State Consumer Disputes Redressal Commission
M/S. Swapnil Builders & Developers vs Anilkumar Meshram & Anr. on 16 April, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/09/719 (Arisen out of Order Dated 22/07/2009 in Case No. 742/2008 of District Nagpur) 1. M/S. SWAPNIL BUILDERS & DEVELOPERS SUDAM NIWAS,SUDAM ROAD,ITWARI ,NAGPUR nagpur 2. SMT.KALYANI W/O.VILAS ASARKAR SUDAM NIWAS,SUDAM ROAD,ITWARI ,NAGPUR 3. VILAS S/O GANESH ASARKAR SUDAM NIWAS,SUDAM ROAD,ITWARI ,NAGPUR ...........Appellant(s) Versus 1. ANILKUMAR MESHRAM & ANR. JAVISH APPARTMENTS,PLOT NO-157/9,FLAT NO-6,3RD FLOOR,PARIHAR CHOWK,PUNE PUNE 2. SMT.VIJAYA WD/O PRABHAKAR RINGAY - 3. SHRI.JAYANT S/O.KESHAV RINGAY SWAPNIL APARTMENT ,POLT NO-10,ABHYANKAR ROAD,DHANTOLI,NAGPUR 4. SHRI.ANIL S/O.KESHAV RINGAY SWAPNIL APARTMENT ,POLT NO-10,ABHYANKAR ROAD,DHANTOLI,NAGPUR nagpur 5. SHRI.GIRISH S/O KEAHAV RINGAV SWAPNIL APARTMENT ,POLT NO-10,ABHYANKAR ROAD,DHANTOLI,NAGPUR 6. SHRI.RAMESH S/O.DATTATRAYA RINGAY(DEAD) - 7. SMT.LALITA W/O SHRIRAM SHROWTY PLOT NO-1,2,DHRAMPETH,GRIHA NIRMAN HOUSING SOCIETY,FLAT NO-2,NEAR DETTOPANT THANGADI SUBHAGRUHA,JAYPRAKASH NAGAR,WARDHA ROAD,NAGPUR ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Adv.Mr Ninad Asarkar for Respondent No.2 Appellant No.3 in person & representative for Appellant No.1 For the Respondent: Adv. Mr V M Gadkari for Respondent No.1 Respondent Nos.2, 6 & 7 dead Respondent Nos.2(a),3,4 & 5 - Exparte ORDER (Passed on 16.04.2016) Per Mr B A Shaikh, Hon'ble Presiding Member
1. This appeal is filed by the original opposite party (for short O.P.) Nos.1, 2 & 3 against the order dtd.22.07.2009 passed in Consumer Complaint No.742/08 by District Consumer Forum, Nagpur, by which, the complaint has been partly allowed.
2. The case of the original complainant who is the respondent No.1 herein, as set out in the complaint in brief is as under.
The O.P.No.1 is a developer and builder and O.P.Nos.2 & 3 are its partners. Respondent Nos.4 to 8 are the land-owners. The said landowners executed an agreement of development dated 16.04.1987 in favour of O.P.Nos. 1, 2 & 3 and thereby O.P. Nos.1, 2 & 3 are authorised to develop the land and make construction of multi-storeyed building comprising shops and flats therein. The O.P. Nos. 4 to 8 also authorised O.P. Nos.1 to 3 by executing separate registered power of attorney dated 08.09.1987 to sell the shops and flats of that building to the prospective purchasers. Therefore, the complainant entered into an agreement with O.P.Nos.2 & 3 on 07.11.1989 to purchase one of the flats bearing No.D-3, admeasuring 800 sq.ft. of that building with proportionate share in the staircase, lift and the land. Price of the flat was fixed at Rs.1.60 Lac. The complainant paid Rs.60,000/- to O.P.Nos.2 & 3 on 07.11.1989 and thereafter he paid balance amount of Rs1.00 Lac to them as per agreement on 10.01.1989. Rs.3,000/- were also paid by the complainant to them towards expenses required for compound wall, electric motor pump wiring, Municipal drinking water connection pipeline, three phase electric meter and wiring. However, O.P. Nos. 2 & 3 have not issued receipt of Rs.3,000/-. O.P. Nos. 2 & 3 also handed over the possession of the flat to the complainant after receiving whole of the amount as per agreement. However, they did not execute sale-deed of the same in favour of the complainant, though the complainant requested them for the same repeatedly. Further O.P. Nos.2 & 3 issued notice dated 18.10.2008 to the complainant stating therein that the complainant committed breach of terms & conditions of the agreement dtd. 07.11.1989 and that therefore said agreement stood cancelled and the complainant was called upon to give back possession of the flat to them. The complainant therefore, gave reply dtd.26.11.2008 to that notice and submitted that the demand made by O.P.Nos.2 & 3 is illegal. The complainant was ready to bear the expenses required for registration of sale-deed. Therefore, he filed the consumer complaint before the Forum, praying that all the O.Ps may be directed to execute the sale-deed of the flat in his favour as per agreement of sale and to pay him compensation of Rs.25,000/- for physical & mental harassment and cost of Rs.25,000/-.
