State Consumer Disputes Redressal Commission
Shri. Kiran A. Dabholkar, vs Smt. Deepa S. Nair, on 1 November, 2012
BEFORE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA F.A. No. 40/10 Shri. Kiran A. Dabholkar, presently residing at H.No. 95, C-5, Alto Guimares, Altinho, Panaji-Goa ..Appellant/O.P No. 2 V/s. 1. Smt. Deepa S. Nair, H.No. 826, Radha Bhavan, Zuari Nagar, Sancoale, Goa. ..Resp.No.1/Complainant 2. M/s. K.Ds Constructions, 21, Essar Trade Centre, Mapusa, Bardez, Goa. Resp. No. 2/O.P. No. 1 3. Shri. Digamber V. Shirodkar, Rukmini, Morod, Sangolda, Bardez, Goa. .Resp. No. 3/O.P. No. 3 F.A. No. 41/10 Shri. Kiran A. Dabholkar, presently residing at H.No. 95, C-5, Alto Guimares, Altinho, Panaji-Goa ..Appellant/O.P No. 2 V/s. 1. Shri. Sachin Shinde, Karaswada, Khorlim, Mapusa, Bardez, Goa ..Resp.No.1/Complainant 2. M/s. K.Ds Constructions, 21, Essar Trade Centre, Mapusa, Bardez, Goa. Resp. No. 2/O.P. No. 1 3. Shri. Digamber V. Shirodkar, Rukmini, Morod, Sangolda, Bardez, Goa. .Resp. No. 3/O.P. No. 3 F.A. No. 42/10 Shri. Kiran A. Dabholkar, presently residing at H.No. 95, C-5, Alto Guimares, Altinho, Panaji-Goa ..Appellant/O.P No. 2 V/s. 1. Shri. John Fernandes, 173/D, Bela Vista, Sangolda, Bardez, Goa. ..Resp.No.1/Complainant 2. M/s. K.Ds Constructions, 21, Essar Trade Centre, Mapusa, Bardez, Goa. Resp. No. 2/O.P. No. 1 3. Shri. Digamber V. Shirodkar, Rukmini, Morod, Sangolda, Bardez, Goa. .Resp. No. 3/O.P. No. 3 F.A. No. 43/10 Shri. Kiran A. Dabholkar, presently residing at H.No. 95, C-5, Alto Guimares, Altinho, Panaji-Goa ..Appellant/O.P No. 2 V/s. 1. Shri. Afroz Alam, S-3, 2nd Floor, Sadhana Apartments, Morod, Sangolda, Bardez, Goa. ..Resp.No.1/Complainant 2. M/s. K.Ds Constructions, 21, Essar Trade Centre, Mapusa, Bardez, Goa. Resp. No. 2/O.P. No. 1 3. Shri. Digamber V. Shirodkar, Rukmini, Morod, Sangolda, Bardez, Goa. .Resp. No. 3/O.P. No. 3 F.A. No. 44/10 Shri. Kiran A. Dabholkar, presently residing at H.No. 95, C-5, Alto Guimares, Altinho, Panaji-Goa ..Appellant/O.P No. 2 V/s. 1. Shri. Avinash Rama Hadfadkar, H.No. 88/4, Pomburpa, Porio, Bardez, Goa. ..Resp.No.1/Complainant 2. M/s. K.Ds Constructions, 21, Essar Trade Centre, Mapusa, Bardez, Goa. Resp. No. 2/O.P. No. 1 3. Shri. Digamber V. Shirodkar, Rukmini, Morod, Sangolda, Bardez, Goa. .Resp. No. 3/O.P. No. 3 F.A. No. 45/10 Shri. Kiran A. Dabholkar, presently residing at H.No. 95, C-5, Alto Guimares, Altinho, Panaji-Goa ..Appellant/O.P No. 2 V/s. 1. Shri. Suresh G. Naik, H.No. 42, Morod, Sangolda, Bardez, Goa. ..Resp.No.1/Complainant 2. M/s. K.Ds Constructions, 21, Essar Trade Centre, Mapusa, Bardez, Goa. Resp. No. 2/O.P. No. 1 3. Shri. Digamber V. Shirodkar, Rukmini, Morod, Sangolda, Bardez, Goa. .Resp. No. 3/O.P. No. 3 Appellant/O.P No. 2 is represented by Adv. Shri. N.G. Kamat. Resp. No. 1/Complainant is represented by Adv. Shri. B.D. Nazareth. Resp. No. 2 not served. Resp. No. 3 exparte. Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 01/11/2012 ORDER
[Per Justice Shri. N. A. Britto, President] All the above mentioned appeals can be conveniently disposed off by this common order.
