State Consumer Disputes Redressal Commission
Dr. Mahmud Ali vs M/S Sushma Constructions & Others on 18 February, 2020
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
C.C. No. 16/2010
Dr. Mahmud Ali,
53, Teoluz Gardens,
Behind Cottage Hospital,
Chicalim, Vasco-da- Gama,
Goa. ......Complainant
V/s
1. M/s Sushma Constructions,
56, Green Valley,
Alto Porvorim,
Goa.
2. Rajesh D. Davne,
(since deceased through LRs)
Partner of M/s Sushma Constructions,
56, Green Valley,
Alto Porvorim,
Goa.
2(a) Mrs. Rajita Rajesh Davne,
w/o Late Rajesh Davne,
Leela Celesty, 5th Floor,
near All India Radio Quarters,
Porvorim, Bardez Goa.
2(b) Master Devesh Rajesh Davne,
s/o Late Rajesh Davne,
Leela Celesty, 5th Floor,
near All India Radio Quarters,
Porvorim, Bardez Goa.
2(c) Miss Shriya Rajesh Davne,
d/o Late Rajesh D. Davne,
Leela Celesty, 5th Floor,
near All India Radio Quarters,
Porvorim, Bardez Goa.
3. Smt. Leela D. Davne,
Partner of M/s Sushma Constructions,
56, Green Valley,
Alto Porvorim, Goa.
2
(Since deceased and OPs No. 4, 5 and 6
are the legal representatives.)
4. Manish D. Davne,
Partner of M/s Sushma Constructions,
56, Green Valley,
Alto Porvorim, Goa.
5. Kailash D. Davne,
Partner of M/s Sushma Constructions,
56, Green Valley,
Alto Porvorim, Goa.
6. Miss Sushma D. Davne,
Partner of M/s Sushma Constructions,
56, Green Valley,
Alto Porvorim, Goa.
7. Mrs. Victoria Costa Jacques,
r/o Flat No. 4,
Opp. Goa Sahakar Bhandar,
Second Floor,Pushpanjali Building,
Vasco da Gama, Goa.
(Since deceased and OPs No. 8 to 10
arew the legal representatives.)
8. Miss. Melina Cynthia Jacques,
r/o Flat No. 4,
Second Floor, Pushpanjali Building,
Opp. Goa Sahakar Bhandar,
Vasco da Gama, Goa.
9. Shree. Juvency Jeremias Jacques,
r/o Flat No. 4,
Second Floor, Pushpanjali Building,
Opp. Goa Sahakar Bhandar,
Vasco da Gama, Goa.
10. Shree. Nixon Terence Jacques,
r/o Flat No. 4,
Second Floor, Pushpanjali Building,
Opp. Goa Sahakar Bhandar,
Vasco da Gama, Goa.
11. M/s. S.K.P. Enterprises,
Proprietory concern of
Mr. Michael Reggi Gonsalves,
C/o. Reggi Gonsalves House,
H. No. 1/25, Chakala Village,
3
Andheri (East), Mumbai 400099.
12. Mr. Michael Reggi Gonsalves,
Proprietor of S.K.P. Enterprises,
C/o Reggi Gonsalves House,
H. No. 1/25, Chakala Village,
Andheri (East), Mumbai 400099.
13. M/s. Luddy Michael Gonsalves,
w/o Mr. Michael Reggi Gonsalves,
C/o Reggi Gonsalves House,
H. No. 1/25, Chakala Village,
Andheri (East), Mumbai 400099. ...Opposite Parties
Mr. B. M. Khandeparkar, Lr. Counsel for the Complainant.
Mr. A. Monteiro, Lr. Counsel for Opposite Parties No. 2(a) to 2(c).
Mr. D. Vernekar, Lr. Counsel for Opposite Parties No. 4, 5 and 6.
Mr. D. Rosario, Lr. Counsel for Opposite Parties No. 8, 9 and 10.
Other Opposite Parties absent.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated:- 18/02/2020
JUDGMENT
[Per Justice Shri. U. V. Bakre, President] The above-named Complainant has filed the above Complaint seeking direction against the Opposite Parties (OPs, for short) to deliver to him the possession of constructed premises having carpet area of 42.12 square metres (4.13 metres x 10.20 metres) having double height at the front side on the ground floor of New Multi storeyed building being constructed in the property bearing Chalta Nos. 4, 5, 6 and 7 of P. T. Sheet No. 118 at Swatantra Path, Vasco-Da-Gama, Goa (hereinafter referred to as the said new premises) and to pay to him an amount of Rs. 14,47,000/- as and by way of compensation @ Rs. 1000/- per day for delay in delivery of possession till the date of filing of the Complaint 4 and further compensation @ Rs. 1000/- per day from the date of filing of the Complaint till the actual date of delivery of possession of the said premises and to pay costs.
