National Consumer Disputes Redressal
Late Vasudeo Valecha & Ors. vs M/S. National Building Corporation & ... on 6 July, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 283 OF 2010 (Against the order dated 20.07.2010 in Consumer Complaint No.511 of 2000 of the State Commission, Maharashtra) 1. Late Vasudeo Valecha at present residing at Sangam, Gulmohar Cross Road No.5, J.V.P.D. Scheme, Mumbai- 400049 2. Kavita Valecha At present residing at 4, Asjoma Road, No.10, Juhu Scheme, Mumbai -400049 3. Mrs. Alka Sachdeo At present residing at Rock Enclave, 10th Floor A Wingh, Kandivali, Mumbai .Appellants Versus 1. M/s. National Building Corporation A partnership firm, Registered under the Indian Partnership Act, 1932 Having its Office at Giriaj, Plot No.385-C, Linking Road, Khar, Mumbai- 400052 2. Devinder Devraj Ghai 3. Smt. Padmavati Devraj Ghai Both at Plot No.385-C, Linking Road, Khar, Mumbai- 400052 .........Respondents BEFORE HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellants : Mr.Vinay Navare & Mr. Wasi Haidar, Advocates For the Respondents : Ms. Surekha Raman, Advocate PRONOUNCED ON: 06.07.2012. ORDER
PER MR.VINAY KUMAR, MEMBER Appellant Lata Vasudeo Valecha is one of the three surviving legal heirs of the original complainant, Late Vasudeo Payarelal Valecha. Consumer Complaint No.511 of 2000 was filed by late V.P.Valecha against National Building Corporation, a registered partnership Firm of Mumbai.
The claim of the Complainant to a flat built by the respondents/OP National Building Corporation was allegedly based on an oral agreement of 1986 for its sale for a consideration of Rs.5.76 lakhs. In a detailed 24 page order, the Maharashtra State Consumer Disputes Redressal Commission dismissed the complaint observing that the case was on inherently weak and sticky wicked. Against dismissal of the complaint by the State Commission, this appeal has been prosecuted by the three legal heirs of the complainant.
2. The admitted position of the complainants case, as emerging from his complaint of November, 2000 before the State Commission, was that:-
a) the agreement of somewhere in the month of July, 1986 to purchase the flat in question from the OP National Building Corporation for a price of Rs.576375/- was an oral agreement.
b) Rs 20,000 was paid as earnest money by the Complainant but no further instalment was paid as, the opponents failed and neglected to execute such an agreement.
c) Over time, the complaint received several reminders from the OPs for payment of further installments which did not mention anything about the agreement for sale.
Hence, no further payments were made.
d) Despite the above, the complainant filed Suit No.4276/1988 in the City Civil Court Bombay for declaration that a valid agreement for sale of the flat existed between the parties.
e) During the pendency of the Civil Suit an agreement was executed between the parties in 1992, backdating it as 5.10.1986. It was registered with the Sub-Registrar of Assurances on 11.10.1994.
f) The Civil Suit filed in 1988 was withdrawn in 2000 because he was advised by his legal experts that under the provisions of the Consumer protection Act, complaint is not entertained if the previous proceedings between the parties involving identical issue is pending.
g) As the complainant has paid only Rs.20,000/- towards the sale consideration of the flat, he remains liable to pay the balance of Rs.6,75,500/-. The complainant considered himself eligible to receive compensation of Rs.5 lakhs on account of mental torturer and suffering due to delay in delivery of possession. Deducting this amount, the complainant, as per the complaint petition before the State Commission, was willing to pay the balance of Rs.1,75,500/.
h) If the opposite parties are not in a position to hand over the possession of the flat as above, they should be directed to pay a monetary compensation of Rs.18,84,500/- to enable him to procure a suitable decent accommodation in the vicinity of the sale project.
