State Consumer Disputes Redressal Commission
Gilles Sinclaire vs M/S. Iag Enterprises, on 12 November, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Complaint No.10/12 1.Gilles Sinclaire Major, 2. Mrs. Joly Sinclair Corinne, Major, Both residents of A/4/2, `BAYWATCH, Dona Paula, Ilhas Goa Presently residing in 4, Lotissement Des Pigeonniers, 09100 Bonnac, France Through their Lawful Attorney, Mrs. Carmen Ferrao, Major, resident of 14, Gulmohar Nest, Feira Alt, Opp. St. Marys Convent, Mapusa, Bardez, Goa. .Complainants V/s. M/s. IAG Enterprises, Through its partners, 1. InacioAntaoGonsalves, Major, business, 2.Mr. Allen do PerpetuoSoccoro do Carmo Lobo, Major, business, 5th Floor, Midas Touch, Ruaheliodoro Salgado, Near Municipal Market, Panaji Goa. .Opposite Party Complainantsare represented by adv. Shri B. D. Nazareth Opposite Parties are represented by Adv. Shri A. J. B. Lobo Coram:Shri Justice N. A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 12/11/2013 ORDER
[Per Shri. N. A.Britto,President] This consumer complaint filed on 01/08/2012 is being disposed off by this order.
2. The Complainants are brother and sister and are French nationals.
3. The OP is a firm of builders represented by its partners.
4. By two separate agreements both dated 28/07/1997, one styled as `Construction Contract and the other as `Agreement of Sale, the Complainants agreed to purchase from the OP a flat identified as A/4/2 admeasuring 222 sq. mts. in a complex known as BAYWATCH situated at Dona Paula, in the property surveyed under chalta no.6 of PTS no.193 of village Dona Paula for a sum of Rs.25,08,600/- inclusive of proportionate right in the land corresponding to the built up area of the said flat, valued at Rs.8,43,600/-. The Complainants being French nationals obtained permission to acquire immovable property vide Reserve Bank of Indias letter dated 06/11/1997 issued under section 31 (1) of Foreign Exchange Regulation Act, 1973.
5. The Complainants claiming that they were put in possession of the suit flat, having discharged their obligation under the agreements and the OP having received the entire amount of consideration and further claiming that the sale deed would be executed at a later date, as some of the flats were still incomplete, filed the complaint for the following reliefs:
a) for a direction to the OP to execute a sale deed conveying the proportionate share in the land;
b) for a direction to pay to the Complainants compensation of Rs. 5 lacs towards mental torture, agony, etc., and
c) costs of the complaint.
6. The complaint was filed through their attorney Mrs. Carmen Ferrao.
Complainant No.1 had executed a power of attorney in her favour on 15/02/05 at Mapusa, Goa, while Complainant No.2 had executed the power of attorney on 20/04/2005 at Paris, France. The Complainants supported the complaint by affidavit of the said Mrs. Carmen Ferrao dated 03/01/2013 and thereafter Complainant No.1 filed his own affidavit dated 09/03/2013. An application for cross examination dated 08/04/2013 of Complainant No.1, was rejected by this Commission vide order dated 09/05/2013.
7. The complaint has been contested by the OP by taking various defences. According to OP No.2, the partner of the said firm, OP No.1, the other partner has retired from the firm.
According to him, there was another agreement dated 29/07/1997 for the purpose of carrying out certain modifications to the suit flat and accordingly, modifications to the tune of Rs.6,22,077 were carried out and a sum of Rs.2,16,221.20 is still due and payable by the Complainants towards the said modifications. The OP has denied that the Complainants were put in possession of the suit flat. The OP has stated that the Complainant No.1 had conveyed to OP No.2 that he was no longer interested in the suit flat and requested him to sell the suit flat to anyone else, and OP No.2 retained the suit flat for himself and when Complainant No.1 came to Goa in the first week of February 05, it was agreed that the OP No.2 would refund the entire amount paid by the Complainant No.1 to OP, and incase OP No.2 was not in a position to pay the entire amount at one time, it was agreed that OP No.2 would pay interest on the said amount from the date when the documents needed were readied. We shall deal in detail with these main defenses taken by OP No.2 in the written version in the course of our order.
8. The defence of OP No.2 is supported by his own affidavit in evidence dated 06/04/13 and that of Viswanath S. Sinai Dempo who represented one of the Complainants in the said agreements dated 28/07/1997.
9. On the last date of final hearing, on behalf of the Complainants, an application for amendment was filed with a prayer which reads as follows:
a.a.
In the alternative this Honble Court be pleased to direct the OP to refund to the Complainants a sum of Rs.29,14,455.80 together with interest calculated at the rate of 18% from the date of receipt of the said amount, till effective payment.
