State Consumer Disputes Redressal Commission
M/S Primos Builders vs Anant Shripad Kamat on 20 February, 2020
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
F.A. No. 09/2018
M/s. Primos builders,
a partnership firm duly registered
under the Indian Partnership Act,
1956, with its office at 3rd Floor, Falcon
Apartments, Panaji, Goa, through their
partner Mr. Frumencio Isidore
Fernandes with his office at the above
mentioned address ... Appellant
v/s
Shri. Anant Shripad Kamat,
major in age, married, Indian National,
resident of Flat No. F-3, Block No. C-2,
Primos Park, Near Industrial Estate,
Corlim, Ilhas, Goa - 403110. ... Respondent
Mr. A. P. Furtado, Lr. Counsel for the Appellant.
Mr. D. P. Agni, Lr. Counsel for the Respondent.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated:- 20/02/2020
JUDGMENT
[Per Justice Shri. U. V. Bakre, President] This Appeal is directed against the Judgment and Order dated 15/12/2017 passed by the Consumer Disputes Redressal Forum, North, Goa (the "Forum", for short) in Complaint No. 16/2013. The Appellant was the Opposite Party (OP, for short) and Respondent was the Complainant in the said Complaint. Parties shall hereinafter be referred to as 2 per their status in the said Complaint.
2. The said Complaint was filed for a direction to be issued to the OP to form the Co-operative Housing Society of the flat owners/shop owners of the complex "PRIMOS PARK" within 30 days or in the alternative to execute the deed of sale in respect of the said flat along with its corresponding proportionate undivided share in the property in favour of the Complainant and to pay costs.
3. Case of the Complainant, in short, is as follows:
By virtue of an agreement dated 09/01/1995 (hereinafter referred to as the said agreement), the Complainant purchased from the OP a residential flat bearing no. F-3, admeasuring super built up area of 52 square metres, located on the first floor of the building C-2 of the Complex known as "Primos Park", situated at Corlim, Tiswadi, Goa (hereinafter referred to as the said flat). The said Complex has been constructed by the OP in the property known as "Chao Oiteral" also known as "Mol" or "Predio Oiteral". The entire consideration amount of the said flat, except the sum of Rs. 4000/- which was liable to be paid by the Complainant to the OP at the time of delivery of possession, has been duly paid by the Complainant to the OP and consequently, the possession of the said flat has been delivered by the OP to the Complainant on 23/08/1997. There is an order dated 09/06/2003, passed by the Forum in complaint no. 118/99, wherein the OP has been directed to pay to the Complainant interest on the consideration amount, for delay in giving possession. The said order of the Forum has been confirmed by the State Commission vide order dated 03/07/2009, passed in Appeal No. 39/2003, thereby dismissing the Appeal 3 of the OP with costs. Thus, it is the OP who owes money to the Complainant, even after adjusting the aforesaid sum of Rs. 4,000/- and the Complainant has filed an Execution Application on 05/11/2009 before the Forum to recover the said amount. In terms of the said agreement, the OP was liable to form a Co-operative Housing Society of the flat holders/shop owners of the said Complex or in the alternative to execute a deed of sale in favour of the Complainant, thereby conveying unto the Complainant, the said flat along with its corresponding proportionate undivided share in the said property. In or around the month of July 2007, the OP initiated the process of formation of the Primos Park Co- operative Housing Society Ltd.(proposed) and submitted the necessary application in that regard to the Assistant Registrar of Co-operative Societies, Central Zone at Panaji, Goa. At that time, 70 members/flat owners joined the said process of formation of the said society, which included the Complainant. One of the residents of the said complex namely Shri. Sudhakar N. Parsekar was appointed as a Chief Promoter to facilitate the formation of the said Society. But, thereafter the OP quietly diverted itself from the process of formation of the said Society. Various documents, which have been furnished by the OP before the Assistant Registrar of Co-operative Societies along with the application for formation of the said Society, are incomplete and on account of the said shortfalls on the part of the OP, the process of formation of the said Society cannot be proceeded with. Shri. Sudhakar N. Parsekar received a letter dated 25/08/2009 from the Assistant Registrar of Co-operative Societies requesting him to rectify/comply with the said shortfalls which were listed in the said letter. Shri. Sudhakar N. Parsekar forwarded the said letter to the OP with a request to comply with the same. However, the OP did not pay any heed 4 to the said letter, as a result of which Shri. Sudhakar N. Parsekar was served with yet another letter dated 22/01/2010 by the said Assistant Registrar, once again requesting him to comply with/rectify the said shortfalls. The said letter dated 22/01/2010 was also forwarded by Shri. Sudhakar N. Parsekar to the OP. However, the OP did not take any initiative to rectify the said shortfalls. On account of the said attitude of the OP, the process of formation of the said Society has been withheld. Subsequently, Shri. Sudhakar N. Parsekar received a letter dated 05/03/2011 from the OP requesting him to collect the file pertaining to the formation of the said Society from the office of the Assistant Registrar of Co-operative Societies in order to re-submit the same or to authorize one Mr. M. S. Mardolkar, the consultant of the OP in the matter of formation of the said Society, to do the same. Vide reply dated 12/03/2011 Shri. Sudhakar N. Parsekar issued necessary authorization to said Mr. M. S. Mardolkar. Even thereafter there was no positive response from the OP and the process of formation of the said Society has been withheld. The Complainant along with other flat owners of the said complex issued legal notice dated 11/04/2011 to the OP calling upon to comply with and/or rectify the various shortfalls listed in the letter dated 25/08/2009 of the Assistant Registrar of Co-operative Societies, within one month from the date of receipt of the said notice. The said legal notice dated 11/04/2011 was sent to the OP by Registered Post AD and it was received by the OP on 13/04/2011 but the OP failed to reply and/or comply with the same. The OP miserably failed and neglected to form the Co-operative Housing Society of the flat owners of the said complex. The Complainant is ready and willing to bear the necessary expenses towards the payment of stamp duties and registration fees of the deed of sale and/or necessary fees 5 towards the formation of Society. The Complainant has not contributed any maintenance charges as the OP himself owes money to him as per the orders of the Forum and the State Commission. Without prejudice, in the agreement dated 09/01/1999 executed between the complainant and the OP, there is no liability upon the Complainant to pay any maintenance amount. Hence the Complaint.