2. They have been filed by O.P. No. 2 in the complaints and are directed against orders dated 9/9/10 of the Lr. District Forum, North Goa at Porvorim by which the complaints filed by the complainants have been allowed.
3. The parties hereto shall hereinafter be referred to in the names as they appear in the cause title in the complaint.
4. Some facts are required to be stated to dispose off these appeals.
4.1. The complainants entered into agreements for construction of flats with the firm/O.P. No. 1 (Respondent No. 2) of which O.P. No. 2 (Appellant herein) and O.P. No. 3 (Respondent No. 3 herein) are the partners. The agreements were signed on behalf of the said firm by the said two partners. The firm, O.P. No. 1, is a registered firm. As admitted by the parties, it is defunct but not dissolved.
4.2. The dates and other details of the agreements between the parties are as follows:-
Date of Agreement Flat No. Area Price Time Period Date of taking posse-ssion
1.
FA/40/10 CC/78/07 3/1/06 S4 60.48 sq.m.
3.30 lacs 18 months 22/01/07
2. FA/41/10 CC/79/07 11/5/05 F1 63.58 sq.m.
4.41 lacs 18 months 02/01/08
3. FA/42/10 CC/80/07 20/3/06 S1 63.58 sq.m.
4.6 lacs 18 months
4. FA/43/10 CC/81/07 13/4/07 S3 53.28 sq.m.
4.00 lacs 1 month 03/01/08
5. FA/44/10 CC/82/07 21/10/04 G1 51.67 sq.m.
3.06 lacs 18 months
6. FA/45/10 CC/83/07 8/2/06 F3 63.28 sq.m.
3.78 lacs 18 months 06/01/08 4.3. The complainants filed the complaints for directions to the said O.Ps to complete the construction of the suit flats in all respects, obtain and furnish occupancy certificate, permanent electricity and water connections, to undertake waterproofing of the roof, besides compensation and costs.
5. The complaints proceeded exparte against the O.Ps by order dated 7/2/08. Prior to that, notice by registered post was sent to the firm by registered post and it can be seen from postal article that the postman had visited O.P. No. 1 on about 6 occasions and found that the addressee was not known and on last date i.e 23/11/07 the postal articles was returned with the endorsement that the address was incomplete, return to sender. Thereafter efforts were made to serve O.P. No. 1 by affixation and the bailiffs report dated 13/10/08 would show that the premises were found closed as the addressee had left the place long back and as such the notice was not affixed.
The firm/O.P. No. 1 was eventually served by publication.
5.1. The postal article sent by registered post to O.P. No. 3 was returned with endorsement unclaimed return to sender on or about 23/11/07. It also carries and endorsement of Sub-Postmaster that it was received in torn and open condition. The postal article sent by registered post to O.P. No. 2(the appellant herein) also carries an endorsement of the Sub-Postmaster that it was received in torn and open condition. Here it may be noted that all the three postal articles, to the three O.Ps, were sent in brown envelopes put in a polythene paper and all the endorsement referred to hereinbefore have been made on the brown paper envelope. However, it can be seen from the last postal article of the appellant/O.P No. 2 that he was intimated on 19/11/07 and also there is a postal stamp below it. This endorsement or remark is made on polythene paper. The endorsement is clearly legible and the postal stamp is clearly visible.
