National Consumer Disputes Redressal
Ashok Vitthalrao Jaisingpure vs Ashok Sonbaji Dhabekar & Anr. on 23 March, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 305 OF 2019 (Against the Order dated 18/12/2018 in Complaint No. 35/2017 of the State Commission Maharashtra) 1. ASHOK VITTHALRAO JAISINGPURE PROPRIETOR OF SAURABH ENTERPRISES, R/O. WADGAON ROAD YAVATMAL ...........Appellant(s) Versus 1. ASHOK SONBAJI DHABEKAR & ANR. R/O. C-102, NIT COMPLEX, AYURVEDI COLLEGE LAYOUT, SAKKARDARA NAGPUR 440024 2. SANTOSH SHASHANK DARNE R/O. S.T.COLONY, WADGAON, TAL & DIST, YAVATMAL MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,MEMBER For the Appellant : Mr. Nalin Majithia, Advocate For the Respondent : For the Respondent No. 1 : Ms. S. K. Paunikar, Advocate For the Respondent No. 2 : Notice dispensed with vide order dated 11.03.2019.
Dated : 23 Mar 2023 ORDER
1. This appeal under section 19 of The Consumer Protection Act, 1986 is in challenge to the Order dated 18.12.2018 of the State Commission in complaint no. 35 of 2017.
2. We have heard the learned counsel for the appellant (the opposite party no. 1 'developer') and for the respondent no. 1 (the 'complainant') and have perused the record including inter alia the State Commission's impugned Order dated 18.12.2018 and memorandum of appeal.
3. Briefly, as evinces from the appraisal made by the State Commission and the material on record, the complainant bought one plot bearing no. 16 in Yavatmal district of Maharashtra from the developer vide sale-deed dated 06.04.1985. The developer on plea that the sale-deed was executed by mistake for plot no. 16 got its sale-deed rescinded and executed another sale-deed in respect of plot no. 36 on 07.07.2006. He also handed over vacant possession of the said plot no. 36 to the complainant. The complainant subsequently sold the plot no. 36 to the opposite party no. 2 (the respondent no. 2 herein) vide sale-deed dated 16.02.2013. The opposite party no. 2 got the plot mutated in his name in the revenue records. One Deepak Dighe challenged the said entry by way of appeal before the Sub Divisional Officer claiming ownership over the plot on the basis of a sale-deed dated 12.06.2000 which had been executed in his favour by the developer. The Sub Divisional Officer ruled in favour of the said Deepak Dighe on ground that he was the owner of the plot no. 36 as per the first sale-deed dated 12.06.2000 and ordered for the mutation entry of the opposite party no. 2 to be expunged and entry in favour of Deepak Dighe to be made. The complainant then went before the State Commission of Maharashtra with his grievances against the developer.
4. The State Commission vide its impugned Order dated 18.12.2018 has ordered the developer to allot another plot of the same specifications in the same layout and to execute sale-deed in favour of the complainant. The complainant has to bear the cost of registration. The State Commission has also ordered that in the contingency that the developer is unable to execute sale-deed of another plot in favour of complainant then alternatively the developer shall pay an amount of Rs. 7,95,000/- towards the market value of the plot to the complainant with interest at the rate of 9% per annum from the date of execution of the sale-deed of 07.07.2006. The State Commission has taken the market value of the plot as per the value calculated by the Sub-Registrar in the sale-deed dated 07.07.2006.
5. Learned counsel for the developer argues apropos preliminary issues of limitation and jurisdiction. He submits that the sale-deed in question was executed on 07.07.2006 but the complaint was filed on 31.03.2017. According to the learned counsel the cause of action arose on 07.07.2006 when the sale-deed was executed and as such the complaint is much beyond the two-year limitation period prescribed under the Act 1986. Learned counsel also submits that a bench of the State Commission had been constituted in Amravati district and the said bench had jurisdiction over the cases relating to Yavatmal district where the cause of action in respect of the present dispute arose. According to the learned counsel the circuit bench at Nagpur which has decided this case did not have the jurisdiction. Learned counsel further submits that the value of the services i.e. the consideration was only Rs. 1,05,000/-. According to the learned counsel considering the quantum of consideration the case fell within the pecuniary jurisdiction of the District Commission and not of the State Commission.