4. The Complainant relied upon the agreement dated 09/01/1999, letter dated 14/12/2007 of M. S. Mardolkar to Shri. Sudhakar N. Parsekar, list of promoter members who have contributed to the share capital together with the amount contributed by each of them and the entrance fee paid by them, letter dated 23/04/2008 from the Assistant Registrar of Co-operative Societies to Shri. Sudhakar N. Parsekar, letter dated 26/04/2008 from Primos Park flat/shop owners Association to the OP, letter dated 25/08/2009 from the Assistant Registrar of Co-operative Societies to Shri. Sudhakar N. Parsekar, letter dated 22/01/2010 from the Assistant Registrar of Co-operative Societies to Mr. Sudhakar Parsekar, letter dated 30/01/2010 from Shri. Sudhakar N. Parsekar to the OP, letter dated 05/03/2011 from the OP to Shri. Sudhakar N. Parsekar, reply dated 12/03/2011 from Mr. Sudhakar N. Parsekar to the OP, authority letter dated 12/03/2011 issued by Shri. Sudhakar N. Parsekar to the OP, legal notice dated 11/04/2011, through advocate, by the various flat owners to the OP, order dated 09/06/2003 of the Forum in complaint No. 118/1999 and order dated 03/07/2009 of the State Commission in Appeal No. 39/2003.
5. Vide its written version, the OP resisted the Complaint. In short, case of the OP is as follows:
6Vide the said agreement, the Complainant did not purchase the said flat but only agreed to purchase the same. The Complex has not been constructed in totality since one building is yet to be constructed and completed in the said complex. In complaint no. 118/1999, the Forum directed the OP to pay interest to the Complainant and the Appeal filed by the OP bearing No. 39/2003, before the State Commission, was dismissed with costs of Rs. 2,000/- and a Revision Petition was filed by the OP against the said order before the National Commission bearing No. 378/2009 in which the operation of the order of the Forum as modified by the State Commission was stayed. Subject to the compliance of the terms of clauses 3, 4 and 7 of the said agreement, the possession was to be delivered by 31/12/1996 in terms of clause 8 of the said agreement. The said clause further provided that in case of failure to provide possession within the said period, the Complainant had right to terminate the said agreement and in such case, the amount already paid would be refunded with 9% interest per annum. The said agreement was not subject to any other agreement that the Complainant would enter into agreement for loans with third parties like LIC Housing Finance Ltd. The OP had completed the work till the second and third slab by May 1995 and 01/08/1995 and had commenced with the masonry work on 01/07/1995, however, the Complainant did not adhere to the said agreement and made payments at his own whims and fancies. The Complainant did not comply with clause 3 of the said agreement and did not make payments in accordance with Schedule VI of the said agreement. The Complainant was required to pay an amount of Rs. 4,000/- before taking possession, which amount has not been paid. As per Clause No. 26 of the said agreement, the option was given to the Complainant along with the other purchasers to form 7 themselves into a Co-operative Society or a Limited Company and in terms of clause No. 27 of the said agreement, the OP had agreed to co-operate with the purchasers. It was not the liability of the OP to form Co-operative Housing Society and it was for the Complainant along with the other purchasers to form themselves into a Co-operative Society. Various purchasers including the Complainant, in their meeting, elected Mr. Sudhakar N. Parsekar as the Chief Promoter to form the Society. Mr. Sudhakar then consulted Mr. M. S. Mardolkar, the consultant of the OP, for the purpose of forming the Society. By letter dated 14/12/2007, Mr. Mardolkar requested the Chief Promoter to get identity proof such as Ration Card, PAN Card, Passport, Election Card for the purpose of submitting the same to the authorities to process further the application for registration of the Society. Thereafter, the office of the Assistant Registrar of Co-operative Societies wrote to the Chief Promoter, by letter dated 23/04/2008, that the proposal was incomplete and he was requested to come and collect the same and to re-submit the same after complying with all the formalities. The Chief Promoter, by his letter dated 26/04/2008, informed the OP about the said letter dated 23/04/2008. Actually, there was nothing to be done by the OP since the completion of the application for registration of the Society as well as the proof requested by Mr. Mardolkar was the task of the Chief Promoter. In spite of the above, the partner of the OP informed the various purchasers to hand over the identity proof. Again by letter dated 25/08/2009, addressed to Mr. Sudhakar Parsekar, the Assistant Registrar of Co-operative Societies gave various requirements to be submitted. Mr. Sudhakar directed the same to Mr. M. S. Mardolkar. The Chief Promoter, Mr. Sudhakar did not comply with the said letter dated 25/08/2009 and the Assistant Registrar once 8 again by letter dated 22/01/2010 informed the Chief Promoter that there was no response and the Chief Promoter addressed a letter to the partner of the OP requesting to look into the matter. By letter dated 05/03/2011, the said partner of the OP informed the Chief Promoter all that was required to be done by him or that he could authorize Mr. Mardolkar to do the needful. By letter dated 12/03/2011, Mr. Sudhakar Parsekar wrote to the said partner that he had no objection to Mr. Mardolkar doing the needful and along with that he gave letter of authority to be handed over to Mr. Mardolkar. Mr. Mardolkar informed the OP that the Chief Promoter was refusing to sign the proposal. Therefore the OP wrote a letter dated 13/08/2012 to the Chief Promoter requesting to come to the office of the OP to sign the covering letter. The Complainant has violated the terms of the said agreement and hence is not entitled to the execution of the sale deed. By letter dated 11/02/2014, the OP terminated the said agreement. The Complainant, by letter dated 20/02/2014, replied the said termination notice. In view of the termination of the said agreement, the Complainant has no rights even to pursue the Complaint.