6. We have referred to the above details of service as one of the submissions made by Shri. Kamat, the Lr. Advocate on behalf of the appellant/O.P. No. 2 is that the Lr. District Forum fell in error in holding that the appellant has been duly served in the proceedings of the complaint.
6.1. We shall therefore, examine whether the findings dated 2/1/08 of the Lr. District Forum that O.P. Nos. 2 & 3 were duly served is correct or not. The Lr.
District Forum had also noted on 2/01/08 that the notices sent to O.P Nos. 2 & 3 were unclaimed on 23/11/07. In our view, the said conclusion of the Lr. District Forum cannot be faulted. As far as the appellant/O.P. No. 2 is concerned, as already noted, the endorsement that he was intimated is clearly legible and the postal stamp below it is visible. In other words O.P. No. 2 having being intimated of the registered postal article chose not to claim the same. This is a case which is generally referred to as unclaimed and which is treated as good service or for that matter in the language of sub section (3) of Section 28A of the C.P. Act, this is a case of refusal to take delivery of postal article containing the notice which also has got to be considered as good service. That apart, it is not the case of O.P. No. 2, either on affidavit or otherwise, that he was not residing at the address on which the advocates notice was sent to him or for that matter the notice was sent by the Lr. District Forum. He has not even filed an affidavit to say that the postman had not at all intimated him about the registered postal article. O.P. No. 2s case therefore, that he was not duly served cannot be accepted. He was duly served and chose not to contest the complaint and raise the plea that there being an arbitration clause in the agreement/s, the complaint/s were required, by virtue of section 8 of the Arbitration and Conciliation Act, 1996, to be referred to arbitration.
It is too late in the day now to contend that the complaints ought to have been referred for arbitration. This conclusion of ours is in line with our order in Mr. Prasad K. Amonkar v/s. M/s. S.K. Land Developers, 2012 (1) CCC 163, and therefore we need not go deeper into the controversy in the light of decision of Apex Court in National Seeds Corporation (2012) 2 SCC 509, cited by Lr. Adv. Shri. Nazareth.
7. As far as non service of the firm (Resp. No. 2) before this Commission is concerned, Shri. B. D. Nazareth has referred to the provision of order 30 Rule 8 (3) of C.P.C and has placed reliance on a decision dated 28/09/07 [I (2008 BC 67] of the Lr. Debt Recovery Appellate Tribunal, Delhi in the case of Inrays vs. State Bank of India. Here the firm was served with the summons through one B.S. Kumar at the address of the firm. He had evaded service sent by registered post at his residential address. The Lr. DRAT observed as follows:
There could hardly be any irregularity when the partner of the firm Mr. B.S. Kumar received the summons on behalf of the firm and thus came to be served on behalf of the firm as well as for himself in his capacity as the defendant No. 2 and partner of the firm. As per Section 18, a partner is the agent of the firm for the purpose of the business of the firm. Section 24 of the said Act says that notice to a partner, who habitually acts in the business of the firm of any matter relating to the affairs of the firm operates as notice of the firm, except in the case of a fraud on the firm committed by or with the consent of that partner. Therefore, it hardly mattered that Mr. B.S. Kumar was arrayed in the OA as defendant No. 2 as well as in his capacity as partner of the defendant No. 1 firm M/s.
Inrays. The liability of the partners of the firm is unlimited. To say in other words, partnership is not a juristic person and the liability of the partners in relation to a partnership firm stands as if on personal footing.
7.1. The Lr. Debt Recovery Appellate Tribunal also referred to the decision of the Apex Court in Madan and Co. vs. Wazr Jaivir Chandra wherein it was observed by the Apex Court as follows:
But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressees own conduct.
If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time all that he has to do is to leave necessary instructions with the postal authorities, either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorized by him. In this situation, we have to choose the more reasonable, effective, equitable and practical interpretation and that would be to read the word served as sent by post, correctly and properly addressed to the tenant and the word receipts as the tender of the letter by the postal peon at the address mentioned in the letter.