2. Case of the Complainant, in short, is as follows:-
The Complainant, as tenant of OPs No. 7 to 10, was occupying a part of the premises admeasuring 64 square metres, bearing house No. 63, which existed in the property bearing Chalta Nos. 4, 5, 6 and 7 of P. T. Sheet No. 118, at Swantantra Path, Vasco-Da-Gama (hereinafter referred to as the demised premises), from where he was carrying on his profession as Dental surgeon. The OPs No. 7 to 10, as owners, entrusted the said property, wherein the demised premises existed, to the OP No. 1 for development by constructing Multi storeyed building after demolishing and removing the demised premises wherein the clinic was set up by the Complainant. The OPs No. 2 to 6 are the partners of the OP No. 1. By an agreement dated 20/09/2002 between the OPs No. 1 to 10 and the Complainant, the Complainant agreed to vacate the demised premises to enable the OPs No. 1 to 10 to carry out the said development, on terms and conditions as set out in the said agreement, which, inter alia, provided that the OPs No 1 to 10 would give to the Complainant, on ownership basis without any cost, the said new premises. The Complainant was required to hand over the demised premises to the OPs No. 1 to 6 on completion of the part of the building and obtaining possession of the said new premises allotted to him. As the OPs No. 1 to 6 could not start the work of development due to financial constraints and certain unforeseen difficulties, the OPs No. 11 to 13 offered to help the OPs No. 1 to 6 to complete the said construction as per the approved plans. Thereafter, at the request of the OPs, the Complainant agreed to give to them, 5 vacant and empty possession of the demised premises. A Memorandum of Understanding dated 25/04/2006 (hereinafter referred to as the said MoU) was entered into between the OPs and the Complainant whereby the Complainant vacated the demised premises and handed over vacant possession of the same to the OPs. By the said MoU, the OPs No. 11 to 13 guaranteed to the Complainant due performance of the agreement dated 20/09/2002 as modified by the said MoU. By the said MoU, the OPs agreed to give to the Complainant the possession of the said new premises for use and occupation along with Occupancy Certificate within 7 months from the date of said MoU and vide clause 2(c) of the said MoU, they agreed that in case of their failure to deliver the said new premises, the OPs would pay to the Complainants, jointly and severally, damages of Rs. 1000/-
per day commencing from the date of expiry of agreed period of delivery of 7 months till the date the actual possession of the said new premises is delivered to the Complainant. The said period of 7 months expired on 25/11/2006 but the OPs failed to give to the Complainant the said new premises and also to pay damages as agreed. The provision made in the said MoU vide clause 2(c), to pay damages of Rs. 1000/- per day from the date of expiry of 7 months period till the date of actual possession, made it clear that the date of delivery of possession could be extended beyond the said 7 months period. The OPs No. 11 to 13 are, jointly and severally, liable along with the OPs No.1 to 10 for the due performance of the said MoU. The said building is still not completed and neither completion certificate nor occupancy certificate has been obtained from concerned authority. The period of delivery of possession stands postponed by the above act of omission on the part of the OPs. Vide letter dated 22/07/2010, the Complainant, inter alia, called upon the OPs, jointly and 6 severally, to pay to him an amount of Rs. 13,33,000/- being damages @ Rs. 1000/- per month from 26/04/2006 to 19/07/2020 i.e. for 1333 days, within 15 days; to confirm in writing the date by which they would give him possession of the said new premises for his occupation and use along with copy of Occupancy Certificate; to pay damages of Rs. 1000/- per day from the date of the letter till such date they would give possession of the said new premises; etc.. The said letter was duly received by the OPs but they failed and neglected to comply with the same. The OPs had entered into a contract with him to provide him a constructed premises (said new premises) for a consideration being exchange of tenancy rights in the original premises (demised premises), for which he had hired services of the OPs. The cause of action is continuous since the possession has not been delivered. Hence the Complaint.
3. The Complainant has relied upon the agreement dated 20/09/2002, MoU dated 25/04/2006, letter dated 24/11/2006 sent by the OP No. 12 to the Complainant, letter dated 04/12/2006 sent by the Complainant to the OPs No. 1 and 11, letter dated 22/12/2006 sent by the OP No. 12 to the Complainant and letter dated 22/07/2010 sent by the Complainant to the OPs.
4. Vide their written version, the OPs No. 1, 2, 7 to 10(hereinafter referred to as the said OPs) denied the case of the Complainant. They alleged as under:- The Complainant is not a consumer and they are not service providers. It is denied that the Complainant is tenant. The demised premises was never in possession of the Complainant and it was always with the said OPs. The said MoU was forced upon the said OPs under various kinds of threats and no commitment 7 as alleged by the Complainant was ever accepted by the said OPs and the same was made by the Complainant unilaterally and without consent of the said OPs. No guarantee of the type as alleged by the Complainant can get any legal sanction in any consumer court. The date 25/11/2006 alleged to be for delivery of possession of the said new premises is beyond the period of limitation as provided by the Consumer Protection Act. 1986 (the 'C. P. Act', for short). The Complainant has not mentioned the true facts and is not entitled to the possession of the said new premises. The letter dated 22/07/2010 is ill-motivated and has been sent only to harass the said OPs.