Learned counsel for the complainant in rebuttal submits that the cause of action arose on 18.09.2015 when the Sub Divisional Officer cancelled the mutation entry in favour of the opposite party no. 2. It was after this order came that it became clear that the complainant had in fact been cheated by the developer and the sale-deed executed on 07.07.2006 in respect of plot no. 36 had been unfairly and deceptively executed since the developer had already sold the said plot to one Deepak Dighe and had also executed sale-deed in his favour on 12.06.2000. Learned counsel also submits that the bench at Amravati district is only a camp and does not sit regularly but only occasionally. The circuit bench at Nagpur sits regularly and has been duly assigned the jurisdiction over cases pertaining to Yavatmal district. Learned counsel further submit that the value of the services and compensation claimed was Rs. 20,29,400/- which exceeds Rs. 20,00,000/- and as such the case fell well within the pecuniary jurisdiction of the State Commission.
6. The State Commission has dealt with the issue of limitation in para 10 of its Order. It has noted that the Sub Divisional Officer cancelled the mutation entry in the revenue records on 18.09.2015. Taking the said date to be the date on which the cause of action arose it has concluded that the complaint filed on 14.03.2017 was within the limitation period of two years prescribed under the Act 1986. We find no error on the part of the State Commission on this count. We may clarify that apparently due to a typographical error the State Commission has mentioned the date of filing of the complaint as '14.03.2017' though as per the record the actual date was '31.03.2017'; this however does not materially affect the State Commission's examination because even if the later date i.e. 31.03.2017 is taken the two-year limitation period is not at all infringed. Also, in any case, it was continuing and recurring cause of action and as such there was no question of the complaint being barred by limitation.
The State Commission has dealt with the issue of jurisdiction in para 11 of its Order. It has observed that the bench at Amravati district is a camp and the circuit bench at Nagpur has the jurisdiction as its territorial limits cover Yavatmal district where the cause of action emanated. It has also observed that the total claim inclusive of value and compensation is for Rs. 20,29,400/- i.e. it exceeds Rs. 20,00,000/- and therefore the complaint is within the pecuniary jurisdiction of the State Commission. We find no error on the part of the State Commission on this count too.
There has been no infringement of Section 24A which deals with limitation or section 17(1)(a)(i) which deals with jurisdiction of the State Commission and the preliminary objections taken by the developer are totally sans worth or merit.
7. Learned counsel for the developer has hardly any argument on the substance of the dispute. He makes an argument that the complainant had also approached the civil court and therefore his entry into the consumer protection forum is proscribed. He also argues that the matter involves complicated questions of facts and law and should therefore be adjudicated in a civil court.
Learned counsel for the complainant submits with emphasis that after the Sub Divisional Officer had annulled the mutation entry in favour of opposite party no. 2 to whom the complainant had sold the plot no. 36 in good faith and the complainant came to realize that the sale-deed executed by him with the opposite party no. 2 on 16.02.2013 was bad in law since the developer had sold the same plot and executed sale-deed in favour of Deepak Dighe prior thereto on 12.06.2000, the onus was on him to get his sale-deed with the opposite party no. 2 annulled and to return the consideration to him. He scrupulously discharged his duty and got the sale-deed annulled in the civil court and also returned the consideration which he had received from the opposite party no. 2. Another contention is that the relief for which he went before the civil court was different from the relief he has separately and independently sought against the developer in the consumer protection forum which was in respect of deficiency and unfair trade practice on the part of the developer in deceitfully receiving consideration and unfairly executing sale-deed even though he had already sold the plot in question to someone else earlier. Learned counsel further submits that almost the entire evidence comprises of simple documents and it is a clear case of cheating by the developer in receiving consideration and executing sale-deed in respect of a plot which he had already sold earlier to someone else and as such it does not involve any complicated questions as may only be adjudicated in a civil court.
