State Consumer Disputes Redressal Commission
Sheikh Sultan & Anr. vs Smt. Preeti Dawada & Anr. on 4 January, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
(A/11/2687)
Appeal No.406/2011
Instituted on 20.07.11
1. Sheikh Sultan,
S/o Shri Sheikh Rehman,
2. Smt. Mahmooda Begum,
W/o Shri S.K. Sultan,
R/o: 8, Gitanjali Nagar,
RAIPUR (C.G.) ... Appellants.
Vs.
1. Smt. Preeti Dawada,
W/o Shri Prakash Dawada,
R/o: 8, Gitanjali Nagar,
RAIPUR (C.G.)
2. M/s J.K. Builders & Engineers, (A Partnership Firm),
Head Office : Pushpak Apartment,
In front of Govt. School, Chhotapara,
RAIPUR (C.G.) ... Respondents.
(A/11/2688)
Appeal No.407/2011
Instituted on 20.07.11
1. Sheikh Sultan,
S/o Shri Sheikh Rehman,
2. Smt. Mahmooda Begum,
W/o Shri S.K. Sultan,
R/o: 8, Gitanjali Nagar,
RAIPUR (C.G.) ... Appellants.
Vs.
1. Rajesh Sanghani,
S/o Shri Raghulal Sanghani,
R/o: 25, Gitanjali Nagar,
RAIPUR (C.G.)
2. M/s J.K. Builders & Engineers, (A Partnership Firm),
Head Office: Pushpak Apartment,
In front of Govt. School, Chhotapara,
RAIPUR (C.G.) ... Respondents.
// 2 //
(A/11/2689)
Appeal No.408/2011
Instituted on 20.07.11
1. Sheikh Sultan,
S/o Shri Sheikh Rahman,
2. Smt. Mahmooda Begum,
W/o Shri S.K. Sultan,
R/o: 8, Gitanjali Nagar,
RAIPUR (C.G.) ... Appellants.
Vs.
1. Smt. Preeti Dawada, W/o Shri Prakash Dawada,
R/o: 8, Gitanjali Nagar,
RAIPUR (C.G.)
2. M/s J.K. Builders & Engineers, (A Partnership Firm),
Head Office: Pushpak Apartment,
In front of Govt. School, Chhotapara,
RAIPUR (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSELS FOR THE PARTIES IN ALL THREE APPEALS: -
Shri Shishir Bhandarkar, for appellants.
Shri R.K. Mahobia, for respondent no.1.
Shri R.K. Bhawnani, for respondent no.2.
ORDER
Dated:04/01/2012 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This order will govern disposal of appeal Nos.406/2011, 407/2011 and 408/2011, which have been preferred by the same OP Nos.1 & 2 / appellants, against different complainants / respondent No.1 and the same OP No.2 / respondent No.2 of complaint case Nos.38/2007, 39/2007 and 40/2007 respectively, which have been decided by District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short), vide similar order dated 20.06.2011.
// 3 //
2. Mrs. Preeti Dawda was complainant of complaint case Nos.40/2007 and 38/2007, whereas one Mr. Rajesh Sanghani was complainant of complaint case No.39/07. The case of complainants of all the complaint cases before District Forum was that plot No.867/2 is situated at Baijnath Para, Raipur and an agreement was executed between the appellants as well as respondent No.2 on 15.06.1991 for construction and development that particular plot and then construction of apartment house was carried out on that plot and agreements were executed for sell of flats and shops of that apartment house with the complainants of these complaint cases. As per the two complaint cases of Mrs. Preeti Dawda, she entered into an agreement for sell of shop No.1 & 15 of the ground floor of the apartment house, whereas case of Rajesh Sanghani was that he entered into agreement for sell of flat No.(A) of that apartment house and the said flat was sold by agreement of sell and letter of delivery of possession dated 07.03.1994. He is in possession of that property, but thereafter registered sale-deed was not executed by the appellants / OP Nos.1 & 2, which amounts deficiency in service and so he filed consumer complaint. Similarly, Mrs. Preeti Dawda in her complaint cases stated that she purchased two shops by agreement of sale dated 06.05.1995 and 09.09.1995 and the document of agreement of sell cum delivery of possession were executed and the possession was transferred to her and from those dates she is in possession, but thereafter registered // 4 // sale-deed was not executed in her favour, which amounts deficiency in service and so she also filed the complaint cases. Thus in short, case of the complainants was that the appellants, were the owner of the plot and respondent No.2, was the Builder, but they in spite of execution of agreement of sell and letter of delivery of possession, have failed to execute registered sale-deed in their favour and so claiming relief of direction to the appellants to execute sale-deed, consumer complaints were filed.
