National Consumer Disputes Redressal
Prema Surendra Vijaykar & 4 Ors. vs Jayant V Ishanji Dharod & Anr. on 3 January, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2062 OF 2016 (Against the Order dated 16/03/2016 in Appeal No. 692/2015 of the State Commission Maharashtra) 1. PREMA SURENDRA VIJAYKAR & 4 ORS. MEMBERS OF MAHADEV VASANTRAO VIJAYAKAR, HUF R/O. PRABHA VIJAYA, PLOT NO. 62, KELUSKAR ROAD, SOUTH, DADAR, MUMBAI-400028 MAHARASHTRA 2. MRS. SARITA JAYANT VIJAYAKAR MEMBER OF MAHADEV VASANTRAO VIJAYAKAR, HUF R/O. PRABHA VIJAYA, PLOT NO. 62, KELUSKAR ROAD, SOUTH, DADAR, MUMBAI-400028 MAHARASHTRA 3. MR. VIKRANT SURENDRA VIJAYAKAR MEMBER OF MAHADEV VASANTRAO VIJAYAKAR, HUF R/O. PRABHA VIJAYA, PLOT NO. 62, KELUSKAR ROAD, SOUTH, DADAR, MUMBAI-400028 MAHARASHTRA 4. MR. AMIT SURENDRA VIJAYAKAR, MEMBER OF MAHADEV VASANTRAO VIJAYAKAR, HUF R/O. PRABHA VIJAYA, PLOT NO. 62, KELUSKAR ROAD, SOUTH, DADAR, MUMBAI-400028 MAHARASHTRA 5. MRS. VAISHALI RAVINDRA DESAI, MEMBER OF MAHADEV VASANTRAO VIJAYAKAR, HUF R/O. PRABHA VIJAYA, PLOT NO. 62, KELUSKAR ROAD, SOUTH, DADAR, MUMBAI-400028 MAHARASHTRA ...........Petitioner(s) Versus 1. JAYANT V ISHANJI DHAROD & ANR. S/O. VISHANJI RAM JI BHAROD, R/O. FLAT NO. 2, 3RD FLOOR, PRABHA VIJAYA, PLOT NO. 62, KELUSKAR ROAD SOUTH, OPP. SHIVAJI PARK GYMKHANA, SHIVAJI PARK, DADAR, MUMBAI-400028 MAHARASHTRA 2. M/S. PANDIT & KIRKIRE & CO. THROUGH ITS PARTNERS,NO.91, HINDU COLONY, KRISHNA BHUVAN,3RD LANE, DADAR, MUMBAI-400014 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Petitioner : For the Respondent :
Dated : 03 Jan 2018 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioners
:
Mr. Jaideep Gupta, Sr. Advocate with
Mr. Mohan M. Jayakar, Advocate
Mr. Javaid Muzaffar, Advocate
Mr. Debashish Jagirdar, Advocate
Mr. Kunal Chatterjee, Advocate
For the Respondents
:
Mr. Sudhanshu Batra, Sr. Advocate with
Mr. Saswat Pattnaik, Advocate
Mr. Aditya Mishra, Advocate
PRONOUNCED ON: 3rd January 2018
ORDER
PER DR. B.C. GUPTA, PRESIDING MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 16.03.2016, passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (hereinafter referred to as "the State Commission") in First Appeal No. A/15/692, Mrs. Prema Surendra Vijaykar & Ors. vs. Shri Jayant Vishanji Dharod & Anr., vide which, while dismissing the appeal, the order passed by the District Consumer Disputes Redressal Forum, Central Mumbai on 14.05.2015 in Consumer Complaint No. CC/13/197, filed by the complainant/present respondent no. 1, Sh. Jayant Vishanji Dharod, allowing the said complaint, was upheld.
2. Briefly stated, the facts of the case are that as per the consumer complaint filed by the respondent no. 1, Jayant Vishanji Dharod, M/s. Madhav Vasantrao Vijaykar HUF was the owner of immovable property, bearing survey no. 1485, Cadastral Survey No. 1772, Mahim Division, situated at Keluskar Road (South) Shivaji Park, Plot No. 62, together with building standing thereon, commonly known as "Prabha Vijaya". The late Surendra Madhav Vijayakar was the karta of the said HUF and he executed an agreement dated 26.02.1979 under the provisions of the Apartment Ownerships Act, 1970 with a builder firm, the opposite party (OP-1), M/s. Pandit & Kirkire & Co. to construct additional floors on the existing building. The said Surendra Madhav Vijaykar died on 17.04.1994 and on the date of filing the complaint, the OPs no. 2 to 7 were the members of the said HUF as successors-in-interest. The present petitioners are OPs No. 3 to 7 in the complaint.
