State Consumer Disputes Redressal Commission
Amit C. Prabhu vs Ravi Mishra on 12 May, 2017
1
BEFORE THE HON'BLE GOA STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, AT PANAJI
First Appeal No. 21/2017
Quorum : Hon'ble Shri Jagdish Prabhudesai and
Hon'ble Smt. Vidhya Gurav, Members
Mr. Amit C. Prabhu,
s/o Mr. Chandrakant Prabhu,
aged 33 years, businessman,
Proprietor M/s Prabhu Real Estate,
With Office at Shop No. 1,
Murgao Avenue,
Near Desterro Church,
Vasco, Goa. Appellant
V/s
Mr. Ravi Mishra,
s/o Mr. Laxminarayan,
aged 46 years, married, service,
r/o 204, 2nd Floor,
Sunset Lagoon,
Near Busy Bee School,
Vasco, Goa. Respondent
Ld. Adv. Shri Gaurish M. Kudchadkar present for the
Appellant
Ld. Adv. Shri S. Korgaonkar present for the
Respondent
ORDER Date : 12.5.2017
(Per Shri Jagdish Prabhudesai, member)
1.By this Order, we shall dispose off the present Appeal dated 15.3.2017 filed by the Appellant herein against the Respondent herein inter alia challenging 2 the impugned Order dated 21.2.2017 passed by District Consumer Forum, South Goa, at Margao in Complaint No. 59/2013.
2. The Appellant herein is the original Opposite Party in the complaint before the Ld. Forum while the Respondent herein is the original Complainant therein. After admitting the present Appeal, we have called for and perused the R & P of the Lower Forum in the above case and gone through the pleadings and the Affidavitory evidence adduced by both the parties before the Lower Forum alongwith the documents brought on record in support of their respective contentions.
3. Both the parties have filed their written arguments and also advanced their oral submissions in support of their case and now we proceed to record our observations and findings in respect of the subject matter of the present Appeal.
4. The facts of the case can be briefly stated as under :
I The case of the Complainant i.e. the Respondent herein is that he had entered into the Agreement of Sale dated 19.4.2010 duly registered before the Sub Registrar of Mormugao, Vasco and has booked a double bed-room flat on 2nd floor bearing F. No. 204 for a sum of Rs. 25,00,000/-.3
According to him this price was inclusive of fittings, fixtures, etc. in the flat and common amenities like swimming pool, children's park and proportionate area in the property beneath.
II As per the Complainant i.e. the Respondent herein he booked the flat as it was a luxurious one and the Opposite Party had agreed to provide swimming pool, stilt car parking, children's park and lift with backup power. The Complainant paid the full amount of consideration of Rs. 25,00,000/- in different stages by cheques and cash by obtaining loan from State Bank of India, Vasco.
III It is the case of the Complainant that the Opposite Party started demanding cash from him. The Complainant in order to obtain the possession of the flat paid additional amount of Rs. 1,10,000/- towards the maintenance charges to the Opposite Party. According to him, he was also forced to deposit a sum of Rs. 50,000/- and Rs. 12,000/- with the Opposite Party which the Complainant had paid under protest. As per the Complainant the Opposite Party also authorized the owners of the Complex 'Murgao Beach Tower' to use the access meant in their complex i.e. Sunset Lagoon. According to him this private road access was only meant for the owners of the premises in Sunset Lagoon.4
IV The Complainant further alleged that after handing over the possession of the flat to him alongwith car parking slot, the Opposite Party did not construct the swimming pool or the children's park as agreed. According to him till date the roof tiles on slanting roof slab have also not been fixed as shown in the brochure so also there is no arrangement made by the Opposite Party to drain out the rain water which gets stagnated on the ground floor.
V Based on the said cause of action, which allegedly arose on 26.6.2013 when the Opposite Party finally refused to provide the swimming pool and other amenities as agreed, the present complaint was filed with the prayers, amongst other prayers, for an Order directing the Opposite Party to construct the swimming pool, children's park, for a direction to execute the Deed of Sale, compensation of Rs. 50,000/- towards mental agony and stress and for fitting of pipes to drain out the rain water.