3. O.P.Nos.1, 2 & 3 resisted the complaint by filing their written version / reply before the Forum. They admitted that they entered into unregistered agreement to sell dtd.07.11.1989 in respect of flat No.D-3 with the complainant for consideration of Rs.1.60 Lac. However, they submitted that other extra / additional payments were the essence of contract to be made by the complainant to them. They thus claimed that the complainant failed to pay them Rs.10,000/- towards electric meter and three phase common electric meter. Rs.3,000/- towards Corporation water meter deposit and connection charges, Rs.50,000/- as charges for additional alteration in the flat for separate latrine and bathroom, increase in the area of construction of the flat due to covering of balcony, parapet wall and windows, charges required for stamp duty and registration. It is the main case of the O.P.Nos.1, 2 & 3 in brief that since last 18 years the complainant failed to comply with the condition of the payment as per agreement, the validity of the agreement has been extinguished in the eye of law. Therefore, they issued notice dtd.18.10.2008 to the complainant that the agreement has been ipso facto cancelled and terminated. The complaint is also hopelessly time barred as it is not filed within two years from the date of agreement i.e. 07.11.1989 or at the most from the date of taking provisional possession of the flat as licensee as on 10.01.1989. No application for condonation of delay of 18 years that occurred in filing the complaint, is filed by the complainant. Moreover, the dispute does not fall under the ambit of consumer dispute under Consumer Protection Act, 1986. Only Civil Court has power and jurisdiction to decide the issue involved in the present matter. During the pendency of Civil dispute the complaint is not maintainable before the Forum. The complaint is also bad in law for non-joinder of legal representatives of some of the deceased land-owner specified in the written version. Payment made by the complainant to them as offered in the complaint is also denied. It is, therefore, requested by O.P. Nos. 1, 2 & 3 that the complaint may be dismissed with cost.
4. Rest of the O.Ps also filed their common Written Version before the Forum and denied the allegations made against them in the complaint by the complainant. However, they admitted that they executed agreement of development in favour of O.P.Nos.1 & 2 for construction of apartment namely "Swapnil Apartment". They denied that they rendered deficient services to the complainant. They, therefore, requested that the complaint may be dismissed as against them.
5. The Forum below after hearing both the parties and considering evidence brought on record, came to the conclusion that the cause of action for filing the complaint is continuous since the possession of the flat has been already handed over to the complainant by O.P.Nos.1, 2 & 3 after receiving full price of the same from him. The Forum also concluded in the impugned order dtd. 22.07.2009 that the Civil Suit was filed by the O.P. Nos.1, 2 & 3 against the complainant only after receiving the notice of the complaint from the Forum with a view to create hurdle in the complaint and in the execution of sale-deed in favour of the complainant and hence the filing of the Civil Suit before the Civil Court has got no bearing on the present complaint. The Forum also held that the decisions relied on by the O.P Nos.1, 2 & 3 are not applicable to the present case. The Forum also held that the complainant paid full consideration of the flat and also paid Rs.3,000/- to O.P.Nos.1 & 2 as per agreement and therefore the complaint deserves to be partly allowed. The Forum, therefore, under impugned order, directed the O.P Nos. 1, 2 & 3 to execute sale-deed of the flat in favour of the complainant and rest of the O.Ps shall sign the sale-deed as consenting parties, if required and that the complainant shall bear the expenses of sale-deed. The Forum also directed the O.P. Nos.1, 2 & 3 to pay cost of Rs.3,000/- to the complainant.
6. Feeling aggrieved by the said order, original O.P. Nos.1, 2 & 3 have filed this appeal. We have heard the original O.P.Nos.3 for himself and for O.P.Nos.1. We have also heard Adv. Mr Asarkar, who appeared for O.P.No.2 / appellant No.2. We have also heard Adv. Miss Meshram appearing for respondent No.1. / original complainant. Respondent Nos.2, 6 & 7 are dead. Respondent No.2(a), 3, 4 & 5 are proceeded exparte since they failed to appear despite service of notice to them.