3. The case of the appellants before District Forum in all the three cases was that the complainants were not 'consumers' of the appellants herein. This preliminary objection was raised that when notice dated 13.01.2007 was issued to the complainant then on the basis of that notice, Civil Suit No.19A/2007 was filed by the appellants / OP Nos.1 & 2 against respondent No.2 as well as the complainants and all other persons who claimed purchase of flat or shop in the property, before a competent Civil Court, which is still pending and during pendency of that Civil Suit, the consumer complaint does not lie. It has also been pleaded that the agreement of sell cum letter of delivery of possession, which have been filed by the complainants in the consumer complaint, are forged, fabricated and false documents and on the basis of such forged, false and fabricated documents consumer complaints are not maintainable. It has been denied that any such agreement was ever // 5 // executed in favour of the complainants or ever signed by the appellants. It has also been stated that the agreement dated 14.06.1991, which was executed in favour of respondent No.2 Builder has already been cancelled on 13.01.07, regarding which Civil Suit is pending before a competent Civil Court. Thus, the allegations of execution of any agreement of sale and that of committing deficiency in service have been totally denied.
4. OP No.3 / respondent No.2 Builder in its separate written version averred that whole of the consideration of sold property has already been received by OPs and the Builder respondent No.2 never denied its liability of execution of sale-deed, but the appellants / OP Nos.1 & 2 were deliberately avoiding execution of such sale-deed. So, it has been averred that as no deficiency in service has been committed by the Builder, so the complaint is not maintainable against it.
5. Learned District Forum vide the impugned order agreed with the contentions of the complainants and allowed the complaints and directed the appellants as well as the Builder respondent No.2 to execute sale-deed in favour of the complainants and also to pay Rs.3,000/- as cost of litigation.
6. The appeals have been preferred before us on the ground that as Civil Suit was already pending between the parties for declaration of title and for declaration that the agreements which are said to have // 6 // been executed, in favour of complainants are forged, fabricated and false documents and therefore during pendency of Civil Suit the consumer complaints were not maintainable. This ground has also been taken in the appeal memo that the complaints were hopelessly barred by limitation and were not required to be entertained by the District Forum and it committed error in entertaining the complaints and in passing the impugned award. It has also been averred that the District Forum has wrongly placed reliance upon the earlier judgement of this Commission in the case of Smt. Naina D. Soni Vs. Shiekh Sultan & ors. Appeal No.549/2004, because in that case, agreement to sell was an admitted fact and the Civil Suit which was pending at that time was regarding mutation of name in municipal record without sale-deed, whereas in the present case title Suit is pending regarding revocation of the agreement dated 15.06.1991 along with consequential relief.
7. We have heard arguments advanced by all parties and perused the record of all the three complaint cases.
8. Learned counsel for the appellant has drawn our attention towards copy of order of Hon'ble High Court in Misc. Cri. Case No. 05.07.2001, Criminal Complaint Case No.1152/06, between Sheikh Sultan & anr. Vs. Prakash Dawda and 13 others, the copy of the complaint of that case and the copies of order sheets recorded therein.