No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.
7.2. The Apex Court in giving the said finding, was dealing with a proviso which insisted that before any amount of rent could be said to be in arrears, a notice had to be sent through post. The Apex Court further observed:
All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenants correct address. Once he does this and the letter is delivered to the Post Office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post Office the letter is to be delivered to the addressee or a person authorized by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal, be treated as a service on and receipt by the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorized to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make inquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is riot authorized to affix the letter on the premises because of the assessees absence.
His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order V of the CPC. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the Post Office can play in such a task.7.3. Shri. Kamat would submit that O.P. No. 2
was not described as a partner of the firm in the cause title and therefore any service on him, was done in his individual capacity and not as a partner of the firm O.P. No. 1. We are not impressed with this submission. Both the partners, O.P. No. 2 and 3 were arrayed alongwith the firm O.P. No. 1 and were described as partners in para 1 of the complaint.
Therefore the notice to them can be considered as notice on partners as well as on the firm.
7.4. Shri. Nazareth also placed reliance on Dena Bank v/s. Refrigeration and Air Conditioning (2000 (56) DRJ 599) wherein it was stated as follows:
8. In Topanmal Chhotamal Vs. M/s. Kundomal Gangaram & Ors., the Supreme Court on examination of Order 21 rule 50(1) and Order 30 rule 3 summed up the law on the subject and held as follows:-
The gist of the said provisions may be stated thus; A decree against a firm can be executed:
(i) against the property of the partnership , (ii) against any person who has appeared in the suit individually in his own name and has been served with a notice under Rule 6 or 7 of Order XXX of CPC, (iii) against a person who has admitted on the pleadings that he is or has been adjudged a partner, or (iv) against any person who has been served with notice individually as a partner but has failed to appear. The decree against the firm can be executed against the personal property of such persons.
The Supreme Court in Gajendra Narain Singh Vs. Johrimal Prahlad Rai observed that where a defendant is served as partner and he appears without protest, his appearance must deemed to be on behalf of the firm. It was held:-
Where a person is served with summons as a partner of the de-fendant firm and he files an appearance without protest, his appearance must be deemed to be on behalf of the firm. And unless the Court permits him to withdraw the appearance initially filed, it continues to be an appearance under Rule. 6 of Order. 30 on behalf of the firm.
7.5. Considering that both the partners are before us, though one exparte, no separate notice need be given to the firm (Resp. No. 2).
8. The O.P. No. 2 vide applications dated 7/8/12 has produced certain documents on record. No doubt, O.P. No. 2 ought to have contested the complaint and produced the said documents before the Lr. District Forum. Ordinarily, the O.P. No. 2 having had an opportunity to produce the said documents, before the Lr. District Forum, and having not availed of the same would have been precluded from producing the documents at the appellate stage. Nevertheless, we cannot forget that we are in a jurisdiction which is less adversorial and more inquisitorial. At the outset we must note that the letter dated 22/01/07 produced by the complainant herself in C.C. No. 78/07 shows that she had taken possession on the same day without any murmur or demur. The aforesaid documents would show that the O.Ps had obtained a occupancy certificate from the concerned Village Panchayat on or about 13/12/07 (i.e after filing of complaints). It is submitted that it was applied for before the filing of the complaints. The said documents would also show that each of the complainants had obtained NOCs from the Village Panchayat to obtain electricity connection on or about 16/01/08. The documents also show that three of the complainants (in C.C. Nos. 79/07, 81/07 & 83/07 had taken possession of the flats on or about 2nd, 3rd & 6th January 2008 and after certifying that each of them had inspected the flats and were satisfied with the workmanship. The case of the other two complainants could not have been different and we assume that in like manner they had also taken possession of their respective flats after inspecting