3. It is further stated in the consumer complaint that the OP-1 builder armed with the agreement dated 26.02.1979 from the owner of the property, executed an agreement dated 03.07.1979 in favour of the complainant, Jayant Vishanji Dharod, according to which, flat no. 2, on the third floor of the building "Prabha Vijaya" was to be allotted to the complainant for a consideration of Rs. 1,61,000/- together with some additional payments vide clause 21 of the said agreement. It is the case of the complainant that under clause 24 of the said agreement, the complainant was to take steps to form an association of apartment owners, upon receiving due intimation from the OP-1, and the OP-1 was under obligation to assign and transfer the said premises to such association by conveying the said Premises under the deed of Apartment. As per the complainant, he was put in possession of the said flat after the completion of construction by the OP-1 builder, but the OPs failed to fulfil their commitment for conveying the said premises under a deed of Apartment. Even after the issuance of a legal notice dated 25.06.2013, the OPs did not execute the said deed of apartment. The complainant filed the consumer complaint in question, seeking directions to the OPs to execute the necessary Declaration of Deed of Apartment in favour of the complainant and other Apartment owners under the Maharashtra Apartment Ownership Act, 1970 and to do all necessary acts and deeds under the said Act.
4. The complaint was resisted by the OP-5 by filing a written statement before the District Forum, in which it was stated that they were not party to the agreement dated 03.07.1979 between the complainant and OP-1 builder. They had no privity of contract with the complainant under which, they could be directed to execute the said deed of apartment. Moreover, the complaint was barred by limitation as well as on grounds of pecuniary jurisdiction. It was stated, however, in para 18 of the reply that the respondents had never denied their obligation to execute a declaration and deed of apartment in favour of the purchasers of the newly-constructed building.
5. The District Forum, after considering the averments of the parties, allowed the consumer complaint and directed the OPs to execute the declaration and deed of apartment in favour of the complainant under the Maharashtra Apartment Ownership Act, 1970 and also allowed a litigation cost of Rs. 5,000/-. Being aggrieved against the order of the District Forum, the OPs 3 to 7 (five in number) who are the present petitioners, challenged the same by way of an appeal before the State Commission and the said appeal having been dismissed vide the impugned order, the said appellants are before this Commission by way of the present revision petition.
6. The learned Sr. Advocate appearing for the petitioners has challenged the orders passed by the consumer fora below, mainly on three grounds, namely that the consumer complaint filed before the District Forum was beyond the pecuniary jurisdiction of the District Forum on the date of filing the same. Moreover, the complaint was hopelessly time barred as about 30 years had passed from the date of cause of action. The learned Sr. Advocate also took the plea that the petitioners were the land owners of the said property and they had not entered into any agreement with the complainant and hence, they were under no obligation to meet his requirements of execution of the sale deed etc.
7. The learned Sr. Advocate argued that for the purpose of pecuniary jurisdiction, the value of the property on the date of taking-over possession of the same, has to be taken into consideration. It may be true that as stated in the agreement dated 03.07.1979 between the complainant and the OP-1 builder, the consideration of the flat in question was quoted as Rs. 1.61 lakhs, but its value was much more on the date of delivery of possession and hence, the matter was beyond the pecuniary jurisdiction of the District Forum. The order passed by the District Forum was, therefore, not in accordance with law. Further, the learned Senior Advocate for the petitioners has drawn attention to the averments made in the consumer complaint itself by the complainant, where it was stated that the OPs had failed to fulfil their statutory obligation for more than 30 years. The narration made by the complainant itself shows that the complaint had been filed beyond the statutory time limit permissible under section 24A of the Consumer Protection Act, 1986, as per which, the consumer complaint could only be filed within two years of the date of the cause of action. During all these years, the complainant had never contacted them for the execution of the deed of apartment. The learned counsel stated that the date of possession could be taken as the date of cause of action and hence, it was the duty of the complainant to have approached them for getting the needful done. In support of his arguments, the learned counsel has drawn attention to the orders passed by the Hon'ble Apex Court in State Bank of India vs. B. S. Agriculture Industries, (I) (2009) 5 SCC 121 and Kandimalla Raghavaiah & Company vs. National Insurance Company & Anr., (2009) 7 SCC 768. The learned Sr. Advocate argued that keeping in view the judgments of the Hon'ble Apex Court in these two cases, the complaint was required to be dismissed, having been filed beyond the statutory time limit prescribed under the Act.
