State Consumer Disputes Redressal Commission
Arvind S/O. Pundlik Dhamne vs Raghuvir S/O. Wamanrao Joshi on 19 August, 2013
1 F.A. No. 1250-08
STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing: 02.12.2oo8
Date of Order: 19.08.2013
FIRST APPEAL NO. 1250 OF 2008
IN COMPLAINT CASE NO. 180 OF 2007
DISTRICT CONSUMER FORUM: AURANGABAD.
Arvind s/o. Pundlik Dhamne
R/o. C/o. Dhamane Ploting Centre,
Pralhad Sankul, 1st Floor,
Osmanpura, Aurangabad. ... Appellant
VERSUS
Raghuvir S/o. Wamanrao Joshi
R/o. 'Ramkuti', Nageshwarwadi,
Aurangabad. ... Respondent
Coram : Shri. S.M. Shembole, Hon`ble Presiding Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Shri. K. B. Gawali, Hon'ble Member.
Present: Adv. Shri. Pradip Dabhade, for appellant.
Adv. Shri. S. T. Agrawal for respondent.
- :: O R A L O R D E R :: -
(Delivered on 19th August, 2013) Per Shri. S.M. Shembole, Hon`ble Presiding Judicial Member
1. This appeal is directed against the judgment and order dated 28.07.2008 of District Consumer Forum, Aurangabad allowing consumer complaint No.180/2007 directing the opponent/appellant to execute registered sale deed of the plots in favour of the complainant/respondent within six weeks, else he will be liable to pay Rs. 100/- per day as penal charges. Further alternatively it is directed the appellant/opponent to pay to the complainant compensation Rs.25,000/- and Rs.3000/- towards cost of the proceeding. (for the sake of brevity the appellant hereinafter referred as "opponent" and respondent as the "complainant") 2
2. Brief facts giving rise to this appeal are that, opponent Arvind Dhamane is dealing with the business of real estate. Specifically he is dealing in the business of selling plots. On 04.07.1985 the complainant Shri. Raghuvir Joshi purchased two plot bearing No.6 admeasuring 341 sq. mtr. and plot No.7 admeasuring 345 sq. mtr. from Gut No.34 of village Nakshatrawadi Dist. Aurangabad. The rate of plots was fixed at Rs.2/- per sq. ft. On the same day the complainant paid to the opponent Rs.4000/- for each plot, total Rs.8000/- and agreed to pay remaining consideration within 15 days. Accordingly the opponent received the amount and issued receipt of payment. Thereafter on 21.01.1986 the complainant paid to the opponent Rs.2000/- i.e. Rs.1000/- for each plot and the opponent issued receipt to that effect. The complainant had also agreed to pay betterment charges. However, despite repeated demands of the complainant the opponent failed to execute the registered sale deed in favour of the complainant. Lastly on 27.02.2003 the complainant issued legal notice to the opponent, but the opponent did not comply the notice. Thereafter the complainant had filed consumer complaint bearing No.160/2003 alleging deficiency in service on the part of opponent and claimed the possession of plots and also direction to the opponent to execute sale deed in his favour.
3. During the pendancy of the said complaint the opponent had agreed to execute the sale deed but he avoided to execute it. However on 31.05.2005 as the complainant remained absent the District Consumer Forum disposed of the complaint granting liberty to file fresh complaint. Thereafter the complainant approached the respondent and requested him to execute the sale deed, but the respondent did not take any heed. Therefore again he issued legal notice dated 17.09.2005 but the opponent did not comply with the notice. Therefore he filed the fresh complaint claiming directions to the opponent to execute the registered sale deed in his favour.
4. The opponent by his written version resisted the complaint on the following among other grounds:
3 F.A. No. 1250-08He did not dispute that he is dealing with the business of real estate i.e. selling plots. However he has denied that he agreed to sell two plots to the complainant and received amount initially Rs.4000/- for each plot and subsequently Rs.1000/- for each plot as alleged by the complainant. He has also denied the receipt of payment. He has submitted that he never agreed to sell any plot to the complainant. He has alternatively contended that the so called receipts of payment cannot replace the agreement. He has submitted that since earlier complaint was already dismissed, this subsequent complaint is not maintainable. Further it is contended that the complaint is being hopelessly barred by limitation is not maintainable. It is submitted that the consumer complaint is not at all maintainable. According to him it is a question of civil nature & therefore Civil Court has only jurisdiction. In short, according to him complainant is not his consumer. He has denied all other adverse averments made by the complainant and submitted to dismiss the complaint with cost and claimed compensatory cost of Rs. 25,000/- .
5. On hearing both sides the District Consumer Forum Aurangabad negativated the averments made by the opponent and held that consumer complaint is maintainable. It is also held that the opponent had agreed to sell two plots to the complainant by receiving amount of Rs.5000/- for each plot, but avoided and failed to execute the sale deed and thereby committed deficiency in service by adopting unfair trade practice. In keeping with these findings the District Consumer Forum allowed the complaint as noted above.
6. Feeling aggrieved by that judgment and order the opponent has preferred this appeal.
7. We heard the learned counsel for both sides at length. Perused their written notes of arguments and also perused the copy of 4 impugned judgment and order, copies of complaint, written version and other documents.
8. Undisputed facts are that, earlier complaint bearing No. 160/2003 was disposed of by the District Consumer Forum vide its order dated 08.04.2005 with liberty to file fresh complaint if the complainant intend to do so. Thereafter complainant has filed the complaint on 03.05.2006. Further the opponent has filed this appeal with delay condonation application and his application was dismissed by this Commission vide order dated 19.04.2011, consequently, the appeal was also dismissed. However, the Hon'ble National Commission allowed the opponent's revision and remitted back the appeal.
9. Mr. Dabhade, learned counsel appearing for the appellant/opponent challenged the impugned judgment and order mainly on the following grounds:
i) Consumer complaint is not maintainable seeking specific performance of contract on the basis of oral agreement as not legally permissible.
ii) Second complaint is not maintainable when the earlier complaint was dismissed.
iii) The complaint is barred by limitation
10. It is vehemently argued by Shri. Dabhade, learned counsel for appellant/opponent that as per the provisions of Sec. 2 of Consumer Protection Act (hereinafter referred as the "Act") any dispute in respect to goods only is maintainable. According to him the plots in question are being immovable property, the consumer complaint is not maintainable. It is submitted that the complainant cannot be labelled the 'consumer' and the opponent as 'service provider' etc. He has tried to support his contention by pointing out the provisions of Sec. 2 (i) (d) (i) of Consumer Protection Act which pertains to the 5 F.A. No. 1250-08 transaction about purchase of goods. But we find little force in the contention of Mr. Dabhade, Ld. Counsel for the opponent, because as per the complainant the opponent had agreed to sell the plots and received the consideration. Further the opponent had agreed to develop the plots on receiving betterment charges and also execute the sale deed. But the opponent avoided to do so and therefore he was constrained to file his complaint. Thus according to the complainant appellant is "service provider" but he played unfair trade practice committing deficiency in service by avoiding to execute sale deed.
Therefore provisions of Sub clause 2 of Sec. 2 (1) (d) (ii) would attract which reads as under:
Section-2 (1) (d) :- "consumer" means any person who-
(i) -
(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose.) Further according to the complainants case provisions of Sec. 2 (1) (c)
(i) of the Act, would attract which reads as under:
'an unfair trade practice or a restrictive trade practice has been adopted by (any trader or service provider).'
11. Further Mr. Dabhade, Ld. Counsel for the opponent relying on the decision of Delhi High Court in the case of Higy way Farms V/s. Chinta Ram and others 2000 A I H C 2666 submitted that on the basis of receipts of payment the claim for performance of contract is not maintainable. According to him when the transaction is not complete 6 it is not enforceable. In the case of Highway Forums, Supra the plaintiff had filed suit for performance of agreement to sell immovable property, on the basis of a receipts showing it to be a document of agreement to sell and the receipts produced by plaintiff contained a clause that "further sum would be paid at the time of agreement." Therefore his lordship of Delhi High Court observed that such clause itself suggested that the agreement was yet to be entered and as such plaintiff is not entitled for relief claimed. But with due respect this authority of Delhi High Court is not applicable to the present case, because this is a consumer complaint based on the fact of unfair trade practice and it is not a suit for specific performance of contract to sell.
12. Now let us proceed to consider whether the present complaint is maintainable when the earlier compliant was dismissed. It is submitted by Shri. Dabhade, Ld. Counsel for the opponent that though the complainant had not sought permission to file fresh complaint, the District Consumer Forum vide order dated 03.05.2006 wrongly passed said order permitting the complainant to file fresh complaint if he intends etc. Therefore the subsequent complaint itself is not maintainable.
13. As against the arguments of the Ld. Counsel for opponent Mr. S. T. Agrawal, Ld. Counsel for the complainant submitted that earlier complaint was rightly dismissed by the District Consumer Forum granting liberty to file fresh complaint, if complainant intends.
Because of earlier date i.e. 08.02.2005 the learned counsel for the complainant had submitted about possibility of compromise and therefore the District Consumer Forum presumed that parties have settled the dispute outside the Court and disposed of the complaint with liberty to file fresh complaint if the complainant intends to do so. Accordingly it is mentioned in the said order dated 08.04.2005. Further it is submitted by Shri. S. T. Agrawal, Ld. Counsel for the complainant that during the pendency of subsequent complaint also 7 F.A. No. 1250-08 the opponent had shown his readiness to negotiate compromise and obtained the adjournments. In support of this contention Adv. S. T. Agrawal for the opponent has produced certified copy of order sheet from the complaint proceedings which clearly reflects that on 11.12.2006 and 27.12.2006 the opponent sought adjournments on the ground that negotiations for compromise are going on. Thereafter on the adjourned date i.e. on 10.01.2007 the both parties remained absent however matter was adjourned till 25.01.2007 for receiving compromise report. In view of these undisputed facts we find much force in the submission of Mr. Agrawal, Ld. Counsel for the complainant. Further Adv. Agrawal also supported his contention by relying on the decision of New India Assurance Co. Ltd. Vs. R. Srinivasan, I (2000) CPJ 19 (SC) in which the Hon'ble Apex Court observed that, though the first complaint is dismissed in default the second complaint would lie. It is further observed that interest of justice cannot be defeated by rule of technicality.
14. In view of this authority of Supreme Court we have no hesitation to accept the arguments advanced by the Ld. Counsel Mr. S. T. Agrawal for complainant and hold that the subsequent complaint is maintainable though initial complaint was dismissed in default.
15. Now coming to the point of limitation, it is vehemently argued by Shri. Dabhade, Ld. Counsel for the opponent that when the alleged transaction is of 1985 and initially the complaint was filed in the year 2003 and subsequent complaint in the year 2006, the same is hopelessly barred by limitation. He has also tried to support his contention by relying on the decision of Hon'ble Apex Court in the case of- Dr. V. N. Shrikhande Vs. Mrs. Anita Sena Fernandes, 2010 SCW 6630, in which it is held by Hon'ble Apex Court that if the complaint is barred by time, Consumer Forum is bound to dismiss the same unless consumer makes out case of delay. Considering the undisputed fact that the opponent had agreed to settle the dispute amicably, this authority of Apex Court cannot be applicable.
816. It is pointed out from the copy of impugned judgment and order by the Ld. Counsel appearing for the complainant that pending the complaint the opponent had made statement before District Consumer Forum that he would execute the sale deed and accordingly the District Consumer Forum has observed. On perusal of copy of impugned judgment and order we find much force in the submission of Shri. S. T. Agrawal, Ld. Counsel for the complainant. In para-4 of the impugned judgment and order it is observed by the District Consumer Forum that the opponent had agreed before it to execute the sale deed but avoided to execute the sale deed and got adjournments which amounts to unfair trade practice and deficiency in service. Further Mr. Agrawal, Ld. Counsel for the complainant also supported his argument by relying on the decision of Hon'ble National Commission in the case of- Wg. Cond. R. H. Darukhanawala Vs. Manjith Singh, 1996 (2) CPR 1, in which the opponent party (builder) had offered another apartment by sending letter to the complainant and last letter was sent in the month of June-1993 and therefore it is observed by National Commission that the complaint which was filed in the year 1994 though the transaction was of 1987, the complaint is within limitation etc. In the present case also the cumulative effect of the pleadings of the parties is that the opponent avoided to execute the sale deed though it was claimed by the complainant from time to time, till the date of issuance of legal notice before filing the complaint and therefore it cannot be said that the complaint is barred by limitation. Hence the arguments advanced by the Ld. Counsel appearing for the opponent cannot be accepted.
17. For the foregoing reasons the District Consumer Forum has rightly allowed the consumer complaint and directed the opponent to execute the sale deed or in the alternatively to pay compensation to the complainant. We find no error or any infirmity in the impugned judgment and order. Hence no interference is warranted.
9 F.A. No. 1250-0818. In the result, the appellant fails and the appeal deserve to be dismissed. Hence the following order.
-::ORDER::-
1. The appeal is dismissed.
2. No order as to cost.
(K. B. Gawali) (Mrs. Uma S. Bora) (S.M. Shembole) Member Member Presiding Judicial Member Kalyankar