State Consumer Disputes Redressal Commission
1. Shehabiah Trading & Investment Co Pvt ... vs 1. Dr Uday Ganpatrao Naik And Others on 24 August, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No. A/09/106
(Arisen out of Order Dated 18/11/2008 in Case
No. 269/2001 of District Pune)
1. SMT FARIDA
HUSAINYBHAI
518, OLD BAZAR KHADKI,
PUNE 411003
...........Appellant(s)
Versus
1. DR UDAY GANPATRAO
NAIK
746/747, GURUWAR PETH,
PUNE 411042
2. SHEHABIAH TRADING
& INVESTMENT CO. PVT. LTD.
REGD.OFFICE - SAIFY
MAHAL, A G BELI ROAD, BOMBAY 400 006 THROUGH ITS AUTHORIZED SIGNATORY -MR.
ZOHAR POONAWALLA,
R/A. 747, GURUWAR
PETH, FAME APARTMENTS, PUNE 411 042.
3. SMT SAHI DIMPLE
MAHINDER SINGH,
FIRST FLOOR, 790,
GURUWAR PETH, PUNE 411 042
...........Respondent(s)
First Appeal No. A/09/107
(Arisen out of Order Dated 18/11/2008 in Case
No. 269/2001 of District Pune)
1. SMT SAHI DIMPLE
MAHINDER SINGH,
1 ST FLOOR, 790,
GURUWAR PETH, PUNE 411042.
........Appellant(s)
Versus
1. DR UDAY GANPATRAO
NAIK,
746/747, GURUWAR PETH,
PUNE 411042.
2. SHEHABIAH TRADING
& INVESTMENT CO. PVT. LTD.
SAIFY MAHAL, A G BELI
ROAD, BOMBAY 400 006 THROUGH ITS AUTHORIZED SIGNATORY MR ZOHAR
POONAWALLA.
R/A.747, GURUWAR
PETH, FAME APARTMENTS, PUNE 411 042.
3. SMT. FARIDA
HUSIANYBHAI
518, OLD BAZAR
KHADKI, PUNE 411 003.
........Respondent(s)
First Appeal No. A/09/86
(Arisen out of Order Dated 18/11/2008 in Case
No. 269/2001 of District Pune)
1. SHEHABIAH TRADING
& INVESTMENT CO PVT LTD
SAIFY MAHAL, A G BELL
ROAD,
MUMBAI 400006
THROUGH ITS
AUTHORISED SIGNATORY,
SHRI ZOHAR POONAWALA,
R/A. 747, GURUWAR
PETH, FAME APARTMENTS, PUNE 411 042.
...........Appellant(s)
Versus
1. DR UDAY GANPATRAO
NAIK
746/747, GURUWAR PETH,
PUNE 411042
2. SMT.FARIDA
HUSAINBHAI,
R/A.518, OLD BAZAR,
KHADKI, PUNE 411 003.
3. SMT.DIMPLE
MAHINDERSINGH SAHI,
R/A. 1ST
FLOOR, 790, GURUWAR PETH, PUNE 411 042.
...........Respondent(s)
BEFORE:
Hon'ble Mr. P.N.
Kashalkar PRESIDING MEMBER
Hon'ble Mr. S.R.
Khanzode Judicial Member
HON'ABLE MR. Narendra
Kawde MEMBER
PRESENT: Mr.Rahul Gandhi-Advocate for Shehabiah Trading
& Investment
Co.Pvt.Ltd./original
opponent No.1
Mr.N.V.Vechalekar,
Advocate for Dr.Uday Ganpatrao Naik/original
complainant and
Mr.Abhijeet Raut-Advocate for
Smt.Farida Husainyabhai and Smt.Dimple
Mahindersingh
Sahi/original opponent Nos.2 & 3.
ORDER
(Per Shri S.R.Khanzode, Honble Presiding Judicial Member ) (1) The above referred three appeals are disposed by this common order since they arise out of identical facts inter-connected with each are and out of one and same order dated 18/11/2008 passed in Consumer Complaint No.269/01, Dr.Uday Ganpatrao Naik & ors. (hereinafter referred as complainant) vs. Shehabiah Trading & Investment Co.Pvt.Ltd. (hereinafter referred as builder).
