State Consumer Disputes Redressal Commission
Brito Gracias Fernandes & Another vs Filipe Fernandes Alias Filipe ... on 13 May, 2015
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
PANAJI - GOA
C.C. No. 04/2015
1. Mr. Brito Gracias Fernandes,
son of Mr. Emello Fernandes,
_____years age, married, service,
2. Mrs. Alysia Brito Fernandes,
wife of Mr. Brito Gracias Fernandes,
39 years of age, married, housewife,
Both residing at 105/B,
Sai Complex, Siddarth Nagar,
Vakola, Santa Cruz (E), Mumbai. .....Complainants
v/s.
1.Mr. Filipe Fernandes alias Filipe Fernandes,
son of Mr. Antonio Francisco Fernandes,
55 years of age, married, businessman,
2.Mrs. Yvone Fernandes,
wife of Mr. Filipe Fernandes,
51 years of Age, married,
Both residing at house no. 372,
Reprovado, Varca, Salcete, Goa.
Additional address:
Both residing at house no. 168,
Palcutta, Orlim, Salcete, Goa. ....O.Ps
Complainants are represented by Adv. Shri. A.A. Apte.
OP No. 1 is represented by Adv. Shri. J. Ramaiya.
OP No. 2 is represented by Adv. Shri. Sameer Dessai.
Dated: 13/05/2015
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ORDER
This order shall dispose off the consumer complaint filed by the complainants.
2. Some facts are required to be stated to dispose off the same.
3. The complainants are husband and wife. OP No. 1 is a developer and OP No. 2 is his wife, both having got married on or about 5/9/1982.
4. OP No. 1 purchased a plot of land admeasuring about 2125 sq.mtrs. under survey No. 66/4 situated at Orlim by sale deed dated 23/3/1992 and constructed thereon a building of ground floor consisting of shops pursuant to Village Panchayat permission dated 27/1/06, and, thereafter, obtained Village Panchayat permission dated 26/3/10 to construct first and second floor of the said building, consisting of residential flats. OP No. 2 would say that the building was constructed by both.
5. The complainants entered into an agreement with OP No. 1 as owner/developer, styled as an agreement for sale, on 6/4/11 duly registered, to sell to the complainants a flat on the first floor of the said building identified as flat No. FF-01 having built up area of 112.9 sq.mtrs. for a sum of Rs. 19 lacs. The said flat was to be delivered to the complainants by OP No. 1 within a period of 12 months from the date of the said agreement. Rs. 3,75,000/- were paid on or before the execution of the said agreement dated 6/4/11 and the balance amount of Rs. 15,25,000/- was to be paid as per Annexure-B to the said agreement.
6. This agreement, admittedly, was signed only by OP No. 1 as owner/developer, and, it is the case of the complainants, in short, that OP No. 2 had consented to the said agreement, two days prior to the execution of the same and OP No. 2 had stated that she would be 3 joining the execution of the sale deed to be executed in favour of the complainants in respect of the said flat; and OP No. 1 was paid on 14/1/13 Rs. 4,75,000/- to execute ratification of the said agreement and not only that OP No. 2 had subsequently ratified the execution of the said agreement by accepting a sum of Rs. 1 lac on or about 30/1/13 at her residence upon execution of a writing styled as "receipt-cum-acknowledgment". The "receipt-cum- acknowledgment" ratifying the agreement of sale dated 6/4/11 was executed by OP No. 2, after she had sent a notice dated 14/08/12 through Adv. Shri. R.F. Gracias to the complainants and OP No. 1, threatening to file a suit for cancellation of the said agreement, but after a meeting was held in the office of Adv. Shri. R.F. Gracias in the 4th week of January '2013 presided by Adv. Shri. Clovis de Costa, wherein it was agreed that the notice dated 14/8/12 would be withdrawn.
7. Both the OPs had later signed similar agreements for sale of a flat on the first floor in favour of Mr. Cedric Mascarenhas in November 2011 and for sale of a flat on a second floor in favour of Miss. Hilda Fernandes in the year 2012.
8. The case of the complainants is that they had made arrangements to shift permanently to Goa, from Mumbai, and when they visited the flat in February 2012 they found that the OPs had carried out structural changes to the said flat, details of which the complainants have given in para 12 of the complaint, and, have also tried to make good, by filing an inspection report of Engr. Shri. Nilesh G. Laad, and, which are not inconsonance with the approved building plan. The case of OP No. 1 is that the said changes were made at the behest of complainant No. 2. The complainants then filed a complaint to the Village Panchayat on 6/11/13 - a fact not pleaded in the complaint -
4and the Village Panchayat issued a stop work order dated 15/11/13. The complainants stated that by 31/1/13 they had paid the entire consideration and having felt cheated, had addressed a legal notice dated 16/3/12 to OP No. 1 but OP No. 1 made false and baseless allegations against the complainants and instead of getting things resolved threatened to file a suit against the complainants through his wife for cancellation of the said agreement stating that she was not joined as a party to the same. Complainants pleaded that the OPs have till date failed to discharge their obligations under the agreement, and surprisingly, the OPs, instead of completing the suit flat as agreed, the complainants received summons in RCS No. 21/2013/I.
9. The RCS No. 21/2013/ I filed on or about 9/7/13 is apparently not being contested by the husband, OP No. 1, but is being contested by the complainants who filed their written statement on or about 13/1/14. This shows to some extent that OP No. 1 and 2 had no differences amongst themselves atleast until 2/7/14 when OP No. 2 filed a case for domestic violence against OP No. 1 to the B.D.O.
10. Complainant No. 2, OP No. 1 and OP No. 2 have filed their affidavit-in-evidence, in support of their respective cases. Arguments have been heard.
11. Shri. Apte, the lr. advocate of the complainants, would submit that at all times OP No. 2 was aware of the agreement of sale executed between the complainants and OP No. 1, and in case the said agreement was not binding on OP No. 2, OP No. 2 should not have ratified the same and should have refused to accept payment of Rs. 1 lac and sign the "receipt cum acknowledgement" on 31/1/13. Lr. advocate submits that OP No. 1 has carried out structural alterations 5 to the flat agreed to be sold to the complainants and thereby reduced the area by 10.86 sq.mtrs. and the flat is not even half complete and presently the Village Panchayat has issued a stop work order as a result of which the complainants are not interested in the said flat but have prayed that an identical flat be given to the complainants or in the alternative the OPs be directed to refund the sum of Rs. 19,05,000/- paid by the complainants. Lr. advocate submits that the contention of OP No. 1 that the complainants had booked the said flat for commercial activities is raised only to deprive the complainants the remedy before this Forum or in any event to delay the refund of the monies paid by the complainants. Lr. advocate submits that this Commission may grant to the complainants either of the two prayer made in the complaint.
12. On the other hand, Shri. J. Ramaiya, the lr. advocate of OP No. 1, would point out to para 25 of the written statement filed by the complainants in RCS No. 1211/2013/I and submits that nothing prevented the complainants in filing a counter claim in the said civil suit and seek these very remedies before the Civil Court. Lr. advocate submits that this Commission will have no jurisdiction to entertain this consumer complaint in view of the said RCS having been filed by OP No. 2. Lr. advocate submits that the complainants wanted a reception area to the suit flat indicating thereby that they wanted to use the flat for commercial purposes. Lr. advocate submits that it is complainant No. 1, who told OP No. 1, that they wanted the suit flat by way of investment but complainant No. 1 has not come before this Commission and filed his affidavit in as much as the affidavit filed by complainant No. 2, on behalf of complainants, lacks verification. Lr. advocate has placed reliance on the case of Rajesh Malhotra and 3 ors. vs. Acron Developers Pvt. Ltd.,(unreported order of this Commission dated 6 06/11/14 in C.C. No. 10/2010). Lr. advocate has further submitted that the payment receipts issued by OP No. 1 have been interpolated by the complainants but concedes that the original agreement between the complainants and OP No. 1 referred to the flat as having "built up area" of 112.9 sq.mtrs. and not "super built up area" of 112.9 sq.mtrs. Lr. Adv. Shri. Ramaiya has also gone to the defense of OP No. 2, and has submitted that OP No. 2, would not be a service provider, for the complainants to proceed against her before this Commission and the relief to the complainants will be required to be given by the Civil Court. OP No. 2 has filed written submissions and we have perused the same.