6. The OP relied upon the order of the National Commission dated 10/11/2009 passed in Revision Petition No. 3781/2009, inspection reports by panel valuer for mortgage loan from LIC Finance Ltd. in the name of the Complainant, occupancy certificate dated 02/09/1996, letter dated 12/10/1996, letter dated 20/02/1997, letter dated 05/03/1997, complaint no. 118/1999 filed by the Complainant, written version filed by the OP in said complaint, order dated 09/06/2003 in said complaint no. 118/1999, passed by the District Forum, letter dated 14/12/2007, letter dated 23/04/2008, letter dated 9 25/08/2009, letter dated 22/01/2010, letter dated 05/03/2011, letter dated 12/03/2011, authorization dated 12/03/2011, letter dated 30/05/2011, letter dated 18/08/2011 and letter dated 13/08/2012.
7. The Complainant filed his affidavit-in-evidence and the OP filed affidavit-in-evidence of its partner, Mr. Frumencio Isidore Fernandes. Both the parties filed written arguments before the Forum.
8. Vide the impugned Judgment and Order, while allowing the Complaint, the Forum has given various directions namely:
(b) The OP is directed to form and register a Co-operative Housing Society of the Flat owners / shop owners of the complex "primos park" within 90 days from the date of this Order.
(c) The OP is directed to execute Sale Deed of either the land or land and building in favour of such housing cooperative society, if, classified under section 102(f) or section 102(g) of the Goa Cooperative Societies at the cost and expense of the purchasers.
(d) Registration charges and stamp duty charges for executing conveyance of land and building or land in favour of Housing Society, as applicable to be borne by the complainants proportionately after deducting of Rs.1500/- collected by the OP as per clause no. 14 for execution of sale Deeds in favour of the complainants;
Remaining amounts towards registration and stamp duty shall be collected by the OP from the rest of the flats 10 occupiers in the building complex;
(e) In the alternative, if the Society is not registered and classified in terms of section 102(f) and 102(g) of the Goa Cooperative Society Act within the above period, then the OP is directed to execute Sale Deed of the said flat along with the proportionate undivided right and share in the property in favour of the complainant, for which the registration and stamp duty shall be borne by the complainant.
Amount of Rs. 1000/- collected by the OP in terms of the Agreement for formation of the Society shall be refunded to the complainant with interest of 12 % per annum calculated from 45th day from the date of Order till its final payment.
9. The OP is aggrieved by the impugned Judgment and Order.
10. Records and proceedings of the said Complaint No.16/2013 were called for. Parties have filed written arguments. We have also heard oral arguments. Mr. Furtado, Lr. Counsel argued on behalf of the OP and Mr. Agni, Lr. Counsel argued on behalf of the Complainant. We have gone through the entire material on record.
11. It is the contention of the OP that the Complaint is time- barred. According to the OP in the earlier complaint no. 118/1999, the Complainant had alleged that the possession of the flat was delivered on 31/12/1996 and inter alia that the Complainant had not given the conveyance of the said flat. The OP has further alleged that even when the said complaint no. 118/1999 was filed on 22/07/1999, the co-
11operative society was not formed. According to the OP, therefore, the cause of action for non-execution of the conveyance and non-formation of society existed when the said complaint no. 118/1999 was filed on 22/07/1999 and the Complainant could have raised the said issues in that complaint and hence the present Complaint, filed in the year 2013, is barred by limitation. First of all, the OP did not plead the now alleged point of limitation in its written version or in the affidavit-in-evidence or even during final arguments before the Forum. Be that as it may, admittedly, in the said earlier complaint no. 118/1999, no relief of formation of the society and in the alternative of execution of sale deed in favour of the Complainant was sought by the Complainant. There was absolutely no pleading in that complaint regarding the formation of the society. The possession of the flat was given on 23/08/1997 and the said complaint no. 118/1999 was filed on 29/07/1999. We do not know as to whether the relief of formation of society and in the alternative execution of sale deed in individual name, had become ripe and due for claiming the said relief in the said complaint or was still pre- mature. In the present Complaint, the cause of action is that the OP failed and neglected to form the Co-operative Housing Society and hence the Complainant has prayed for direction to the OP to form the society or in the alternative to execute sale deed in his favour. Such cause of action was not there in the earlier Complaint. With regard to the point of limitation, the Complainant has relied upon the order of the Hon'ble National Commission in the case of "M/S. Vivekanand Construction Company Vs. Suraj Ratan Mundra and another", reported in [(2013) 3 CPJ 111]. In the case supra, the complainants were put in possession of the flat in the year 1999 but despite payment of full agreed price and repeated reminders, the OP did not register the sale deed in 12 their favour, untill the filing of the complaint on 13/12/2010, i.e. almost after 10 years. The Hon'ble National Commission has held that the cause of action which began with delivery of physical possession continues till the deed of conveyance is registered and therefore the question of limitation does not arise. In view of the above, there is no force in the contention of the OP that the Complaint is barred by limitation.
