National Consumer Disputes Redressal
Udaykumar vs Ajaykumar Singh & Anr. on 7 February, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1342 OF 2015 (Against the Order dated 21/02/2015 in Appeal No. 41/2014 of the State Commission Maharashtra) 1. UDAYKUMAR S/O VASANTKUMAR BETHARIA, RESIDENT OF 150, CIVIL LINES, AMRAVATI ROAD NAGPUR TEL. NAGPUR MAHARASHTRA ...........Petitioner(s) Versus 1. AJAYKUMAR SINGH & ANR. S/O SHRI MATHURAPRASAD SINGH OCCUP : PRIVATE SERVICE, R/O 23, BAJI PRABHU NAGAR, TAUKA AND DISTT: NAGPUR NAGPUR - 440033 MAHARASHTRA 2. M/S J.B. CONSTRUCTION THROUGH SHRI PARMANAND C. ROHERA, R/O 205-A, CEMENT ROAD DHARAMPETH EXTENSION, SHIVAJI NAGAR, NAGPUR-440033 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. S.K.Sharma, Advocate with
Mr. S.B.Salot, Advocate For the Respondent : For the Respondent No.1: Mr. C.B.Gururaj, Advocate
Mr. K.P.Singh, Advocate
For Respondent No.2 : Mr. Abid Jeelani, Proxy counsel
Dated : 07 Feb 2020 ORDER
REVISION PETITION NO.1272 OF 2015
1. This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986, whereby the petitioner herein seeks to assail the order dated 21.02.2015 passed by the Maharashtra State Consumer Disputes Redressal Commission, Nagpur Circuit Bench, Nagpur (in short, the State Commission) in First Appeal No. A/10/42 (Kamalprasad Singh Bahadur Singh Vs. J.B. Construction & Anr.). By way of the impugned order, First Appeal No. A/10/42 was allowed and the order dated 26.11.2009 passed by the Additional District Consumer Disputes Redressal Forum, Nagpur (in short, the District Forum) in Complaint No. 218/2009 was set aside and complaint was partly allowed.
2. Succinctly put, the facts relevant for the disposal of this revision petition are that the respondent No.2/opposite party No.1 was a builder and developer of the land. Opposite party No. 2/petitioner herein was the land owner. An agreement of development dated 05.12.1985 was entered into between the parties. As per the Agreement, the opposite party No.2/petitioner herein was entitled to get 14 shops on the ground floor and the residential flats which were to be constructed on the upper floors were to be sold by opposite party No.1 to prospective purchasers after accepting consideration thereof and the said builder/developer and land owner would execute the sale deed in respect of those flats in favour of the prospective purchasers. The complainant, namely Mr. Kamalaprasad Singh entered into agreement of sale with opposite party No.1/respondent No.2 herein to purchase flat for Rs. 2,90,000/-. It was the case of the complainant that despite payment of the entire sale consideration of the flat and despite delivery of possession, the sale deed in respect to the flat has not been executed in favour of the complainant. Aggrieved, consumer complaint was filed before the District Forum.
3. Upon service of notice, written statements were filed by the opposite parties. Opposite party No.1 contended that previous complaint bearing Consumer Complaint No. 276 of 1997 filed by the Association of flat owners was dismissed by the District Forum vide order dated 02.12.1999 and therefore the present complaint was not maintainable. It was further contended that the possession has been already handed over, however, opposite party No.2/landowner was avoiding to execute the sale deed. It was submitted that opposite party No.2/landowner has filed a civil suit and the matter is subjudice. On these grounds, it was prayed that the complaint may be dismissed against it. Opposite party No.2 contested the maintainability of the complaint on the ground that there is no relationship of service provider and consumer between him and the complainant. It was submitted that a public notice was published in the newspaper on 22.09.1989 informing the general public that Power of Attorney issued in favour of opposite party No.1/builder has been revoked and none should make any transaction with opposite party No.1. It was further submitted that since a civil suit is pending, the present complaint may be dismissed.
4. The District Forum vide order dated 26.11.2009 dismissed Consumer Complaint No. 218/2009 on the ground that the case regarding the property was pending before the Civil Court.
5. Aggrieved by the order dated 26.11.2009 passed in Consumer Complaint No. 218/2009, the complainant preferred First Appeal No. A/10/42 before the State Commission. Further facts are mentioned in the RP No.1342 of 2015 below.