7. Appellant No.3 and advocate of appellant No.2 advanced their arguments on lines of the submission made by them in their reply before the Forum and which is reproduced above in brief while putting their case in brief. Hence, it is not necessary to reproduce their submission herein again. The appellants alongwith their Written Notes of Arguments filed decisions in the following cases on which they rely, in support o ftheir submission that Forum failed to consider properly legal & factual aspects of the case and passed erroneous order, which deserves to be set aside.
i. Kandimalla Raghavaiah & Co. Vs. National Insurance Company & Anr., (2009) 7 Supreme Court Cases 768.
In that case, fire in the godown occurred on 22.03.1988 / 23.03.1988 damaging the stock of tobacco. The complaint was filed on 24.10.1997 without filing an application for condonation of delay. Hon'ble Supreme Court held that cause of action began on 23.03.1988, when fire in the godown took place and therefore, the complaint is barred by limitation as it is not filed within two years from that date.
ii. Haryana Urban Development Authority Vs. B K Sood, (2006) 1 Supreme Court Cases 164.
In that case, the complaint filed before the State Commission was delayed by more than three years and no application for condonation of delay was filed by the complainant. Therefore, the complaint was found to be barred by limitation.
iii. V Muthukrishnan & Ors. Vs. K Ponnuswamy & Ors., 2002 (1) CPR 181 (NC).
It is observed that where complaints alleging deficiency in construction of flats were filed in the year 1992 and possession of flats had been given in the year 1987, nearly after about five years, those were liable to be dismissed as barred by limitation.
iv. Kandimalla Raghavaiah & Co. Vs. New India Assurance Company & Ors., II (2002) 7 CPJ 259 (NC).
In that case, the complaints were filed after seven years and four & half years respectively for deficiency in service due to repudiation of claim on the basis of insurance policy. Therefore, it is held that the complaints are barred by limitation.
Joseph Vincent Correla Vs. Mendoz Constructions & Estate Developers, 2002 (3) CPR 2007 (NC).
In that case, construction of the flat was completed and its possession was given to the complainant on 03.01.1998. The complaint was filed alleging certain deficiencies, on 26.06.2000. Therefore, it is held that the complaint is barred by limitation.
Appellants alongwith application dtd.14.12.2009 also filed following decisions:-
i. Punjab Urban Development Authority & Anr. Vs. Gurjinder Singh & Anr., IV (2004) CPJ 56 (NC).
Pushpa Builders Flat Buyers Assn. Vs. Pushpa Builders Ltd., II(2002) CPJ 83, (NC).
Douglas Antony Vs. Secretary, Kerala State Electricity Board & Ors., IV (2004) CPJ 240.
In the aforesaid cases, the complaints filed were found time barred under the facts & circumstances of the said cases.
8. The learned advocate of the respondent supported the impugned order and submitted that the Forum has properly considered the legal & factual aspects of the case and rightly passed the impugned order. She relied on the decisions given in the following cases.
Garden Estate Resident Welfare Associate, Gurgaon & Ors. Vs. M/s Gulmohar Estate Ltd. & Ors., I (1997) CPJ 11 (NC).
In that case, possession of dwelling unit sold by opposite party was given to the complainant but sale-deed was not executed by the O.P. It is held that the complaint involves a consumer dispute and the complainant is entitled to sale-deed of the dwelling unit.
ii. Time Properties & Promoters Etc. Vs. Rakesh Jain, I (1999) CPJ 72 (NC).
In that case, the question of limitation arose about filing of the complaint. It is observed by the Hon'ble National Commission that the proceedings before the State Commission cannot be described as a suit and as such the provisions of Section 3 of Limitation Act could not be strictly applied. Section 24-A of the Consumer Protection Act is considerably different from Section 3 of the Limitation Act which does not admit of any exception while in the proviso of Section 24-A, there is scope provided for condonation of delay. The complaint was not found barred by limitation in that case.
9. The following facts are not disputed in the present case.
The land-owners executed agreement of development of their land in favour of O.P.Nos.1, 2 & 3 to develop their land by constructing a building called as "Swapnil Apartment". The land-owners also executed separately General Power of Attorney dated 08.09.1987 in favour of O.P.Nos.1, 2 & 3 / appellants and thereby authorised them to execute the sale-deed of the shop and flats of the said apartment in favour of the prospective purchasers. Therefore, the complainant entered in to an agreement of sale dtd.07.11.1989 with the O.P. Nos. 1, 2 & 3 to purchase Flat No.D-3 with proportionate share in the staircase, lift and the land for a consideration of Rs.1.60 Lac. The said agreement shows that the complainant paid part of consideration of Rs.60,000/- to O.P. No.2 & 3 on the date of that agreement. Moreover, the complainant also produced a receipt of Rs.1.00 Lac dtd.01.05.1990 passed by O.P. Nos. 2 & 3 in his favour showing acceptance of balance price of Rs.1.00 Lac by them from the complainant. Moreover, the complainant also got possession of the flat from O.P. Nos. 1, 2 & 3.