12. Another contention of the OP is that the Complaint is barred by Res Judicata. The OP has alleged that in case no. 118/1999, no reliefs with respect to the execution of the sale deed and formation of society were claimed though nothing had prevented the Complainant from seeking the said reliefs and that a second complaint for those relief is not maintainable. The OP did not plead the now alleged point of Res Judicata in its written version or in the affidavit-in- evidence or even during final arguments before the Forum. Res Judicata means that no court will have the power to try any fresh suit or issues which has/have been already settled in the former suit between the same parties. Since no reliefs were sought with regard to the formation of the society and about the execution of the sale deed, in the said earlier complaint no. 118/1999, there are no issues and no findings at all in the final order passed by the District Forum or by the State Commission on the same and the said issues were not settled in that earlier complaint and hence the question of Res Judicata does not at all arise. The facts in the case of "Sha Shivraj Gopalji Vs. Edappakath Ayissa and others"
relied upon by the OP are totally different and the ratio of the said Judgment is not applicable to the present case.
13. The OP has further alleged that the Complaint is basically for specific performance of the agreement and hence 13 the Complainant ought to have filed a civil suit. The OP has relied upon the order dated 25/03/2011 of the Hon'ble National Commission in Consumer Complaint No. 252/2010 ("Sri Mangilal Soni Vs. Sri Timmiah and others"). The facts of the case supra are distinguishable. Taking the averments and allegations on their face value, the National Commission was of the opinion that the opposite parties cannot be said to have rendered any service to the complainant, for the deficiency of which the complaint can be filed before a consumer fora. The OP has also relied upon the order dated 04/01/2012 of the State Commission, Pandri, Raipur, in Appeals No. 406, 407 and 408 of 2011, all filed by Sheikh Sultan against different respondents. In the above Appeals, it was found that the dispute regarding the title over the disputed property was already pending before a competent Civil Court and Criminal Complaint was also pending between the parties. There were also allegations of fraud and misrepresentation, etc, in the case supra. The facts of the above Appeals are also totally distinguishable. In the case of "Arun Khanna Vs. Smt. Shashi Sharma and Others" [(2012) 4 CPJ 38], the Hon'ble National commission has referred to the judgment of the Delhi High Court in "Faqir Chand Gulati Vs. Uppal Agencies Private Limited & Anr.", (2008) 10 SCC 345, wherein it is observed as under:
"We may also notice here that if there is a breach by the landowner of his obligation, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his 14 obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under the Consumer Protection Act, for relief as consumer, against the builder as a service provider. Section 3 of the Act makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the complainant."
The contention of the OP that the Complaint is not maintainable under the Act has not force.
14. It is further contended by the OP that the Complaint ought to be dismissed as the agreement dated 09/01/1995 has been terminated by the OP by letter dated 11/02/2014. The Complaint was filed on 30/01/2013. The OP was duly served and had filed the written version on 10/05/2013. The OP, subsequently, almost after eight months after the filing of the written version, by letter dated 11/02/2014, by way of an afterthought, terminated the said agreement. Such an action cannot be termed as bona fide. The said termination letter says that in terms of Schedule IV of the said agreement, the Complainant had to pay to the OP the amount of Rs. 4,000/- on possession being given and that in terms of clause 12 of the said agreement, the Complainant had to pay the maintenance and management charges of the building at the rate of Rs. 2/- per square metre per month for the built up area and since the Complainant has failed to pay the said amounts, the said agreement stands terminated. The Complainant has been called upon to vacate and hand over the vacant possession of the said flat to the OP within 3 months and it is said that the OP shall refund to the 15 Complainant the amount of Rs. 2,04,000/-. Clause 5 of the said agreement provides as under:
"If the purchaser/s commits/commit default in payment of any of the aforesaid amount strictly within the aforesaid time, being the essence of the contract, and/or in observing and performing any of the terms and conditions of this Agreement, the builder shall be at liberty to terminate this agreement, in which event, the said earnest money paid by the Purchaser/s to the builder shall stand absolutely forfeited. The Builder, shall, however on such termination, refund to the Purchaser within one year from the date of such termination, the part payment/ s towards the balance of the purchaser price, if any, which may have till then been paid by the Purchaser/ s to the builder, but without any further by way of interest or otherwise. On the builder terminating this agreement under this clause, they shall be at liberty to sell off the said premises to any other person as the builder may determine and the purchaser/s shall not be entitled to question such sale or to claim any amount from the builder."
From the above clause (5) of the agreement, it is clear that the same does not at all provide for vacating the said flat and handing over vacant possession of the same by the Complainant back to the OP. In the present case, admittedly, the possession of the said flat was given to the Complainant on 23/08/1997 i.e. about more than 16 years prior to the alleged termination of the agreement. Hence the clause (5) was not available to the OP.