REVISION PETITION No. 1342/2015
6. Challenge in this revision petition is to the order dated 21.02.2015 passed by the State Commission in First Appeal No. A/14/41 (Uday Kumar Vs. Ajaykumar Singh & Anr.). By way of the impugned order, the order dated 23.12.2013 passed by the District Forum in Complaint No. 668/2008 was upheld.
7. The facts involved in the present case are similar to Revision petition No. 1272 of 2015. The main controversy involved in the present revision petition is that complainant, namely Mr. Ajaykumar Singh, despite having paid the entire sale consideration of Rs. 1,85,000/-, failed to get the sale deed executed. Complaint was filed before the District Forum.
8. The District Forum vide order dated 22.06.2009 dismissed the complaint. Against the said order of dismissal, the complainant preferred Appeal No. 567/2009 before the State Commission and vide order dated 27.07.2011, the matter was remanded to the District Forum for reconsideration/rehearing. Aggrieved, opposite party No.2/the petitioner approached this Commission by way of a revision petition and vide order dated 06.03.2013, this Commission directed that the complaint be disposed of within stipulated period as per the orders of the State Commission. Thereafter, the District Forum vide order dated 23.12.2013 partly allowed the complaint and held as follows:-
"1. The Opposite Party no.2 is directed to execute and register the Sale Deed in favour of the Complainant pursuant to the agreement dated 26.09.1987, in respect of the Flat No. A-103 and the proportionate share pertaining to the flat, in the total undivided share of the land on which the flat is constructed, and the Opposite Party no.1 is directed to fulfill all the requirements regarding the documents and to sign as Consenting Party on such a Sale Deed and also to execute and register the Deed of Declaration.
2. The Opposite Party no.1 and Opposite Party no.2 are directed to jointly and severally pay an amount of Rs. 20,000/- to the Complainant for the physical and mental agony suffered and Rs. 5,000/- towards the costs of the complaint.
3. The order should be complied with within one month of the receipt of this Order.
4. The copy of the said Order shall be given free of cost to the complainant, Opposite Party no.1 and Opposite Party no.2".
9. Aggrieved by the order dated 23.12.2013 passed in Consumer Complaint No. 668/2008, opposite party No.2 preferred First Appeal No. A/14/41.
Subsequent Common Facts:
10. The State Commission vide common order dated 21.02.2015 disposed of both appeals, i.e. First Appeal No. A/10/42 and First Appeal No. A/14/41 in the following terms:-
" ORDER
1. The appeal No. 42 of 2010 filed by original complainant Mr. Kamal Prasad Singh against the order dated 26/11/2009 passed in complainant No. 218 of 2009 is allowed and the said impugned order dated 26/11/2009 is set aside and the said complaint bearing No. 218 of 2009 is partly allowed.
2. The OP Nos. 1 and 2 in complaint No. 218 of 2009 shall execute registered sale deed of the flat No. 301 of Asha Laxmi Apartments in favour of the complainant Mr. Kamal Bahadur Singh. The said complainant shall bear expenses of said sale deed.
3. The OP Nos. 1 and 2 in that complaint No. 218 of 2009 jointly and severally shall pay to the said complainant in that complaint, compensation of Rs. 20,000/- towards physical harassment and mental agony and cost of Rs. 5,000/-.
4. The appeal No. 41 of 2014 filed by original OP No.2 Mr. Udaykumar Basantkumar Bethariya is hereby dismissed. No order as to cost in the said appeal.
5. Copy of this order be furnished to both the parties, in both the appeals, free of cost".
11. Aggrieved by the said order, these revision petitions i.e. R.P. Nos. 1272/2015 and 1342/2015, have been filed before this Commission.
Hearing of Parties:
12. As the grievance of the complainants are same in both the revision petitions and issues involved are also the same, they are being decided together.
13. Heard the learned counsel for the parties and perused the record.
14. The learned counsel for the petitioner stated that respondent in RP No.1272 of 2015, Kamlaprasad Singh had earlier filed a complaint, which was dismissed by the District Forum and the complainant has filed the consumer complaint No.218 of 2009 before the District Forum, which was not maintainable as no liberty was granted to the complainant to file fresh complaint on the same cause of action. Thus, the District Forum should not have entertained this complaint and the order of the District Forum as well as the State Commission in this case are totally illegal and are required to be set aside.
