State Consumer Disputes Redressal Commission
Shri Narendra Bhicu Kerkar, vs Pradip Bhiku Kholkar Alias on 7 November, 2013
BEFORE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA FA No. 30/13 Shri Narendra Bhicu Kerkar, r/o Durga Prasad Apartments, Next to Sai Apartments, Near Franky Bar and Restaurant, Borda, Margao, Goa. ..Appellant/OP No.1 V/s. 1.Pradip Bhiku Kholkar alias Pradeep B. kholkar, Aged about 46 years, s/o Shri Bhiku Yeshwant Kholkar ...Respondent No.1/ and his wife Complainant No.1 2.Smt. Vandana Pradip Kholkar Aged 42 years, Both r/o H. No.16, Sanchyani Anant Vishwas Co-operative Housing Society, Opp. Borkar Super Stores, Gogol, Margao Goa. ....Respondent No.2/ Complainant No.2 3.Smt. Narayan Bhikaji Naik, Alias Naraina Bhikaji Kuncolienkar And his wife: ....Respondent No.3/ OP No.2 4.Smt. Jayu Naik .......Respondent No.4/ OP No.3 Both Respondent Nos.3 & 4 since deceased, through their legal heirs/representatives: (i) Mr. Damodar Narayan Naik s/o Shri Narayan Bhikaji Naik, r/o H. No.26, Pajifond, Margao, Salcete, Goa. (ii) Mrs. Nayan Damodar Naik, Wife of Mr. Damodar Narayan Naik r/o H. No.26, Pajifond, Margao, Salcete, Goa. (iii) Mr. Ramdas Narayan Naik, Son of Shri Narayan Bhikaji Naik r/o H. No.26, Pajifond, Margao, Salcete, Goa. (iv) Mrs. Savita Ramdas Naik Wife of Mr. Ramdas Narayan Naik, r/o H. No.26, Pajifond, Margao, Salcete, Goa. (v) Mr.Ganasham Narayan Naik, Son of Shri Narayan Bhikaji Naik Residing at c/o Prakash Naik, H. No.105, Opp. C-8 Bldg., Junta Quarters, Pajifond, Margao, Salcete Goa. (vi) Mrs. Latika Ganasham Naik, Wife of Ganasham Narayan Naik, Residing at c/o Prakash Naik, H. No.105, Opp. C-8 Bldg., Junta Quarters, Pajifond, Margao, Salcete Goa. (vii) Mr. Govind Narayan Naik, Son of Shri Narayan Bhikaji Naik, Residing near Microwave Project, Aquem, Margao, Salcete, Goa. (viii) Mr. Gautami Govind Naik, Wife of Mr. Govind Narayan Naik Residing near Microwave Project, Aquem, Margao, Salcete, Goa. (ix) Mrs. Madhuri Ashok Malvankar Daughter of Shri Narayan Bhikaji Naik, Wife of Mr. Ashok Malvankar, Residing at H. No.25, Pajifond, Margao, Salcete, Goa. (x) Mr. Ashok Malvankar Son of Vassu Malvankar, Residing at H. No.25, Pajifond, Margao, Salcete, Goa (xi) Mrs. Sumitra Prakash Naik, Daughter of Shri Narayan Bhikaji Naik, Wife of Mr. Prakash Naik, Residing at H. No.105, Opp. C-8 Bldg., Junta Quarters, Pajifond, Margao, Salcete Goa (xii) Mr. Prakash Naik, Son of Ganpat Naik, Residing at H. No.105, Opp. C-8 Bldg., Junta Quarters, Pajifond, Margao, Salcete Goa FA No. 31/13 Shri Narendra Bhicu Kerkar, r/o Durga Prasad Apartments, Next to Sai Apartments, Near Franky Bar and Restaurant, Borda, Margao, Goa. ..Appellant/OP No.1 Vs. 1.Smt. Satyawati P. Usgaonkar, r/o H. No.16, Sanchayani Anant Vishwas, Co-operative Housing Society, Opp. Borkar Super Stores, Gogol, Margao, Goa. ..Respondent No.1/ Complainant No.1 2. Shri Narayan Bhikaji Naik, Alias Naraina Bhikaji Kuncolienkar And his wife: ....Respondent No.2/ OP No.2 3.Smt. Jayu Naik .......Respondent No.3/ OP No.3 Both Respondent Nos.3 & 4 since deceased Through their legal heirs/representatives: (i) Mr. Damodar Narayan Naik s/o Shri Narayan Bhikaji Naik, r/o H. No.26, Pajifond, Margao, Salcete, Goa. (ii) Mrs. Nayan Damodar Naik, Wife of Mr. Damodar Narayan Naik r/o H. No.26, Pajifond, Margao, Salcete, Goa. (iii) Mr. Ramdas Narayan Naik, Son of Shri Narayan Bhikaji Naik r/o H. No.26, Pajifond, Margao, Salcete, Goa. (iv) Mrs. Savita Ramdas Naik Wife of Mr. Ramdas Narayan Naik, r/o H. No.26, Pajifond, Margao, Salcete, Goa. (v) Mr.Ganasham Narayan Naik, Son of Shri Narayan Bhikaji Naik Residing at c/o Prakash Naik, H. No.105, Opp. C-8 Bldg., Junta Quarters, Pajifond, Margao, Salcete Goa. (vi) Mrs. Latika Ganasham Naik, Wife of Ganasham Narayan Naik, Residing at c/o Prakash Naik, H. No.105, Opp. C-8 