5. The OPs No. 3 to 6 and 11 to 13 have not filed any defence and did not contest the Complaint.
6. The Complainant filed his affidavit-in-evidence and the said OPs filed the affidavit-in-evidence of the OP No. 2. Same facts as pleaded in the Complaint and in the written version have been stated in the respective affidavit. The OP No. 3, one of the partners of the OP No. 1, expired and since the other partners of the OP No. 1 were on record, the Complainant filed an application dated 05/06/2012 to that effect and stating that the heirs of the OP No. 3 are already on record and even otherwise the heirs need not be brought on record since the firm continues. The State Commission heard final oral arguments.
7. Vide the Order dated 22/03/2012, this Commission (Quorum: Shri. Jagdish Prabhudesai and Smt. Vidhya Gurav, members) allowed the Complaint and directed the OPs to deliver to the Complainant the possession of the said new premises with Occupancy Certificate within 30 days from the date of the Order and to execute sale deed in favour of the 8 Complainant within two months from the date of putting him in possession. This Commission further directed the OPs to pay, jointly, to the Complainant the amount of Rs. 1,50,000/- by way of damages, which amount if not paid within 30 days from the date of the Order, shall carry 9% interest per annum from the date of the Order till actual payment and to pay costs of Rs. 5,000/-. Against the above Order, the OPs No. 7 to 10 filed First Appeal No. 476/2014 whereas the OPs No 4 to 6 filed the First Appeal No. 1088/2014 before the Hon'ble National Commission.
8. The Hon'ble National Commission, by Judgment dated 05/09/2019, found that though the Complainant has clearly stated in the Complaint that he was practising as a dentist in the premises which he was occupying in the old building (demises premises), however, he has not said that he was earning livelihood from his practice as a dentist. The National Commission has observed that the contention of the learned counsel for the Complainant is that such an averment is implicit in the Complaint since the Complainant claimed to be practising as a dentist in the old building (demises premises) and he was not practising as a dentist in any other premises whatsoever. The National Commission has further observed that the Complainant submits that he was to shift his practice to the premises which was to be made available to him in the new premises (said new Premises) and that is why he had entered into the MoU where-under he was to get a premises in the new building (said new premises) in lieu of the premises vacated by him in the old building (demises premises). The National Commission has observed that, however, it is not known as to where the Complainant was practising as a dentist after vacating the premises occupied by him in the old building (demised premises) and it is not 9 verified as to whether the Complainant was practising as a dentist also in any premises other than the premises occupied by him in the old building (demises premises) at the time he executed the MoU with the OPs. The Hon'ble National commission has observed that considering all these facts and circumstances it would only be appropriate to give a fair and reasonable opportunity to the Complainant to lead additional evidence to prove that the premises in the old building (demised premises) was being used by him for the purpose of earning his livelihood by way of self-employment and the premises in the new building (said new premises) was also intended to be used by him for the same purpose. The National Commission has observed that the OPs also need to be given opportunity to rebut the evidence which the Complainant may produce in order to prove his claim. For the above reasons, the impugned order has been set aside and the Complaint has been remitted to this Commission to decide the same afresh in the light of the order after giving an opportunity to the parties to lead evidence on the question as to whether the Complainant was a consumer within the meaning of C. P. Act or not. The additional evidence has been allowed to be led only on the aforesaid issue. The OPs No. 4, 5 and 6 have been given liberty to file an application seeking deletion of their names from the array of parties. It has been directed that if such an application is filed, the same shall be decided in accordance with law after notice to the Complainant. The parties were directed to appear before this Commission on 19/10/2019 and this Commission has been directed to decide the Complaint afresh within three months of the parties appearing before it. It has been ordered that the additional evidence will be allowed only to those of the OPs who have filed their written version before this Commission.
109. As 19/10/2019 was Saturday and holiday for this Commission, the matter was taken up on Monday i.e. 21/10/2019. The Complainant, on this day, filed his additional affidavit-in-evidence. An application dated 11/11/2019, for bringing legal representatives of the deceased OP No. 2, on record, was filed by the Complainant and the same was allowed and hence the OPs No. 2(a) to 2(c) are on record. The OP No. 7 has also died and the OPs No. 8 to 10 are her legal representatives. The OPs No. 4, 5 and 6 filed an application to drop them from the proceedings. After hearing the parties, this Commission, by detail order dated 18/12/2019, dismissed the said application thereby holding that notwithstanding the dissolution of the partnership w.e.f. 21/09/2004, the old partners namely the OPs No. 4, 5 and 6 continue to be liable as partners, for the performance of the agreement dated 20/09/2002. The above was held by this Commission in view of the provisions of Sections 45 and 72 of the Indian Partnership Act and relying upon the judgment of the High Court of Calcutta in APD 304 of 2015, GA 268 of 2016, with CS 65 of 2002 ("Mrs. Jyoti Jain Vs. ABP Private Limited & Anr."). On 18/12/2019, the OPs No. 8, 9 and 10 filed additional affidavit-in-evidence of the OP No. 10. The OP No. 2(a) filed her affidavit on 20/12/2019, on behalf of OPs No 2(a) to 2(c). Even the OPs No. 4, 5 and 6 filed additional affidavit-in-evidence of the OP No. 4 on 20/12/2019. In fact the OPs No. 4, 5 and 6 have not filed written version and the OP No. 4 had not filed any affidavit-in-evidence previously and hence it is not known as to why he has filed the same calling it as additional. The Complainant has objected to the same on the ground that the OPs No. 4, 5 and 6 have not filed written version and hence are precluded from filing any additional affidavit. However, the OPs No. 4, 5 and 6 have alleged that they being the partners of the OP No. 1 are 11 entitled to file the same. The OP No. 2(a) filed interrogatories for the Complainant. The OPs No. 4, 5 and 6 also filed interrogatories for the Complainant. The Complainant has objected to the filing of interrogatories by OPs No. 4 to 6 on the ground that they have not filed written version. The OPs No. 8 to 10 filed interrogatories for the Complainant along with an application for leave to cross-examine the Complainant. The Complainant has answered the interrogatories of all the said OPs. The Complainant, the OPs No. 4, 5 and 6 and the OPs No. 8 to 10 have filed their written final arguments. We have also heard oral arguments. Mr. Khandeparkar, learned counsel, argued on behalf of the Complainant. The OP No. 2(a) argued on her own behalf and on behalf of the OPs No. 2(b) and 2(c). Mr. Vernekar, learned counsel, argued on behalf of the OPs No. 4 to 6 and Mr. Rosario, learned counsel argued on behalf of the OPs No. 8 to10.
10. We have gone through the entire material on record.
11. The OPs No. 7 to 10 and now the OPs No. 8 to 10 (OP No. 7 being dead) who are the co-owners of the demised premises, cannot deny that the Complainant was their tenant in respect of the same. The OP No. 1, a partnership firm is a developer. The OPs No. 2 to 6 were the partners of the OP No. 1, at the relevant time. The tripartite agreement dated 20/09/2002 executed before the Notary by the OP No. 1 through its partners namely the OPs No. 2 to 6 (developers), as the First Part; the OPs No. 7 to 10 (owners), as the Second Part and the Complainant, as tenant, reveals that the tenanted premises is the demised premises. The agreement, which has not been denied by the OPs, clearly states that the tenant i.e. the Complainant has converted the demises 12 premises into a dental clinic by spending a huge amount and is conducting his practice therein as a dental surgeon. The above facts have been pleaded by the Complainant and he has also stated them in his affidavit-in-evidence. The OP No. 7 has expired and the OPs No. 8 to 10 are his legal representatives. The Complainant has established that he is the tenant of the OPs No. 8 to 10, in respect of the demised premises. The said agreement dated 20/09/2002 further reveals that the OPs No. 1 to 6 were fully entitled to develop the said property wherein the demises premises was situated by constructing thereon a multi storeyed building after demolition of the demised premises. The said agreement further reveals that in lieu of the demises premises, the Complainant was to be given the said new premises, free of cost and as absolute owner. The said OPs have not proved that the said MoU was forced upon them under various kinds of threats and that no commitment as alleged by the Complainant was never accepted by the said OPs and the same was made by the Complainant unilaterally and without consent of the said OPs. Vide the said MoU, which is a quadripartite arrangement, with additional party, the OPs No. 11, 12, and 13, as Guarantor, the agreement dated 20/09/2002 was agreed to be fulfilled by the OPs No. 1 to 6 and OPs No. 11 to 13, since the OPs No. 1 to 6 could not start the said work on account of unforeseen difficulties and financial constraints. The said MoU states the same facts as are mentioned in the agreement dated 20/09/2002, in addition to new facts. It is therefore established that the Complainant is tenant of the OPs No. 8 to 10 in respect of the demised premises and is a dental surgeon who was running his dental clinic in the demises premises, till the date he vacated and handed over the vacant possession of the same to the OPs, in terms of the said MoU read with the said 13 agreement dated 20/09/2002. Tenant means a person who, inter alia, occupies the tenanted premises for rent, i.e consideration.
12. It is the contention of the said OPs that the Complainant is not a consumer and has neither paid nor has promised to pay any consideration to them for obtaining the said new premises as owner thereof. According to them, the Complainant does not want to pay for what he is trying to get from the said OPs. There is no substance in the above contention. The term 'consideration' has not been defined in the C. P. Act. The same should be construed according to the Indian Contract Act. Section 2(d) of the Contract Act defines consideration as "when at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing or promises to do or abstain from doing something, such act or abstinence or promise is called a consideration for the promise". Clause No. 3 of the said agreement dated 20/09/2002 provides that the Owners and/or Developers as duly empowered by the Owners shall in consideration of vacating and handing over possession of the demised premises grant, free of cost to the tenant the said new premises. Since in lieu of the demises premises, the Complainant was to be given the said new premises, free of cost and as absolute owner, that indirectly means that the Complainant would surrender his tenancy rights in respect of the demises premises and hand over the vacant possession of the same to the OPs and in consideration of the same he was to get the said new premises. The consideration was thus 'exchange by way of surrender of tenancy rights and handing over of vacant possession of the demised premises being equivalent to the flat price'. It was contended by the learned Counsel for the 14 OPs No. 4 to 6 that since the Complainant is claiming to be a tenant of the demised premises, he cannot be considered as consumer. There is no force in the above contention. It is the agreement dated 20/09/2002 and the said MoU dated 25/04/2006 which matter and the same sufficiently prove that the Complainant is consumer and the OPs are service providers. Merely because the Complainant was tenant of the demised premises, that cannot mean that the C. P. Act does not apply to him.
