State Consumer Disputes Redressal Commission
Narendra Bhiku Kerkar vs Narayan Bhikaji & Others on 15 July, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI- GOA
FA No. 64/2014
Shri. Narendra Bhiku Kerkar,
Major, S/o. Bhiku Kerkar,
Resident of Nil, Borda, Margao, Goa. ......Appellant
v/s.
1. Shri. Narayan Bhikaji
Alias Narayan Bhikaji Kuncolienkar,
S/o. Bhikaji Kuncolienkar and his children
2. Shri. Narayan Naik and his wife,
3. Smt. Nayana Damodar Naik,
4. Shri. Ramdas Narayan Naik, .....Deceased
(a) Rohit Ramdas Naik
c/o. Fatima Fernandes
H.No. - 667/D, Colvado,
Navelim, Salcete, Goa, 403707.
(b) Rohan Ramdas Naik, major;
Residents of House No. 506, Pajifond,
Margao-Goa.
(c) Rahol Ramdas Naik, Minor,
Residents of House No. 506, Pajifond,
Margao-Goa.
5. Smt. Savita Ramdas Naik.
6. Shri. Ghanashyam Narayan Naik.
7. Smt. Lathika Ghanashyam Naik.
8. Shri. Govind Narayan Naik,
And his wife.
9. Smt. Gautami Govind Naik.
2
10. Smt. Madhuri Ashok Malwankar,
And her husband.
11. Shri. Ashok Malwankar.
12. Smt. Sumitra Prakash Naik,
And her husband.
13. Shri. Prakash Naik,
All are Major in Age and
Resident of H.No. 506, Pajifond, Margao.
14. Smt. Kalprish Keshav Gadekar,
And her husband
15. Shri. Keshav Gadekar, .....Deceased
(a) Shantadurga Keshav Gadekar
(b) Viraj Keshav Gadekar
Both residence of
H.No. 26
Near Old Power House,
Pajifond, Margao-Goa. ...........Respondents
Appellant/OP is represented by Adv. Shri. P. Sawant.
Complainants/Respondent Nos. 3, 5 to 12 are represented by Adv. Shri. S.K. Naik.
Complainants/Respondent Nos. 2, 3, 4(a), (b) and (c), 13 & 14, 15(a) & (b) exparte.
Coram: Shri. Justice N.A. Britto, President
Shri. Jagdish G. Prabhudesai, Member
Dated: 15/07/2015
ORDER
[Per Shri Justice N. A. Britto, President] The Builder, the Opposite Party in C.C. No. 31/2009, has filed this appeal, and it is directed against final order dated 30/06/14 of the South Goa District Forum.
2. Some facts are required to be stated to dispose off this appeal and for that the parties hereto are being referred to in the names as they appear in the cause title of the said complaint.
33. The Complainant/Respondent No. 1 is dead and gone and his name ought not to have found place in the cause title either of the complaint or this appeal. Complainant/Respondent No. 2's name ought to have been Damodar Narayan Naik who is also the attorney of other complainants except complainant Nos. 14 and 15. As attorney he was duly served with notice of this appeal prior to Adv.
Shri. S.K. Naik put his appearance on behalf of Complainants/Respondent Nos. 3, 5 to 12.
4. The original complainants Nos. 2 to 15 are the children and/or their spouses of late Narayan Bhikaji Naik and his wife late Smt. Jayu Naik, who had entered into an agreement of sale with the OP dated 22/7/1996. By this agreement the said Narayan Bhikaji Naik and Smt. Jayu Naik, as vendors agreed to sell to the OP, as purchaser, Plot No. 30 admeasuring 371.5 sq.mtrs. for a price of Rs. 1 lac and in exchange for a flat ( No. F-3?) having a built up area of 70 sq.mtrs. on the 1st floor of the building to be constructed by him (to be named as Nikhil Apartments?) having flats and shops. As per the terms of the said agreement of sale dated 22/7/1996, the OP was to pay a sum of Rs. 50,000/- in cash to the said owners Narayan Bhikaji Naik and Smt. Jayu Naik and Rs. 50,000/- by cheque at the time of the execution of the said agreement and the said flat was to be handed over to them within a period of 1 ½ year and in case it was not handed over, the OP was liable to pay to them Rs. 3000/- per month for each month beyond the period of 1 ½ year which was the time stipulated for completion of the said building. In other words, the flat was to be delivered to the said Narayan Bhikaji Naik and Smt. Jayu Naik by 21/9/1998.