Bldg., Junta Quarters, Pajifond, Margao, Salcete Goa. (vii) Mr. Govind Narayan Naik, Son of Shri Narayan Bhikaji Naik, Residing near Microwave Project, Aquem, Margao, Salcete, Goa. (viii) Mr. Gautami Govind Naik, Wife of Mr. Govind Narayan Naik Residing near Microwave Project, Aquem, Margao, Salcete, Goa. (ix) Mrs. Madhuri Ashok Malvankar Daughter of Shri Narayan Bhikaji Naik, Wife of Mr. Ashok Malvankar, Residing at H. No.25, Pajifond, Margao, Salcete, Goa. (x) Mr. Ashok Malvankar Son of Vassu Malvankar, Residing at H. No.25, Pajifond, Margao, Salcete, Goa (xi) Mrs. Sumitra Prakash Naik, Daughter of Shri Narayan Bhikaji Naik, Wife of Mr. Prakash Naik, Residing at H. No.105, Opp. C-8 Bldg., Junta Quarters, Pajifond, Margao, Salcete Goa (xii) Mr. Prakash Naik, Son of Ganpat Naik, Residing at H. No.105, Opp. C-8 Bldg., Junta Quarters, Pajifond, Margao, Salcete Goa Appellant/ OP No.1 is represented by Adv. Shri S. S. Sonak Respondents / Complainants are represented by Adv. Shri A. D. Bhobe. Other respondents i.e legal representatives of deceased Respondents/OP No.2 & 3 ex-parte. Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 07/11/2013 ORDER
[Per Justice Shri. N. A. Britto, President] These appeals can be conveniently disposed off by this common order, as the facts and the law applicable thereto, are common.
2. The appeals have been filed by OP No.1, a builder, in c.c. nos. 21 & 22 of 2009 and are directed against separate orders dated 08/04/2013 of the Lr. North Goa District Forum by which the complaints filed by the Complainant/s are partly allowed.
3. Some facts are required to be stated to dispose off these appeals and for that the parties hereto shall hereinafter be referred to in the names as they appear in the cause title of the complaint/s.
4. The Complainant Pradeep is the son-in-law of the Complainant Satyawati. By separate agreements styled as `Agreements for Sale dated 06/12/2007 the Complainants agreed to purchase from OP No.1, the Builder, flats identified as SF 2 admeasuring 52 sq.mts. and Flat SF 1 admeasuring 76 sq. mts., respectively, in a building under construction by OP No.1, situated in plot no. 30 surveyed under chalta no.8 of P.T. Sheet 56, at Fatorda, Margao, Goa, for a sum of Rs.2 lacs and Rs.6 lacs respectively, out of which Rs. 2 lacs and Rs.3.25 lacs were paid by the Complainant/s to OP No.1, Builder, respectively. The possession of the flats was to be handed over within a period of two months. The balance payment was to be made at the time of handing over the possession of the flats and it was also agreed that in case the Complainant/s failed to pay the balance amount of consideration the Builder would be at liberty to immediately rescind and cancel the agreements and allot the flats to any person of his choice but by giving to the Complainant/s 15 days clear notice in writing of his intention to rescind and cancel the agreements and such writing was to be hand delivered or sent by registered post at the last known addresses of the Complainants and in case the Complainants/purchasers made the payment within the notice period, the agreement would be in full force and effect. It was also stipulated that OP No.1, the Builder, would inform the Complainant/s to take possession of the said flats upon completion of the said flats in all respects along with occupancy certificate issued by the Margao Municipality and such an intimation was to be delivered to the Complainant/s by registered post at the registered address of the Complainant/s and upon taking possession of the flats the Complainants were to have no claim whatsoever against OP No.1, Builder, in relation to any item of work of construction of the said flats or otherwise. It was also stipulated that the OP No.1, Builder, would sell the said flats with proportionate share in land.