3. Per contra, the case of the OPs before the State Commission was that the complainant did approach them in July, 1986 to purchase the said flat and to pay an earnest money of Rs.1,31,250/-. Though he paid only Rs.20,000/- through cheque, he was given a letter of allotment on 16.7.1986. Allegedly, the OP subsequently took a loan of Rs.5 lakhs from the Complainant for their business purposes. According to the OPs there was a letter of 6.10.1986 in which understanding between the Complainant and the OPs for the loan of Rs.5 lakhs were recorded. It was also recorded that the agreement for sale of the flat dated 5.10.1986 was as collateral security for the same.
The State Commission was also informed by the OPs that the entire amount of Rs.5 lakhs was returned with interest.
As claimed by them, a total of Rs.10 lakhs was paid to the Complainants between 3.5.1990 and 20.8.1997.
4. On consideration of the evidence adduce by both parties, the State Commission took the following view in the matter:-
This is surely not a simple case of flat purchaser booking a flat, paying consideration and builder/developer not giving possession within a reasonable time and committing default. If a simple case of this nature would have been involved in this complaint we would have certainly entertained it. But this complaint involves a back dated agreement to procure which the initially complainant had to filed Complaint No.48/S of 1988 U/s 420 of I.P.C. and U/s 4(1)a and Sec. 13 of M.O.F.A. which he abandoned for the best reasons known to him without getting any relief. Then he had also filed Civil Suit No.4276/1988 in the City Civil Court for the direction to the defendant to execute the agreement of sale in his favour in respect of Flat No.701 of Devaarti Building which suit he again withdrew unconditionally without seeking any relief from the Civil Court and got himself satisfied with the execution of agreement of sale back dated. So, all these circumstances taken together are shrouded in a mystery and are not inspiring any confidence in our judicial mind and it is for this reason we are not inclined to hold that this complaint can be allowed by us, on the alleged deficiency in service on the part of Builder tried to be so made out in the fashion mentioned above and therefore we hold that the complaint as filed by the complainant is not tenable in law.
5. We have perused the record of this case.
The original record of the State Commission was called for and the same has also been perused. During the course of hearing of this appeal, Mr. Arvind Kumar, Advocate representing the appellants sought his discharge from the case on the ground that he had returned the brief to the appellant. He was accordingly discharged on 9.12.2011. Thereafter, proceedings on behalf of the appellants, have been conducted by Shri Vinay Navare, Advocate. He has been heard. Ms. Surekha Raman has been heard on behalf of the respondents.
6. Learned counsel for the appellants/complainant relied upon a a document styled AGREEMENT FOR SALE. This 20 page documents does not carry any signature or authentication of either party. When confronted this position counsel accepted the documents relied upon by him is a mere format of the agreement. He however, argued that the subsequent conduct of the respondents/ National Building Corporation in addressing several letter to him seeking further payment for the flat would show that there was an agreement for sale of this flat between two parties. We do not find any substance in this argument as, by his own admission, the appellant/Complainant did not pay any amounts in response to these letters.
7. We have earlier referred to the position, which comes out in this case from the complaint petition itself filed before the State Commission in 2000. There is no explanation why the Complainant withdrew the Civil Suit inspite of the stand of the OP before the Civil Court that the agreement for sale of the flat was only meant to be a collateral security for the loan taken from him and not for sale of the flat. Therefore, the argument advanced in the complaint petition that the civil suit was withdrawn because such withdrawal was necessary for his complaint to be considered under the Consumer Protection Act becomes meaningless. Even the contention of the Complainant that he did not pay further instalments, after the initial payment of Rs.20,000, as the agreement of sale had not been executed in his favour. By his own admission, he did receive an agreement of sale in 1992 (ante-dated to 1986), which he registered with the Registrar of Assurance in 1994. If the Complainant really meant to honour the agreement of sale of the flat, he would have paid the sale price, or at least offered the same, to the Opposite party. On the contrary, the complainant waited till 2000 to file his consumer complaint in which he declared himself eligible receive a compensation of Rs.5 lakhs.
8. On consideration of the material before us, we find ourselves in agreement with the State Commission that no case of deficiency of service on the part of the OPs, has been made out. We find no substance in this appeal and dismiss the same. The parties shall bear their own costs.
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(V.B.GUPTA,J.) PRESIDING MEMBER Sd/-.
(VINAY KUMAR) MEMBER s./-