10. The first contention of the O.P. Nos. 1, 2 & 3 / appellants is that the complaint is hopelessly barred by limitation as it is filed after 18 years of agreement of sale. However, we find that the Forum has rightly held that the cause of action is continuous since the O.P. Nos. 1, 2 already delivered possession of the flat to the complainant after getting full consideration of the same from him.
11. We find that it is only a question of execution of sale-deed. In view of the well settled law, it is clear that in such case the cause of action is continuous. The aforesaid decisions, relied upon by the learned advocate of the appellants, are not applicable to the present case since in none of those cases like this case, full consideration of the flat was paid and possession has been given and only sale-deed remained to be executed. Moreover in none of those cases sale-deed was sought after payment of full consideration and handing over the possession of the flat. Thus, we find that those decisions relied upon by the appellants are of no assistance to the appellants.
12. We find that the Hon'ble National Commission in the case of DLM Enclave & Anr. Vs. Naresh Betham, 2014(2) CPR 421 (NC) under identical facts & circumstances has already held that the cause of action is continuous for obtaining sale-deed when full consideration of the plot is paid and possession of the plot has been flat is also handed over. The said decision supports the view taken in the present case by the Forum. Hence, we do not agree with the submission of the appellants that the complaint is barred by limitation.
13. The second contention raised by the appellant is that the District Consumer Forum has no jurisdiction to decide the complaint since Civil Suit filed for declaration and mandatory injunction is pending before the Civil Court as filed by the appellants against the complainant. We find that the Forum has rightly held that the said Civil Suit has no bearing on the present complaint since it is filed after filing of the present complaint when the notice of the complaint was served to the appellants by the Forum. We also find that the said Civil Suit was filed by the appellants only to deprive complainant / respondent No.1 from claiming sale-deed. It is also pertinent to note that the provisions under Consumer Protection Act are in addition to and not in derogation of any other provisions of law as contemplated under Section 3 of Consumer Protection Act. Therefore, we find no substance in the aforesaid submission made by the appellants.
14. The third submission of the appellants is that only the competent Civil Court can decide the issue involved in the present complaint, as issue involved is regarding validity of enforceability of the agreement. We find that since the agreement is admitted by both parties and since we have found that the complaint is not barred by limitation as cause of action is continuous, the issue involved in the present complaint can be considered and decided by the Forum under Consumer Protection Act, 1986. Thus, we do not agree with the aforesaid third submission of the appellants.
15. The fourth submission of the appellants is that the LRs of the deceased landowner namely Prabhakar Keshav Ringay are not joined to the complaint and therefore, impugned order is not executable. We find that since admittedly appellants have been duly authorised by all the land-owners by way of General Power of to execute sale-deed in favour of the prospective purchasers, non-joinder of some of the LRs of any of the deceased land-owner, cannot be said to be illegal. We thus find no infirmity in the present complaint. Therefore, we reject the aforesaid fourth submission of the appellants.
16. It is also seen that though the complainant / respondent No.1 has not produced receipt about payment of Rs.3,000/- to the appellants, the agreement to sell shows that the appellants were required to deliver possession of the flat to the complainant / respondent No.1 on getting entire consideration and other charges as per agreement. We find that since admittedly, the appellants delivered possession of the flat to the complainant, it can be presumed that the complainant paid Rs.3,000/- besides consideration of Rs.1.60 Lac to the appellants and thereupon only possession of the flat has been delivered by them to the complainant.
17. Demand of additional charges made by the appellants, as stated in their reply and reproduced above in brief, can be said to be after thought since the agreement of sale does not refer any such additional charges as claimed below -
Rs.10,000/- towards electric meter and three phase common electric meter, Rs.50,000/- as charges for additional alteration in the flat for separate latrine and bathroom, increase in the area of construction of the flat due to covering of balcony, parapet wall and windows and charges required for stamp duty and registration.
18. Therefore, we hold that the Forum has rightly held that the complainant is entitled to sale-deed of the flat from the appellants / O.P. Nos.1, 2 & 3. We find no merits in this appeal and it deserves to be dismissed.
ORDER i. The appeal is dismissed. ii. No order as to costs. iii. Copy of the order be furnished to both parties free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER