State Consumer Disputes Redressal Commission
Smt. Lalitabai Wd/O. Ramlal Kanojiya vs M/S. A. B. Constructions on 29 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR 5 Th Floor, Administrative Building No. 1 Civil Lines, Nagpur-440 001 First Appeal No. A/07/628 (Arisen out of Order Dated 24/04/2007 in Case No. CC/07/43 of District Nagpur) 1. Smt. Lalitabai Wd/O. Ramlal Kanojiya R/o Neelkamal Dry Cleaner, Plot No. 2, Deonagar Square, Nagpur ...........Appellant(s) Versus 1. M/S. A. B. Constructions Mehar Prasad Complex, 22-A, Farmland, Ramdaspeth Nagpur, Acting Through The Authorised Partner Shri Rahul Lalit More, Reshimbagh Nagpur 2. Shri Harshad S/o Lalit Mote 17, Reshimbagh, Nagpur, Partner of M/S. A. B. Construction Nagpur 3. Shriram Urban Co-Operative Bank Ltd. Regd. Office At 21 Geeta Bhavan, Dongre Layout, Shradhanand Peth, Nagpur ...........Respondent(s) BEFORE: Hon'ble Mr.S.M. Shembole Presiding Member Hon'ble Mr.N. Arumugam Member PRESENT: Adv. Mr S B Solat ......for the Appellant None ......for the Respondents JUDGEMENT
(Passed on 29.11.2012) Per Mr S M Shembole, Honble Presiding Member This appeal is directed against the judgement & order dtd.24.04.2007 passed by District Consumer Forum, Nagpur in Consumer Complaint No.CC/07/43, dismissing the complaint.
Brief facts giving rise to this appeal are that:-
1. One Girish Karanjkar is the owner of the plot bearing No.2, admeasuring 6,000 sq.ft. of Mouza Ajni, Nagpur. The piece of that plot was in possession of complainant / appellant since the year 1985.
However, on 02.08.1999 the same plot was given to o.ps. No. 1 & 2 for development vide agreement dtd.02.08.1999. At the same time it was agreed to sell shop No.01A from ground floor of the building, which would be constructed, to the complainant in lieu of tenanted area. Accordingly, land was developed by constructing the building as per the agreement and the possession of the said shop from ground floor was given to the complainant. However, o.ps. failed to execute the registered sale-deed in favour of the complainant. Therefore, complainant Smt Lilabai made complaint before District Consumer Forum, Nagpur, claiming direction to the o.ps No.1 & 2 to execute the sale-deed and also pay compensation Rs.1,00,000 and Rs.20,000/- towards the cost of proceeding.
2. O.ps.
No. 1 & 2 filed joint Written Version and admitted the complaint. They did not dispute that the complainant is in possession of the said shop. They have also shown their readiness to execute the sale-deed in favour of the complaint, but with the consent of o.p. No.3 Bank. By a separate reply the o.p.No.3 bank resisted the complaint contending inter alia that complainant Smt Lilabai is not their consumer and therefore, the complaint is not maintainable. It is submitted that o.ps No.1 & 2 have borrowed loan by mortgaging the entire building and failed to repay the entire loan amount. It is submitted that they have already initiated recovery proceeding under Securitization Act against o.ps. 1 & 2, etc.
3. On hearing both the sides and considering the documents on record the Forum dismissed the complaint, holding that since the agreement between he complainant and o.ps. No.1 & 2 is without consideration, the complainant is not a consumer as defined u/s 2(1)(a) of CPA and therefore, the service which was rendered by o.ps. No.1 & 2 does not fall within the purview of definition of CPA. Hence, the Forum has no jurisdiction to entertain the complaint.
4. Feeling aggrieved by the said judgement & order the complainant has preferred this appeal.
5. We heard Mr S B Solat, Ld. Counsel for the appellant and perused the Written Notes of Argument submitted by him. We also perused the copies of complaint, agreement, Written Version submitted by the o.ps. Nos.1 & 2 and 3. However, as o.ps as well as their counsel failed to appear at the time of final hearing we have had no opportunity to hear them and therefore, the appeal is proceeded exparte.
6. Almost all the facts, except the legal point as to whether complainant is a consumer of the o.ps. No.1 & 2, are not disputed.
7. It is fairly conceded by Adv. Mr Solat for the appellant that the agreement, in question, for executing the sale-deed by the o.ps No.1 & 2 in favour of the appellant / complainant is without consideration. On the contrary, as per the agreement the o.ps. No.1 & 2 had agreed to pay an amount of Rs.50,000/- in addition to the shop block, in question, in lieu of surrendering the tenancy rights by the appellant / complainant. This is also obvious from the recitals in Para 15 of agreement dtd.02.08.1999. Therefore, only the question arises whether the complainant is a consumer of o.ps. No. 1 & 2 or not.
8. Adv.
Mr Solat relying on the authority of National Commission in the case of Jagdishbhai M Sneth @ Soni Vs. Surbhih Realtors India Pvt Ltd reported in II(2012) CPJ 525 (NC), submitted that though the transaction, in question, is without consideration, the complainant is a consumer of the o.ps as defined u/S 2(1)(d) of CPA. On perusal of the decision of National Commission in the case of Jagdishbhai (supra) we find much force in the submission of Adv. Mr Solat, because in the cited case, National Commission observed that since the complainant was occupying the premises on the basis of Tenancy Rights since before the developing plot she has surrendered her Tenancy Right, accepting the shop block as per agreement, she is a consumer of the o.ps. developers, etc. Considering the undisputed facts of the present case, the authority of National Commission in the cited case is perfectly applicable to the present case.
9. However, the copy of impugned judgement & order reflects that the Forum without considering the fact of surrendering Tenancy Rights by the appellant / complainant, committed error in holding that the agreement is without consideration, etc. Therefore, such erroneous findings cannot be sustained.
10. Since, undisputedly, the o.ps / respondents No.1 & 2 agreed to execute the sale-deed they are bound to execute the same in favour of the complainant. However, the record reflects that the respondent No.3 Bank is claiming amount of consideration from the complainant and accordingly, it has issued letter dtd.23.05.2006. But since the respondents No. 1 & 2 only borrowed the loan, the Bank i.e. o.p.No.3 can recover the loan amount from them. Though the entire building is mortgaged by o.ps No.1 & 2 with the bank - o.p.No.3, the bank can recover the loan from the o.ps. No.1 & 2 without disturbing the rights of the appellant / complainant.
11. For the foregoing reasons, the appellant succeeds.
Hence, the following order:-
ORDER i. Appeal is allowed and the impugned judgement & order passed by District Consumer Forum, Nagpur is set aside.
ii. The Consumer Complaint is partly allowed. The o.ps. No.1 & 2 are directed to execute the sale-deed in favour of the complainant / appellant Smt Lilabai.
iii. Further the claim of the appellant / complainant for compensation and cost is dismissed as o.ps. No.1 & 2 admitted the claim.
iv. Having regard to the peculiar facts of the case, parties are directed to bear their own cost.
v. Copy of this order be supplied to the parties.
[ S. M. SHEMBOLE ] PRESIDING MEMBER [ N. ARUMUGAM] MEMBER sj