5. The Opposite Party in his written version has opposed the case of the Complainant on following amongst other grounds :
I That the complaint is not maintainable as the Ld. District Forum has no jurisdiction to try and 5 entertain it since the subject matter of dispute exceeds pecuniary jurisdiction of the Forum as prescribed by the Consumer Protection Act, 1986. That the Opposite Party has supplied to the Complainant all necessary documents and the Complainant has voluntarily entered into the Agreement after fully understanding all relevant facts and circumstances.
II The Opposite Party alleged that the brochure relied upon by the Complainant does not form the part of the contract and also that the complaint is bad for non-joinder of necessary parties as all land owners of the property are not added as parties to the complaint. The Opposite Party alleged that they had informed the Complainant that it was not possible to construct the swimming pool as the customers in the said Project were not interested for additional payment towards the swimming pool and therefore had to discard the idea of construction of the swimming pool.
III The Opposite Party further submitted that the building was duly completed in the month of September, 2011 and the possession was taken by the Complainant of the flat on 7.10.2011. The Opposite Party states that he is not guilty of any deficiency and that the delayed execution of Sale Deed is not his fault. According to the Opposite Party it is the Complainant who has failed to get the Deed of Sale executed inspite of his letters dated 30.6.2012, 4.9.2012 and 28.11.2012 calling for the execution of the Deed of 6 Sale. Ultimately he prayed for the dismissal of the complaint.
6. Both the parties had filed their respective Affidavits-in-Evidence. The Ld. District Forum after hearing the parties and on perusal of their pleadings and documents on record was pleased to pass the impugned Order dated 21.2.2017. Being aggrieved by the said Order, the Appellant herein has challenged the same in the present Appeal.
7. At the outset it is noted that the Ld. District Forum has declined to grant certain reliefs as claimed by the Respondent in their original complaint while certain other reliefs are granted vide the impugned Order. For our perusal, the operative part of the impugned Order is cited as under :
"The complaint is partly allowed. The Opposite Party is directed to execute the Deed of Sale of the Flat No. 204 with super built-up area of 94.19 sq. mts. on the second floor of Sunset Lagoon at Vasco da Gama, Goa. The Opposite Party shall also pay a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) with 10% interest from filing of this complaint till realization towards denial of the amenity of the swimming pool to the Complainant. The Opposite Party shall also pay a sum of RS. 50,000/- (Rupees Fifty Thousand only) to the Complainant towards mental agony for not providing the amenities to the Complainant. The Opposite Party shall also provide the children's park as agreed near the 7 Complex 'Sunset Lagoon' so also shall make arrangement to drain the rain water which gets accumulated near the complex Sunset Lagoon. The costs of this complaint are 10,000/- (Rupees Ten Thousand only) which shall be paid by the Opposite Party to the Complainant".
8. To begin with, we are duty bound to observe that the Ld. District forum has completely ignored and failed to apply its quasi - judicial mind on the important aspect of the point of jurisdiction raised by the Opposite Party in his written version as well as Affidavit-in-Evidence. The point of jurisdiction ought to have been decided in the first instance in as much as all relevant facts and circumstances alleged in the original complaint clearly indicate that the value of the services and the compensation claimed by the Complainant in the original complaint exceeds Rs. 20,00,000/- (Rupees Twenty Lakhs only).
9. In this regard, it is noticed that as per the Complainant's own case, he has purchased the said flat for the consideration of Rs. 25,00,000/- in different stages by cheques and cash by obtaining loan from State Bank of India, Vasco. The Complainant also has paid additional amount under different heads towards the purchase of the suit flat. The Complainant has also claimed the relief for the direction to the Opposite Party to execute the Deed of Sale as well as the specified amount of compensation alongwith other 8 reliefs in the complaint. Now, to our minds all the aforesaid amounts taken together certainly exceeds Rs. 20,00,000/- and thus the District Consumer Forum is clearly barred from trying and entertaining the present consumer dispute raised by the Complainant u/s 11 of the Consumer Protection Act, 1986.