13. It was contended by the learned Counsel for the OPs No. 8 to10 that the Complainant had, in terms of clause 4 of the said MoU, received money and had surrendered his premises and hence he cannot claim any relief as consumer and if the Complainant had not received the amount of Rs. 42,00,000/- there would arise no question of the Complainant surrendering his premises to the OPs. Clause No. 4 of the said MoU provides that "The Developer and the Guarantor has given an offer to the TENANT to surrender his rights to the new premises to and in favour of the Developer and the Guarantor in case the Developer is unable to deliver the possession of the new premises to the TENANT within the said agreed period of seven (7) months and in consideration of which surrender of premises the Developer and the Guarantor jointly and severally agree and undertake to pay to the TENANT an amount of Rs. 42,00,000/- (Rupees Forty Two Lakhs only) towards payment of which amount the Guarantor has given a post dated Cheque to the TENANT on United Western Bank, Panjim." Thus, the surrender of the said new premises was valued in money consideration and an offer to surrender the same was given to the Complainant and it pertained to the said new premises and not to the demised premises. There is no evidence on record to show that the said offer was 15 accepted by the Complainant. The learned Counsel for the Complainant has categorically submitted that the post dated cheque given by the OPs No. 8 to 10 was never encashed by the Complainant and hence the Complainant did not accept the said amount of Rs. 42,00,000/-. The said OPs, in their written version, the OP No. 2 in his affidavit-in-evidence dated 2/12/2011, the OP No. 2(a) in her affidavit dated 19/12/2019 and the OP No. 10 in his additional affidavit-in- evidence dated 18/12/2019 have not stated that the Complainant received the amount of Rs. 42,00,000/- and surrendered the said new premises. Clause No. 5 of the said MoU provides that "It is expressly agreed by the parties that it will be in the entire discretion of the TENANT whether to surrender the new premises and encash the cheque. On the expiry of the agreed period of delivery of possession of the said premises, if the new premises are not delivered to the TENANT, the TENANT shall exercise his discretion in writing by notice to the DEVELOPERS and the GUARANTOR. However, it is expressly agreed by the DEVELOPERS and the GUARANTOR that the surrender of premises shall not take place unless and untill the TENANT receives the said amount of Rs. 42,00,000/-". Since the Complainant has not received the said amount of Rs. 42,00,000/- surrender of the said new premises did not take place. The Complainant has handed over vacant possession of the demised premises to the OPs in consideration of surrendering his tenancy rights and being granted, free of cost, and as absolute owner the said new premises. Thus the OPs cannot be heard to say that the Complainant is not a consumer under the Act.
14. In the Judgment dated 05/09/2019, passed by the Hon'ble National Commission, in First Appeals No. 476/2014 and 1088/2014, a question has been raised whether the 16 demised premises was being used by the Complainant for the purpose of earning his livelihood by way of self-employment and the said new premises is also intended to be used by him for the same purpose. Further question raised is whether the Complainant was practising as a dentist in any premises other than the demised premises at the time of execution of the said MoU with the OPs. Further question that is raised is as to where the complainant was practising as a dentist after vacating the demised premises. With regard to the above, in view of the opportunity given by the Hon'ble National Commission, the Complainant has filed additional affidavit- in-evidence.
15. The Complainant, in his additional affidavit-in-evidence, has stated that he is a dentist by profession and earns his livelihood. He has stated that he was running his dental clinic in the demised premises(demised premises have been described), since 1979 as his sole livelihood. He has produced a BSNL bill dated 01/03/2003. He has further stated that he did not have any premises other than demised premises for the purpose of running a clinic at the time of executing the said MoU. He has stated that he intended to use the promised premises (i.e. the said new premises) solely to run his dental clinic as his livelihood and for no other purpose. The Complainant has stated that when he handed over the possession of the demised premises pursuant to the said MoU, he converted his residential premises at A1, first floor, FF Complex, Swatantra Path (hereinafter referred to as the FF complex-residential premises), into a dental clinic on a temporary basis, as the said MoU guaranteed that he would be given possession of the said new premises within 7 months. The Complainant has stated that since the OPs failed to deliver possession and title of the said new premises, he 17 was compelled to continue running his dental clinic in the FF complex-residential premises after the expiry of 7 months. He has stated that he has been running this dental clinic under the name and style of "Vasco Dental Clinic" in the FF complex-residential premises and because of the above, he has been constrained to reside in a rental premises at the address reflected in the cause title ( i.e. 53, Teoluz Gardens, Behind Cottage Hospital, Chicalim, Vasco-da-Gama. He has stated that he has not owned any commercial premises till date and has not run his dental clinic in any premises other than the FF complex-residential premises. He has further stated that the proposed premises (i. e. the said new premises) was the only premises where he intended to run his dental clinic and he shall shift his present clinic to the said new premises upon getting possession and title thereto. The Complainant has produced an invoice dated 31/10/2017 of 'Om Dental Lab', invoice dated 26/10/2017 of ' Laxmi Health Agencies' and BSNL bill dated 06/10/2017 and has stated that these are the documents pertaining to the equipments and materials installed and the telephone bill in the FF complex-residential premises. The tax invoice dated 26/10/2017 issued by Laxmi Health Agencies mentions the address of the clinic of the Complainant to be 1st floor FF complex, Vasco.