// 7 // He submitted that, that complaint case was filed by the complainants before a competent Court having criminal jurisdiction, on 02.12.1997 for trial of the offences punishable under Section 420, 422, 423, 426, 427, 448 & 406 read with Section 34 of IPC. He has also drawn our attention towards copy of plaint of Civil Suit which was filed on 17.01.07 against M/s. J.K. Builders & Engineers through Mr. Jitendra Kumar Goel, Prakash Dawda, Mrs. Preeti Dawda and other 35 persons. He submitted that in that Civil Suit, which was filed for relief of declaration of title with consequential relief of permanent declaration, it was prayed before Civil Court that the appellants herein be declared as full owner and possession holder of the disputed plot and agreement dated 14.06.1991 and other consequential agreement executed in pursuance of the aforesaid agreement thereafter, be all declared as null and void and be quashed. The construction made over the disputed plot be also declared illegal and be directed to be demolished etc.
9. On the basis of copy of the plaint as well as the Criminal Complaint, learned counsel for appellants submitted that the facts which have been stated in the consumer complaint are under investigation before a competent Civil Court and Criminal Court from a date prior to the date of filing of the consumer complaint and therefore it was not appropriate on the part of the District Forum to // 8 // direct the appellant to execute the sale-deed in favour of the complainants. The District Forum was required to wait till final disposal of Civil Suit and the Criminal Complaint. Learned counsel for the appellants in this regard has placed reliance upon recent pronouncement of Hon'ble National Commission in the case of Mangilal Soni Vs. T. Marappa & Ors., II (2011) CPJ 95 (NC), as well as earlier order of this Commission in appeal No.475/10, dated 29.11.2011.
10. Learned counsel for the complainant / respondent No.1 refuting the aforesaid arguments submitted that all the questions which have been raised by learned counsel for the appellants have already been considered by this Commission in the order dated 28.12.2010, in appeal No.128/2010, which was an appeal preferred by the same OPs / appellants against similar order passed in favour of complainant of that complaint, Shri Sukant Dawda and therefore in the present appeal, there is no substance. It has also been submitted the complainants are bonafide purchaser of property from the appellants and the Builder and have got every right of having the sale-deed executed in their favour, as earlier held by this Commission in appeal No.549/04, (Smt. Naina D. Soni Vs. Shekh Sultan & ors.,) vide order dated 19.07.2005, which has been confirmed by Hon'ble National // 9 // Commission also, vide order dated 30.11.05 in Revision Petition No.2441/2005.
11. Complainants before District Forum have filed copy of agreement dated 15.06.1991, which was executed by the appellants herein in favour of M/s. J.K. Builders & Engineers as well as Prakash Dawda S/o. Shri Maganlal Dawda. By this agreement appellants herein have agreed that the second party of the agreement will have right to construct multistoried building over the disputed plot and to sell it in parts to different persons. They were required to pay Rs.37,00,000/- to the appellants / OP Nos.1 & 2, who were party No.1 in the agreement. It has also been agreed that if the amount is not paid in time, then interest will be payable on that amount. Second document which has been relied by the complainants is photocopy of agreement of sell and letter of delivery of possession dated 09.09.1995 (and other similar documents of different dates in other two complaints), by which a flat or shop has been agreed to be sold to the complainants on the conditions mentioned therein. It has also been stated that possession of the property has been handed over.
12. Regarding the second document, objection of the appellant was that this document was on insufficient stamp and so was required to be impounded by the District Forum and necessary stamp duty and // 10 // penalty was required to be collected before drawing any conclusion on the basis of this document. This question was raised before us in earlier appeal and it was found by us by vide order dated 20.07.2010, passed in that appeal No.188/2010, that as the original document or its copy, by way of secondary evidence, has not been tendered as an evidence, so no stamp duty is payable at present. So the question stands concluded by that order.
13. It is true that the appellants herein have filed Civil Suit before a Civil Judge on 17.01.07, as apparent from a photocopy of the plaint filed before the District Forum, but when notices in that case were issued and whether any notice of that case was received by the complainant before filing of the consumer complaint, is not known, because immediately thereafter on 02.02.07, the complaint cases have been filed before District Forum. It is difficult to digest that by that time any notice could have served on the complainants and it is just possible that before filing of complaints no notice was received by the complainants in respect of that Civil Suit. But the fact remains, that the consumer complaint as well as Civil Suit both were pending at the same time and the Civil Suit was first, in time, which was filed before a competent Civil Court, whereas the consumer complaint was filed at a little bit later stage.