10. We are in total agreement with the submission made by the Appellants that the Ld. District Forum had no jurisdiction whatsoever to try and entertain the present complaint and therefore ought to have dismissed the complaint on this ground alone. We are unable to agree with the argument advanced by the Respondent that the Ld. Forum has enough jurisdiction to decide the dispute since there is no dispute about the entire consideration having been received by the Complainant. He has unsuccessfully argued that the issue in the complaint is the direction to prepare a Sale Deed which will only attract a stamp duty of Rs. 50,000/- and the registration charges, all within the pecuniary jurisdiction of the Forum. In this respect, we record our finding to the effect that the jurisdiction of the District Forum is decided on the basis of the value of the services in the whole, the total price of the suit flat as consideration partly paid or promised or paid in full as well as the amount of compensation claimed in the complaint. The issue as to the payment of stamp duty and registration charges in respect of the Sale Deed falls within the purview of the Office of the Sub Registrar and even for that matter 9 the said authority has to take into consideration the valuation of the suit flat in terms of the price paid. Hence, we have no doubt in our minds that the Ld. District Forum while passing the impugned Order has acted in excess of the jurisdiction not vested in it. What surprises us is the fact that the Ld. District Forum did not decide the point of jurisdiction at all while passing the impugned Order. Hence on this ground alone, the impugned Order dated 21.2.2017 deserves to be set aside under this Order and we accordingly do so.
11. The Appellant herein has also sought to challenge the impugned Order on the ground that the original complaint was bad in law for non-joinder of necessary parties in as much as the owners of the landed property have not been impleaded as parties to the complaint. It is observed that this point has been raised by the Appellant consistently in his written version as well as Affidavit-in-Evidence before the Ld. Forum. If the Complainant so desired he had enough occasions and opportunities at the appropriate stages during the pendency of the complaint to implead other owners of the property as parties to the consumer dispute in their own interest which they did not do so. On the contrary, the Respondent has contended that there is no necessity to implead the owners as parties since the Appellant holds the Power of Attorney of the owners and he has signed the Agreements which are on record in the proceedings. The Respondent had 10 also raised his argument in this regard that even otherwise the entire construction and service has been provided by the Appellant in his capacity of service provider and as such he has to face the liability for his unfair trade practice and deficiency in service. It was also argued before us that the letters of the Appellant also showed that he has been demonstrating that he will sign the Sale Deed.
12. In this regard, we are unable to agree with the aforesaid contentions of the Respondent in as much as we are of the considered opinion that since the Complainant has prayed for the relief for Order to direct the Opposite Party to enter into Sale Deed, it is well settled law that such a Sale Deed cannot be validly entered into without the presence of all concerned owners of the land. Hence it is absolutely necessary that all such owners of the land are made party to such Deed of Sale before the authority under the law. It is therefore clear that the presence of such owners of the land is necessary and therefore they are required to be added as parties to any consumer dispute especially when the Complainant prays for the relief for Order as to entering of the Sale Deed.
13. Once again, on the aforesaid aspect, we are inclined to accept the argument of the Appellant that the concerned owners have signed the Power of Attorney in favour of the Appellant only in respect of certain authorized acts such as developing the said 11 property into plots, applying for permissions and NOCs etc. from certain authorities under the law, carrying the construction activities on the land, entering into Agreements of Sale with the prospective purchasers, etc. But the owners can never be said to have authorized the Appellant to sign the Sale Deeds on their behalf under any instrumentality of law. The Appellant can sign the Deed of Sale as Confirming Party but otherwise the presence of the owners of the land as parties to the Sale Deed is necessary.
14. It is pertinent to note that the Ld. Forum has initially adopted just, fair and well-established judicial approach with right reasoning when it observed at page 5, para 17 of the impugned Order as follows :
"The Opposite Party has no doubt raised the preliminary point stating that the owners of the property wherein the flat is constructed are necessary parties, are not made parties to the present complaint. Technically speaking the complaint requires to be dismissed on this point alone as the owners of the property are necessary parties to the complaint. A Sale Deed will not be completed without the owners of the property wherein the building consisting of flat are signatories to it."
We fail to understand as to what prevented or prompted the Ld. Forum for deviating from its own 12 aforesaid well-reasoned line of judicial thinking and instead to take a contrary view.