16. In her affidavit, the OP No. 2(a) has stated as follows:-
The Complainant was a tenant of the OPs No. 8 to 10 and not a consumer with respect to any of the OPs, much less the OP No. 2(a) to 2 (c). The Complainant falsely represents to be a dentist and sells medical equipments including chairs used for dental clinics. The Complainant has been into many businesses and hence to say that dentistry has been his sole livelihood is false. The bill of the year 2003 is of no use. The 18 Complainant has signed another agreement which is subject matter of the Complaint and it confirms that the nature of the transaction is purely commercial and has been quantified in terms of money. The Complainant has given up rights that could have been claimed as tenant of OPs No. 8 to 10. At no point of time the Complainant intended to use the premises to run a dental clinic whether for livelihood or otherwise. The Complainant was intending to put up a showroom of medical equipment and had approached many people and therefore the subsequent new agreement spells out the intentions of the Complainant. The Complainant owns many premises and has been using the residential premises for commercial uses.
17. The OP No. 4, in his additional affidavit-in-evidence, has stated in detail about the deed of dissolution of partnership with effect from 21/09/2004 and that the OPs No. 4, 5 and 6 are no more concerned with the OP No. 1. The said facts as stated in the affidavit are not repeated here since the same were all stated in the application filed by the OPs No. 4 to 6 for dropping them from the proceedings and have been duly considered in the order dated 18/12/2019, dismissing the said application thereby holding that notwithstanding the dissolution of the partnership w.e.f. 21/09/2004, the old partners namely the OPs No. 4, 5 and 6 continue to be liable as partners, for the performance of the agreement dated 20/09/2002. The OP No. 4 has denied that the Complainant was running dental clinic in the demised premises. He has denied that the Complainant is a dentist and that he earns his livelihood through his practice. He has stated that the OPs No. 4, 5 and 6 are not partners of the OP No. 1 after its dissolution. He alleged that the Complainant has never practised as a dentist in the suit premises. He has stated that the Complainant, for years i.e. prior to filing of the Complaint 19 and till date, has been running a dental clinic under the name and style of "Vasco Dental Clinic" in his FF complex- residential premises. According to the OP No. 4, the Complainant has falsely stated that he has been residing in a rental premises at the address reflected in the cause title. The OP No. 4 has alleged that the said address of the Complainant pertains to his residential bungalow. He has stated that since the Complainant is claiming to be the tenant of the suit property, he cannot be considered as a consumer.
18. In the additional affidavit-in-evidence filed by the OP No. 10, it has been alleged as follows:- The Complainant is not a consumer. It is false that the Complainant is dentist and running dental clinic in the demised premises. The Complainant never practised as dentist in the suit premises. The Complainant, for years i.e. prior to filing of the Complaint and till date, has been running a dental clinic under the name and style of "Vasco Dental Clinic" in his FF complex- residential premises. The Complainant has made a false statement that he has been residing in a rental premises at the address reflected in the cause title. The said address pertains to the residential bungalow of the Complainant.
19. It should be kept in mind that only the OPs who have filed written version were given liberty by the Hon'ble National Commission to produce additional evidence and further and most important is that their additional evidence was restricted only to rebut the additional evidence that would be produced by the Complainant only on the issues mentioned by the National Commission. The OPs No. 4 to 6 have not filed any written version and the so-called additional affidavit- in-evidence does not say that the same is on behalf of the OP No. 1. Besides the above, the additional affidavits have been 20 filed by the OPs on the entire Complaint which is not permissible. In the absence of the pleadings, the OPs No. 4 to 6 cannot contend that the Complainant has not hired their services or that the Complainant is not a consumer, etc.