(2) The consumer dispute pertains to alleged deficiency in service on the part of the builder by not handing over the flat and shop as agreed between the complainant and the builder as per development agreement dated 03/10/1998. The forum upholding the contention of the complainant, nullifed the transactions in favour of appellant, Farida Husainybhai/original opponent No.2 (hereinafter referred as opponent Farida) dated 23/03/2005 in respect of flat No.8 and trasaction with appellant Dimple Mahinder Singh Sahi/original opponent No.3 (hereinafter referred as opponent Dimple) and directed the builder to hand over of the flat and shop in possession of the complainant, further awarded compensation of `3,000/- per month w.e.f. August 2000 till handing over the possession and also a compensation of `50,000/-. It was also directed that out of the amount of compensation received an amount of `1,00,000/- be deducted from it (in fact as per observations of the forum in para 13 of the impugned order, this amount was payable by the complainant to the builder, but in clause 8 of operative part of the order, it was mentioned payable by the opposite party No.1 to the complainant) Feeling aggrieved thereby, the builder preferred appeal No.86/2009, opponent Farida preferred appeal No.106/2009 and opponent Dimple preferred appeal No.107/2009.
(3) Heard both the sides. Perused the record.
(4) At the outset, it may be mentioned here that the opponent Farida and opponent Dimple remained absent after they were impleded as one of the opponents, did not file any written version or adduce any evidence. The complaint proceeded ex-parte against them.
As far as the builder is concerned, after filing written version, it also remained absent, did not adduce any evidence and the matter was decided accordingly on the basis of evidence led on behalf of the complainant.
(5) Only two points pressed before us viz. whether direction given by the forum as per impugned order declaring the transactions with the opponent Farida witnessed by agreement dated 23/03/2005 and with opponent Dimple witnessed by agreement dated 14/03/2005 were as null and void and illegal and not binding upon the complainant; is fully correct and secondly, whether in the given circumstances, the builder could be accused of deficiency in service by not handing over the flat and shop to the complainant as per the development agreement dated 03/10/1998.
(6) Consumer Forum is a creation of statute and as such could only exercise the jurisdiction vested in it by the Consumer Protection Act, 1986 (hereinafter referred as the Act). Relief which could be granted as a part of removal of deficiency in service is spelled out under Sec.14 of the Act. Therefore, general reliefs more particularly relief to give directions to do or to desist or in a nature of declaration affecting the transaction (as done in the instant case), the forum was not empowered to give the directions and declare the transactions with opponents Farida and Dimple were null and void and not binding upon the complainant. These reliefs could granted under Specific Relief Act, 1963, but not under the Act. Therefore, while granting such relief, the forum exceeded its jurisdiction. A useful reference on the point can be made to the decision of National Consumer Disputes Redressal Commission, New Delhai in the matter Kongara Ananth Ram Vs. Telecom District Engineer 1986-94 Consumer 274 (NC & SC). It may be further pointed out that the subsequent purchasers or transferees can be added as one of the opponents but their presence would be helpful only to decide just and proper compensation in case relief of possession could not be granted.
(7) Learned forum referred to doctrine of lis-pendens embodied in Sec.52 of the Transfer of Property Act to vitiate the transactions with opponents Farida and Dimple. However, since admittedly, the consumer complaint in question is not registered under Sec.18 of India Registration Act, 1908 which is a sine-quo-non condition for applicability of said doctrine of lis-pendens in the State of Maharashtra. Sec.52 as applicable to the State of Maharashtra reads as under:-
52. Transfer of property pending suit relating thereto (1) During the pendancy in any Court having authority within the limits of India excluding the State of Jammu and Kashmir established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, if a notice of the pendancy of such suit or proceeding is registered under section 18 of the Indian Registration Act, 1908, the property after the notice is so registered cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
(8) Besides this, the transaction in favour of opponent Farida and opponent Dimple since effected as per the directions given by enforcement agency i.e. Recovery Officer under the Income Tax Act; the doctrine of lis-pendens, perse, would not be attracted in instant case.
(9) The fact which emerges as undisputed are that in lieu of his 7/36th share in property, the complainant transferred his development rights thereto in favour of the builder as per agreement dated 03/10/1998. One 500 sq.ft. built-up area flat and one 120 sq.ft. shop were agreed to be given by the builder to the complainant.
Said shop is identified as shop No.5 and flat as flat No.8 from the building constructed as a part of the project on CTS 790, Guruwar Peth, Pune. The possession of the shop and flat was to be given to the complainant presumely within 24 months. Complainant demanded possession of the said flat and shop from the builder by its communication dated 20/02/2001 and 21/03/2001. On 23/05/2001, the builder sent communication to the complainant stating that unless the complainant pays the dues of `1,92,025/-
for the flat and `96,550/-
for the shop towards the additional work carried out therein as per the request of the complainant, the possession could not be delivered. Thereafter, on 02/08/2001, this consumer complaint was filed against the builder.