// 11 //
14. This Commission in its order dated 19.07.05, passed in appeal No.549/2004, between Smt. Naina D. Soni Vs. Sheikh Sultan & ors., has considered the fact of pendency of Civil Suit. It was found that when that consumer complaint was considered at that time the Civil Suit which was pending was merely for the relief that name of respondent No.2 to 19, recorded by respondent No.1 Municipal Corporation, Raipur, on the various shops be declared to be null and void and the Municipal Corporation be directed to record the name of appellants herein, who were respondents in that appeal, as the owner of all flats. That suit was filed on 22.06.1998 after execution of agreement dated 10.01.1995 in favour of complainant of that case. So, it was found that, such Suit would not afford valid cause to respondent Nos.1 & 2 of that appeal, to not execute sale-deed in favour of the complainant. Whereas at present the appellants had filed another Suit before a competent Civil Court for declaration of title in their name and it was prayed that the agreement executed, in favour of the complainant be declared as null and void and construction carried out over the disputed plot be demolished. Thus, in entirety it being a title Suit and in such Suit if any consequential relief of declaratory injunction is claimed then it may affect the rights of the parties over the disputed property. When the Suit was already pending and this fact has come in the knowledge of respondent No.1 / complainants, may be at a little bit later stage, the right course for them should have been to contest // 12 // the matter before the Civil Court in a full dress trial. The District Forum was also required to consider the nature of the Civil Suit, filed before a Civil Court and the relief claimed against the complainants in that Civil Suit and then to consider whether the complaint was still required to be proceeded further or not.
15. This Commission in the case of Mirik Health Foods Pvt. Ltd. Vs. Sarik Memon, Appeal No.475/2010, vide order dated 29.11.11, has held in paragraph No.10 that "10. Thus, it is clear that in similar circumstances, this Commission was clearly of the view that so long as the dispute regarding settlement of account between the parties is there, the amount of Security Deposit, made by the complainant, cannot be ordered to be refunded back in a 'consumer' complaint. In the facts of the present case also, as there is dispute of settlement of account between the parties and Civil Suit has already filed by the appellant against the respondent before a Competent Court, prior to filing of the complaint case, so the District Forum was not justified in allowing the complaint and in passing order against the appellant herein of refunding security amount and of paying compensation for mental agony "
Earlier also in the case of Prasat Nag Vs. Orient Ceramics and Industries Ltd., Appeal No.29/2010 and counter Appeal No.54/2010, vide order dated 23.11.2010 it was held by this Commission that "had there not been any dispute regarding settlement of account between the parties and had there been merely a case of refund of Security Deposit amount, then of course it would have been // 13 // considered by the District Forum, but when the parties are contesting certain issues and even Criminal matters are pending between them upto stage of High Court, then at present, it can not be said that account between the parties were properly settled and some amount was due against the OP, which it had failed to pay it""
It has further been observed in that case that : -
"In view of the aforesaid, we find that District Forum has committed a mistake in allowing the complaint of the complainant. So long as dispute regarding settlement of account between the parties is pending, it can not be said that complainant is entitled of getting amount of Security Deposit back and therefore, the order passed by the District Forum, is not maintainable, so the same is hereby set aside."
16. If we apply the principles laid down therein, in the facts of the preset case, then it is clear that a dispute regarding title over the disputed property is already pending before a competent Civil Court and Criminal Complaint is also pending between the parties. The original title holder and complainants / respondent No.1 are also parties in that Civil Suit and have got full opportunity to place their case before competent Civil Court, in adjudication of that title dispute, which is already pending. Therefore, it does not appear appropriate that in summary proceedings under Consumer Protection Act 1986, direction for execution of registered sale-deed is to be given to the appellants, when they have denied their liability of such execution of // 14 // sale-deed, in a Civil Suit and alleging fraud and misrepresentation etc. against the complainants and the Builder.