the flats and being satisfied with the workmanship. The complainants in C.C. Nos. 79/07, 81/07 and 83/07 also paid house tax and light tax on or about 18th and 21st April 2008 except complainant in C.C. No. 79/07 who paid such tax on 04/08/09 and yet the complainants instead of fairly stating in their Affidavits in evidence filed in the year 2009 the date on which they took possession of their respective flats, reiterated that with a view to absolve themselves, the opponents have permitted the complainant to use his flat without electricity, water and housed him as cattle. The Complainants have thereby indulged in suppressing the truth and suggesting falsehood (Suppressio veri, suggestio falsi). Nobody is expected to repeat in parrot like fashion what is in the complaint, in the affidavit in evidence. Affidavits have got to be sworn with a sense of responsibility. The complainants have not produced any photographs of the interior of their flats but have produced photographs of the external condition of the building which would only suggest that as far as the interiors of the flats are concerned there is nothing required to be done and the complainants after having been satisfied that the flats were complete in all respects that they had accepted the possession. The affidavits in evidence were filed by the complainants on 16/09/09 or thereabout and by then, the complainants had not only taken possession of suit flats but had electricity and water facilities provided. As on today it is fairly conceded that the complainants have no grievance on those aspects. If at all there are any defects or deficiencies which remain they are in respect of the items specified in para 20 of the complaints.
9. Consumer jurisdiction under C.P. Act, 1986 is a summary jurisdiction. In all summary jurisdictions including applications for temporary injunction, before Civil Courts, writ jurisdiction, etc. suppression of material facts is fatal to the party approaching the Court. That itself is sufficient to show the door to the party approaching the Court, without going to the merits of his case.
9.1. The National Commission in Atlanta Arcade Premises Co.op. Society Ltd., 2012 (1) CCC 138 has observed that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, go on filing meritless petitions in different foras. Time and again courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold.
9.2. In Tarachand Kosle v/s National Aviation (2012(2)CPR 104) the Chhattisgarh State Commission has held that principles of natural justice demand that everyone should come before District Forum with clean hands stating bonafidely, every fact without any concealment. If any concealment of material fact is found on the part of any party, then such party cannot be granted any discretionary relief under the provisions of C. P. Act, 1986.
10. Why did the Complainants indulge in suppressing the truth and suggesting falsehood?
Clause 13 of the agreement provides the answer. It reads as follows:
13. That on a possession of the Flat premises being given to the Flat holder, he/she shall have no claim whatsoever against the First Party/Developer in respect of any item of work which may be alleged not to have been carried out or completed.
10.1 Moreover, clause 25 of the agreement between the parties provides that the flat holder shall from the date of possession maintain the said flat at his or her costs in a good tenantable, repair and condition and shall not do anything in or to the said building or the flat or the staircase and the common passage or compound wall which may be against the rules or the by laws of the municipality/Panchayat or any other authority.
11. Complainant/s did not take possession of their flats subject to the result of the Complaint/s. It was not conditional. Clause 13 of the agreement would now preclude the complainant/s from getting any work done from the O.Ps which was not carried out or completed and that would include some of the works enumerated in para 20 of the complaint/s including water proofing, sought for by virtue of prayer (iv) of the complaint and which has been taken care of by the Complainant/s themselves as seen from photograph No. 7. On behalf of Complainant/s reference is made to Ghaziabad Development Authority vs. Gurdutt Pandey (decided by the National Commission on 21/08/02) and it is submitted that dispute could be raised after possession is taken if latent deficiency is noticed thereafter. In our view, this decision is inapplicable to the facts of this case because of clause 13 of the agreement and moreover these are not cases of latent deficiencies being noticed after taking of possession. It is fairly conceded on behalf of the complainant/s, that construction of the compound wall was not one of the works contemplated under the agreement.