15. In terms of the Order dated 09/06/2003, passed by the Forum in Complaint No. 118/1999, the OP was directed to 16 pay interest to the Complainant at 18% p. a. on Rs. 1,73,000/- for the period from 01/01/1997 to 12/03/1997 and on Rs. 2,04,000/- for the period from 13/03/1997 to 22/08/1997. Payment of said interest was subjected to payment of Rs. 4000/- by the Complainant. The above order of the Forum was confirmed by the State Commission by dismissing the Appeal No. 39/2003 filed by the OP, by order dated 03/07/2009, further directing the OP to pay to the Complainant costs of Rs. 2,000/-. The Revision Petition No. 3781/2009 filed by the OP, before the Hon'ble National Commission was partly allowed by order dated 25/06/2015 and the rate of interest was reduced from 18% to 9%. It is pertinent to note that the OP paid the entire amount of interest awarded and thereafter the complainant issued a Demand Draft dated 05/12/2015 of Rs. 4000/- in the name of the OP and submitted it before the Forum. These payments were made in the Execution Application No. 55/2009. No doubt, the OP did not accept the said Demand Draft. The OP refused to accept the said Demand Draft by saying that the said agreement has been terminated and that there is no direction to the OP by order dated 09/06/2003 of the Forum in complaint No.118/1999 to receive the same.
16. The learned Counsel for the Complainant has contended that the Complainant was always under impression that the OP, after deducting Rs. 4000/-, would pay the balance amount of interest awarded by the Forum to the Complainant and he ought to have done the same, but since the OP paid the entire amount of interest in the Execution Proceedings, the Complainant immediately paid the said balance amount of Rs. 4,000/- to the OP by Demand Draft. But the learned Counsel for the OP has contended that the payment of interest by the OP was subject to payment of the balance 17 amount of Rs. 4,000/- by the Complainant and was a condition precedent for payment of interest by the OP. Therefore, the learned counsel for the OP submits that the OP has rightly terminated the agreement for failure of the complainant to make payment of Rs.4000/- and maintenance amount of Rs. 2/- per square metre, in terms of the Agreement and as per the order of the Forum in complaint No. 118/1999. It was contended by the learned Counsel for the OP that the OP, without prejudice to its right to terminate the agreement and in order to close the execution proceedings, has paid to the complainant the awarded interest of Rs.11,228/- which the complainant has received. The above cannot be believed. If the contention of the OP, from the beginning, was that the payment of interest by it was subject to payment of Rs. 4,000/- by the Complainant, then it had no reason to pay the said interest amount prior to Complainant paying the said amount of Rs. 4,000/-, even by alleging that the said payment is without prejudice. The said agreement which has been terminated by the OP does not say that any interest payable by the OP to the Complainant shall be subject to payment of balance amount, if any, by the Complainant to the OP. The said condition of 'subject to' was put by the Forum, not in terms of the said agreement but at its own discretion.
17. After handing over the possession of the said flat to the complainant, the OP did not demand the amount of Rs. 4000/- and the maintenance charges at all from September, 1997 and suddenly by letter dated 11th February 2004 terminated of the said Agreement. Admittedly, the order of the Forum dated 09/06/2003 and of the State Commission dated 03/07/2009, in respect of the payment of interest by the OP and Rs. 4,000/- by the Complainant was subjudice before the 18 Hon'ble National Commission, because of Revision Petition No. 3781/2009 filed by the OP. In the meantime, the OP could not have terminated the said agreement. It may be that the said order did not direct the OP to send demand notice for Rs. 4,000/-. If it was strictly to be construed that Rs. 4000/- was a condition precedent then the OP would not have waited for almost 11 years and that too without issuance of a notice demanding the said amount of Rs. 4000/- from the complainant and till filing of the Execution Application No. 55/09, wherein the OP paid the said interest without the Complainant in the first instance paying the said amount of Rs. 4,000/-. The Forum held that the complainant was rightly entitled for interest on account of delay in the works by OP and therefore the Forum held that deficiency in service on the part of the OP was established. The OP in the said earlier complaint did not plead that it had a right to terminate the said agreement since the said balance amount of Rs. 4,000/- to be paid by the Complainant on possession, was not paid. The Forum, in the said order dated 09/06/2003, has not held that the OP had the right to terminate the agreement for non payment of the balance amount of Rs. 4,000/-. The Forum in its said order dated 09/06/2003 has observed that it is difficult to believe that the Opposite party has allowed the complainant to occupy the said flat despite certain amount is still due to them. Clause no. 7 of the said Agreement provides that the possession of the said Flat shall be handed over to the complainant after the said multi storeyed building containing the said flat is ready for occupation provided all the amounts due and payable by the purchaser are paid to the builder. Hence, this clause pre- supposes that possession is given to the complainant only after payment of the entire dues under the said Agreement. In our view, it is too technical, and in fact wrong, after 12 19 years from the date of giving possession, for the OP to say that since the payment of interest by the OP was subject to payment of Rs. 4,000/- by the Complainant, and since the Complainant did not make that payment, it got right to terminate the said agreement. The amount that was ordered to be paid by the OP as interest was more than Rs. 4,000/- which was to be paid by the Complainant. We are inclined to agree, as rightly contended by the learned Counsel for the complainant, that as the OP had to pay interest amount of Rs.11,228/-, it ought to have adjusted the amount of Rs. 4000/- and paid the remaining balance to the Complainant and having failed to do so, we find that the termination of the said agreement, after the filing of the present Complaint, is not good.
