State Consumer Disputes Redressal Commission
Dr. Shyam Murti Gupta, vs Mr. Eli Furtado, on 15 January, 2013
BEFORE
THE GOA STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION,
PANAJI
GOA
C.C.
No. 06/2012
Dr. Shyam Murti Gupta,
Res. 134-D, Nagali Hill Colony,
Dona Paula, Goa ....
Complainant
v/s.
1.
Mr. Eli
Furtado,
Res. G-1, Madhuban Apartment II,
Near st. Inez, Panaji, Goa.
2.
Dr. O.S.
Chauhan,
Res. 134-C, Nagali Hill Colony,
Dona Paula, Goa 403004 . Opposite Parties
Complainant
is represented by Adv. Shri. Amol Thali.
O.P.
No. 1 is represented by Adv. Shri. S.V. Patil.
O.P.
No. 2 is represented by Adv. Shri. A. Kholkar.
Coram:
Shri. Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 15/01/2013
ORDER
[Per Justice Shri. N. A. Britto, President] By complaint filed on 13/04/12, the complainant seeks to recover deficit built up area of 12.38 sq.mtrs. and deficit undivided area of 72.14 mtrs. or compensation of Rs. 39,67,370/- for the said areas, plus fees of the valuer, costs and compensation.
2. The complainant and O.P. No. 2 are both scientists working for the National Institute of Oceanography.
O.P. No. 1 is a developer/builder and has built four villas known as Keiva Villas in plot No. 134 admeasuring 605.00 sq.mtrs in survey No. 279/1 of Taleigao village. By agreement dated 24/06/04 the complainant agreed to purchase from O.P. No. 1, the builder, villa to be built and identified as villa-D admeasuring 156 sq.mtrs for a sum of Rs. 15 lacs while O.P. No. 2 vide agreement date 04/10/04 agreed to purchase villa-C admeasuring 134.20 sq.mtrs for a sum of Rs. 11 lacs.
3. By virtue of clause 2 of the respective agreements, it was stipulated that a sum of Rs. 5 lacs would be towards the cost to the land and Rs. 10 lacs would be the cost of construction of the said villa-D admeasuring 156 sq mtrs. (super built up area). Likewise, in case of O.P. No. 2, the sum of Rs. 3.6 lacs was agreed to be the cost of the land and the sum of Rs. 7.4 lacs was to be the cost of construction of the said villa-C admeasuring 134.20 sq.mtrs. (super built up area)
4. By virtue of clause 7 of both the agreements dated 24/06/04 and 04/10/04 it was stipulated that the developer would convey in favour of the villa holders the undivided right of the land and the villa thereon after handing over the possession of the said villa; and by virtue of clause 8 of the second agreement dated 4/10/04 in case of O.P. No. 2, it was stipulated that the developer would ensure the right of use of the passage to the said villa, and this passage would be exclusively used for the access to the said villa-C with no parking by any villa holder/s thereon. It was further stipulated that the passages would be used by villa holder towards caring (carrying) out any maintenance/repairs works of water and sewerage system and any other civil works as may be required.
5. The complainant took the possession of villa-D on 15/01/2005.
6. The bone of contention between the complainant and O.P. No. 2 appears to be the passage inbetween complainants villa-D and O.P No. 2s villa-C. Complainants villa-D has no direct access to the said open passage between the said two villas which otherwise has an underground water tank, inspection chamber of toilets and kitchen of complainants villa-D. The complainants villa-D has a direct access to the road existing on its northern side and O.P. No. 2s villa-C has no such access and presumably for that reason and as otherwise stated by O.P. No.1 a passage was required to be kept for him unobstructed by other villa holders, as an access to his said villa-C. It appears that the complainant desired to have a back door to his villa-D, which the complainant otherwise does not have, with a view to go directly to the said service passage lying in between the said two villas with a view to dry the washed clothes as the complainants wife had suffered a slipped disk and also to park his car therein. However, the complainant has not succeeded in getting the said facilities thus far.
7. Now, the case of the complainant is that the O.P. No. 1, the builder, constructed a waist level wall between villa-D and the said passage leading to the water pump and sump located in the backyard of villa-D and thereby denied an unhindered access to the respondents (complainants) share of proportionate land; that Dr. Chauhan (O.P. No. 2) denied the right of free and unhindered access to complainant into the side passage and backyard of villa-D, which are in fact a part of the proportionate 156 sq.mtrs of share of land of the complainant, saying that he had bought the side passage and complainants backyard from O.P. No. 1, and on several occasions the said O.P. No. 2 Dr. Chauhan abused, harassed and called the police charging complainant for trespassing into his legally owned area; that O.P. No. 1 has illegally sold respondents (complainants) proportionate share of land at a later date to Dr. Chauhan with exclusive right of passage, parking, access and civil construction; that the complainant being sick of daily harassment and ordeal, the complainant received certified copy of the agreement of sale of villa-C to O.P. No. 2 through right to information; that the O.P. No. 1 defrauded complainant by selling the same share of land to O.P. No. 2 after four months after the same was sold to the complainant.
7.1.
In para 20 of the complaint, the complainant has stated that he came to know for the first time in August 2010 the matter of proportionate area being deficient and therefore the complaint is within limitation.
8. The O.Ps in their written versions filed, have taken the pleas of limitation and res judicata but before we proceed to consider the said pleas it would be worth the while to refer to the defense taken by O.P. No. 1. O.P. No. 1, the builder, has stated that the open area surrounding the respective villas are for common enjoyment as common services such as sump, sanitary lines, chambers exist in these areas. O.P. No. 1 has stated that although O.P. No. 2 Dr. Chauhan had paid money towards the purchase of the said villa much prior to 24/06/04, since villa-C is located behind villa-D covenant to the extent of use of passage rights to O.P. No. 2 was reserved any by no means this can be termed selling passage rights or selling rights of civil construction when more particularly the undivided rights are common for enjoyment of four villas. O.P. No. 1 further has stated that the complainant has admitted in clear terms that he has been using back portion of his villa wherein the sump is situated and false cause of action has been shown on this count as the complainant is in possession of the said villa-D since January, 2005 and is in enjoyment of the common areas.
8.1. O.P. No. 2 has stated that he agreed to purchase with villa-C and made payment on 02/10/03 and that O.P. No. 2 had agreed to purchase villa-C, nine months prior to agreement cum sale dated 24/06/04 entered into between O.P. No. 1 and the complainant. O.P. No. 2 has stated that the complainant has been conferred passage right to have unhindered access to his house which he enjoys, protects and does not allow to anybody to enter that part of common plot. The complainant has full timely access to the pump and the sump, and there are four water tanks located and accessed through the passage of villa-C which in terms of agreement of construction cum sale dated 24/06/04.
O.P. No. 1 has granted exclusive right to him which is purchased by him prior to the complainant and no other occupant has complained on access issue.
9. As already stated the complainant has pleaded that the cause of action arose in August 2010 and therefore the complaint is within limitation.
10. Admittedly, the complainant has sought no relief in respect of the grievances made by the complainant more particularly in para 6 of the complaint and mentioned hereinabove. Some pertinent questions come to mind. When did O.P. No. 1 construct the waist level wall between villa-D and the passage leading to the water pump and sump located behind villa-D? When did O.P. No. 2 deny the right of free and unhindered access to the complainant? When was the alleged sale made of the proportionate share of land to O.P. No. 2 if at all it was made?
10.1. The complainant is totally silent regarding the above aspects of the case, and as already stated, has claimed no relief in this complaint. The answers to the said questions are not far to be found apart from the fact that the O.Ps have categorically stated that the said wall existed since 2005 and the complainant had obtained the copy of the agreement dated 04/10/04 on or about 13/12/07.
11. The C.C. No. 55/2005 filed by the complainant on 25/05/05 and disposed off by the Lr. District Forum on 12/02/10 would show that the complainant had stated in the said complaint as follows:
Besides he raised a wall between our gate and common passage towards our water sump in the backyard, which is illegal as per the term of undivided property right in the agreement of sale. He also raised waist level walls dividing the villas A,B & C to facilitate the exclusive use of the respective owners but he has not done so between villa C and D (mine) which is cause of concern and daily harassment to my family by owner of villa-C, who does not allow us to enter in the common passage towards our water sump in our backyard. Mr. Furtado also promised us to give a backdoor near the kitchen to access to water-sump and backyard, which also has not done so far.
As we cannot go to our backyard due to grumbling from owner of villa-C, they are misusing our backyard as a place of carpentary, villa-C, they are misused of backyard dumping ground and parking by owner of villa-C
12. All that the complainant got in the said complaint by order dated 12/2/10 was compensation of Rs. 1.5 lacs towards unfinished works and Rs. 5000/- by way of further compensation. O.P. No. 1 filed an appeal before this Commission against the said order being appeal No. 05/10 which was dismissed but the Lr. Members of this Commission allowed interest to be given to the complainant at the rate of 12%. O.P. No. 1 carried a revision before the Hon. National Commission being RP No. 3576/11 which was allowed and the interest part of the order of this Commission was set aside and the order of the Lr. District Forum was confirmed.
12.1. The complainant has totally suppressed the filing of this complaint and reliefs obtained, in this complaint.
12.2. Section 24-A of the C.P. Act provides for a period of limitation of two years for filing a complaint from the date of cause of action. Firstly, the complainant knew very well about the construction of waist level wall prior to 25/5/05 and so also the terms of the agreement between O.P. No. 1 and O.P. No. 2 on or about 13/12/07 and any grievance as regards the same ought to have been made by the complainant within two years therefrom.
The present complaint therefore in relation to the averments of para 6 of the complaint regarding said service passage has got to be considered as clearly time barred the same not having been filed within two years from 25/5/05 and or 13/12/07 and not only that the complaint is also hit by the principle of res judicata as the complainant had raised the same issue in the said C.C. No. 55/05 and no relief was claimed nor granted in favour of the complainant and therefore it is deemed to have been denied to the complainant. The submission of the complainant that the first complainant related only to incomplete works needs to be rejected. The issue of passage being obstructed was raised but no relief was claimed nor granted. That apart the complainant has also sought no relief in the present complaint either in relation to the errection of waist level wall or in relation to clause 8 of the agreement dated 04/10/04. In our view, the principle of res judicata needs to be invoked in all jurisdictions or all branches of law including consumer jurisdiction. The principle of res judicata is based on two other principles or maxims namely (i) No man should be vexed twice by same cause of action and (ii) it is in the interest of the State that there should be end to litigation. The first maxim looks to the interest of the litigant, who should be protected from a vexatious multiplicity of suits or complaints because otherwise a man possessed of wealth and capacity to fight may harass his opponent by constant dread of litigation. The rule is indented not only to prevent a new decision but also to prevent a new investigation so that the same person may not be harassed again and again in various proceedings upon the same question. The second maxim is based on the ground of public policy that there should be an end to litigation. Judicial decisions must be accepted as correct or otherwise if suits or complaints are allowed to be filed endlessly for the same cause of action there would be no end to this vexatious litigation and the courts or the Fora would be unable to deal with the ever growing number of complaints or suits. It may be noted that the principle of res judicata applies to any matter which might and ought to have been made ground of defence or attack in former suit or complaint shall be deemed to have been a matter directly and substantially in issue in such suit or complaint. It is also applies to any relief which is claimed in the plaint and which is not expressly granted by the order or decree shall be deemed to have been refused.
12.3. The National Commission in Reliance Industries Ltd. and anr. vs. Neera Maheshwari 3(2006) CPJ 67, after referring to Jaswant Singh & anr. vs. Custodian Evacuee Property, 1985 (3) SCC 648, has stated that to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to the (i) Forum or the competence of the Court; (ii) parties and the representatives;
(iii) matters in issue; (iv) matters which ought to have been made ground for defence or attack in the former suit; and (v) the final decision, and, further held that in order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that plaintiff had an opportunity of getting the relief which he is now seeking, in the former proceedings. A cause of action for a proceeding has no relation whatever to the defence which may be set up, nor does it depend upon the character of the relief prayed for by the plaintiff or the applicant. It refers entirely to the grounds set forth in the plaint or the application as the case may be as the cause of action or in other words to the media upon which the plaintiff or the applicant asks the Court to arrive at a conclusion in his favour. (emphasis supplied) 12.4. The National Commission held that one cannot be oblivious to the concept behind the principle of res judicata and ultimately held that repeated complaints on the same subject before the same forum and between the same parties should not be entertained.
12.5. As already stated, the complainant has sought no relief whatsoever in relation to the said common service passage in this complaint. Any grievance as regards the same is not only barred by Section 24-A of the C.P. Act, 1986 but it is also barred by the principle of res judicata, the same having been raised by the complainant in C.C. No. 55/05 and the complainant having got no relief in relation to the same. The issue as regards the averments of para 6(1) to (v) was raised by the complainant n C.C. No. 55/05 and the complainant had not only had an opportunity to get relief regarding the same but claimed none and also got none. The submission that the first complaint related only to incomplete works cannot be accepted.
12.6. Although, we are not required to go into the merits of the claim of the complainant, we need only observe that it is nobodys case that any sale deed has been executed as contemplated by clause 8 or clause 9(b) of the respective agreements and therefore the claim of the complainant or for that matter of O.P. No. 2 that any common area has been sold to O.P. No. 2, Dr. Chauhan, cannot be accepted.
The stand taken by O.P. No. 1, the builder in para 4 of his written version is the correct factual and legal position and is in accordance with the respective agreements. Nobody can claim any exclusive right to the said passage existing between villa-D and villa-C or for that matter by the side of villa-D which is reserved as a passage to villa-C, as unlike villa-D, villa-C, has no direct access to the road. The statements made by O.P. No. 1 in his affidavit in evidence, particularly in paras 7 and 8 and those made by O.P. No. 2 in para 7 that the complainant is freely using the sump and dump and has no hindrance to this service area along with email dated 10/10/12 would show that the complainant is making use of the said service passage behind villa-D. A disgruntled complainant is bound to harass a trader or service provider in case he does succeed in one complaint but that cannot be allowed to be done in the light of the principle of res judicata which needs to be followed in this jurisdiction as well.
13. As regards deficit areas, admittedly, the complainant had obtained possession of villa-D on 15/01/05 and the occupancy certificate was issued on 06/07/05 showing the area of complainants villa as 156.60 sq.mtrs. The complainant as a prudent purchaser, incase he had any doubt as regards the area of which he had taken the possession, ought to have verified the same soon thereafter and ought not have waited endlessly to raise the issue, after his first complaint was settled. The complainant could have easily verified the said area and raise the issue in C.C. 55/05. The complainant did not do that; the Commissioner Shri. S.S. Tirodkar appointed in C.C. No. 55/05 had categorically stated that the area of the flat is according to the agreement and as per the approved plan and although the complainant cross examined the said Commissioner, the complainant did not contest the said statement of the said Shri. S.S. Tirodkar.
In other words, the complainant is presumed to have accepted as correct that the built up area of his villa is 156 sq. mtrs or thereabout. Even in the notice dated 20/08/10 the complainant had mentioned the built up area of its villa-D as 156 sq.mtrs. which means that even as on that date the complainant did accept that the built up area of his villa is 156 sq.mtrs; the complainant had only expressed a doubt that the said area may not be correct.
The complainant then by his letter dated 12/12/11 requested Shri. S.V. Khuste, Chartered Engineer and Approved Valuer to measure the built up area and who accordingly inspected the site on 07/01/12 and submitted his report stating that there was difference in built up area of 12.38 sq.mtrs. and proportionate area of 72.14 sq.mtrs. and valued its market value at Rs. 38,25,000/-.
13.1. By order dated 25/07/12, on application filed by O.P. No. 2 dated 04/07/12, the O.Ps were permitted to examine their own expert. The O.Ps filed report dated 01/12/12 of Shri. Yatin G. Khandolkar who has categorically stated that, after examining Mr. Kushtes report, the complainant has built up area of 156.50 sq.mtrs which is higher than 156 sq.mtrs as per agreement dated 24/06/04. Shri. Y.J. Khandolkar has also stated that Shri. S.V. Kushte has not computed the area of the verandah on the ground floor as well as the second floor terrace/balcony which is accessible with the spiral staircase.
13.2. The grievance as regards shortfall in the built up area has got to be rejected, firstly, as barred by limitation for not having raised when it could have been raised, within two years from the date of taking possession, or two years from the date of occupancy certificate or at least within two years from the date of the report of Shri. S. S. Tirodkar, and, secondly the same as being barred by the principle of res judicata for not having raised the same in C.C. No. 55/05 inspite of the report of Shri. Tirodkar when it could have been raised by amending the complaint and making it a ground of attack.
13.3. We are therefore not required to go to the merits of this claim of the complainant as well. Even if we were required to, we are inclined to rely upon the report of Shri. Khanolkar, in preference to the report of Shri. Kushte, the former being more reliable and convincing. An objection was taken that the report of Shri. Khanolkar cannot be relied upon because it was Engineer Pramod Dessai who was allowed to take the measurements, as per order of this Commission dated 25/07/12. However, it is to be noted that the complainant did not object to the measurements being taken by Shri. Khanolkar in the presence of advocates of both the parties, as per order dated 25/07/12. The order dated 25/07/12 was not specific to Mr. Dessai. It was an order to give an opportunity to O.P. No. 2 to contest the report of Mr. Kushte. The substance of the order dated 25/07/12 is that the O.P. No. 1 was entitled to get verified the measurements taken by Mr. Kushte by another expert.
We are therefore not inclined to entertain the objection. It may also be stated that the written submissions filed on 10/12/12 have not been signed by the complainant but by his present Adv. Shri. Thali. On the basis of submission made by Adv. Shri. Patil and entry in roznama dated 25/09/12, we are satisfied that Shri. Khanolkar inspected the site and prepared his report but incorrect submissions have been made in that regard on behalf of the complainant.
13.4. As regards the built up area of the bungalow, it was for Shri. Kushte to have mentioned in his report what was the area of villa-D when the possession was taken by the complainant and so also of the extra works of construction carried out by the complainant as can be seen from NGPDAs letter dated 10/03/08 and also to justify as to why the areas of garage and the balcony were not included by him in the built up area. This he did not do. This exercise has been done by Shri. Khanolkar in his report dated 1/10/12.
He has also referred to the relevant Regulations of the year 2010 to justify his conclusion. Shri. Kushte has not referred to any Regulations in force in the year 2004 to say that garages and balconies were required to be excluded.
Hence there is no question of referring to Building Regulations in force in some other States or to decision rendered with reference to such Regulations.
14. The complaint appears to be wholly frivolous and vexatious. Neither the complainant nor O.P. No. 2 can have exclusive rights to the said passage between the said two villas of the complainant and O.P. No.2, as per their respective agreements. As stated by O.P. No. 1, the open area surrounding the respective villas are for common enjoyment of the four villas constructed by him, as common services of construction of sump, laying of sanitary and plumbing lines and chambers exits in the said area. Complainants contention that O.P. No. 1 has sold complainants proportionate share of land to O.P. No. 2 by un-registered document is to say the least, absurd and therefore cannot at all be accepted. As O.P. No. 2 has no direct access to his villa from the main road, O.P. No. 1 was certainly bound to ensure that O.P. No. 2 had an access to his villa-C and that is what was provided for by Clause 8 of agreement dated 04/10/04. Nothing more.
15. We have already noted that the complainant has approached this Commission by suppressing the earlier complaint filed by him. In case the complainant had disclosed the filing of the said complaint, the facts stated therein would have come in the way of the complainant in pleading the cause of action for this complaint.
Merely sending a notice does not give a cause of action to a complainant to save him from limitation, in filing the complaint, as contemplated by Section 24A of the C.P. Act. As rightly pointed out on behalf of O.P. No. 1, the complainant has approached this Commission with a present complaint with unclean hands and suppressing material facts i.e the filing of the first complaint.
16. Consumer jurisdiction under C.P. Act is a summary jurisdiction. In all summary jurisdictions, including applications for temporary injunction before Civil Courts, writ jurisdiction before the High Court, suppressing of material facts is held to be fatal to the party approaching the Court.
That itself is sufficient to show the door to the party approaching the Court without going to the merits of the case.
In C.C. No. 03/10 by order dated 18/06/12 in the case of Mr. Daljit Singh, this Commission had observed as follows:-
13. The National Commission in Atlanta Arcade Premises Co.op. Society Ltd., 2012 (1) CCC 138 has observed that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, go on filing meritless petitions in different foras.
Time and again courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Note was taken of the observations of the Apex Court in Ravindra Kaur Vs. Ashok Kumar, AIR 2004 SC 904 to the effect that:
Courts of law should be careful enough to see through such diabolical plans of the judgement debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system Note was also taken of the observations of the Apex Court in Ramrameshwari Devi and Ors. v/s. Nirmala Devi and Ors. to the effect that:
It is also a matter of common experience that to achieve, clandestine objects false pleas are often taken and forged documents are filed indiscriminatively in our Courts because they have hardly any apprehension of being prosecuted for perjury by the Courts or even pay heavy costs. In Swaran Singh vs. State of Punjab (2000) 5 SCC 668 this Court was constrained to observe that perjury has become a way of life in our Courts Note was also taken of para 50 where a common mans general impression was articulated:
Make any false averments, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation , and in any case, delay the matters endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.
Eventually the revision petition was dismissed by the National Commission with costs of Rs. 2,00,000/-. Rs. 1,00,000/- was ordered to be deposited in consumer legal aid account.
14. In Morgan Stanley M.F. vs. SEBI & ors.
C.A. 4584/94, the Apex Court has held:
there is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the Fora seem really to oblige. We think such a tendency should be curbed...
15. In Tarachand Kosle v/s National Aviation (2012(2)CPR 104) the Chhattisgarh State Commission has held that principles of natural justice demand that everyone should come before District Forum with clean hands stating bonafidely, every fact without any concealment. If any concealment of material fact is found on the part of any party, then such party cannot be granted any discretionary relief under the provisions of C. P. Act, 1986.
17. After taking possession of villa-D by the complainant, no sale deed has been executed in favour of the complainant or for that matter in favour of O.P. No. 2 Dr. Chauhan, as contemplated by clauses 7 r/w 9(b) of the respective agreements and yet the complainant alleges that O.P. No. 1 has illegally sold his undivided right to the passage to O.P. No. 2 Dr. Chauhan when as per clause 8 of agreement dated 04/10/04 only a right of passage is reserved for villa-C with no parking by other villa holders thereon. This cannot be construed, by any stretch of imagination, as sale of undivided rights to the open areas, surrounding the respective villas, as rightly contended by O.P. No. 1, the builder. All reliefs sought in this complaint could have been sought by the complainant in his first complaint. This complaint is wholly frivolous and vexatious. Complainant seems to have been wrongly advised, if the averments of para 9 of the complaint are to be believed. The complaint has been filed by suppressing the filing of the first complaint. The complaint is also filed by making a false statement in para 20 of the complaint since the tailor made report came to be given not in August 2010 but in March 2012.
18. In view of the above discussion we deem it proper to dismiss the complaint with costs to be paid by the complainant in the sum of Rs. 3000/- each to O.P. Nos. 1 & 2.
Complaint dismissed.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto] Member President