20. The contention of the OPs No. 4 to 6 and 8 to 10 that the Complainant never carried out any profession as dental surgeon in the demised premises and that for years i.e. prior to the filing of the Complaint has been running a dental clinic under the name and style of "Vasco Dental Clinic" in his FF complex-residential premises, cannot be accepted. The agreement dated 20/09/2002 and the said MoU dated 25/04/2006 proves beyond doubt that the Complainant, since prior to 20/09/2002 till 25/04/2006 when he vacated the demised premises, was conducting his practice as dental surgeon in the demised premises, for which he had spent a huge amount to convert the said demised premises into a dental clinic. The OPs have failed to prove that the Complainant never conducted his practice in the demised premises and that since prior to the filing of the Complaint he was carrying out his practice in his FF complex-residential premises. There is no specific pleading in the Complaint that the Complainant, who was running his practise as dental surgeon in the demises premises, was doing so exclusively for the purposes of earning his livelihood by means of self employment. The Complainant has pleaded in the Complaint and further has stated in his affidavit-in-evidence dated 03/11/2011 that he was carrying on his profession in the demised premises as dental surgeon. Profession means paid occupation, Thus, the Complainant was earning his livelihood from the said profession. Now in his additional affidavit-in- evidence dated 18/10/2019, the Complainant has specifically stated that he was running his dental clinic in the demised 21 premises since 1979 as his sole livelihood and did not have any other premises for running the dental clinic at the time of execution of the said MoU dated 25/04/2006. The Complainant has produced a bill dated 01/03/2003 issued by Bharat Sanchar Nigam Ltd. which mentions the address as:- "Dr. Mahmud Ali, Vasco Dental Clinic, Near Bank of Baroda, Swatantra Path, Vasco-Goa-403802". The OPs No. 3 to 6 have not filed any written version and initially had not filed any affidavit-in-evidence. The OPs No. 11 to 13 have not filed any written version and have also not filed any affidavit- in-evidence. The said OPs (i.e. OPs No. 1, 2, 7 to 10) have nowhere stated in their written version that the Complainant, since prior to filing of the Complaint, was running a dental clinic under the name and style of "Vasco Dental Clinic" at his FF complex-residential premises. It is for the first time in the additional affidavit-in-evidence dated 18/12/2019, the OP No. 10 and in the additional-affidavit-evidence dated 20/12/2019, the OP No. 4, have stated that the Complainant for years i.e. prior to the filing of the original Complaint and till date has been running a dental clinic under the name and style of "Vasco Dental Clinic" at his FF complex-residential premises. The OP No. 2(a), in her affidavit-in-evidence has gone to the extent of saying that the Complainant is doing many other businesses and sells medical equipments including chairs used for dental clinics. There is absolutely no evidence except mere statement of OP No. 2(a) on oath (which is beyond the pleadings and hence cannot be believed), to prove that the Complainant has many other businesses, etc. In the interrogatories, the OPs No. 8 to 10 have asked the Complainant whether he has a trade licence to practice as dentist in the demised premises or in the residential premises. The Complainant has answered that he does not have any trade licence. A suggestion has been put to the 22 Complainant that he never had trade licence and therefore the question of him operating dental clinic from the demised premises does not arise. The Complainant has denied the above suggestion. The OPs No. 8 to 10 have not cited any provision of law which mandates the procurement of trade licence for running the dental clinic. It appears that the OPs No. 1 to 10 want to anyhow establish that the Complainant never had dental clinic in the demised premises. However, the documents namely the Agreement dated 20/09/2002 and the said MoU dated 25/04/2006, which are signed by the OPs, duly prove that the Complainant was conducting his practice as dental surgeon in the demised premises. In the additional affidavit-in-evidence, the Complainant has stated that the house mentioned in the cause title, wherein he is presently residing, is a rental premises. Vide the query (g), a suggestion was put by the OPs No. 8 to 10 to the Complainant that house no. 53 stands registered in the name of the Complainant in the records of the village panchayat of Chicalim for assessment of house tax and he is the lawful owner and that he has made a false statement that the same is rental premises. With respect to above query (g), the Complainant answered that the house no. 53 is a house purchased by him for his children and that he is presently residing at the address reflected in the cause title. If the address mentioned in the cause title is perused, then it is seen that number '53' is mentioned therein. It seems that there is some confusion. However, we are in no way concerned with the residential houses of the Complainant whether taken on rent or owned. It is not the case of the OPs that the Complainant was also practising as dental surgeon in said H. No. 53 in addition to the demised premises at the time of execution of the said agreement or the said MoU and has been practising as such in said House No. 53, in addition 23 to the FF complex-residential premises.
21. The query no. 1 of the OPs No. 4, 5 and 6 is a suggestion that at the time of using demised premises as a dental clinic, the Complainant was also practising as a dentist at his residential premises. The above suggestion contains an admission that the Complainant was using the demised premises as dental clinic. In answer to the above, the Complainant has stated that he was not practising in his FF complex-residential premises at the time of using the demised premises. To the other queries, the Complainant has answered that he had one cleaner and one assistant employed to assist him at the clinic; that after the execution of the said MoU, he never used any premises other than the one mentioned in his additional affidavit for running his clinic; that after execution of the said MoU, he immediately shifted his clinic to the FF complex-residential premises; that the FF complex-residential premises has two bedrooms, one hall and one kitchen; that he requires a minimum area of 40- 45 square metres to run his dental clinic and the area of the FF complex-residential premises is approximately 85 square metres. The various other queries of the OPs No. 4 to 6 are not at all relevant and hence rightly not answered by the Complainant. In fact, the OPs No. 4 to 6 could not have filed interrogatories. The queries asked by the OP No. 2(a) are beyond the scope of enquiry ordered by the Hon'ble National Commission and are also not relevant and need not be answered by the Complainant.