12. Shri. N. G. Kamat, the Lr. Advocate on behalf of the Appellant/O.P No. 2 by referring to the impugned order/s has made a feeble attempt to say that the O.Ps have not received the entire consideration. For example in the case of Mrs. Deepa S. Nair in C.C. No. 78/2007 it was observed by the Lr. District Forum that out of Rs. 4.7 lacs the complainant had produced receipt only of Rs. 3 lacs. The submission of Shri. Kamat is that the balance is yet to be paid.
12.1.
We are not inclined to accept the submission of Lr. Adv. shri. N.G. Kamat. Firstly, there is no whisper in the memorandum of appeal that there was any balance left to be paid by any of the complainants to the O.Ps. Moreover, the O.Ps would not have handed over the possession of the respective flats to the complainant/s unless the O.Ps had received the entire consideration. That apart, the memorandum of appeal/s shows that the grievance of the O.P. No. 2 is only regarding the quantum of compensation and costs. Nothing more.
13. We were told that in the building/project constructed by the O.Ps there are in all 16 flat holders and six shops holders out of which only 6 flat holders are before us. As per clause 30 of the agreement, on receipt of the full amount of the flat/shop the O.Ps were to assign, transfer and convey all the rights title and interest in the ownership of the plot to the respective purchasers in proportion to the super built up area of the flat/shops excluding the area covered by the road, access through the said plot which would be exclusively belong to the O.P./Developer. Clause 39 contemplated that the O.P./Developer would assist all the flats/shops holders in forming a Co-operative Society, limited Company, association of persons or such other entity for owning and/or maintaining the said plot in case the developer so decides or desires. During the pendency of these appeals and with a view to facilitate the transfer of the flats/shops sixteen flat holders held a meeting on 14/12/12 and passed a resolution for formation of a Co-operative Society consisting of all the flat and shop owners for the management of the building as well as the property surveyed under no. 109/1 of Village Sangolda. An adhoc Committee has been elected. A copy of the resolution is placed on record by application dated 18/10/12. However, what is pointed out on behalf of the O.P. No. 2, by Shri. Kamat is that the complainant/s in their complaint/s did not seek any relief of execution of sale deed/s in their favour or in favour of a Co-operative Society to be formed by them alongwith others and therefore such a relief could not be granted to the complainant/s in an appeal filed by the O.P. No. 2 without the said complainant/s filing any appeal.
14. We are entirely in agreement with the submission made on behalf of the Appellant/O.P. No. 2 by Shri. N. G. Kamat. As on the date the Complaint/s were decided, the Complainant/s had possession of the suit flat/s duly completed, occupancy certificate, permanent electricity and water connections, and therefore, there was no question of granting reliefs in terms thereof to the Complainant/s as otherwise done by the Lr. District Forum. The Complainant/s had not sought any relief in terms of clauses 30 or 39 of the agreement. Relief in terms of prayer (iv) was not granted to the Complainant/s. We have already concluded that the complainants having taken possession of the flats would not be entitled to this relief or to get the balance of works carried out by the O.Ps by virtue of clause 13 of the agreement. The Lr. District Forum has directed compensation and costs of Rs. 25,000/- to be paid to each of the complainants which we are inclined to reduce to only cost of Rs. 5000/- in view of the conduct of the Complainant/s in suppressing the truth in their affidavits in evidence. There is no relief granted to the complainants in terms of execution of a sale deed in favour of the complainant/s or the Society to be formed by the Complainant/s or other flat/shop holders apart from the fact that such relief was also not sought for by the complainants in their complaint specifically. In the absence of any appeal filed by the complainants, no relief of execution of sale deed in terms of clause 30 of the agreement can be granted in their favour; and so also in terms of clause 39. That apart, relief in terms of clause 39 was subject to the consent of the O.Ps one to whom is not before the Commission and the other has shown reservation by virtue of application dated 23/10/12.
15. For the aforesaid reasons we allow the appeal/s partly and modify the impugned order/s dated 09/09/10 as a result of which the O.Ps would now be required to pay to the complainant/s only the cost of Rs. 5000/- in each case. Parties to bear their own costs of these appeals.
[Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto] Member President