15. It was further argued by the learned counsel that the development agreement was signed with the builder only and the complainants were not a party in the development agreement. Hence, the petitioners do not have any privity of contract with the complainants. He further stated that as per Clause 21 of the development agreement dated 05.12.1985, the petitioner was not to execute any sale deed relating to the undivided proportionate share including that of land until the possession of 14 shops on the ground floor was given to the petitioner. As the possession of 14 shops was not given to the petitioner by the builder/respondent No.2, there is no question of executing any sale deed wherein undivided proportionate share of the land is to be conveyed.
16. It was further submitted by the learned counsel for the petitioner that the builder did not construct building as per approved plan and therefore, the petitioner filed a civil Suit No.70/1989 before the Senior Civil Judge, Nagpur against builder and Civil Judge Senior Division has ordered as follows:-
'1. The application is partly allowed.
2. The defendants are hereby restrained temporarily from carrying out unauthorized construction contrary to the sanctioned plan and to the agreement dated 05/12/1985, till the disposal of the suit.
3. They are further temporarily restrained from stacking building materials in front of the shops on the ground floor in possession of the plaintiff, till the disposal of the suit.
4. Rest of the prayer of the plaintiff is hereby rejected."
17. Learned counsel for the petitioner stated that inspite of the injunction order, the builder has sold the flats to the complainants and State Commission has ordered the sale deed to be executed in these two cases which is in total disregard to the order dated 29.04.1989 of the Senior Civil Judge and in contravention of the provision of Clause 21 of the development agreement dated 05.12.1985. The petitioner has given an application for impleadment of the complainants in the suit. Apart from this, the petitioner filed another Civil Suit No.459 of 2013 wherein all the complainants have also been made party along with builder. Though this suit has been stayed vide order dated 19.08.2014 of Jt. Civil Judge Senior Division, Nagpur, but the suit is not dismissed. Hence, until this suit is pending no order can be passed on the execution of the sale deed.
18. On the other hand, learned counsel for the respondent No.1/complainants stated that as per the development agreement dated 05.12.1985 the developer had full authority given by the petitioner to develop and sell the property in upper floor except on the ground floor where 14 shops were to be built and were to be handed over to the petitioner. As per this agreement, the builder/respondent No.2 has sold the flats to different purchasers and two of the complainants are involved in these two revision petitions. In both the cases, the builder is ready to execute the sale deed. However, the undivided proportionate share of land is to be conveyed by the petitioner/land owner and therefore, his consent and signatures are also required for the sale deed. As the complainants have given all money to the builder and builder has the sole authority to sell these flats, the complainants are entitled to get the sale deed registered in their favour. The Complainants cannot suffer by the inter-se dispute between the builder and the land owner. When the land owner has given power of attorney to the builder to sell the flats, the land owner cannot object to such sale and cannot deny the execution of the sale deed on any ground. The complainants are not party in the Civil Suit No.70/1989 and any order passed in that suit is not binding on the complainants. The other Suit No.459 of 2013 has already been stayed vide order dated 19.08.2014 of Jt. Civil Judge Senior Division and therefore, this suit is of no consequence in the present matter.
19. The learned counsel appearing on behalf of respondent No.2 stated that the builder is ready to execute the sale deed as per the order of the State Commission. He further stated that he does not have any knowledge about the final order passed in the civil suit. As per the development agreement dated 05.12.1985, the builder was given total authority to construct and to sell all the upper floors and accordingly the flats have been sold by the builder and there is no illegality in this sale. The builder is duty bound to execute the sale deed, however, the builder is not getting cooperation from the land owner/petitioner though he is also duty bound to convey the undivided proportionate share in the land to the complainants in the sale deed.
Discussion and conclusion:
20. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined all the material available on the record. Both the revision petitions have been filed against the order of the State Commission, wherein the State Commission has ordered the petitioners to execute the sale deed along with builder in favour of the complainants. The objection of the petitioners against the execution of such sale deed is mainly based on the following grounds.
(i) That the builder has not complied with Clause 21 of the development agreement dated 05.12.1985, which reads as under:-
"21. It is further specifically agreed between the parties hereto that the Party No.1 shall not execute any sale deed relating to any of the undivided proportionate share and interest in the said plot in favour of any of the prospective buyer of the flats of the Party No.2, as the case may be, until all the 14 (fourteen) shops consisting of the ground floor are completed in all respects by the Party No.2 and delivered possession of the same in vacant conditions to the Party No.1 along with the Storm Water drain laid and completed with water intake chambers as per condition II."