10. This application was rejected stating that it was filed only with a view to seek another adjournment.The said application also deserved to be rejected, as it was clearly time barred. OP No.2 has produced overwhelming evidence in support of their plea that the initial agreements dated 28/07/1997 were cancelled and that OP No.2 had agreed to refund the entire amount paid by the Complainant No.1 to the OP.OP No.2 has produced a letter addressed by the Complainant No.1 to his attorney, the said Ms. Carmen Ferrao, requesting her to cancel the agreement of sale and construction contract dated 28/07/1997 to which he had agreed during discussions with OP No.2. Complainant No.1 further requested the said attorney to remit the amounts received by her, in view of the cancellation, to him as the whole payment was made by him at various intervals. Letter dated 26/02/05 shows that Complainant No.1 was requested to send the accompanying letter duly signed by his sister (Complainant No.2) before the Notary and that on receipt of the same he would pay a token sum of Rs. 5 lacs. Complainant has produced another letter dated 05/05/2006 written by Complainant No.1 by which the Complainant No.1 requested OP No.2 that the agreed price and interest at 18% which he had extracted from him should be paid in full and final settlement within one week of his arrival in Goa any time after 10/06/2006. The OP No.2 has also produced a letter dated 14/06/06, addressed on behalf of the Complainants, by advocate Shri Bruno Nazareth wherein it is stated, in the alternative, that the Complainants were entitled to claim full refund of the consideration that they had paid to OP No.2 with interest at the rate of 18% p.a. It is therefore obvious that in case the Complainants were entitled for refund of the said sum paid by them, they ought to have filed the complaint and or made a prayer for refund within two years from the date of demand, and therefore, any prayer at this stage, for refund would be clearly time barred. Time barred amendments are never allowed.
11. We do not propose to entertain this complaint on three counts.
12. First. Who is in possession of the suit flat?
12.1. The OP No.2 has stated that pursuant to the agreement to refund the money received from the Complainants, OP No.2 has retained the said flat and continued to be in possession, and, in the written submissions has stated that this position can easily be verified at loco at any time. The Complainants claim that they were put in possession of the suit flat, saying that the sale deed would be executed at a later date, is a false claim. Shri B. D. Nazareth, lr. advocate on behalf of the Complainants, submits, in terms of the pleadings of the complaint, that the Complainants are in possession of the suit flat and as such the complaint has been filed only for execution of the sale deed.
When asked about the date on which or the document by which the possession was given to the Complainants lr. advocate points out to letter dated 05/05/2006 and further submits that is the only document which proves the Complainants possession of the suit flat. In our view, the said letter does not at all prove that possession was given to the Complainants at any time. On the contrary, the said letter disproves such a claim. The said letter dated 05/05/2006 written by Complainant No.1 to OP No.2 (copy at page 98) would only show that the Complainants only threatened that in case the amount was not paid in full and final settlement, they would take possession, which again means that they were not in possession. In other words, the said letter clearly conveys that the possession of the suit flat was not with the Complainants as on 05/05/2006. The OP No.2, as already stated, has produced a copy of legal notice sent on behalf of the Complainants, by their advocate Shri. Bruno Nazareth on 14/06/2006 which clearly admits, on behalf of the Complainants, that till date, the Complainants had neither received the possession or delivery of the said apartment. OP No.2 has produced another notice dated 23/05/2011 sent on behalf of the Complainants, by their advocate Shri T. George John wherein it is stated that the Complainants have directed him to inform OP No.2 that the Complainants are insisting for taking possession from OP No.2 and that the Complainants were not interested for refund of money when they were entitled to take possession of the suit flat. These three documents falsify the Complainants case that they were put in possession of the suit flat. Moreover, OP No.2, in is affidavit in evidence, has clearly stated that he obtained occupancy certificate dated 27/11/2000 and starting living in the suit flat prior to the year 2006 and as such there was no question of anyone inspecting the suit flat. OP No.2s witness the said Shri V. Dempo has stated that OP No.2 had told Complainant No.1 that he wished to retain the suit flat for himself and he would refund all the amounts advanced by Complainant No.1 for the same and that he was aware of this fact as Complainant No.1 had told him about this fact before his departure to France. The said Shri Dempo has also stated that the Complainants claim that they are in possession of the apartments, the subject matter of the complaint, is false and that he is aware that OP No.2 and his family have been residing in the said flat for the last about 8 years. We have no hesitation in accepting the said statements and conclude that OP No.2 has always been in possession of the suit flat. It is, therefore, obvious that the Complainants have approached this Commission with a false case that they were put in possession of the suit flat after they had paid the entire consideration or the purchase price.
13. The Complainants have not sought for recovery of possession of the said flat, and, our finding is that it is OP No.2 who is in possession of the same. The implications of this is that the Complainants having been able to seek a relief, have not sought for the same, and therefore would not be entitled for the same, and that would make the grant of relief under prayer clause (a) redundant. The High Court of Bombay in the case of Mr. Guna Krishna Gauns & anr. Vs. Mr. Antonio Joao Branganza & ors., 2009 (1) Goa Law Reporter 2008, relying on Ram Saran & anr. vs. Smt. Ganga Devi, AIR 1972 SC 2685 has held that where the defendant is in possession of some the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable.
Again, relying on Vinay Krishna vs. Keshav Chandra & anr., AIR 1993 SC 957 has held that the failure to ask for relief of possession undoubtedly bars the discretion of the Court in granting the decree for declaration. The Court has held that merely because the plaintiff says in the prayer that such other relief be granted to the plaintiff, it does not mean that without a specific plea for possession and disregarding the bar under section 34, proviso, of the Specific Relief Act, 1963 the suit could be decreed even with reference to the portions of which the plaintiff has been in possession.
The Court also held that in the absence of specific prayer for recovery of possession of the property sold by the deed to the defendants, the suit for declaratory relief filed by the plaintiff was clearly not maintainable.
14. Second.
The OP has also raised the plea of limitation. The complaint has been filed stating that the cause of action to file the complaint arose on 23/06/2012 after the expiry of 30 days of notice period and the same is recurring one. This averment has reference to the third legal notice dated 24/04/2012 sent through adv. Shri B. D. Nazareth. Shri Nazareth has submitted that the Complainants got a notice that the OP did not wish to comply with the agreements dated 28/07/1997 only when they received the letter dated 28/03/2011 from OP No.2 (copy at page 56).
14.1 We are unable to accept the said submission of lr. advocate. Cause of action infavour of the Complainant could not have arisen either on 23/06/2012 or 28/03/2011. The Complainants based their cause of action entirely on notice dated 24/04/2006 sent by their advocate Shri B. D. Nazareth and notice dated 23/05/2011 sent by their advocate Shri T. George John. Complainants have suppressed the notice dated 14/06/06 sent through adv. Shri Bruno Nazareth calling upon the OP, within a period of 15 days to comply with OPs obligation under the said two agreements. Cause of action to file the complaint arose in favour of the Complainants on the failure of the OP to comply with the requirements of notice within 15 days i.e. on or about 01/07/2006. The legal notices dated 23/05/2011 and 24/04/2012 could not have extended the time which began running out from 01/07/2006. Complainant ought to have filed the complaint within two years therefrom. It is well settled that once period of limitation starts to run out, it cannot be arrested or enlarged or extended by correspondence, as held by the National Commission in Ramrathan N. Srinivas, 2011 (4) CPR 104 NC. It is now well settled with the introduction of section 24A of the Consumer Protection Act, 1986 that the consumer complaint has got to be filed within two years from the date on which the cause of action arises and it can be filed beyond the said period in case sufficient cause is shown for not filing the same within the prescribed time of two years. It is also well settled that if the complaint is barred by time and the Complainant does not seek condonation of delay under section 24A(2), the Consumer Forum will have no option but to dismiss the complaint as held by the Apex Court in V. N. Shrikande vs. Anita Sena Fernandes, 2010 (2) CCC 650 relying on SBI vs. B. S. Agricultural Industries, 2009 (1) CCC 146. The complaint therefore is clearly time barred and as such deserves to be dismissed.
15. Third. The Complainants have indulged in suppression of truth and suggestion of falsehood suppressio veri suggestio falsi. Complainants have falsely stated that they were put in possession of the suit flat. Complainants have suppressed the legal notice dated 14/06/2006 or for that matter the legal notice dated 23/05/2011 copies of which have been produced by OP. Consumer jurisdiction under Consumer Protection Act is a summary jurisdiction. In all summary jurisdictions, including application for temporary injunction, writ jurisdiction, 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 through the merits of his case. In Tarachand Kosle vs. National Aviation, 2012 (2) CPR 104, the Chhattisgarh State commission has held that the principle of natural justice demand that everyone should come before the 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 Consumer Protection Act, 1986. The National Commission in Atlanta Arcade Premises Co-operative Society Ltd., 2012 (1) CCC 138 has held that no leniency should be shown to such type of litigants who inorder to cover up their own fault and negligence, go on filing petitions in different Fora. Time and again courts have held that if any litigant approaches the court of equity with unclean hands, suppressing the material facts, make false averments in petition and tries to mislead and hoodwink the judicial Forum, then his petition should be thrown away at the threshold. In Morgan Stanley MF vs. SEBI and ors, CA 4584/94, the Apex Court has held that there is an increased tendency on the part of litigants to indulge in speculative and vexatious litigants and adventurism which the Fora seem really to oblige. We think such tendency should be curbed
16. On the above three counts and in view of discussion supra, we find there is no merit in this complaint and accordingly we proceed to dismiss the same with costs of Rs.20,000/- to be paid by the Complainants to OP No.2.
17. The OP No.2 has taken a clear stand in their written version that OP No.2 is not required to perform anything except for paying back the amount received from Complainant No.1 and which they are willing to do at any time. A submission of to this effect was also made by Shri Lobo, the lr. advocate appearing on behalf of OP No.2.
18. We therefore direct OP No.2 to refund to the Complainant No.1 by demand draft the sum of Rs. 25,08,600/- plus Rs. 4,05,856/- minus the costs herein imposed drawn in favour of Complainant No.1 in his account with Canara Bank or by any other suitable mode, within a period of 30 days.
[ Smt. Vidhya R. Gurav ] [ Justice N. A. Britto ] Member President /lm