18. The OP has urged that there is violation of the agreement by the Complainant and such violation attracts the Contract Act which permits the termination of the agreement and the OP has terminated the said agreement and consequently the relationship between the complainant as consumer and the OP builder as service provider created by virtue of the said agreement dated 09/01/1995 does not exist. The said agreement simply provides that the amount of Rs. 4,000/- shall be paid by the Complainant on possession. The said agreement does not provide for any time limit for the Complainant to pay the said amount. Since the Possession was given to the Complainant, if the OP wished to terminate the agreement, then it ought to have demanded from the Complainant by sending notice to pay the said amounts of Rs. 4,000/- and amount towards maintenance charges from the complainant. The order dated 09/06/2003 does not provide for termination of the said agreement in case the Complainant does not pay the said amount of Rs. 4,000/- to the OP. The 20 sudden termination of the said agreement, after about 12 years from the date of giving possession of the said flat to the Complainant, without giving opportunity to the Complainant to pay the said amounts, is not valid in our considered view. The discussion which follows would show that the OP was responsible for formation and registration of the Society which has not done been till date. The OP is also at fault in not forming and registering the society and therefore the OP cannot, on the ground of non payment of maintenance charges, terminate the agreement. The OP can always recover the amount of maintenance through appropriate recovery proceedings or form an Association or the Society and hand over the liabilities to the Societies or Association who can then recover the same.
19. In paragraph 14 of the Appeal Memo, the OP has alleged that the Forum has wrongly held that the decision cited by the OP before it namely "Yashwant Rama Jadhav V/s Shaukat Hussain and Anr" (First Appeal No. 1229 of 2017), had no application. In fact the Forum has relied upon and applied the said judgment. In the case supra, the Opposite Parties had filed civil suits for cancellation of the agreements executed with the complainants and had claimed that the complaints on the basis of the said agreements were not maintainable. The National Commission in paragraph 6 of judgment in the case supra whilst dealing with the issue of cancellation of Agreement vis a vis deficiency of service alleged by the complainant, has held thus:
"Section '3' of the Consumer Protection Act, to the extent it is relevant provides that the provisions of the Act shall be in addition and not in derogation of the provisions of any other law for the time being in force. Thus the remedy 21 available under the Consumer Protection Act is an additional remedy, which Parliament has made available to a consumer. Even if two remedies, one before the Civil Court and the other before the Consumer Forum are available, it is for him to decide as to which remedy he wants to avail. Admittedly, the respondents had entered into agreements with the complainants/appellants, agreeing to construct flats for them and give possession of the said flats. Therefore, a relationship of consumer and service provider came to be created between the parties as soon as the aforesaid transaction was entered into. In fact, the agreements were later got registered also. The relationship of consumer and service provider does not come to end on account of one of the parties cancelling the said agreement. If deficiency on the part of the respondents in rendering services to them is proved, the complainants/appellants would be entitled to appropriate relief in terms of the provisions of the Consumer Protection Act. In fact, this is not even a case where a person having already approached a Civil Court, at a later date decided to approach a consumer forum. Here the remedy before the Civil Court was initiated by the respondents and not by the complainants/appellants. The jurisdiction of the consumer forum is not ousted on account of Civil suits having been instituted by the respondents, even if the subject matter of the said suits is the same agreement which is the foundation of the consumer complaint".22
The contention of the OP that once the said agreement is terminated then there does not exists relationship of a consumer and service provider, has been rightly rejected by the Forum since the same is without any merit. The Forum, in our view, has rightly held that the relationship between the consumer and the service provider cannot come to an end even if the agreement is terminated and it is within the jurisdiction of the Forum to examine whether the service provider has justly, reasonably and due to absolute fault of a consumer, had no option but to terminate the agreement or not.
20. The OP has further contended that the Forum erred in not considering clause 24 of the said Agreement which, inter alia states that "the purchaser along with other purchasers who take or have taken the other flats/other spaces in the said building may form themselves into a co-operative society or a limited company being registered or being incorporated or formed, as the case may be,. but subject to the terms of this agreement.........". According to the OP, therefore, the finding of the Forum that the said agreement does not provide that the Complainant should form the society is contrary to the clauses of the said agreement. The OP has alleged that in terms of clause 27 of the said agreement, it was only the discretion of the OP to decide whether a co-operative society should be got registered or not and it does not lay down that having exercised the said discretion it is the duty of the OP to form the society. The OP pointed out that as per clause 25 of the said agreement, the OP was required only to cooperate with the purchasers in forming or registering or incorporating a Co-operative Society or Limited Company. In our view, it is the said agreement, as a whole, which is to be considered. The Forum has taken into consideration all the clauses of the 23 said agreement including clauses no. 24, 25 and 27.
