State Consumer Disputes Redressal Commission
D.R.Developers vs Ku.Vaishnavi D/O Mohan Gaoushettiwar on 20 March, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/12/411 (Arisen out of Order Dated 07/04/2012 in Case No. cc/100/2011 of District Wardha) 1. D.R.Developers R/o.Near Bank Of Baroda,Indira Market Road,Wardha,Dist-Wardha Wardha 2. Rajendra s/o Champalalji Fattepuria Near Bank Of Baroda,Indira Market Road,Wardha,Distt-Wardha Wardha 3. Dinesh s/o .Harilal Mehata R/o.Nirmal Bakery Road,Wardha,Distt-Wardha Wardha ...........Appellant(s) Versus 1. Ku.Vaishnavi D/o Mohan Gaoushettiwar R/o.Sai Mandir Road,Wardha Wardha ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Mr S S Pandit, Advocate For the Respondent: Mr B A Thakare, Advocate Dated : 20 Mar 2018 Final Order / Judgement Per Mr B A Shaikh, Hon'ble Presiding Member
1. This appeal is filed by the original opposite party Nos.1, 2 & 3; feeling aggrieved by the order dtd.07.04.2012, passed by District Consumer Forum, Wardha in consumer complaint No.100/2011, by which the complaint has been partly allowed.
2. The case of the original complainant, who is hereinafter referred to as respondent, in brief is as under.
a. The appellants are indulged in activities of development of land by getting converted from agriculture to non-agriculture use and then to sell the plots of the developed lands to the prospective purchasers. The appellants developed one land described in the complaint and demarcated 105 plots in that land and offered them to general public for sale. The appellants also distributed pamphlets and thereby called the offers from public for purchasing the plots. The terms & conditions of the said offer are also given in the said pamphlet.
b. The respondent wanted to purchase one plot admeasuring 1650 sq.ft. from that scheme. The appellants made her member of that scheme. The respondent as per condition of the appeals paid the price of the plot in instalments. However, the representative of the appellants did not issue receipts regularly, but he issued consolidated receipts of sometimes six months and sometimes two months.
c. The respondent paid last 30th instalment to the appellants and requested to the appellants for execution of registered sale-deed in her favour. However, the appellants avoided to execute the same and said that the lay-out plan is not still sanctioned by competent authority and after getting said sanction, sale-deed will be executed. However, thereafter, the appellants did not give intimation to her about getting layout sanctioned.
d. Therefore, the respondent served legal notice dtd. 13.06.2011 to the appellants requesting them to execute the sale-deed within seven days. They did not execute the sale-deed after receipt of the notice and they also did not give reply of the same. Hence, the respondent filed consumer complaint before the Forum below, seeking direction to the appellants to execute the sale-deed of that plot in her favour and also to pay her compensation for mental harassment.
3. The appellants appeared before the Forum below and filed their common reply and thereby resisted the complaint. Their case in brief is as under.
a. It is admitted that the respondents are indulged in activities of development of land in the name as D R Builders and they also sell the plots of land after development. It is admitted that the respondent is made member of the scheme, but she did not pay instalments regularly. It is denied that the representative of the appellants issued consolidated receipts of two months or six months to the respondent about payment of instalments.
b. It is not disputed that last instalment was paid on 07.10.1998. Therefore, the complaint ought to have been filed within two years from that date. But it is not filed within two years. Thus there is long delay in filing of complaint and hence it is barred by limitation.
c. There is no agreement in writing showing plot number and the layout of that plot. Therefore, the respondent does not fall within the definition of "consumer" given under Consumer Protection Act, 1986.
d. The appellants had informed the respondent and her father that agreement was entered into between the appellants and land owner in the year 1996 and sale-deed of the same was obtained on 25.01.2000 by the appellants and thereafter land was converted for non-agricultural use on 30.08.1995 and the respondent and her father was shown the layout map as sanctioned. The sale-deeds of the plots of that layout have been already executed in favour of the members of that scheme in the months of March, July & December of the year 2000. Therefore, it is denied that the appellants avoided execution of sale-deed on the ground that the layout plan was not sanctioned.
e. The appellants have not rendered deficient service to the respondent. Hence, it was prayed by the appellants that complaint may be dismissed
4. The Forum below after hearing both parties and considering evidence brought on record, held that the respondent is a consumer of the appellants and that the complaint is within limitation and appellants rendered deficient service to her by not executing sale-deed of the plot in her favour. Therefore, the Forum below directed the appellants to execute the sale-deed of the plot in her favour within 30 days of receipt of copy of that order or if for some reasons it is not possible for the appellants to execute the sale-deed then they shall pay price of the plot as per rate of government ready reckoner as on 07.04.2012, to the respondent within 30 days from the date of receipt of copy of that order and in case of default, the said amount will carry interest @ 9% p.a. The Forum below also directed the appellants to pay to the respondent compensation of Rs.10,000/- for physical & mental harassment and litigation cost of Rs.2,000/-. The Forum below also directed that the Sub-Registrar of Stamp Duty, Wardha to provide price of the said plot as per government ready reckoner as on 07.04.2012.