13. As regards, the jurisdiction of this Commission, we are unable to accept the submission of Shri. Ramaiya that the complainants had agreed to purchase the suit flat as a matter of investment. This submission is based only on self-serving statements made by OP No. 1 who would always be interested in ousting the jurisdiction of this Commission with a view to delay or defeat the refund of money received by him and his wife from the complainants. Only because Eng. Shri. Laad refers to the "reception room" it cannot be said that the flat was to be used for commercial purpose. We are also unable to accept the submission of Shri. J. Ramaiya that the complainants cannot proceed against OP No. 2 as she is not a service provider. The complainants have categorically stated that they paid OP No. 1 an additional amount of Rs. 4.75 lacs on 14/1/13 for the purpose of executing a ratification deed to the agreement for sale dated 6/4/11 and not only that the complainants have also produced the receipt cum acknowledgment duly signed by OP No. 2 on 31/1/13 by which she has ratified the agreement signed by her husband, OP No.1 and the complainants on 6/4/11 and this shows that both the 7 complainants were bound to comply with the said agreement, as service providers.
14. However, it would be impossible to grant relief to the complainants in terms of Clause (b) of the complaint i.e. delivery of a flat of the same description, of the same area, on the first floor etc, etc., but one cannot forget that the complainants have also sought to recover the money paid by them to the OPs and for that whether OP No. 2 is the co-owner of the project or not would hardly matter. However, the fact remains, that OP No. 2 has stolen the march over the complainants and filed the said RCS against the complainants and her husband, OP No. 1, to declare the said agreement as null and void. In our view, the question is not essentially one of jurisdiction but one of propriety - propriety to avoid conflicting decisions/orders.
15. On this aspect, Shri. Ramaiya has placed reliance on the Order of this Commission dated 27/9/12 in CC No. 14/10 filed by M/s. Ascent Construction Vs. The State Bank of India, wherein we had made reference to several decisions including Topline Shoes Ltd., & anr., 2002 (10) SCC 358 as well as to the case of Jagannath Constructions (2001 (1) CPR 1). This case would be more relevant than the other. In this case Tamilnadu State Commission observed as follows:
"This apart, in respect of the same matter in dispute, the complainant Company had admittedly instituted civil proceedings against the O.Ps before the competent Civil Forum. Axiomatic a proposition of law it is that if, in respect of the same subject matter, proceedings before the Civil Forum had been instituted prior to the institution of the proceedings before the Fora constituted under the Act and such proceedings are pending, the Fora constituted under the Act definitely gets ousted of jurisdiction."8
16. Shri. J. Ramaiya has also placed reliance on the Indian Medical Association Housing Society Ltd., vs. M/s. Rustumji Developments III (1994) CPJ 130, wherein the National Commission has held that it is not appropriate for the Commission to conduct a concurrent adjudication of the identical issues covering same subject matter when they are already pending adjudication before some other competent authority. It was brought to the notice of the National Commission that the OP had instituted a suit in the City Civil Court, Bangalore, as Original Suit No. 5364/91 and some of the issues forming the subject matter of the complaint before the National Commission were at issue between the same parties in the said suit which was also pending. In those circumstances the National Commission declined to go into the merits of the consumer complaint.
17. A similar view was also taken by Haryana State Commission in State Bank of India vs. Shilender Chaudhary, 2011 CTJ 90, wherein the view held in Karam Singh vs. State Bank of India and anr. 1994(2) CPR 474 was followed and it was therefore held that:
"It is now well settled within the consumer jurisdiction that when an identical or an allied cause of action is in seizing in the plenary courts of law then the redressal agencies under the Act must stay their hands. It is obvious that no parallel proceedings for virtually the same or connected cause of action should be permitted. It would be hardly appropriate that whilst the rights of the parties are yet under trial before a Civil Court a collateral proceeding may be taken cognizance of by the Consumer Fora".
18. The complainants have pleaded that the cause of action to file the present complaint arose on 14/10/13 when the complainants received the summons from the Civil Court in the case filed by OP No. 2 in derogation to the undertaking dated 31/1/2013 and the fact 9 that the suit is not being defended by OP No. 1, by filing written statement shows the intention of the OPs of not adhering to the agreement.
19. If the suit was filed against the complainants, the right remedy for the complainants was to defend the same and also seek whatever remedies are available to them in the said civil suit. With the view to avoid conflict of decisions, we do not propose to entertain this complaint. The complaint, therefore, is hereby dismissed, leaving the parties to bear their own costs.
[ Justice N. A. Britto ] President sp/-