17. When the agreement, on which the complainants are relying, was executed in the year 1995, the possession was also handed over to them, at the same time. In the year 1997, criminal case was filed by the appellants against the Builder and few other persons and it was alleged in the criminal case that their signatures were obtained by fraud and misrepresentation of facts, so the documents are illegal. This amounts denial of liability of execution of any sale-deed, under the agreement executed in favour of the complainants. Therefore, the cause of action arose in the year 1997 and so the complaint was required to be filed within two years from the date of accrual of cause of action. In the complaint only in paragraph No.7, it has been stated that the complainants requested the OPs many times to execute the sale-deed, but on account of dispute amongst them, the sale-deed could not be executed. Thus, the complainants were also knowing very well regarding the dispute between the original title holder and the Builder right from the date when the dispute started i.e. the date when the criminal complaint was filed, but even then the complainants has never cared to file consumer complaint and have permitted the period of limitation to pass. Section 24 A of Consumer Protection Act 1986 was inserted by amendment No.53 of 1993 w.e.f. 18.06.1993, so // 15 // the provision of limitation was available even in the year 1995 and the complainants were required to file consumer complaints within two years from the date of accrual of cause of action and thus when the period of that two years was over and thereafter if the complaints have been filed, then the same become barred by limitation.
18. In paragraph No.11 of the consumer complaint, it has been stated that on 13.01.2007 notice was issued by the appellants / OP Nos.1 & 2 to the complainants and the possession was demanded and from this notice a fresh cause of action has arisen in favour of the complainants. There may be some substance in this argument, so far as third person is concerned, but unfortunately the complainant Mrs. Preeti Dawda happens to be wife of Mr. Prakash Dawda, who was partner of the Firm M/s. J.K. Builders & Engineers and who was also a party in the agreement dated 15.06.1991 and against whom also, criminal complaint was filed as back in the year 1997, so if the complainant Mrs. Preeti Dawda says that she was requesting the Builder to execute sale-deed and when this notice was issued by the owner of the plot, then she suffered. Such plea taken by her does not have much force, in view of the fact that she is wife of one the Builder, who has transferred the flat or shop in her name. She is sharing roof with her husband and it is not digestible that he has paid any amount to her husband to enter the agreement with her husband, as nothing // 16 // has been stated that she has got some additional source of income. Thus, she was right from the very beginning having knowledge of the criminal complaint and if she was feeling aggrieved, then she was required to file consumer complaint within two years from 1997. Similarly, Mr. Rajesh Sanghani was also required to file consumer complaint within the aforesaid period.
19. In paragraph No.3 of the complaint, only it has been pleaded that after 1995, sale-deed has not been executed and so only relief claimed was that the OPs be directed to execute sale-deed. Hon'ble National Commission in its recent pronouncement, in the case of Mangilal Soni Vs. T. Marappa & Ors., II (2011) CPJ 95 (NC), has clearly held that "taking the averments and allegations on their face value, it appears to a case of nonperformance of its obligation by a vendor under an agreement to sell for which the complainant would have been advised to file civil suit either for specific performance of the agreement to sell or any other alternative relief in accordance with law. In our opinion, the complaint before this Commission is wholly misconceived and is dismissed as such, however, with liberty to the complainant to work out his remedy before a competent Court in accordance with law". It has also been held that 'we are satisfied 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 // 17 // before a Consumer Fora'. Thus, it is clear that if consumer complaint has been filed only for the purpose of seeking direction to execute title deed, then such consumer complaint is not maintainable and parties are required to file Civil Suit before a competent Civil Court or to avail any other remedy which is available under the Law.
20. In view of the aforesaid latest pronouncement of Hon'ble National Commission, all the three complaints were not maintainable and were liable to be dismissed with a direction to file appropriate Civil Suit or to contest the Civil Suit filed by the appellants before a competent Civil Court with a counter claim for seeking appropriate relief in favour of the complainants, who are parties in that case.
21. Thus, after having examined the matter from all angles, we are satisfied that the complaints which have been filed by respondent No.1 against the appellants were not maintainable, were barred by limitation and were not entertainable. We allow all the three appeals and dismiss the complaint filed by respondent No.1 before District Forum. No order as to cost. This order be retained in the file of appeal No.406/2011 and its copy be placed in the file of both other appeals, i.e. Appeal No.407/2011 and 408/2011.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/01/2012 /01/2012