5. The OP No.1, Builder, had entered into an agreement of sale dated 22/07/1996 with the owners of the said property namely OP Nos.2 and 3 by which the OP No.1, Builder, had agreed to purchase the said plot No.30 in order to develop the same by constructing a building to be named as Nikhil Apartments comprising of flats and shops to be sold to intending purchasers on ownership basis, except Flat No. F 3, which was reserved for the owners, on the first floor of the said building. The Owners of the property namely OP Nos. 2 & 3 were represented in the said agreements of sale by OP No.1, the Builder, pursuant to an irrevocable special power of attorney executed in his favour dated 22/07/1996. As stated in the agreements, the said power of attorney was still in force and was not revoked.
6. The Complainant/s claimed that when they enquired with OP No.1, Builder, about the completion of the flats, OP No.1/builder and his son threatened to hire goons and kill the Complainant/s family. The Complainant/s filed the complaints in April 09, and, as already stated, the complaints have been partly allowed. In allowing the complaint/s, the Lr. District Forum has observed that OP No.1s entire defence was that he could not complete the suit flats because of dispute in his family but he had not stated about what sort of family dispute he was facing and how it had affected the construction of the suit flats, and further observed, that by merely stating that there was a family dispute, OP No.1/Builder felt that he could wriggle out of the situation and probably OP No.1 was also under the impression that by casually stating that he was prepared to refund the amount so collected from the Complainant/s he can sell the premises to a third party for a premium.
7. We have perused the records and heard arguments.
8. These appeals have been filed with averments in the memo of appeals, stating that the present advocate of the appellants i.e. OP No.1/builder had advised the appellant/OP No.1 that it was not legally permissible for him to represent the deceased OP No.2 Shri Narayan B. Naik and OP No.3 Smt. Jayu Naik who expired on 17/07/2006 and 23/03/2000, respectively. Their death certificates have been filed, and it is submitted that the irrevocable power of attorney dated 22/07/1996 executed by the said Narayan and Jayu Naik was rendered invalid in view of their death and as such the appellant/OP No.1 could not have represented them in the said agreements for sale dated 06/12/2007. It is also submitted that the complaint/s against OP No.2 & 3 had abated as they were filed against dead persons and their legal heirs were not brought on record within the prescribed time. Reliance is placed on the cases of Pratap C. Mehta, AIR 1998 Delhi 267, and C. Muttu, AIR 1964 Mysore 293 wherein it has been held, relying on Hiralal vs. Kalinath, AIR 1962 SC 1999, that a suit filed against the sole defendant who is dead at the time of filing the suit, is a nullity and plaintiff cannot be allowed subsequently to amend the suit and substitute legal representatives in place of deceased sole defendant.
9. We asked Shri S. S. Sonak the lr. advocate on behalf of the appellant/OP No.1/builder as to when exactly OP No.1 came to know about the death of his principals, namely OP Nos.2 & 3 and all that he stated is that he came to know about their death in parallel proceedings before the Lr. District Forum.
10. We are not impressed with the submission made by lr. advocate Shri Sonak. The submission is unsubstantiated and therefore it cannot be accepted. Morevoer, it runs counter to the averments made in the memoranda of appeals. The decisions cited are also not applicable to the case at hand as the complaints filed were not against a sole defendant.
