LAXMIBEN LAXMICHAND SHAH Vs. SAKERBEN KANJI CHANDAN

JUDGEMENT

(1.) The complainant entered into a contract for the hiring of a flat in a building which the respondent Nos. 1 to 4 proposed to construct in a plot situated at Valji Ladha Road, Mulund (West), Bombay which belonged to respondent No. 1. It is stated in the complaint that the complainant was lured to book the flat by certain public announcements and declarations made by the respondents about the quality of the proposed construction and the facilities that would be provided in the building for the enjoyment of the prospective tenants. The various assurances allegedly held out by the respondents have been catalogued as item (i) to (xvi) at Pages 2 and 3 of the complaint petition. They include inter alia specification of the quality of wood that will be used in the construction, the nature of the flooring in the rooms, the provision of recreation and parking facilities free of charge, proper periodical maintenance, the provision of services like cleaning, gardening, replacing the electric and plumbing fittings etc. and the upkeep of the remaining area of the plot which is not occupied by the proposed multistoreyed building as a vacant and open land. The complainant occupied the flat as a tenant soon after the construction of the building was completed on a monthly tenancy basis. The gist of the grievance put forward by the complainant is that the respondents have neglected and refused to provide most of the amenities which were agreed to be made available to the tenant and it is alleged that the complainant and the members of her family have suffered mental agony, ill health and injury to their reputation "by reason of the respondent's failure and refusal to perform her contractual and legal duties of maintaining the building in tenable condition fit for human residence." On this ground she has prayed for the recovery of a sum of Rs. 65,14,143/- from the respondent by way of compensation.

(2.) The factual allegations put forward in the complaint petition have all been stoutly refuted by the respondents in their written statement. They have also raised preliminary objections contending that the complainant is not entitled to invoke the redressal machinery provided under the Consumer Protection Act for resolving a landlord and tenant dispute and that the exclusive jurisdiction to deal with such a dispute is vested in the Court of Small Causes, Bombay under Section 28 of the Bombay Rent Act. It is unnecessary to deal with all the factual pleas put forward on merits by the respondents in view of the conclusion reached by us on the question of maintainability of this complaint under the Consumer Protection Act.

(3.) The complainant is a tenant in respect of the premises in question under opposite party Nos. 1 to 4 and the contract of letting is evidence by the agreement of tenancy dated 15.12.1967 produced as Exhibit 2 along with written statement of respondent No. 1. Even it is assumed that the allegations of fact put forward in the complaint petition are all true, the position that emerges would only be that there has been a failure on the part of the Landlords (respondents) to carry out their obligations under the contract of letting of the flat. The remedy in respect of such breach of contract with respect to a lease of immovable property is only by resorting to the provisions of The Bombay Rent Act in cases where those provisions are attracted and in other case by the institution of a suit before the competent Civil Court