21. The Forum has held that under the said agreement it was the obligation of the OP to form the Co-operative Society but the OP diverted itself from proceeding ahead with the same. The contention of the OP is that there was no obligation, under the said agreement, on the part of the OP to constitute a Co-operative Society and that clause 24 clearly stated that the purchasers would constitute themselves into a co-operative society. In fact, said clause 24 of the agreement stipulates that the purchasers, etc. may form themselves into a co-operative society, etc. Ld. Counsel for the OP has relied upon the judgment of the Hon'ble Supreme Court in the case of "Marine Container Service South Pvt. Ltd. Vs. Go Go Garments" (AIR 1999 SC 80), wherein it has been held that the Law of Contract is a basic law and has to be followed even by the Consumer Court. There is no dispute with regard to the above position of law. It is nobody's case that the law mandates formation of the Co-operative Housing Society. It is seen that there is no mandate in the clause 24 of the said agreement. The word "may" and the words "but subject to the terms of this agreement", therein are relevant. We cannot read the clause 24, in isolation. Clause 27 of the said agreement specifically and unambiguously provides that it shall be at the discretion of the OP to decide whether a Co- operative Society should be got registered or formed. Thus, the end power whether to form and register a Co-operative Society or not is in the hands of the OP. In case the OP does not wish that there should be the Co-operative Society, then the OP is obliged to execute individual sale deed in favour of the Complainant. According to the learned counsel for the OP, the words "form themselves" in clause 24 read with clause 27 abundantly indicate that the duty to constitute a Co-
24operative Society fell on the Complainant after the OP exercised his discretion to have a Co-operative Society. The above interpretation of combined effect of clauses 24 and 27 of the said agreement, in our considered view, is fallacious. Even if the OP uses its discretion in favour of forming the Society i.e to say decides to form the Society under clause 27, then also, further in terms of the same clause No. 27, the OP has to require the Complainant and other purchasers to sign all the forms, applications, papers, deeds and other documents, etc., as may be reasonably required to carry out such decision and so as to obtain and effect proper conveyance of the said plot of land with building and structures thereon, as the case may be. The observation of the Forum that "there were no obligations of the Complainant with regard to the formation of the Society under the Agreement except he and other purchasers should form themselves into a Society subject to the terms and conditions of the Agreement", cannot be interpreted to mean that the obligation to form the Society was of the Complainant. The former part of the above observation, unambiguously, points out that according to the Forum, there was no obligation of the Complainant with regard to formation of the Society, under the Agreement. The latter part points out that if the Complainant and other purchasers want to form themselves into a Society, the same shall be subject to the terms and conditions of the Agreement. As per said clause 24 of the said agreement, all papers pertaining to the formation of the Society/Entity and the Rules and Regulations thereof as also all the necessary deed/s of conveyance shall be prepared by the Advocate of the OP. Only the costs of stamp duty, registration charges and other expenses in connection with the preparation, execution and registration of the deed/s of conveyance or for the formation of the Society/Entity shall be 25 borne by the Complainant and other purchasers in such proportion as may be decided by the OP and/or the Entity/Society. As per clause 26 of the said agreement, in the event the Society or the Limited Company is formed before the sale and disposal by the OP of all the flats and other spaces in the said building, the power and authority of the Society or Limited Company so formed of the purchasers and the purchasers of flats and other spaces shall be subject to the overall authority and control of the OP in respect of any of the matters concerning the said building, etc.. Merely because the Chief Promoter for forming the Society is one of the purchasers namely Mr. Sudhakar Parsekar, that cannot mean that the obligation to form the Society was of the Complainant and other purchasers. Whenever the process of forming Society is initiated, a Chief Promoter is required to be appointed and such promoter is normally one of the purchasers of the flat or shop. The OP has appointed its consultant, Mr. M. S. Mardolkar for forming the Co-operative Society.
22. The issue of ID proof, which was initially raised, was in principle agreed by the Assistant Registrar of Co-op. Societies, Central Zone, Panaji, Goa. The letter dated 25/08/2009 written by the Assistant Registrar to the Chief Promoter, Shri Sudhakar N. Parsekar reveals that there were altogether 17 shortfalls observed during the scrutiny of the proposal documents pertaining to the registration of proposed Primos Park Co-op Housing Society Ltd. Most of the said shortfalls were to be made good by the OP. Vide reminder letter dated 22/01/2010, the Assistant Registrar again asked the Chief promoter to comply with the requirements of the letter dated 25/08/2010 ans re-submit the file. Both the above letters of the Assistant Registrar were forwarded by the Chief Promoter 26 to the OP. By letter dated 05/03/2011, the OP had told the Chief Promoter to authorize Mr. M. S. Mardolkar to re-submit the file and that a new Assistant Registrar(Mr. Desai) has taken over and the issue of ID proofs needed to be appropriately briefed once the file is re-submitted. In answer to the said letter, by reply dated 12/03/2011, the Chief Promoter informed the OP that he has no objection for Mr. M. S. Mardolkar to do all the needful as may be necessary to register the Society since Mr. Mardolkar was the consultant of the OP in the said field and since the formation of Society was initiated by the OP. The Chief Promoter wrote to the OP that the ID proofs of the members were already submitted to the Sub-Registrar. The Chief Promoter, Shri. Sudhakar Parsekar sent a letter dated 12/03/2011 to the Sub-Registrar of Co- operative Housing Societies, Panaji, Goa, thereby giving authority to Mr. M. S. Mardolkar to collect the file from the office of the Sub-Registrar. The records reveal that the OP did not take any initiative to rectify the said shortfalls. Hence the legal notice dated 11/04/2011 was sent by the Ld. Advocate of the Complainant and other purchasers to the OP. This notice was received by the OP on 13/04/2011 but the OP did not even send any fitting reply to this notice. The process of formation of the Society was not carried forward.