5. The complainants sent notice dated 12/02/01 through their advocate, to the OP stating that the site was found abandoned and the 4 project was lying incomplete. The same was replied to by the OP, by reply dated 3/3/01. In this reply the OP admitted that the building was to be completed by 21/9/1998 in terms of the agreement but could not be completed within the agreed time on account of delay caused in obtaining licenses, approvals, etc. The OP also stated that upon the death of Smt. Jayu Naik a fresh Power of Attorney was required to be executed for the purpose of expediting the work of the building and to enable the OP to deal with the prospective customers. Another notice followed dated 10/4/01 which was replied to, on behalf of the OP, by reply dated 6/5/2001. Then the complaint came to be filed on 26/6/01, being C.C. No. 41/2001 and which came to be dismissed for default of appearance of the complainants on 22/10/07.
6. By notice dated 17/2/09 the OP was informed that the legal heirs of the said Narayan Naik and his wife Jayu Naik had executed a power of attorney and had appointed Damodar Narayan Naik as their power of attorney and was asked to collect the copy of the said power of attorney from the office of the said advocate.
7. The complainants then issued another notice dated 17/2/09 and filed the present complaint on 27/5/09 which was admitted by the Lr. District Forum on 8/6/09 and notice was ordered to be issued to the OP. The OP appeared before the Lr. District Forum on 6/7/09 and thereafter the case was adjourned from time to time either for written version of the OP or for settlement or for want of quorum. The OP did not file his written version at any time thereafter and on 19/1/12 the complainant No. 2 filed his affidavit-in-evidence, and, on 26/6/12 the OP filed his affidavit-in-evidence. In the said affidavit- in-evidence the OP raised two pleas, namely, that the complaint was barred by the principle of res judicata and was also barred by time, the same not having been filed within two years as required under 5 Section 24 A of the C.P. Act, 1986. The case of OP was that the first complaint, was also barred by time, as the possession of flat was to be delivered to the complainants on 21/1/1998 and the first complaint itself was filed in the year 2001.
8. The Lr. District Forum, by the impugned order dated 30/06/2004, has allowed the complaint and has directed the OP to hand over to the complainants the said flat alongwith occupancy certificate within 30 days from the date of the order and has further directed the OP to pay to the complainants the sum of Rs. 3000/- per month from February 1998 till the handing over of the possession of the flat to the complainants and has also awarded costs of Rs. 10,000/-.
9. Three submissions have been made by Shri. Sawant, the lr. advocate of the OP.
10. The first is that C.C. No. 31/09 is barred by the principle of res judicata because the earlier complaint, being the C.C. No. 41/2001 was dismissed. Shri. Sawant, the lr. advocate of the OP has placed reliance on Reliance Industries Ltd. and anr. vs. Neera Maheshwari, 2006(3)CPJ 67, in support of his submission.
11. On the other hand, Shri. S.K. Naik, the lr. advocate of the complainants has submitted that the first complaint was dismissed for default and as such the principle of res judicata cannot be invoked. Lr. advocate has further submitted that a fresh complaint can be filed by the complainants in this jurisdiction on the same facts in view of the law laid down by the Apex Court in the case of New India Assurance Company Ltd., vs. R. Srinivasan, 2000 CTJ 161/AIR 2000 SC 941.
12. We are not inclined to accept the submission of Shri. Sawant, the lr. advocate of the OP. One of the requirements, to invoke the 6 principle of res judicata underlying Section 11, CPC, is that the earlier case must be decided on merits, and, the case of Reliance Industries Ltd., and anr. vs. Neera Maheshwari (supra) was a case which was decided on merits. Therefore, reliance placed on Reliance Industries Ltd. (supra) is misplaced. The complainant in that case, had made a grievance that the Reliance Company had not issued to him the share certificates, bonus certificates, etc. and in the course of the trial of the said complaint, the OP had brought share certificates and dividend warrants, etc. upto the year 2001 alongwith the cash receipt of Rs. 250/- and had handed over the same to the complainant. The Lr. District Forum, therefore, had come to the conclusion that the grievance in the complaint stood satisfied and in case the complainant had any grievance after the year 2001, the complainant could file a separate complaint, if advised.
