatives of late Sunil Pandurang Mane will not be bound by this order.