15. Be it as it may, the impugned Order most unfairly and unjustifiably directs the Appellant i.e. the Opposite Party in following terms :
"Opposite Party is duty bound to execute the Deed of Sale in favour of the Complainant as he himself has written letters to the Complainant to get the Sale Deed executed. Therefore we have no doubt in our mind that the developer i.e. the Opposite Party must have got executed Power of Attorney in his favour from the owners of the property to develop the property so also to enter into an Agreement with the prospective purchasers and get the Deed of Sale in their favour. We therefore have no hesitation in directing the Opposite Party to execute the Deed of Sale in favour of the Complainant by obtaining necessary Power of Attorney from the owners of the property in case he has not obtained it so.
16. We are quite convinced that there was no legal ground or any justification whatsoever for incorporating the aforesaid direction to the Opposite Party requiring him to obtain necessary Power of Attorney from the owners of the property for executing the Deed of Sale in favour of the Complainant in case he has not obtained so. The Appellant has rightly contended before us that such a direction was neither prayed for by the Complainant in the reliefs, nor was ever contemplated by the Opposite Party in as much as such a direction is given behind the back of the owners 13 without hearing them. It is precisely because on aspects like these matters, the owners are required to be heard as they have enough power and liberty to appoint any person of their choice as their Attorney for the purpose of signing the Sale Deed. To our minds, the aforesaid direction to the Opposite Party to obtain Power of Attorney from the owners in order to enter into the Sale Deed unfairly and improperly binds the third party, i.e. the owners, not before the Forum and therefore is in violation of the principles of natural justice.
17. Although on the aforesaid two grounds alone, the impugned Order deserves to be dismissed, we deem it appropriate to also deal with the overall merits of the case and record our observations and findings in relation to the issues raised by both the parties touching the merits of the case in the foregoing paragraphs of this Order.
18. It is true that the Respondent i.e. the Complainant has elaborately contested the issues pertaining to the swimming pool, children's park, making arrangement to drain out the rain water and entering of the Sale Deed, etc. in his pleadings as well as Affidavit-in-Evidence. According to the Complainant the failure on the part of the Appellant to provide aforesaid services amounts to 'deficiency in service' within the meaning of the Consumer Protection Act, 1986.
1419. As regards the issue of making provision for swimming pool, the Respondent has argued before us that the Appellant was bound to provide the swimming pool in terms of the Agreement of Sale and also the brochure provided by the Appellant. He has further argued that the withdrawal of the brochure which contains an obligation to construct the swimming pool by the Appellant has not been sufficiently explained and that the defense of the Appellant that the said brochure was withdrawn is only an afterthought and a way to escape the liability. He has further argued that the Order of the Ld. Forum as to the refund of Rs. 2,00,000/- for the failure to provide the swimming pool is just and fair Order. So also the Respondent has contended that the Order containing directions to provide other facilities such as children's park and arrangement to drain out the rain water is based on merits of the case and therefore need not be disturbed by this Commission.
20. In this regard, we have heard the contentions of the Appellant and on assessment of documentary evidence on record brought by both the parties, we are of the considered opinion that the Complainant i.e. the Respondent has failed to prove his allegations in the complaint that the Opposite Party was under
contractual obligation to provide amenities of swimming pool considering the fact the Agreement by itself does not carry any condition or stipulation 15 making it mandatory for the Opposite Party to provide the swimming pool. We also find that the Opposite Party has rightly raised a valid objection to the document called brochure and argued that the same was withdrawn to the knowledge of the concerned purchasers and therefore the said brochure by itself does not and cannot create any liability or obligation on the part of the Opposite Party to make the provision for swimming pool in as much as neither the brochure nor the alleged amenities of swimming pool and children's play area forms part of the Agreement dated 19.4.2010.
21. Furthermore, we find no reason to disbelief the contention of the Opposite Party that the Agreement for Construction and Sale was executed on 19.4.2010 whereas the case of the Complainant is that perusing the brochure circulated by the Opposite Party in the year 2008-2009, the Complainant booked the premises with the Opposite Party. This means that the Agreement executed on 19.4.2010 was almost after one year since the advertisement of brochure as the Complainant had approached the Opposite Party in the year 2010 and not in the year 2008-2009. We also do not find any reason to disbelief the defence of the Opposite Party that he had to drop the idea of providing the swimming pool as originally contained in the earlier brochures where the cost was Rs. 35,000/- per sq. mtr. and that within couple of days of floating the Project the Opposite Party realized that the 16 customers were not interested in making the payment at the said rate and preferred to buy the premises if the amenities of swimming pool is removed and price is reduced. Hence as requested and preferred by the customers, the Opposite Party decided to discard the idea of construction of swimming pool on the sixth floor of the Building B and printed and circulated fresh brochures in April, 2009 to all its customers by withdrawing earlier brochures printed in March, 2009 as also revised the rate as Rs. 25,000/- to Rs. 26,000/- per sq. metre.
