State Consumer Disputes Redressal Commission
Mr. Francis Thomas Gonsalves, vs Mr. Sanjay Naik, on 25 June, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA FA No. 35/13 1. (a)Mr. Francis Thomas Gonsalves, (b)Priscilla Gonsalves, Through their Power of Attorney Holder Mr. Luis Domingos de Menezes Roque DSouza alias Luis DSousa, Aurea, Behind Pinto Service Station, Naikawaddo, Calangute, Bardez, Goa. 2. Luis Domingos de Menezes Roque DSouza alias Luis DSousa, Aurea, Behind Pinto Service Station, Naikawaddo, Calangute, Bardez, Goa. ...Appellants/ OP Nos. 1 & 3 V/s. 1.Mr. Sanjay Naik, House No.133, Ward No.10, Near Central Garage, St. Inez, Panaji Goa .Respondent No.1/ Complainant 2.Souza Estate Developers, Through its partner, Mrs. Ligia de Menezes e Sousa Church View Building, 1st Floor, Fr. Agnelo Road, Altinho, Panaji Goa. ..Respondent No.2/ O.P No.2 Appellants are represented by Adv. Shri. R. Chodankar Respondent No.1/ Complainant is represented by Adv. Shri. P. H. Parab Respondent No.2/OP No.2 exparte Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 25/06/2013 ORDER
[Per Justice Shri. N. A. Britto, President] This appeal can be said to have been filed by the OPs in C.C. No.102/2010 and it is directed against order dated 29/01/2013 of the Lr. District Forum, North Goa at Porvorim.
2. Some facts are required to be stated to dispose off this appeal.
3. There is a property surveyed under 39/0 of Chimbel village admeasuring 60,495 sq. mts. The said property belongs to OP Nos.1 (a) & (b) (appellant nos. 1 (a) & (b) herein) and the same was mortgaged by them to Mapusa Urban Co-operative Bank Ltd. OP No.2, a firm of developers, agreed to purchase the said property by agreement dated 27/11/1998 and redeemed the mortgage by paying the mortgage amount to the said Bank. Thereafter OP No.2, the developer, again mortgaged the said property to the said Bank by deed dated 27/11/1998 and developed the property into plots. OP No.3, in short Luis DSousa, is the attorney of the said owners and a partner of OP No.2 Souza Estate Developers. The said Luis DSousa is now appellant no.2 before this Commission and OP No.2 Souza Estate Developers are being represented by Mrs. Ligia de Menezes e Sousa, though otherwise they are ordered to proceed exparte.
4. The Complainant (respondent no.1 herein) agreed to purchase from the said owners and the said developers plot no.17 admeasuring 627 sq.mts. for Rs.7 lacs and paid Rs.2 lacs vide receipt dated 27/01/2005. The terms of the agreement for sale were reduced in writing, more than a year later, on 06/02/2006.
4.1. By virtue of clause 2 of the said agreement dated 06/02/2006 the OPs were to get released the mortgage of plot no.17 within one month from the date of agreement i.e. by 06/03/2006 and the vendors and the developers namely the OPs in the said complaint were to execute the sale deed in favour of the Complainant on receiving the balance amount of Rs.5 lacs within 3 months of the release of the property.
It was further stipulated, by virtue of clause 3, that the time being the essence of the agreement the Complainant was required to pay the balance amount of Rs.5 lacs within a period of 3 months after the release of the said plot by deed of release from the said Bank and in case that did not happen the Complainant was made liable to pay penal interest @ 12% on the delayed payment from the date of the release of the said plot.
5. The OPs committed default of clause 2 by not getting released the said plot from the said Bank within one month from the date of execution of the agreement i.e 06/02/2006.
6. The Complainant then obtained a loan and paid the balance amount of Rs. 5 lacs in the account of the said developers with the said Bank. A deed of part release was executed by the said Bank thereafter on or about 15/09/2009 releasing the said plot no.17.
This has been confirmed by the said Bank by their letter dated 31/10/2009.
7. The Complainant obtained a draft sale deed from the OPs and then purchased stamp paper worth Rs.13,000/-. The sale deed was duly executed by the Complainant and the OPs on or about 23/06/2009. The Complainant then presented the same for registration on or about 29/09/2009 and paid registration fees of Rs.14,080/- but the said Luis DSousa, the attorney/ partner of the OPs, did not turn up for the registration of the sale deed as a result of which the Sub Registrar refused registration of the sale deed qua the said Luis DSousa and eventually the sale deed was returned by making a mention of it on Book no.2, maintained by Sub-Registrar in terms of section 51 of the Registration Act, 1908.
8. The contention of the OPs was that the said Luis DSousa did not present himself for the registration of the sale deed as the Complainant did not pay them a sum of Rs.2.4 lacs which was due and payable to the OPs by the Complainant and therefore it was their case that the registration formalities remained to be completed due to the fault of the Complainant.
9. As a deed of sale is required to be presented for registration within 4 months from the date of its execution in terms of section 23 of the said Act. The Complainant on the advice of the Sub-Registrar, prepared a deed of ratification and, according to the Complainant, the OPs have neglected to appear before the Sub Registrar inspite of several requests from the Complainant and from the said Bank.
10. Claiming that there was deficiency in service on the part of the OPs by not admitting the execution of the sale deed before the Sub-Registrar, the Complainant filed the complaint on 26/10/2010 for a direction to the OPs to complete the formalities of registration of the sale deed by admitting its execution/ and execution and registering the deed of ratification or in the alternative signing and registering a fresh sale deed at the cost of the OPs. The Complainant also claimed a sum of Rs.2,81,796/- by way of interest and Rs.50,000/- as compensation in addition to the amounts spent by him on stamp paper and registration fees.
11. We have heard the lr. Advocates appearing on behalf of the parties and perused the record.
12. The Lr. District Forum has concluded that the defense taken by the OPs that an amount of Rs.2.4 lacs was due and payable to them by the Complainant is false and fabricated and that the said defense was raised with a view to extract more money from the Complainant. This finding has not been seriously challenged by the OPs in this appeal and we are entirely in agreement with the said finding. The OPs would not have signed the sale deed on or 23/06/2009 in case any amount was due and payable by the Complainant in as much as the OPs have also not been able to justify such payment in terms of the agreement.
13. It is the OPs who committed default of clause 2 of the agreement by not getting the property/plot released from mortgage. If at all there was delay in payment of balance amount of Rs. 5 lacs from the Complainant, it is attributable to the OPs in their not getting the property released within the stipulated time. It is therefore obvious that the demand of Rs.2.4 lacs after execution of the sale deed and before its registration was nothing but an attempt to extract more money by way of afterthought.
14. The Lr. District Forum has directed the OPs, interalia, to execute a fresh sale deed and register the same at their own costs or admit the execution of the sale deed by executing and registering a deed of ratification before the Sub Registrar. In our view, granting such a relief in favor of the Complainant cannot be faulted. The Complainant had agreed to purchase the said plot from the OPs and had paid the entire consideration due under the said agreement dated 06/02/2006. The OPs therefore were required to convey the title to the Complainant by doing everything in that regard as is required in law i.e. by executing the sale deed and registering the same before the Sub Registrar. Not doing so would certainly amount to deficiency in service on the part of the OPs. Grant of relief in terms of (a) therefore cannot be faulted.
15. The Lr. District Forum has also awarded to the Complainant in terms of prayer
(b) Rs.2,81,796/- being interest on Rs.7 lacs, as claimed by the Complainant in terms of para 7 of the complaint.
16. The Complainant had claimed interest at 15% on Rs.2 lacs from 27/01/2005 to 04/05/2009 amounting to Rs.1,27,500/- and interest @ 15% on 7 lacs from 05/05/2009 to 25/10/210 amounting to Rs.1,54,296/- and in all Rs.2,81,796/-.
17. Shri Chodankar, the lr. Advocate of the OPs would contend that the Complainant could have, at the most claimed interest for a period of 3 years only as interest beyond the period of 3 years would be barred by limitation. Lr. Advocate also submits that in the notice dated 01/07/2010 no demand for interest was made in as much as there was no grievance made that the OPs were responsible for the delay.
17.1 On the other hand, Shri Parab, the lr.
Advocate of the Complainant would submit that it was the duty of the OPs to get the property released within one month which was not done by them, time being the essence of the agreement as stipulated therein. Lr. Advocate would submit that it is the Complainant who paid Rs. 5 lacs and got the property released. He further submits that the OPs took about 6 years and the sale deed is not yet registered as a result of which the capital invested by the Complainant has remained blocked. Lr. Advocate has placed reliance on Haryana Urban Development Authority vs. Som Nath, (2004) 12 CLDI (SC) to say that demand for 15% interest is in order.
18. We are not inclined to interfere with the award of Rs.2,81,796/- in favour of the Complainant, on the facts of this case, in terms of prayer (b) of the complaint and (e) of the impugned order.
19. Clause 6 of the agreement dated 06/02/2002 reads as:
In case of delay by vendors and the developer to release the said plot from the mortgage deed so as to execute the sale deed the vendor and the developer shall be liable to pay 15% as penal interest on Rs.2 lacs which is already paid by the purchaser.
20. As can be seen from clause 6 of the agreement reproduced hereinabove, it was stipulated between the parties that in case of delay on the part of the vendors and developers to release the said plot from mortgage the vendors and the developers would pay 15% penal interest on Rs.2 lacs which was earlier paid by the Complainant.
It appears that the said clause was inserted with a view to ensure that the vendors and the developers would get the plot released within one month or else pay interest at 15% on Rs.2 lacs already paid to them by the Complainant. Admittedly, the vendors (OP Nos.1 (a) and (b) and developers (OP No.2) failed to get the said plot released within one month and eventually, it is the Complainant who got it released on or about 15/09/2009. Interest at 15% on Rs. 2 lacs from 27/01/05 to 15/09/09 works out to Rs.1,39,150/-.
True, the Complainant was not entitled to any interest on Rs.5 lacs in terms of the agreement. The OPs were responsible for the delay in getting the plot released. They cannot be allowed to take advantage of their own wrong. On facts of the case we are satisfied that the Complainant is entitled to the said amount of Rs.1,39,150/- in terms of clause 6 of the agreement.
Moreover, the sale deed which was executed on 23/06/2009 has remained without being registered till the filing of the complaint on 26/10/10 and thereafter. The Complainant is yet to get legal possession of the plot under a duly registered sale deed. Complainants investment has remained blocked. If interest is calculated from 23/06/09 to 26/10/10 at 15% it works out to Rs.1,38,370/-. Therefore, award of Rs.2,81,796/- in favour of the Complainant can be maintained as reasonable compensation payable to the Complainant in addition to Rs.50,000/- ordered to be paid for mental tension, harassment, etc.
21. We therefore find there is no merit in this appeal. Shri Chodankar submits that his clients will execute the ratification deed. They may do so.
F.A. dismissed with costs of Rs.5,000/- to be paid to the Complainant Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto] Member President /lm