11. We find that OP No.1/builder has taken everyone for a ride. It is difficult to accept that OP No.1/builder did not know about the death of his principals namely OP Nos.2 & 3 either on 17/07/2006 or for that matter on 23/03/2000, as on the date of the execution of the agreements for sale and yet OP No.1/builder ensured to mention in the said agreements that the power of attorney was still in force and was not revoked. OP No.1/builder thereafter accepted the notices of the complaints sent by Lr.
District Forum on their behalf as well and even filed written versions conveying an impression that the written versions were filed on behalf of all OPs and not only that at a later stage when at the same address free copies of the impugned orders were sent to the OPs, the same were also accepted by him. It is only after OP No.1/builder has realized that the impugned order has gone against him that OP No.1/builder has come with a plea that the complaints had abated against OP Nos. 2 & 3. In our view, no party can be allowed to take advantage of his own wrongs. Complainant/s could not have known the deaths of OP Nos.2 & 3. It is OP No.1/builder who ought to have known the same. Infact, it was the solemn duty of the OP No.1/builder to have atleast informed the Lr. District Forum, after he received the notices of the complaints, that he was no longer holding power of attorney from OP Nos. 2 & 3, as they had expired. The legal representatives of deceased OP Nos. 2 & 3 have now been impleaded by the appellant/builder himself and they have been duly served and except for one, none of them have contested the present appeals. Only Respondent no. 4 (V) in an application filed on 23/07/2013 has stated that they were not aware of the impugned order dated 08/04/2013 and were not parties to the complaints. He has also stated that they were not liable to hand over to the Complainant/s the suit flats or to pay any compensation to the Complainant/s. However, the said Respondent no.4 (V) Ganashan N. Naik is totally silent about the flat F 3 which was agreed by OP No.1 to be given to his parents, the owners, i.e OP No.2 and 3 in consideration of sale agreement dated 22/07/1006 with OP No.1. It appears he is playing the tune of OP No.1/builder as otherwise, he has nothing to do with other flats. Since the legal heirs of OP Nos.
2 & 3 are now before this Commission, any order which justice requires can be passed against them. It is to be noted that in this jurisdiction meant to protect the rights of consumers the Fora are required to adopt a rational approach rather than a technical approach and that is the mandate of law, as held by Apex Court in Indian Photographic Company Ltd. vs. H.D. Shourie (II 1999 CPJ 36).
12. The OP No. 1/builder seems to be under an impression, that the agreements of sale have been terminated by him or rather he has taken a plea to the effect that because he could not complete the building because of family dispute, he decided to pay back the amount. In terms of Clauses 7 of the agreements for sale, the OP No.1/builder was required, if at all, to terminate the agreement, by writing to be hand delivered or sent by registered post. It is not the case of the OP No. 1/builder at any time that letters dated 20/03/08 were sent to the Complainants either by hand delivery or by registered post as required. The OP No.1/builder has not produced any endorsement of the receipt of the said letters in case they were sent by hand delivery or postal acknowledgement to show that they were sent by registered post. In the absence of any proof having been produced by the OP No. 1, the only inference which can be drawn is that the said letters dated 20/03/2008 have been fabricated by OP No. 1/builder with a view to avoid the performance of the said agreements of sale. In case OP No.1/builder had really decided to pay back the amount, OP No.1/builder would have sent the amount received by him to the Complainant/s by registered post.
13. OP No. 1/builder, as rightly noted by the Lr. District Forum, put up a defence that there was a dispute in his family.
The Lr. District Forum observed, and, in our view rightly, that OP No. 1 did not even speak about what sort of dispute he was facing and how it affected the construction of the suit flats and that by merely stating that there was a family dispute he felt that he could wriggle out of the situation. The so called family dispute has now been elaborated, on behalf of OP No. 1/builder, by stating that Complainant Satyawati is related to Complainant Pradeep, the latter being the son-in-law of the former and as such they very well knew about the family dispute because OP No. 1s wife Mrs. Nilima alias Lata had expired on 08/08/03 before the execution of agreements for sale and as such Dipti, his daughter, born on 18/08/1992 was claiming that the agreements for sale dated 6/12/07 were null and void, being without her consent and she alongwith her husband Ganesh were disputing the right of OP No. 1/builder to execute the said agreements for sale. Admittedly, OP No. 1/builder has erected the building pursuant to license dated 15/12/2006, and, we certainly do not believe that the OP No. 1/Builder wants to keep it as an monument for posterity. In case there was any dispute within his own family, he was bound to settle it, and could have settled it by giving some of the flats to his said daughter and her husband and others to the purchasers like the complainants who had paid money to him. These are nothing but self serving statements made by OP No. 1, without producing any proof to substantiate the same, to wriggle out of the agreements of sale and to deprive the Complainants the flats booked by them and obviously with a view to sell the same, with the passage of time, at higher prices, may be double or triple, as rightly noted by the Lr. District Forum at page 5 of the impugned orders. It is not uncommon for some builders to collect money from prospective purchasers/ consumers, then complete the building at the cost of such purchasers and then create problems for them and return the money so as to sell the flats to others, which with passage of time, as common knowledge goes, fetch double or triple the price.