22. In order to substantiate and support the above contention, the Opposite Party has placed on record the Certificate dated 4.11.2013 issued by Mr. Shantan Sukhtankar, alongwith his Affidavit deposing the facts that the old brochure showing swimming pool was withdrawn within one month of its publication and new brochure was issued in its place. Hence to our minds, it is difficult to accept the contention of the Complainant that while booking the flat in April, 2010, he purchased the said premises on the basis of the brochure of 2008-2009 which was withdrawn in April, 2009. The Opposite Party has denied that he has furnished or provided the said brochure to the Complainant and contended that the construction of the swimming pool never formed the part of the Agreement.
1723. In addition to the aforesaid documents, the Appellant has vehemently argued that there was neither any misunderstanding nor any misrepresent- tation in the matter of providing the swimming pool in as much as all other purchasers of the flats in the suit premises have clearly and unequivocally agreed to the non-provision of the swimming pool. To support this argument, the Opposite Party has brought on record of the Lower Forum the documentary evidence by obtaining the Affidavits of other residents of the said building namely Mr. Sattar Munaf, Mr. Sayed Hammad Ali and Mr. K. Sudhakar Reddy, who had purchased their flats much before the purchase by the Complainant and who have corroborated the case of the Opposite Party that all of them were duly informed by the Opposite Party about the withdrawal of amenities of swimming pool. This being so, in our opinion, the Ld. Forum failed to draw the necessary inference in the impugned Orders that the Opposite Party cannot be faulted of not providing the swimming pool. We also record our finding that there was no justification for granting the amount of Rs. 2,00,000/- for failure on the part of the Opposite Party to provide the swimming pool.
24. As regards the issue of alleged deficiency due to the failure on the part of the Opposite Party to enter the Sale Deed, it is observed that the Complainant has failed to come forward with the convincing evidence in support the alleged acts of deficiency in service. We 18 are convinced that the Opposite Party has produced enough and cogent evidence to prove that he was ever ready to execute the Sale Deed in respect of the suit flat and has for time and again requested the Complainant to have the Sale Deed executed. We have gone through the letters dated 30.6.2012, 4.9.2012 and 28.11.2012 (Exhibit M Colly to the written version) whereby the Complainant was repeatedly requested to take steps towards the execution of the Sale Deed.
25. It may be noted here that in the questionnaire submitted by the Opposite Party by way of cross examination of the Complainant, the Complainant was questioned about these letters and his inability to present himself for Sale Deed but the Complainant completely avoided to answer the same and gave evasive replies by deposing that his Advocate is in the best know how of the things. Hence we are duty bound to hold that the Opposite Party has taken all prompt and reasonable steps to enable the Complainant to enter into the Sale Deed and therefore there is no 'deficiency in service' on the part of the Opposite Party as defined under the Consumer Protection Act, 1986.
26. For the reasons and aforesaid observations and findings arrived at by this Commission, we do find that the impugned Order passed by the Ld. Forum suffers from manifest absurdity and material irregularity which warrants our interference in order to meet the 19 ends of justice. Hence we do hereby hold that the present Appeal has to be allowed and the impugned Order deserves to be set aside which we accordingly do so.
27. We therefore pass the following :
ORDER It is hereby ordered that the present Appeal dated 15.3.2017 filed by the Appellant herein is hereby allowed. Accordingly the impugned Order dated 21.2.2017 passed by the District Consumer Dispute Redressal Forum, at South Goa in Margao in Complaint No. 59/2013 is hereby set aside.
Consequently the original complaint on record of the Ld. Forum, South Goa in the aforesaid complaint is hereby dismissed. There shall be no Order as to costs.
Vidhya Gurav Jagdish Prabhudesai (Hon'ble Member) (Hon'ble Member)