It has been argued that as per this Clause petitioner cannot convey undivided proportionate share in land until builder completes and hands over the possession of 14 shops on the ground floor to the petitioner.
(ii) In the light of the injunction order passed by the Civil Court in civil suit no. 70/1989, the construction itself would not have proceeded and there was no question of allotment and sale of the flat by the builder.
(iii) As the Suit No.459 of 2013 is still pending wherein the complainants have also been made party, no order can be passed in respect of execution of sale deed in favour of the complainants.
21. It is seen that in respect of the complainant Ajaykumar Singh, two agreements were signed. The first agreement is dated 26.09.1987, which is agreement to sell and this is a tripartite agreement between the complainant and both the opposite parties i.e. the builder/respondent No.2 and the land owner/petitioner herein. The second agreement was the construction agreement, which has been signed between the complainant and the builder/respondent No.2 and is also dated 26.09.1987. As the agreement to sell has been signed by the land owner/petitioner herein also, he has no right to refuse the execution of the sale deed when all the money has been paid to the builder and the builder is ready to execute the sale deed. Thus, none of the objections raised by the petitioner in RP No.1342 of 2015 Shri Udaykumar Vs. Shri Ajaykumar Singh & anr. can be sustained. Accordingly, I do not find any merit in the RP No.1342 of 2015, Uday Kumar vs. Ajaykumar Singh & anr. and the same is liable to be dismissed.
22. Now coming to RP No.1272 of 2015 Nutan Kumar Vasantkumar Betharia Vs. Kamlaprasad Singh & anr., the objections raised by the petitioner mentioned above are required to be considered as there is no tripartite agreement as in case of Mr. Ajaykumar Singh.
23. So far as the question of Suit No.70 of 1989 and Suit No.459 of 2013 is concerned, the parties were asked to submit the status of these suits. Learned counsel for the petitioner has submitted that both the suits are pending before the civil court, however, learned counsel for the respondents have stated that Suit No.70 of 1989 has already been disposed of and Suit No.459 of 2013 is stayed on the basis of the decision of the State Commission in the present matter. Originally also, Suit No.459 of 2013 was stayed from the beginning as the similar Suit No.70 of 1989 was proceeding before another competent civil court. Even though the learned counsel for the respondents has stated that Suit No.70 of 1989 has been disposed of, no order of disposal has been placed on record.
24. Learned counsel for the appellant has argued that Suit No.459 of 2013 is pending before the civil court and the complainants are also party in that civil suit, therefore, the matter in the consumer forum cannot be decided until the civil suit is decided. It is seen that right from filing of the civil Suit No.459 of 2013, this suit was stayed as a similar Suit No.70 of 1989 was already proceeding in the case. Now, the civil Suit No.459 of 2013 is again stayed on the basis of the order dated 21.02.2015 passed by the State Commission as stated by respondents. Thus, clearly, no order has been passed in civil Suit No.459 of 2013 and therefore, there is no binding of this suit on the complainants as on today. Moreover, Consumer Protection Act, 1986 has been enacted to provide better protection to the consumers. The complainants who are the consumers are unnecessarily suffering due to dispute between the land owner and the developer/builder. Clearly, complainants cannot be allowed to suffer on the basis of some dispute between the land owner and the developer/builder, therefore, a decision in the matter can be taken on merits in the consumer forum.
25. As the petitioner has signed the tripartite agreement with the complainant Ajaykumar Singh, the petitioner cannot claim that there was an injunction passed by the civil court for the construction, in the other complaint case of Kamalprasad Singh. The main issue is whether clause 21 of the development agreement has been violated by respondent No.2 the developer. The injunction order passed in suit No.70 of 1989 clearly states that "They are further temporarily restrained from stacking building materials in front of the shops on the ground floor in possession of the plaintiff, till the disposal of the suit." This implies that the possession of the shops on the ground floor was with the petitioner herein when the injunction order was passed. Thus, if possession of shops on the ground floor was already given to the petitioner/land owner, there was no bar for transfer of flat of his share by the developer builder and petitioner is obliged to approve the transfer of proportionate share of the land to all the flat purchasers. Thus, the objection of the petitioner is baseless.
26. Based on the above discussion, I do not find any merit in both the revision petition nos.1272 of 2015 and 1342 of 2015 and the same are dismissed.
...................... PREM NARAIN PRESIDING MEMBER