13. The Apex Court in New India Assurance Company Ltd., vs. R. Srinivasan (supra) has held that the Rules (i.e. Tamil Nadu Consumer Protection Rules, 1988) do not provide that if a complaint is dismissed in default by the District Forum under Rule 4(8) or by the State Commission under Rule 8(8) of the Rules, a second complaint would not lie. The Apex Court has further held that there is no provision parallel to the provision contained in Order 9, Rule 9(1), CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9, Rule 8, a second suit on the same cause of action would not lie and that being so, the rule of prohibition contained in Order 9, Rule 9(1), CPC cannot be extended to the proceedings before the District Forum or the State Commission. The Apex Court has further held that the only point urged before the State Commission and for that matter before them was that on account of the first complaint having been dismissed in default and the 7 complaint having not been restored, the second complaint would not lie. The Apex Court, therefore, held that in the interest of justice, in their opinion, the second complaint could not be defeated by this rule of technicality and that the rules of procedure, as has been laid down by that Court a number of times, are intended to serve the ends of justice and not to defeat the dispensation of justice. The Apex Court also held that the respondent had suffered loss which was squarely covered by the policy of Insurance granted by the Appellant and since his claim was not being questioned before them on merits and was being sought to be defeated on the technical plea referred to above, they were not prepared to interfere with the orders passed by the District Forum, the State Commission and the National Commission. In the case at hand, the complainants as successors to their parents are trying to specifically enforce the agreement dated 22/7/1996 and their claim cannot be allowed to be defeated on a technical plea. The ratio of a New India Assurance Co. Ltd., (supra) is fully attracted to the facts of this case. The first submission therefore needs to be rejected.
14. The plea of limitation raised by the OP has been dealt with by the Lr. District Forum and it has been held that the cause of action to file the complaint is continuous. In coming to the said conclusion, the Lr. District Forum took note of the letter dated 4/8/08 addressed by OP's advocate to the complainant's advocate, wherein the OP had shown his willingness and readiness to deliver the said flat to the complainants within a span of two or three months. In fact the OP has at no time refused to deliver the said flat to the complainants and as such the cause of action to file the complaint had to be considered as continuous or recurring in nature. This State Commission by Order 8 dated 15/2/13 in MA (CD) No. 7/11 filed by Dr. Jatin Ishwarbhai Patel and anr., interalia, has held as follows:
"8. Since no possession has been handed over to the Complainants of the apartments booked by them on 13/12/06 although the Complainants claim that they have paid the entire amount due to the OPs, nor a Sale Deed executed, these would be cases of recurring cause of action. In other words, the cause of action would continue till such time the possession is handed over to the Complainants and the Sale Deed is executed." In this context we may refer to Meerut Development Authority, 2012 (4) CPR 220, wherein the National Commission followed the view expressed by the Apex Court in Meerut Development Authority vs. M. K. Gupta stating as follows:
"In our view, the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because he had a recurring cause for filing a complaint in the matter of non- delivery of possession of the plot."
The above ratio would apply to the facts of this case.
15. The second submission of Shri. Sawant, the lr. advocate of the OP is that the complaint abated upon the death of complainant No. 4 Ramdas N. Naik and Complainant No. 15 Keshav G. Gadekar their legal representatives not having been brought on record. The OP has produced their death certificates which show that they died on 2/4/11 and 15/8/12, respectively. Lr. advocate would submit that since the complainants did not bring the legal representatives of the said deceased complainants Nos. 4 and 15 on record, the complaint had abated and in this context, Lr. Adv. Shri. Sawant has placed reliance on an unreported decision of the High Court of Bombay 9 dated 28/4/11 in FA No. 108/10. On the other hand, it has been submitted by Shri. Naik, the lr. advocate of the complainants, that the complaint could not have been abated as the wife of complainant No. 4, Ramdas is already on record as complainant No. 5 and so also the wife of complainant No. 15, as complainant No. 14.
