State Consumer Disputes Redressal Commission
Haridas Warluji Gudadhe vs Shri Dinkarrao Motiramji Meher on 3 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, 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/10/163 (Arisen out of Order Dated 19/01/2009 in Case No. CC/09/250 of Addl. DCF Nagpur) Haridas Warluji Gudadhe R/o & Post Jaitala Nagpur-440 016 ...........Appellant(s) Versus Shri Dinkarrao Motiramji Meher New Sneh Nagar Wardha Road Nagpur. ...........Respondent(s) First Appeal No. A/10/164 (Arisen out of Order Dated 19/01/2009 in Case No. CC/09/250 of Addl. DCF Nagpur) Haridas Warluji Gudadhe R/o & Post Jaitala Nagpur-440 016 .Appellant(s) Versus Sou Mugdha Mangesh Rotiwar R/o Canal Road, Gokulpeth Nagpur Respondent(s) First Appeal No. A/10/165 (Arisen out of Order Dated 19/01/2009 in Case No. CC/09/251 of Addl. DCF Nagpur) Haridas Warluji Gudadhe R/o & Post Jaitala Nagpur-440 016 .Appellant(s) Versus Shri Narendra Kuber Bodhe Plot No.277, Surendranagar Nagpur Respondent(s) First Appeal No. A/10/166 (Arisen out of Order Dated 19/01/2009 in Case No. CC/09/252 of Addl. DCF Nagpur)1. Haridas Warluji Gudadhe R/o & Post Jaitala Nagpur-440 016 .Appellant(s) Versus Dr Pankaj Vijay Tathe Plot No.72, Narkesari Society Jaiprakash Nagar, Khamla Nagpur. Respondent(s) BEFORE: Hon'ble Mr. B.A.Shaikh Presiding Member Hon'ble Mrs. Jayshree Yengal Member PRESENT: Adv. Mr R H Agrawal ......for the Appellant Adv. Mr D M Gabhane ......for the Respondent ORDER
(Passed on 03.03.2014) Per Mr B A Shaikh, Honble Presiding Member
1. These four appeals are preferred against common order dtd. 19.01.2010 passed by Addl. District Consumer Forum, Nagpur in four consumer complaints bearing Nos. CC/09/250 to CC/09/253 by which the said complaints have been partly allowed. All these four appeals are being disposed of by this common order as common question of law & facts is involved in them.
2. The common case of these complainants as set out in their respective complaints in brief is that the original opposite party (for short the O.P.) is the land developer and owner of the land bearing Ph.No.49, Kh.No.99 of Village Hingna. The O.P. agreed to sell the plots of the said land specified in the respect complaints to the respective complainants for a consideration which is also specified in the respective complaints. Accordingly the agreement to sell was executed in favour of each of the complainants on respective dates mentioned in the complaints. The respective complainants paid the consideration alongwith development charges of the said plot to the O.P. as per the details given in the complaint. The original O.P. also handed over the possession of those plots to the respective complainants on the date mentioned in the respective complaints. However, the O.P. did not execute sale-deed of those plots in favour the complainants though requests were made by them to him from time to time and though legal notice dtd.15.09.2009 was also served upon him. Therefore, the complainants made common prayer in all four complaints that the original O.P. may be directed to execute registered sale-deed of their respective plots in their favour or in alternative to pay them the prevalent market price of the said plots with interest to them and also to pay to each of the complainant Rs.1.00 Lac towards mental harassment and Rs.10,000/- towards cost of each complaint.
3. The original O.P. filed Written Version and resisted the said complaints. He admitted that he is the owner of the land specified in the said complaints. He denied rest of the case of the said complainants. He specifically denied that he received consideration and development charges from the complainants and executed agreement to sell in their favour. According to him, the Forum has no jurisdiction to decide the complaint when he did not enter in any contract with the complainants. He also submitted that otherwise also the complaint is barred by limitation and hence, he prayed that all complaints may be dismissed.
4. The Forum below after hearing advocates of both parties and considering evidence brought on record came to the conclusion that the complaints are not barred by limitation and that it has got jurisdiction to decide the complaints and that it is proved that the original O.P. executed agreement to sell in favour of the respective complainants and that he received the entire consideration from the respective complainants except from the complainant in consumer complaint No. CC/09/250. The Forum below therefore, directed the original O.P. to execute the sale-deeds of the respect plots in favour of the complainants in three complaints bearing No.CC/09/251, CC/09/252 & CC/09/253 and those complainants shall remit to the original O.P. by registered post cheques for the amount required for registration of those sale-deeds. The Forum below also directed the complainant in CC/09/250 to deposit balance consideration of Rs.54,250/- with the said Forum within three weeks of that order and the O.P. shall execute sale-deed of the plot specified in that complaint in favour of the complainant in complaint bearing No. CC/09/250. It is further directed that the original O.P. shall pay to the complainants in each complaint Rs.5,000/- towards mental harassment and Rs.1,000/- towards cost of complaint.
5. Feeling aggrieved by that order the O.P. preferred these four appeals. The respective advocates of both the parties filed Written Notes of Arguments and submitted that the same may be treated as their oral arguments.
6. We have perused the said Written Notes of Arguments and other documents produced by both the parties. The learned advocate of the appellant submitted in his Written Notes of Arguments in brief that there is no convincing evidence to show that the agreements to sell produced by the original complainants were signed by the appellant and the attesting witness of the same were also not examined and the said signatures were not sent to handwriting expert for his opinion. He further submitted that those agreements to sell which are produced by the complainants are not registered and therefore they cannot be enforced against the appellant and that the Civil Court only can decide the dispute in such a case and that there is no document to show that the original complainants made payments to the appellant for purchasing the plots and that the documents produced on record are forged and fabricated and these material facts are ignored by the Forum below. He also submitted that the Forum below also erred in not considering properly the objection about limitation and that cause action from the date of reply notice cannot be made basis for reckoning period of limitation. He, thus, submitted that as the complaints are barred by limitation, the same may be dismissed. He also submitted that the complainants do not come within the purview of the definition of Consumer as given under Sec. 2(1)(d) of Consumer Protection Act and the appellant is also not a Service Provider. He lastly requested that as the impugned orders are illegal, the same may be set aside.
7. On the other hand, the learned advocate of the respondents / original complainants in his Written Notes of Arguments supported the impugned order and replied upon the decisions given in the following cases:-
i.
Narne Construction Private Ltd & Ors. Vs. Union of India & Ors. - 2012(5) Supreme Court Cases-359.
It is held by Honble Supreme Court in the said case that the services / facilities generally provided by the developer / builder and assurance of development of infrastructure / amenities, etc. to the consumers of plots, constitute service within the meaning of Sec. 2(1)(o) of Consumer Protection Act, 1986.
ii.
Girish Megharaj Jain Vs. M/s Ajit Rawetkar & Company and Anr. 2008(1) CPR-40 Maharashtra State Consumer Disputes Redressal Commission, Mumbai.
In that case O.Ps had agreed to deliver possession of flat to the complainant. But no specific date for possession was shown in agreement for sale. It is therefore held that in such a case cause for filing consumer complaint is continuing one.
iii.
France B. Martins and Anr. Vs. Mafalda Maria Teresa Roadrigues (Mrs.) 2000 (1)Civil LJ 400 Supreme Court.
The Honble Supreme Court in that case found that the possession of sub-standard flat was given to the complainant in the year 1985 but legal sale was not made in favour of the complainant till Aug.1991 and complaint was filed on 19.06.1992. The Honble Supreme Court held that complaint cannot be said to be beyond limitation.
iv.
Lucknow Development Authority Vs. M K Gupta AIR-1994 Supreme Court
787.
It is held by Honble Supreme Court that when the complaint is about service in relation to immovable property, the State Commissions jurisdiction is not ousted.
v.
M/s Padmum Builders Rep. by its Proprietor Mr Parthasaraty Vs. E.S. Kousalya 2008 (2) CPR 45 (NC).
In that case agreement of construction was made on 29.03.1993. There was failure to handover the possession of the flat. A complaint was filed for possession on 15.10.1998. It is observed by Honble National Commission that the agreement dtd.29.03.1993 though stipulates 10 months time but construction was actually completed only in the march of March 1995 and hence, it is held that the complaint is not barred by time.
8. Admittedly the appellant is the owner of the entire land of Ph.No.49, Kh.No.99 of Village Hingna. It is also not disputed that the appellant made several plots in that land and he offered the same to prospective purchasers for purchasing the same. It is the case of the original complainants / respondents herein that the appellant agreed to sell some of the plots of the said land to them for a specific consideration and they paid the said consideration and also development charges to the appellant. No doubt, the appellant has denied that he executed any such agreement and received any aforesaid amount. But the Honble Supreme Court in the aforesaid cases of Narne Construction Private Ltd & Ors. Vs. Union of India & Ors. - 2012(5) Supreme Court Cases-359 and Lucknow Development Authority Vs. M K Gupta AIR-1994 Supreme Court 787 has clearly held that the element of service exists in transaction relating to development and provision of infrastructure and that the complaint about service in relation to immovable property does not oust jurisdiction of State Commission. Therefore, we are of the view that the Forum below has rightly held that it has got jurisdiction to decide the complaints.
9. As regards the question of limitation, we find that for the first time the O.P. / appellant herein in his reply notice dtd.26.09.2009 refused to execute sale-deed of the plots in favour of the complainants. There is no time limit in agreement to sell for execution of sale-deed. It is also seen that the possession of the plots was already given to the respective complainants. Therefore, cause of action in each of the complaint is continuing one. The complaints which are filed in the year 2009 are therefore, not barred by limitation.
Thus, the Forum below has rightly entertained the complaint.
10. The Forum below itself verified the disputed signatures appearing on the agreement and other documents with the other admitted signatures of the appellant and found that they are of the appellant only. Moreover, it is also found by the Forum below that the appellant has not moved any application for taking criminal action against the original complainants for preparing false and forged documents, which shows that the appellant knew that the signatures appearing on the disputed documents are belonging to him only. We find that the view taken by the Forum below in this respect is just and proper. Had the original complainants / respondent herein prepared the false and forged documents relating to the various plots belonging to the appellant, in ordinary course of conduct the appellant would have lodged report with the Police against them. Thus, we find that the documents produced on record by the respondent / original complainants are rightly by the Forum below, which prove that the appellant herein executed various agreements to sell in favour of respondent herein and thereby he agreed to them and also received the respective consideration and development charges from them.
11. We, thus, find that the Forum below has properly considered material brought on record and reached to the correct conclusion. There is no merit in these four appeals and they deserve to be dismissed.
ORDER i.
All these four appeals bearing Nos.A/10/163, A/10/164, A/10/165 and A/10/166 are hereby dismissed.
ii.
No order as to cost in these four appeals, iii.
Copy of this order be furnished to the parties free of cost.
[ B. A. SHEIKH] PRESIDING MEMBER [ SMT.JAYSHREE YENGAL] MEMBER sj