8. The case taken to the civil court was for annulling the sale-deed dated 16.02.2013 executed by the complainant in favour of opposite party no. 2. That was distinctively different and separate from the case of deficiency and unfair trade practice against the developer which he brought before the State Commission which relates to cheating him by fraudulently receiving consideration and executing a sale-deed on 07.07.2006 when he had already sold the same plot earlier to another person on 12.06.2000. As such the complainant took the matter of annulment of sale-deed with the opposite party no. 2 to the civil court which was competent to deal with it but chose to bring the matter of deficiency and unfair trade practice on the part of the opposite party no. 1 developer in respect of the sale-deed executed by the developer with him to the consumer protection forum. The matter directly and substantially in issue was different and separate in the each.
This case is essentially based on documentary evidence inter alia sale-deed dated 07.07.2006 executed by the developer in favour of the complainant, sale-deed dated 12.06.2000 executed earlier by the developer in favour of Deepak Dighe regarding the same subject plot, sale-deed dated 16.02.2013 executed by the complainant in favour of the opposite party no. 1, order of the Sub Divisional Officer dated 18.09.2015 annulling the mutation entry in favour of the opposite party no. 2, and all of which are a matter of record. Pertinently none of these documents is disputed on behalf of the developer. In any case these are public documents and authentic copies thereof are available in the concerned offices i.e. the offices of the Sub Registrar and the Sub Divisional Officer. This is an open-and-shut case of the developer cheating the complainant by receiving consideration and executing sale-deed in respect of a plot of which he had ceased to be the owner, for which he had already received consideration from someone else and had even executed the sale-deed. We see no complicated question of fact or law involved as may require relegation of this case to regular proceedings before a civil court.
9. It is clear that after selling the plot to one Deepak Dighe on 12.06.2000 the developer again sold the same plot to the complainant on 07.07.2006. The complainant in good faith sold the plot to the opposite party no. 2 but on the first buyer i.e. Deepak Dighe raising objection the Sub Divisional Officer ordered for mutation in his favour.
The deficient and unfair and deceptive acts of the developer are well and verily made out and established. Ingredients of deficiency within the meaning of section 2(1)(g) and unfair trade practice within the meaning of section 2(1)(r) of the Act 1986 are writ large.
10. We find the award made by the State Commission, to provide another plot of the same specifications or in the alternative to refund the market value with reasonable interest to the complainant, to be entirely just and equitable commensurate with the loss and injury suffered by the complainant.
11. Learned counsel for the developer then falls back on an argument that the market value of Rs. 7,95,000/- indicated by the State Commission has not been taken on the basis of any evidence led by either side.
Learned counsel for the complainant pointedly submits that this amount is as per the valuation calculated and written in the sale-deed by the Sub-Registrar which is part of the evidence adduced before the State Commission.
12. Based on the prevalent circle rates as notified by the collector, every sale-deed has to have the valuation of the property calculated and written thereon for the purpose of assessing the stamp duty payable. The State Commission has taken the value as calculated by the Sub Registrar in the sale-deed dated 07.07.2006 as the market value. This sale-deed was part of the evidence before it. In the facts and circumstances of the case this appears to be a most logical and rational standard for assessing the fair market value and we find nothing wrong in the State Commission adopting the same.
13. The appeal appears to be totally frivolous and misconceived. No attempts have been made to satisfactorily explain the brazen cheating and the patent deficiency and unfairness & deceptiveness which are manifest in the matter. Attempts have been to anyhow get the jurisdiction of the State Commission ousted on maintainability, in which regard too meritless and worthless arguments have been ventured.
14. We have no hesitation in dismissing the appeal with cost of Rs. 50,000/- to be paid to the complainant within six weeks from today.
The award made by the State Commission is sustained. The same shall be made good within six weeks from today, failing which the State Commission shall undertake execution, for 'enforcement' and for 'penalty', as per the law.
15. The Registry is requested to send a copy each of this Order to the parties and to their learned counsel as well as to the State Commission immediately. The stenographer is requested to upload this Order on the website of this Commission immediately.
...................... DINESH SINGH PRESIDING MEMBER ......................J KARUNA NAND BAJPAYEE MEMBER