14. OP No. 1/builder also filed applications before the Lr. District Forum on 11/03/13 and offered to pay to the Complainants Rs. 2.6 lacs and Rs. 3.6 lacs respectively and by other applications dated 26/03/13 enclosed copies of D.Ds in the sum of Rs. 2.6 lacs and Rs. 3.6 lacs. It is not the case of the OP No. 1/builder that he sent the said DDs to the respective Complainants by registered post which they refused to accept. The record also does not show that the said DDs have been deposited by OP No. 1/builder before the Lr. District Forum so as to enable the Lr. District Forum to invest the amount in its name. Again, we find that OP No. 1/builder is only trying to take the Complainant/s and/or the Lr. District Forum for a ride by obtaining DDs for the said amounts but retaining the originals of the said DDs without making it possible to invest the amounts in the name of the Lr. District Forum.
15. The agreements for sale by virtue of Clauses 4 thereof specifically record that the sum of Rs.
2 lacs and Rs. 3.25 lacs has been paid at the time of execution of agreements, as advance being part payment towards cost of the said flats and balance amount would be paid at the time of handing over the possession of the flats. The agreements also record that the flats would be completed in February 2008. OP No. 1/builder cannot be allowed to contradict or vary or add to the said terms of the agreements of sale and to say that he had received only Rs. 3 lacs, and not Rs.3.25 lacs in the case of Complainant Satyawati as recorded in the agreement, on the principle underlying Sections 91/92 of the Indian Evidence Act. Likewise he cannot be allowed to say that the flats would be complete before the onset of monsoon. The OP No. 1/builder is bound by the terms of the said agreements and would be entitled to receive only the balance amount to be paid at the time of handing over possession of the said flats as stipulated therein. As stated by the Apex Court in Bhandari Constructions, AIR 2007 SC 1441, when the terms of an agreement are reduced to writing, no amount of evidence can be let to vary its terms.
16. The last submission made on behalf of OP No. 1 is that the agreements cannot be performed as OP No. 1/builder is unable to execute a sale deed by conveying undivided right in the property to the complainants which only the owners, now represented by their legal representative can do. To this, a submission is made, on behalf of the complainants, that OP No.1/builder should first put the Complainant/s in possession of their respective flats on payment of the balance amount and the execution of the sale deed can be seen later.
17. We have already noted that legal representatives of the deceased owners of the property, namely OP Nos. 2 & 3 are before this Commission and they can be directed that they should execute a sale deed alongwith OP No. 1/builder in favour of the complainants. However, considering the peculiar facts of this case and as there are too many legal representatives of deceased OP Nos. 2 and 3 we are not inclined to pass such an order against the legal representatives of original OP Nos. 2 & 3. OP No. 1/builder in the agreements for sale had solemnly undertaken that he had absolute authority to enter into agreements of sale of the flats alongwith proportionate share in the land, and, therefore, was bound to honor the said solemn promise, for whatever it is worth in favour of the complainants.
18. Keeping back from the Complainants the death of his principals, OP Nos. 2 and 3, the owners of the property, at the time of execution of agreements of sale, and then accepting notices on their behalf from the Lr. District Forum and then filing a written version, without disclosing that they were dead, is nothing short of a fraud played by the OP No. 1/builder, and, therefore we cannot allow him to take advantage of his own fraud.
19. For reasons aforesaid, we find there are no merits in these appeals which we proceed to dismiss with costs of Rs. 10,000/- to be paid to the complainants, in each of the cases.
[Smt. Vidhya R. Gurav] [Shri. Justice N.A. Britto] Member President /lm /sp