5. Thus, feeling aggrieved by the said order, the original opposite parties have filed this appeal. We have heard Advocate Mr S S Pandit appearing for the appellants and Advocate Mr B A Thakare appearing for the respondent. We have also perused the entire record & proceedings of the appeal.
6. The learned advocate of the appellants submitted that last instalment was paid on 07.10.1998 and the complaint was filed on 03.10.2011 and thus there is delay of more than 11 years in filing of complaint. Secondly, the respondent ought to have filed civil suit before Civil Court for Specific Performance of Contract or for alternate relief and the complaint before the Forum is not maintainable as they have not rendered deficient service to the respondent. Alternatively, he submitted that the original complainant / respondent herein purchased the plot for commercial purpose, she does not fall within the definition of "consumer" given in Section 2(i)(d) of Consumer Protection Act, 1986 and on these grounds the complaint deserves to be dismissed.
7. The learned advocate of appellants further argued that the Forum below has not considered all these material aspect of the case and passed erroneous order, which needs to be set aside. He relied on the decisions in the following cases.
i. Arvind Pundlik Dhamne Vs. Raghuveer Wamanrao Joshi, RP No.3970/2013, decided by Hon'ble National Commission on 20.05.2014.
In that case, it is held by the Hon'ble National Commission that both the complaints filed by the complainants were time barred and not also maintainable under the Consumer Protection Act, for sale of land simpliciter and therefore the consumer complaints were dismissed.
ii. Ganeshlal Vs. Shyam in Civil Appeal No.331 of 2007 decided by Hon'ble Supreme Court on 26.09.2013.
In that case, the Hon'ble Supreme Court accepted the legal submission made on behalf of the appellants that where a sale of plot of land simpliciter is concerned, the same is not covered under the Consumer Protection Act.
8. On the other hand, the learned advocate of the respondent submitted that in the present case dispute is not relating to sale of the plot simpliciter, but it is actually relating to hiring services of builder and developer of the land, who developed the land and obtained layout plan of land duly sanctioned from competent authority and then sold those plots to various other persons. Therefore, he argued that the complaint is maintainable under Consumer Protection Act, 1986. He also submitted that the complaint is not barred by limitation since the respondent / original complainant paid full consideration of the plot and cause of action is continuous for filing complaint. He further submitted that the Forum below has considered all legal and factual aspects of the case properly and passed the correct order. He, therefore, requested that the appeal may be dismissed.
9. After considering material placed before us, we find substance in the aforesaid submission of the learned advocate of the respondent herein. It is not disputed that the appellants are indulged in the activity of development of land by getting layout plant of the land sanctioned by a competent authority and by demarcating the various plots in the said land as per plan and then selling the same to the prospective purchasers. This is not the case of sale of the plot simpliciter. The aforesaid decisions in the cases of Arvind Dhamane Vs. Raghuvir Wamanrao Joshi and Ganeshlal Vs. Shyam, relied on by the appellants are not application to the present case since these cases there was no element of hire of services of any person about development of land, whereas, in the instant case the services of appellants are hired by the respondent. Therefore, the aforesaid decisions are of no assistance to the appellants.
10. So far as the question of limitation is concerned, we find that respondent already paid full consideration of the plot to the appellants and therefore, cause of action for filing of the complaint is continued.
11. The Hon'ble National Commission in the case of Haryana Urban Development Authority & Ors. Vs. Tej Refrigerator Industries, 2012(4) CPR, 230 (NC), found that the development work stood completed in the year 1998-1999 and the plot was resumed before completion of full development of the area and hence held that since plot was not given to the petitioner and his money was also not returned, the cause of action is continued.
12. The aforesaid decision of Hon'ble National Commission is applicable to the facts & circumstances of the present case. We, therefore, find no substance in the submission of learned advocate of the appellants that complaint is barred by limitation. We also find that the appellants neither refunded the amount received from the respondent nor terminated the contract by issuing any notice to the respondent. The respondent filed copies of receipts about payment made to the appellants towards full consideration of the plot. The said documents show that the respondent is given membership No.64 in respect of plot admeasuring 1650 sq. ft. Therefore, it is incumbent on the appellants to provide plot admeasuring 1650 sq.ft. under the layout plant duly sanctioned by competent authority out of the land described in the complaint.
13. Moreover, no such complicated questions of law & facts are involved in present case for relegating the parties to Civil Court for adjudication of the dispute. Therefore, the Forum below has rightly entertained the complaint.
14. Thus, for the foregoing reasons, we find that the Forum below has properly considered the legal and factual aspects of the case and rightly passed the impugned order. We find no merit in this appeal and hence it deserves to be dismissed.
ORDER i. The appeal is dismissed. ii. No order as to costs in this appeal. iii. Copy of the order be furnished to both parties free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER