State Consumer Disputes Redressal Commission
Parmanand Basantram Khemchandani vs Dinesh Bhagwandas Chhabriya on 3 November, 2015
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FA/No/773/2014
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI CIRCUIT BENCH AT AURANGABAD.
Date of filing: 28/11/2014
Date of order: 03/11/2015
FIRST APPEAL No : 773 of 2014
IN COMPLAINT CASE NO : 99 OF 2014
DISTRICT CONSUMER FORUM: AHMEDNAGAR.
Parmanand Basantram Khemchandani
R/o.Indira Colony Tarakpur,
Ahmdnagar. APPELLANT
VERSUS
Dinesh Bhagwandas Chhabriya
R/o.Behind Sant Nirankari Bhavan,
Hardev Nagar Miskin road,
Savedi Ahmednagar. RESPONDENT
Coram : Mr.S.M.Shembole, Hon'ble Presiding Judicial Member.
Mrs.Uma Bora, Hon'ble Member.
Present : Adv.Shri.A.K.Gugale for the appellant.
Adv.Shri.L.B.Palod for the respondent.
JUDGMENT
( Delivered on 03rd Nov. 2015 ) Per. Mr.S.M.Shembole, Hon'ble Presiding Judicial Member.
1. This appeal is directed against the judgment and order dated 31/10/2014 passed by the Dist. Consumer Forum Ahmednagar dismissing consumer complaint No. 99/2014.
{For the sake of brevity appellant Shri.Parmanand Basantram Khemchandani is hereinafter referred as the complainant and respondent Shri.Dinesh Chhabriya as "opponent". } 2 FA/No/773/2014
2. Brief facts giving rise to this appeal are that:-
Opponent Shri. Dinesh Bhagwandas Chhabriya who is a developer and builder had constructed building in land bearing old survey No. 23/2 and CTS No. 295 of village Nagapur Tq. And Dist. Ahmednagar. Out of the said building the complainant purchased a shop from ground floor from the opponent vide registered sale deed 25/04/2005 for a consideration of Rs 80,000/-. Thereafter the complainant applied with city survey office Ahmednagar for recording the same shop in his name but he was informed by the official of the city Survey office that since the shop is not recorded in the name of the opponent, the same cannot be recorded in his name. Therefore the complainant asked the opponent to get the shop recorded in his name so as enable him to get the shop recorded in his name with city Survey record. But the opponent avoided to comply his demand. Therefore alleging deficiency in service on the part of the opponent, complainant has filed consumer complaint for directing the opponent to get the constructed building recorded in his name in the city survey record and thereafter to do the needful for getting recorded the shop in his name. He has also claimed compensation Rs 7500/- towards mental agony and Rs 5000/- towards cost of the proceeding.3
FA/No/773/2014
3. Despite service of complaint notice the opponent did not appear and resist the complaint before the Dist. Consumer Forum. Therefore the complaint came tobe proceeded ex-parte.
4. On hearing Ld. Counsel for the complainant and considering the evidence on record, the Dist. Consumer Forum held that the consumer complaint is not maintainable as the complainant failed to prove that he purchased the shop as per sale deed dated 25/04/2005 as the copy of the sale deed produced by the complainant was not certified having signature of the Sub Registrar. In keeping with these findings the Dist. Consumer Forum dismissed the complaint.
5. Feeling aggrieved by the said judgment and order, the complainant came to this Commission in appeal.
6. We heard Ld. Counsel for both side and perused written notes of arguments submitted by them. We have also perused the copies of the impugned judgment and order, complaint, notice, sale deed etc.
7. Adv.Shri.Palod appearing for the opponent fairly conceded that the complainant purchased the shop from the opponent vide registered sale deed dated 25/04/2005. However, as the complete copy of sale deed was not produced before the Dist. Consumer Forum, the Dist. Consumer Forum has rightly held that the complainant failed to prove the sale deed etc. Moreover, he has 4 FA/No/773/2014 submitted that though the complainant purchased the shop from the opponent and he is entitled to get the shop recorded in his name in city survey record, the consumer complaint is not maintainable. According to him there is no relationship between the complainant and opponent as consumer and service provider and as complainant is not the consumer as defined U/Sec. 2 (i) (d) of the Consumer Protection Act,1986 the complaint is not being maintainable deserves tobe dismissed. To which, it is denied by Adv.Shri.Gugale advocate appearing for the complainant and submitted that since the opponent is a developer and builder is a service provider and complainant is consumer. Therefore the crux in this matter is as to whether there is relationship between the complainant and opponent as consumer and service provider or not?
8. It is submitted by Shri.Palod Ld. Counsel appearing for the opponent that though the complainant purchased the shop from the opponent vide sale deed dated 25/04/2015 he cannot termed as a consumer of the opponent as no services are tobe provided to the complainant by the opponent after executing the registered sale deed. According to Shri. Palod advocate for the opponent when the complainant purchased the shop he is entitled to get the shop recorded in his name in the city survey record. There is also no any dispute about ownership of the property. It is submitted that since the sale deed is executed by the opponent in favour of the 5 FA/No/773/2014 complainant the transaction is over and no relationship between the parties exists.
9. Per contra Adv.Shri.Gugale advocate appearing for the complainant submitted that though the opponent is owner of the land committed the building in his own land it was obligatory on his part to get the building recorded in his name with city survey record. But after construction of the building without getting the building recorded in his name with city survey record, sold the shop to the complainant and thereby committed deficiency in service. Thus according to Shri.Gugale advocate for the complainant relationship between the complainant and opponent as consumer and service provider exist and complaint is maintainable.
10. Considering the undisputed fact that the opponent sold the shop to the complainant by registered sale deed dated 25/04/2005 and transaction is completed, in our view no relationship between the parties exists. When there is no dispute about the deed of the shop the complainant can get the shop recorded in his name with city survey record. Though the constructed building is not shown in the record of the city survey, if the opponent has legally constructed the building on his own land and nobody disputed ownership there would be no difficulty for the City Survey Officials to record the shop in the name of complainant on the basis of undisputed registered sale deed. At the most the City Survey Officer would have asked the complainant to bring no objection of the 6 FA/No/773/2014 opponent for recording the shop in his name. Any how the opponent cannot be termed as service provider. However, it appears from the copy of the impugned judgment and order that the Dist. Consumer Forum without considering this legal point about maintainability of the complaint dismissed the complaint holding that the sale deed is not proved by the complainant.
11. Since it is obvious from the forgoing reasons that there is no relationship between the complainant and opponent as consumer and service provider, the complaint is being not maintainable, appeal deserves tobe dismissed. Hence, the following order.
ORDER
1. Appeal is dismissed.
2. No order as to cost.
3. Copies of the judgment and order be sent to both the parties.
Sd/- Sd/-
Mrs.Uma Bora S.M.Shembole
Member Presiding Judicial Member
A.H.Patil
Steno H.G.s
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FA/No/773/2014