(10) During the pendancy of the consumer dispute, income tax officials to recover dues of the complainant and his family, particularly, partners i.e. partners of M/s.Sangam Builders & Promoters, started attaching properties belonging to them and selling the same. In the course of those events, the Recovery Officer after taking the legal recourse, lay hands on the property which is subject matter of this consumer dispute, namely, flat No.8 and shop No.5; attached the same and thereafter gave permission to the builder to sell the same (builder acting for itself and also as power of attorney for the complainant) and gave further direction to the builder to deposit entire proceeds with the authorities towards dues recoverable from the complainant. Accordingly, the properties were sold. The flat No.8 fetched `2 lacs and the shop could fetch `1 lac and the same were duly deposited with the Tax Recovery Officer, Range-3, Pune of the Income Tax Department. This is how opponent Farida and opponent Dimple came into picture (as purchasers of these properties) and they were impleded as one of the opponents.
(11) Referring to the agreement dated 14/03/2005 in favour of opponent Dimple and the one dated 23/03/2005 in favour of opponent Farida, it could be seen that those transactions were entered as per directions of enforcement agency i.e. Tax Recovery Officer, Range-3, Pune and these actions were to recover tax dues in tune of `46,80,385/- from M/s.Sangam Builders & Promoters i.e. family firm of the complainant and its partners included in the complaint.
Those actions were taken as per provisions in the Income Tax Act, 1961. The builder was asked to act on behalf of the complainant, therefore, when a permission was granted to the builder on 12/01/2005 to sell the above referred properties and credited the sale proceeds directly with the Tax Recovery Officer; in effect, the builder had handed over the possession to the complainant ans also the complainant received the possession of both these properties through his power of attorney holder and thereafter the properties were put in possession of the purchasers i.e. flat No.8 to opponent Farida and shop No.5 to opponent Dimple. Since, these actions are as per orders of the authorities, namely, the enforcement agency; the builder was under
obligation to obey the same. In the circumstances narrated earlier, therefore, such action or act of the builder would not amount to deficiency in service. Similarly, since the complainant deemed to have received the possession of aforesaid properties from the builder, supra, no deficiency in service as alleged on the part of the builder could be inferred.
(12) The complainant tried to submit that the permission by the enforcement agency, namely, Tax Recovery Officer to sell the flat after removing the attachment was illegal and the sales were effected at much lower price than the property could have fetched. We are afraid, the grievance, if any, on that count is not to be redressed in the Consumer fora since those issues will not be a subject of a consumer dispute. The complainant ought to have taken matter before the Tax Recovery Officer or Income Tax authorities as per the provisions of Income Tax Act under Rules framed therein. In fact the complainant challenged those actions of the enforcement agency filing a writ petition bearing No.7148/2006, Dr.Uday Ganpatrao Naik Vs. Union of India & ors. before High Court of Judicature at Mumbai.
The complainant withdrew said petition and it stood accordingly dismissed by an order dated 15/01/2007.
(13) The complainant also tried to take a Civil remedy filing a suit for injunction in Civil Court bearing No.920/03 and also filed a criminal case under Maharashtra Ownership Of Flats (Regulation Of The Promotion Of Construction, Sale, Management And Transfer) Act, 1963 against the builder. The complainant may pursue his appropriate regular remedies as available to him before Civil Court, Criminal Court or even before High Court to get relief against the enforcement agency. In the backdrop of these circumstances, it is not just and proper on the part of the complainant to continue with the consumer complaint (as per additional remedy) filed against the builder, which is a summary procedure remedy.
(14) For the reasons stated above, we find that the forum did not appreciate the facts and material placed on record through the legal canon and arrived at a wrong conclusion. We hold accordingly and pass the following order.
ORDER
1) Appeal Nos. 86/2009, 106/2009 and 107/2009 are allowed.
2) Impugned order dated 18/11/2008 passed in Consumer Complaint No.269/2001 by the District Forum, Pune stands set aside.
In the result, the same stands dismissed.
3) In the given circumstances, parties to bear their own costs.
4) Inform parties accordingly.
Pronounced on 24th August, 2012.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mr. S.R. Khanzode] Judicial Member [Honble Mr. Narendra Kawde] Member pgg