16. We are not impressed with this submission as well. Admittedly, both the parties did not bring to the notice of the Lr. District Forum, the death of the said complainant Nos. 4 and 15. We have perused the decision dated 28/4/2011 in the case of Vishwamber Vittal Kanekar (F.A. No. 108/2010). The said decision would not be applicable now that the legal representatives of the said deceased complainants have been brought on record. All that Section 13(7) of C.P. Act, r/w O. 22, Rule 2 C.P.C. requires is that where there are more complainants than one and any of them dies and where the right to sue survives to the surviving complainant or complainants alone, the Court shall cause an entry to that effect to be made on record, and the complaint shall proceed at the instance of surviving complainant or complainants. That has been done now, by bringing the legal representatives on record. Alternatively, we hold that such a technicality cannot be allowed to defeat a complaint more so when the widows of the said deceased complainants were already on record. The Fora under the Act are not governed by technicalities of procedural law as reiterated by the Apex Court in C. Venkatachalam vs. Ajit Kumar C. Shah, 2011(4) CPR 240. The submission that the complaint abated as a whole therefore needs to be rejected.
17. The third submission of Shri. Sawant is that the compensation @ of Rs. 3000/- per month was claimed and has been awarded from the year 1998. Lr. advocate submits that there was no power of attorney given upon the death of Smt. Jayu Naik until the year 2009 10 and therefore the OP could not have been saddled with compensation from the year 1998 and if at all compensation was to be paid it could have been ordered to be paid from the year 2009. Lr. advocate further submits that the power of attorney dated 4/12/08 was invalid or incomplete, in that complainant Nos. 14 and 15 had not given any power of attorney to the said Damodar N. Naik.
18. We are not inclined to accept this submission for reason more than one. Firstly, the plea that the flat could not be completed and its possession delivered to the complainants for want of power of attorney or incomplete power of attorney was not taken by the OP in the Affidavit-in-evidence filed by the OP, assuming for a moment that such an affidavit-in-evidence, could be looked into in the absence of a written version. It is well settled principle of law that a plea which is not taken before the trial Forum cannot be raised before the appellate Forum for the first time. If any authority is required in support of this proposition then reference could be made to Modern Insulators Limited vs. Oriental Insurance Company, 2000(1)CPR 93, wherein the Apex Court has held that in an appeal the parties cannot urge new facts. That new case cannot be made up in appeal is also the law laid down by the Apex Court in AIR 1966 SC 1017. Secondly, this plea appears to be sham and is raised clearly by way of afterthought. The said Narayan and Jayu Naik had given to the OP a power of attorney alongwith the execution of agreement dated 22/7/1996. The building and or the flat was to be completed by 21/1/98. Smt. Jayu died somewhere in the year 2000 (as per reply dated 3/3/2001) which means that the OP was unable to complete the flat for almost four years. And if Mrs. Jayu Naik died in the year 2000 or thereabout, and there was a need for a fresh power of attorney from her legal heirs, there is no explanation as to why the OP did not ask 11 the said Narayan B. Naik for such a power of attorney, in case it was really needed, and waited to raise the issue only after demand was made by notice dated 12/2/2001. Lr. advocate would then submit that a power of attorney would be required to obtain a occupancy certificate. This submission is made in the air. There is nothing on record even to remotely suggest that the construction licence was obtained in the names of Narayan and Jayu Naik. It is also not the case of the OP that the flat/building is complete in all respects and only occupancy certificate is required to be obtained. It appears to us that the OP has not completed the building for some other reasons and certainly not because the power of attorney was not given to the OP either upon the death of the said Smt. Jayu Naik or her husband Shri. Narayan B. Naik.
19. Shri. Naik, the lr. advocate, has brought to our notice that the OP has already settled the dispute as regards flats SF-1 and SF-2 with the respective purchasers by virtue of the consent terms filed before the National Commission in RP Nos. 4715 and 4733 of 2013 on 24/3/14.
20. In view of the above discussion, we find there is no merit in this appeal and consequently the same is hereby dismissed with costs of Rs. 5000/-.
[Shri. Jagdish Prabhudessai] [Justice Shri. N.A. Britto]
MEMBER PRESIDENT
sp/-