National Consumer Disputes Redressal
Mahindera Lifespace Developers Ltd. vs Mr. Sunil Jasuja on 15 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
(1) REVISION PETITION NO. 97 OF 2011
(From order
dated 22.11.2010 in First Appeal No. FA-09/255
of the State Consumer Disputes
Redressal Commission, Delhi )
Mahindera
Lifespace Developers Ltd.
(formerly known
as Mahindra Gesco Developers Ltd.)
Registered
Office at Mahindra Towers,
5th
Floor, Road No. 13, Worli
Mumbai-400 018
Also at: UGF,
The Great Eastern Plaza
Mahindra Towers,
2-A, Bhikaji Cama Place,
New Delhi 110
066.
Petitioner
Versus
1. Mr. Sunil Jasuja
S/o Late Shri A S. Jasuja
151-B, Beverly Park-II, Gurgaon- 122 002.
2. Mr. Samir Jasuja
S/o Latge Shri A. S. Jasuja
1511-B, Beverly Park-II, Gurgaon 122
002.
3. M/s Gulab Farms(P) Ltd.
2148, Malcha Marg
Diplomatic Enclave
New Delhi-110 021
4. M/s Sweet Peas Farms(P) Ltd.
21/48, Malcha Marg
Diplomatic Enclave
New Delhi-110 021 .. Respondents
(2) REVISION PETITION NO. 98 OF 2011
(From order
dated 22.11.2010 in First Appeal No. FA-09/256
of the State Consumer Disputes
Redressal Commission, Delhi )
Mahindera
Lifespace Developers Ltd.
(formerly known
as Mahindra Gesco Developers Ltd.)
Registered
Office at Mahindra Towers
5th
Floor, Road No. 13, Worli
Mumbai-400 018
Also at: UGF,
The Great Eastern Plaza
Mahindra Towers,
2-A, Bhikaji Cama Place,
New Delhi 110
066.
Versus
1. Shri Rupinder Singh Oberoi
S/o Shri Manmohan Singh Oberoi
B-6/55, Safdarjung Enclave
New Delhi-110 029.
2. Ms. Tejinder Kuar Oberoi
W/o Shri Rupidner Singh Oberoi
B-6/55, Safdarjung Enclave
New Delhi-110 029.
3. M/s Gulab Farms (P) Ltd.
2148, Malcha Marg, Diplomatic Enclave
New Delhi-110 021
4. M/s Sweet Peas Farms (P) Ltd.
21/48, Malcha Marg,
Diplomatic Enclave
New Delhi-110 021 .. Respondents
BEFORE:
HONBLE MR. JUSTICE V.B. GUPTA,
PRESIDING MEMBER
HONBLE MRS. REKHA GUPTA, MEMBER
In RP No. 97 of 2011
For the Petitioner : Dr.
M. P. Raju, Advocate with
Mr.
Aniket Kumar, Auth. Representative
For the Respondents : Mr. Jitenmdra Rutta, proxy
counsel for
Mr.
Rahul Sharma, Adv. for R-1 & R-2
NEMO
for R-3 & R-4
In RP No. 98 of 2011
For the Petitioner : Dr.
M. P. Raju, Advocate with
Mr.
Aniket Kumar, Auth. Representative
For the Respondents : Mr. Sanjeev Nirwani,
Advocate for R-1 NEMO for R-2, R-3 & R-4
Pronounced on: 15th May,
2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Mahindra Gesco Developers Ltd.-Petitioner in above noted petitions was Opposite Party No.3 before the District Forum, has filed these petitions under Section 21 (b) of the Consumer Protection Act, 1986(for short, Act) against order dated 22.11.2010 passed by the State Consumer Disputes Redressal Commission, Delhi (for short, State Commission).
2. Respondents No.1 & 2/complainants filed Consumer Complaints before the District Forum on the allegations that they have entered into an agreement with respondents no.3 & 4/O.Ps No.1 and 2 for purchase of Apartments in the Group Housing Society in Central Park, Sector-42, Gurgaon, Haryana. This agreement was signed on behalf of respondents no. 3 and 4 through its constituted attorney, Petitioner. Subsequently, sale deed of the Apartments was executed in favour of respondents no.1 and 2 by respondents no. 3 and 4.
3. Respondents No.1 and 2 filed complaint against petitioner as well as respondents no.3 and 4 alleging that the escalation charges, service tax, maintenance and subscription charges for the residential club etc. as demanded, were not payable.
4. Respondents No. 3 and 4 contested the case on merits and filed their written statement, while petitioner filed an application to delete its name from the array of the parties on the ground that there was no privity of contract between respondents no.1 and 2 and the petitioner who acted as an attorney/agent of respondents no. 3 and 4 and respondents no. 3 and 4 being his principals were already impleaded.
5. District Forum after hearing the parties, vide order dated 11.2.2009, dismissed the applications of petitioner.
6. Order of the District Forum was challenged by the petitioner before the State Commission which dismissed the appeals of the petitioner, vide its impugned order.
7. Hence, present revision petitions.
8. We have heard the learned counsel for the parties and gone through the record.
9. It has been contended by learned counsel for the petitioner that State Commission erroneously refused to follow the clear proposition of law laid down by the same State Commission in the case of present petitioner itself in an identical case relating to the same housing project though the complainant happened to be another buyer identical to the present complainants/respondents. It was the specific case of the petitioner that the said proposition of law and principle laid down by the said State Commission in its decision dated 4.11.2008 in Complaint Case No. 2007/223 in the matter of Vikas Chaariya and others vs. Mahindra Gesco Developers Ltd. & others, wherein the State Commission had directed the deletion of the petitioner from the array of parties relying on Section 230 of the Indian Contract Act, wherein the present petitioner was impleaded as a party as the agent of the owners of the land, project and buildings. It is pertinent to mention that the said judgment and order dated 4.11.2008 in Complaint Case No. 2207/223 has already been upheld by this Commission also. Learned counsel, in support of its contentions also relied upon following judgments;
(i) Radhakrishna Sivadutta Rai & Ors. Vs. Tayeballi Dawoodbhai (1) SCR Supreme Court Reports 81 and
(ii) Prem Nath Motors Vs. Anurag Mittal AIR 2009 Supreme Court 56.
10. On the other hand, learned counsel for respondents no.1 and 2 has contended that petitioner is not only the agent of respondents no. 3 and 4 but is also the developer of the land and Project Manager in its individual capacity. It was the petitioner with whom original agreement was made and it was the petitioner who has been dealing with these respondents with regard to construction. Further, in order to effectually and completely adjudicate the controversy between the parties, petitioner is a necessary party. Thus, there is no illegality or infirmity in the impugned order.
11. State Commission in its impugned order observed ;
7. It will be noticed that appellant (OP-3) in the case is the developer of the land, and the project manager. He is as such real executor. The OP-1 & 2 may have signed the sale deed as owners, but the man behind the scene, who holds the strings is the appellant (OP-3). It is OP-3 with whom the original agreement was made. As such, even if the sale deed was not executed by OP-3, merely because the ownership lay with OP-1 & 2, it cannot be said that he is completely a outsider, and has nothing to do with the controversy in question.
8. The guiding principle is that if there is some doubt about the question, whether a person should be made a party to the proceedings or not, the court should usually decide in favour of retaining the person as a party. The reason is that, when after all facts have been unfolded, and at the time of hearing, it is found, that the person concerned was a necessary or proper party, whole exercise will have to be restarted, while on the other hand if it is found at the final stage that the person in question was not a necessary party, he can be exonerated.
9. The order for deletion of a party at the initial stage has to be passed only in cases, where prima facie and per se, the party in question is completely outsider, and has nothing to do with the case, and the court therefore feels that he should not be subjected to the tribulations of a trial. This is not the case here. The appellant made the initial agreement with the complainant which ultimately led to the sale deed. He is the developer and the project manager. It cannot therefore be said at this stage that he is not a necessary or a proper party.
10. The appeal is accordingly rejected.
12. It is an admitted case of all parties that petitioner is duly constituted attorney of respondents no.3 and 4. As per Project Management Agreement dated 12.09.2000, petitioner was authorized to develop the Central Park and to market Apartments to the prospective buyers and to make advance sales to the prospective buyers and to make allotments to the allotteees. Further, an Apartment Buyer Agreement dated 08.04.2003 was entered into between the Owners-Opposite Parties No. 3 and 4 and Petitioner of the first part and Respondents No.1 and 2-complainants on the second part (copy of Agreement is at Page No. 56 of the Paper Book). In pursuance of the Buyer Agreement, a sum of Rs.8,69,288/- had been deposited with the present petitioner (photo copy of receipt is at page 54 of the Paper Book). Again, it is the petitioner alone who has issued letter dated 8.3.2003 to one of the complainant stating as under ;
We may inform you that we have accepted your application for allotment of aforesaid apartment in the Central Park Gurgaon.
13. Therefore, on the basis of above documents it is manifestly clear that it is the petitioner who has been dealing directly with respondents no.1 and 2. Thus, petitioner is a necessary party in these proceedings.
14. It is well settled that a person may also be added as a party to the suit, even though he is not a necessary party and no relief is claimed against him, if his presence is necessary for complete and final decision of the questions involved in the suit. In other words, if in the opinion of the court, the presence of a person may be helpful in effectually adjudicating upon all points in dispute, the court has power to direct that he should be added as a party to the suit. Such a person is called the proper party as distinguished from necessary party.
15. It is also well also settled that plaintiff is dominus litis and normally it is for him to select his adversary from whom he seeks relief and it is not for a court to ask him to join any other person as a party to the suit. But it is equally well settled that the matter has to be adjudicated on merits by the court. It is, therefore, the duty of the court to keep in mind a relevant consideration that as far as possible, multiplicity of proceedings should be avoided. If the court feels that in case a person is not impleaded as a party, all questions raised in the suit cannot be finally, completely and effectually decided and there is likelihood of another proceeding which can be avoided by impleading such person as a party to the suit, notwithstanding an objection by the plaintiff, he may be joined as a party since his presence before the court is found necessary.
16. Honble Supreme Court in Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru (1995) 3 Supreme Court Cases 147, observed;
though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the court must be satisfied that the presence of the party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party-defendant is not a substantive right but one of procedure and the court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.
17. Under these circumstances, none of the judgments cited by the counsel for the petitioner are applicable to the facts of the present case.
18. The only purpose of petitioner in filing applications for deletion of its name is to delay the proceedings. Petitioner to a certain extent has succeeded in its design as complaints were filed as earlier as in the year 2007 and even after six years, the pleadings have yet not been completed. Therefore, these petitions being without any legal basis and having no merit have been filed just to harass the complainants. As such, these petitions are liable to be dismissed with punitive cost.
19. Accordingly, we dismiss the above revision petitions with punitive cost of Rs.20,000/-(Rupees Twenty Thousand Only) in each case, to be paid to respondents no.1 and 2, directly by way of demand draft in their favour, within a period of eight weeks from today. In case, petitioner fails to comply with the above directions within the prescribed period, then it shall also be liable to pay interest @ 9% p.a. till its realization.
20. List on 19.07.2013 for compliance.
..J (V.B. GUPTA) ( PRESIDING MEMBER) (REKHA GUPTA) MEMBER SSB