22. In our considered view, the Complainant, through his pleadings, initial affidavit-in-evidence dated 03/11/2011, additional affidavit-in-evidence dated 18/10/2019 and the documents produced by him, has duly proved:- that he was 24 practising as dental surgeon in the demised premises exclusively for the purpose of earning his livelihood by means of self-employment; that he was not practising as dental surgeon in any premises other than the demised premises, at the time when he executed the said agreement and the said MoU; that in consideration of 'exchange by way of surrender of tenancy rights and handing over of vacant possession of the demised premises being equivalent to the flat price' to the OPs, the Complainant was to get from the OPs the said new premises, in terms of the said agreement dated 20/09/2002 and the said MoU dated 25/04/2006; that he accordingly vacated the demised premises and handed over the same to the OPs; that he started conducting his practice as dental surgeon from the FF complex-residential premises and continues to do so; that he has no dental clinic other than the one in FF complex-residential premises; that he intends to use the said new premises for the same purpose of earning his livelihood by means of self-employment, once he gets possession of the same; that the OPs have failed to give possession of the said new premises to the Complainant. The OPs, in our view, have failed to rebut the evidence produced by the Complainant. Hence the OPs are guilty of deficiency in service. The Complainant is a consumer within the meaning of C. P. Act.
23. There is no force in the contention of the OPs that the Complaint is barred by limitation. The OPs have not refused to give possession of the said new premises to the Complainant. Even by letter dated 22/12/2006, the OP No. 12 had requested for waiver of Rs. 1000/- per day as damages saying that he would be giving possession on 25/01/2007. But possession of the said new premises has not been given to the Complainant till date. In the case of 25 "Meerut Development Authority Vs. M. K. Gupta" [IV (2012) CPJ 12], the Hon'ble Supreme Court has held that in such a case the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the plot. Hence the Complaint cannot be said to be barred by limitation.
24. Insofar as the claim of Rs. 1000/- per day commencing from the date of expiry of agreed period of seven months from the date of the said MoU dated 25/04/2006, is concerned, the cause of action for the Complainant to claim such amount arose on the date of expiry of the said period of seven months and the Complaint for recovery of the said amount had to be filed within two years from the date of cause of action. The cause of action for claiming the said amount under clause 2(c) of the MoU arose to the Complainant on or about 26/11/2006. By notice dated 04/12/2006, the Complainant had notified the OPs No. 1 and 11 to pay to him damages at the rate of Rs. 1000/- per day commencing from 26/11/2006 as per clause 2(c) of the said MoU. The Complaint for claiming the said amount had to be filed within two years from 26/11/2006 i.e. on or before 26/11/2008. The Complaint is, however, filed on 18/11/2010. In the first agreement dated 20/09/2002, such a clause for payment of damages was not there. It seems to our mind that the said clause 2(c) of payment of Rs. 1000/- per day was introduced in the said MoU since it was thought that the Complainant would be without premises to run his dental clinic after handing over the vacant possession of the demised premises and would incur loss if the said new premises were not handed over to him soon. However, it is now clear that soon after handing over the possession of the demised premises, the Complainant shifted his dental clinic in the FF complex- residential premises where he continues to practice as dental 26 surgeon and hence has not incur much loss in profession. Be that as it may, this Commission, vide earlier Judgment dated 22/03/2012, had held that the Complainant had not substantiated with adequate proof, his entitlement for the damages of Rs. 14,47,000/- by way of compensation. This Commission had awarded consolidated amount of Rs. 1,50,000/- by way of damages and had directed that if the same is not paid within 30 days from the date of the order, it shall carry interest of 9% per annum from the date of the order till actual payment. The Complainant was satisfied with the said Judgment and Order and had not challenged the same. Only the OPs No. 7 to 10 and the OPs No. 4, 5 and 6 had challenged the said Judgment and Order and at their instance, the same was set aside by the Hon'ble National Commission, with a direction to decide the same afresh. We are of the view that clause 2(c) of the MoU making the OPs liable to pay Rs. 1,000/- per day is harsh and in the circumstances of this case should not be implemented, as it is. In our view, the consolidated amount of Rs. 1,50,000/- as damages, as was earlier awarded, would be just and reasonable.
25. In the result, we pass the following:
ORDER The Complaint is partly allowed.
(a) The OPs shall deliver to the Complainant the possession of the said new premises i.e. the constructed premises having carpet area of 42.12 square metres (4.13 metres x 10.20 metres) having double height at the front side on the ground floor of New Multi Storeyed Building constructed on the property bearing chalta nos. 4, 5, 6 and 7 of P. T. 27 Sheet No. 118 at Swatantra Path, Vasco Da Gama, Goa, within 30 days from the date of this order.
(b) The OPs, jointly and severally, shall pay to the Complainant the consolidated amount of Rs.
1,50,000/- by way of damages, which amount, if not paid within 30 days from the date of this order, shall carry interest @ 9% per annum from the date of the order till actual payment.
(c) The OPs shall pay to the Complainant costs of Rs. 25,000/- towards litigation.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President