23. It can be understood that there are two options given in the agreement: one is to form the Co-operative Society or Limited Company and the other to execute individual sale deeds in favour of the purchasers. Clauses No. 12, 14, 22, 24, 25, 27, 30, and 32 of the said agreement do reveal that the Co-operative Society or Limited Company may be formed but the reading of the agreement, as a whole, reveals that if the Society is not formed, then individual sale deeds should be executed. Clause 24 of the said agreement, inter alia, provides 27 that the purchasers along with the other purchasers who take or have taken the other flats/other spaces in the said building may form themselves into a Co-operative Society or Limited Company being registered or being incorporated or formed as the case may be, but subject to the terms of this agreement. As per clause 27 of the said agreement, it was the discretion of the OP to decide whether a co-operative society should be got registered or not. The above clauses 24 and 27 of the said agreement only reveal that co-operative society may or may not be formed and if not formed then naturally individual sale deeds in favour of the purchasers will have to be executed. In various other cases filed by the purchasers of the premises in the same complex, the OP had not objected to execution of sale deeds in favour of the individual purchasers but they wanted a particular condition to be included in the sale deed. Sale deeds in favour of two of the said purchasers have been already executed with certain conditions.
24. One of the objections of the OP is that the Complainant had never, before the present case, made a prayer for an individual sale deed and therefore the Complaint had to be dismissed, for want of cause of action. Our attention was drawn to the legal notice dated 11/04/2011 wherein the OP was not called upon to execute any individual sale deed. Ld. Counsel for the OP submitted that since no dispute was urged in the Complaint regarding execution of the sale deed, the Forum had no jurisdiction to decide the alternate prayer of execution of the individual sale deed. As already discussed above, a perusal of the said agreement reveals that there are two options in the same insofar as execution of the sale deed is concerned. One option is to execute the sale deed in favour of the Co-operative Society or Limited Company, as the case may be and if formed, then each party has to do particular 28 acts and if the Co-operative Society or Limited Company is not formed then the other option is to execute individual sale deed in favour of the Purchaser/s for which each party has to do particular acts. According to the Complainant, with regard to the formation of the Co-operative Housing Society, by letter dated 25/08/2009, the Assistant Registrar of Co-operative Societies had requested the Chief Promoter to rectify/comply with certain shortfalls listed in the said letter and the said letter was forwarded to the OP with a request to comply with the same but the OP did not pay any heed to the same. Thereafter the Chief Promoter again received another letter dated 22/01/2010 from the Assistant Registrar of Co- operative Societies, to rectify/comply with the said shortfall and even this letter was forwarded to the OP but the OP did not comply with the same. The OP sent a letter dated 05/03/2011 requesting the Chief Promoter to collect the file pertaining to the formation of the Society from the office of the Assistant Registrar of Co-operative Societies in order to re-submit the same or to authorize Mr. M. S. Mardolkar, the consultant of the OP in the matter of formation of Co- operative Housing Societies, to do the same. Vide letter dated 12/03/2011, the Chief Promoter issued necessary authorization to Mr. M. S. Mardolkar to do the needful, but there was no positive response from the OP and the process of formation of the said Co-operative Housing Society had been withheld. The Complainant and others issued legal notice dated 11/04/2011 to the OP calling upon to rectify/comply with the shortfalls listed in the letter dated 25/08/2009 within one month from the date of receipt of the said notice. The above are the pleadings in the Complaint. In other words, the Complainant and others wanted the OP to complete the process of formation of the said Co-operative Housing Society. The OP still did not comply with the same and hence the 29 Complaint came to be filed. The option, in case the said Co- operative Housing Society is not formed, is nothing but execution of individual sale deed in favour of the Complainant. Hence, the OP cannot say that the Complainant did not demand the execution of the sale deed. The same naturally comes in the absence of formation of the Society. In the written version, the OP has averred that the Complainant is not entitled to the sale deed. During the pendency of the Complaint, the OP went to the extent of terminating the said agreement. Admittedly, the Society is not formed. Is it necessary to investigate and find out as to on account of whose fault the society is not formed? The records reveal and the impugned Judgment shows that efforts have been sincerely made but the Society could not be formed. Hence the individual sale deed must now be executed, in favour of the Complainant.
25. The OP has made submissions on the effect of the impugned Judgment and Order on the reputation, business rectitude and goodwill of business of the OP and in this regard has relied upon (i).--"Malpe Vishnunath Acharya and others Vs. State of Maharashtra and anr.", reported in (AIR 1998 SC 602); (ii).--"Commissioner Of Income Tax,... Vs. B. C. Srinivasa Setty, etc., etc.", reported in (AIR 1981 SC 972); and (iii).--"Umesh Kumar Vs. State Of A. P. & anr.", reported in [(2013) 10 SCC 591]. We have gone through the above judgments of the Hon'ble Supreme Court in the above cases. We are of the view that the Forum has been just to both the parties and has not been unjust to any one. No disproportionate benefit has been given to the Complainant. The above judgments are not applicable to the present case.
3026. The Forum has observed that the complainant had deposited an amount of Rs.1000/- with the OP towards share application money and application entrance fee, if the society is to be formed and Rs. 1500/- for the individual sale deed if the society is not formed. The above observation of the Forum has not been denied or challenged by the OP.
27. In the result, we are of the considered view that the impugned Judgment and Order is in accordance with the settled principles of applicable law and no interference with the same is called for.
28. Hence, we pass the following:
ORDER The Appeal is dismissed. No order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President