8. The learned Sr. Advocate has further argued that there was absolutely no privity of contract between the petitioners and the complainant as he had entered into an agreement dated 03.07.1979 with the builder only. In so far as they were concerned, the complainant did not fall under the definition of consumer vis-a-vis them, as he had not hired or availed himself the services from the petitioners. Moreover, the statutory obligations required to be fulfilled as requested by the complainant, do not fall within the parameters of the Consumer Protection Act. The learned Senior Advocate argued that the consumer complaint in question should be dismissed and the orders of the consumer fora below should be set aside, keeping in view the arguments put forward as above.
9. Per contra, the learned Sr. Advocate for the complainant/respondent no. 1 has drawn attention to the agreement dated 26.02.1979 executed between the petitioners and the OP-1 builder, in which it has been stated at paragraphs 16 as follows:-
"16. After the owners shall have received the full consideration money as herein provided the owners shall submit the said building together with the new construction to the provisions of Maharashtra Apartment Ownership Act, 1970 (Maharashtra Act No. XV of 1971) and for that purpose they shall register their Declaration with the Sub-Registrar of Assurance at Bombay. The Owners hereby agree that at the request of the Builders, they shall execute a Deed of Apartment in favour of the purchasers and in that event the Builders shall join the said Deed of Apartment as confirming parties confirming the said premises in favour of the Apartment Owner."
10. The learned Senior Advocate argued that in terms of the agreement dated 26.02.1979, the petitioners were duty bound to get the Deed of Apartment executed in favour of the purchaser of the property, constructed by the OP-1, builder. The said agreement was in accordance with the provisions of the Maharashtra Apartment of Ownership Act, 1970 and the Maharashtra Apartment Ownership Rules, 1972. In the reply filed before the District Forum, one of the petitioners, Vikrant Vijayakar had stated categorically that they had never denied their obligation to execute the declaration and deed of apartment in favour of the purchasers of the newly-constructed building i.e. the purchasers of the third and fourth floors of the premises. Since the petitioners had themselves admitted their obligations in the document executed by them, they had no right to challenge the order passed by the consumer fora below by way of another appeal or revision petition.
11. The learned Sr. Advocate for the complainant argued that the case was very much within the pecuniary jurisdiction of the District Forum. A three-member Bench of the National Commission had passed an order dated 07.10.2016 in C.C. No. 97of 2016, Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd., in which it had been clarified as follows:-
"the consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, alongwith the compensation, if any, claimed in the complaint to determine the pecuniary jurisdiction of a Consumer Forum."
12. Since the value of the property as stated in the agreement dated 03.07.1979 was Rs. 1.61 lakhs, the case was very much within the pecuniary jurisdiction of the District Forum.
13. The learned Sr. Advocate further stated that it was a case of continuing cause of action, because the petitioners had failed to meet their statutory obligation of executing the deed of the agreement in question. The learned counsel has drawn our attention in support of his arguments to an order passed in the case, Union of India & Ors. vs. Sumant Kumar Tyagi, in W.P.(C) No. 2698/2010, decided on 06.08.2010 by the Hon'ble High Court of Delhi.
14. The learned Sr. Advocate further argued that it was not correct on the part of the petitioners to say that they had no privity of contract with the complainant. Being the owners of the property in question, it was their duty to execute the deed of apartment so as to transfer the title of the property purchased by the complainant in his favour.
15. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
16. The first point that arises for our consideration is whether the consumer complaint filed by the complainant/respondent no. 1 was within the pecuniary jurisdiction of the District Forum or not. The matter has been deliberated at length by a three-Member Bench of this commission already. In their order passed in Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd. (supra), it has been clearly brought out that the consideration paid or agreed to be paid by the consumer at the time of purchase of the goods or hiring or availing of the services is to be considered alongwith compensation, if any, to determine the pecuniary jurisdiction of that forum. We have no reason to be in agreement with the learned Sr. Advocate for the petitioner that the value of the property on the date of taking over the possession of the same has to be kept in mind, while deciding the pecuniary jurisdiction of the consumer fora. Relying upon the view taken by the three-Member Bench of this Commission, we agree with the arguments put forward by the learned Sr. Advocate for the complainant on this account and hold that the District Forum had the pecuniary jurisdiction to adjudicate the consumer complaint filed by the consumer before them.
17. The main issue that arises for our consideration is whether there was a privity of contract between the petitioners, who are the land owners of the property and the complainant, with whom they did not enter into any direct agreement. The entire documentary evidence brought on record proves clearly that at first, there was an agreement dated 26.02.1979 between the land owners and the developer/respondent no. 2 in which the petitioners made a categorical declaration that they shall execute the deed of apartment in favour of the purchasers and the builder shall also join the said deed of apartment as confirming party, confirming the said premises in favour of the apartment owner. It was categorically stated that the petitioners/land owners shall submit the said building together with new construction to the provisions of the Maharashtra Apartment Ownership Act, 1970 and for that purpose, they shall register their declaration with the Sub-Registrar of Assurance at Bombay. The agreement between the petitioners/land owners and the developer was followed by another agreement in July 1979 between the developer and the complainant, according to which, the constructed property was sold by the developer to the complainant. Since under the terms of the said agreement, the developer has sold the said property to the complainant after receiving due consideration from him, it is a legal requirement and also desirable that the title of the property purchased by the complainant should be passed on to him. Since the title of the property is with the petitioners/land owners, there is a legal duty cast upon them to transfer the said title in favour of the complainant/consumer, more so in the light of the fact that they already made a categorical assertion to that effect in the agreement signed by them with the developer. At this stage, they cannot be allowed to resile from their statement made in the agreement dated 26.02.1979 and avoid the transfer of title in favour of the complainant. At the time of arguments before us also, a pointed query was made to the petitioners, asking them to clarify as to what would happen if the title was not transferred to the complainant. There was no satisfactory explanation on their part, apart from saying that there was no privity of contract between them and the complainant and also the demand raised by the complainant had become time barred. We have no reason to accept the assertion of the petitioners for the denial of transfer of title to the complainants.
18. With regard to the consumer complaint being time barred, the case of the petitioners is that under section 24A of the Consumer Protection Act, the complainants were duty bound to file the consumer complaint within two years of the cause of action. They have drawn attention to the orders made by Hon'ble Supreme Court in State Bank of India vs. B. S. Agriculture Industries (I), (supra) and Kandimalla Raghavaiah & Company vs. National Insurance Company & Anr., (supra). We, however, have no reason to accept the version of the petitioners on this score as well. Once the petitioners had admitted their liability about the declaration and deed of apartment, even in the written reply filed by them before the District Forum, they were duty bound to take appropriate action in that direction and to ensure that the title was transferred in favour of the complainant. We, therefore, agree with the conclusion arrived at by the State Commission that this is a case of clear-cut deficiency on the part of the petitioners, and hence, this is a case of continuous cause of action as the complaint was filed for seeking discharge of statutory obligation as admitted by the petitioners themselves.
19. The learned Sr. Advocate for the petitioners argued at length that the view taken in Union of India & Ors. vs. Sumant Kumar Tyagi (supra) was not applicable in the facts and circumstances of the present case, because that case dealt with the issue of non-payment of pension. The cause of action accrued to the complainant afresh every month in that case, because the pension was liable to be paid every month. We, however, are not in agreement with the view taken by the petitioners because in the present case, the non-execution of the deed of apartment and the non-transfer of title did amount to continuous cause of action available to the complainants. As stated earlier, once the complainant purchased certain property from the developer by paying the requisite consideration, it is very much his right to get the title of that property, and till he is able to obtain that title, his right does not get extinguished by limitation alone.
20. Based on the discussion above, we do not find any merit in this revision petition as there is no illegality, irregularity or jurisdictional error in the orders passed by the consumer fora below. This revision petition is, therefore, ordered to be dismissed and the impugned order upheld. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER