State Consumer Disputes Redressal Commission
Shriram Enterprises, Through Vasant vs Dilipkumar Vithalrao Dhabekar on 8 February, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION
MAHARASHTRA
STATE, CIRCUIT BENCH, NAGPUR
5th floor,
Administrative Building, Civil Lines, Nagpur-01
First Appeal
No. A/07/286
(Arisen out of
Order Dated null in Case No. of District None)
Shriram Enterprises, through Vasant
Laxmanrao Bansod, C/o Laxminarayan
Hardware, Hudkeshwar Road, Shubhagya
Nagar, Nagpur.
Vs.
Dilipkumar Vithalrao Dhabekar,R/o Badkas
Chowk, Behind Ram Mandir, Mahal,Nagpur
First Appeal
No. A/07/287
(Arisen out
of Order Dated 13/04/2006 in Case No. CC/248/2005 of District Nagpur)
Shriram Enterprises through Vasant
S/o Laxmanrao Bansod C/o Laxminarayan
Hardware, Hudkeshwar Road, Shubhagya
Nagar, Nagpur.
Vs.
Smt.Meenatai Dilipkumar Dhabekar R/o
Badkas
Chowk, Behind Ram Mandir,
Mahal,Nagpur
BEFORE:
Hon'ble Mr.S.M. Shembole PRESIDING MEMBER
HON'BLE SMT.JAYSHREE YENGAL MEMBER
HON'BLE MR.N. ARUMUGAM MEMBER
PRESENT: Adv.Solat for the appellants
Rerspondent
Dilipkumar in person
ORDER
(DELIVERED ON 08/02/2013 ) PER SHRI.S.M.SHEMBOLE, HON'BLE JUDICIAL MEMBER
1. Both these appeals impugn the common judgment and order dated 13/4/2006 passed by District Consumer Forum, Nagpur in CC Nos.248/05 & 249/05 directing the Opponent/appellant to hand over the possession of plots to the complainants as per agreement or if there is any hurdle to hand over the same plots, other plots of same size from the same locality shall be given and further to pay interest @ 9% to the complainants from the date of payment till execution of sale deeds etc.
2. Since both these appeals arise from the same common judgment and facts and also the point involved in both the appeals are common, we have decided to dispose of both these appeals by this common judgment. ( For the sake of brevity, the appellant is hereinafter referred as "Opponent" and Respondents as "Complainants")
3. Brief facts giving rise to these appeals are that on 9/11/1990 the Opponent agreed to sell one plot each to the complainants from survey No.110 and 111/2 for a consideration of Rs.7875/- and Rs.14,400/- respectively. On the same day, the Opponent received amount of Rs.2000/- from each complainant and agreed to execute the sale deed on or before 9/11/1991 by receiving the balance consideration by monthly installments. Accordingly, the Opponent executed separate Bayanapatra in favour of the complainants. However, according to the complainants though they have paid the installments and were ready to pay the balance amount, the Opponent failed to execute the sale deed and hand over the possession of the plots. Therefore, they made separate complaints with the District Consumer Forum, Nagpur alleging deficiency in service on the part of Opponents and prayed to direct the Opponent to execute the sale-deeds in their favour. They have also claimed compensation Rs.5000/- each for causing mental and physical harassment etc.
4. In response to the complaint notices, Opponent appeared before the District Forum and resisted both the complaint vide its written version. It did not dispute the agreement as alleged. However, the Opponent denied that the complainants paid the amount of consideration as per agreement. It is further submitted that the Opponent could not perform its part of contract as the land owner died and could not get the possession of the land from the original owner etc. It is further contended that the complaints are being barred by limitation are not maintainable. It is submitted to dismiss the complaints.
5. On hearing both the sides, the District Consumer Forum partly allowed both the complaints directing the appellant as noted above.
6. Feeling aggrieved by the same judgments, the Opponent has preferred these separate appeals.
7. Heard Shri. Solat, Ld. counsel for the appellant and Respondent/Complainant Dilipkumar in person and perused the copy of impugned judgments and orders and the copies of complaint, reply submitted by the opponent, WNA filed by both the parties and other documents produced by the appellant along with appeal.
8. Undisputed facts are that the Opponent had agreed to sell one plot each to the complainants and had executed Bayanapatra on receiving earnest money Rs.2000/- from each complainant. It is also admitted fact that the complainants paid some amount towards consideration and some amount remained to be paid. It is also undisputed fact that the Opponent could not hand over the possession of the plots by executing sale-deeds as per agreement as complainants have not paid the balance consideration within the stipulated period as per agreement. Further it is also an admitted fact that the Opponent had entered into an agreement with the complainant by taking the land of one Mahadeo Gajbhiye for development and he was to sell the plots to the complainants with the consent of the original owner from whome he had taken the land for development. In the meanwhile, the original owner of the land expired and his LRs, according to the Opponent, refused to sell the land and therefore, the Opponent could not perform his part of contract by executing the sale deeds in favour of the complainants.
9. The crux in the matter is as to whether the complainants were ready and willing to pay the amount of consideration as per agreement and if yes, whether, the Opponent failed to perform his part of contract?
10. On perusal of record, it manifest that the complainants have not paid the amount of balance consideration to the Opponent within the stipulated period as agreed. However, the record further reflects that the complainants paid the amount of installments till the year 1993-94. The copy of receipts of payment reflects that the Opponent accepted the amount of installments from complainant Dilip lastly on 25/3/1994 and from complainant Minatai on 9/2/1993. This goes to indicate that the opponent accepted the amount from the complainants after the stipulated period, and, therefore it can be safely inferred that the time was not the essence of contract. However, the record does not reflect that after 9/3/94, the complainants paid any balance amount of consideration, and, therefore, the Opponent has not executed the sale-deed. Thereafter as the original owner of the land expired and his LRs refused to sell the land, the Opponent could not perform his part of contract.
1. It is submitted by Shri.Solat, Ld. counsel for the Opponent/appellant that though the LRs of the original land owner were the necessary party to the complainant, they were not made so and hence the complaints are not maintainable. But since the original owner was not a party to the agreement, contention of Mr.Solat that the LRs. Of original owner are necessary party to the complaint can not be sustained.
2. Further, Mr.Solat Ld. counsel for the Opponent/appellant submitted that the complaints are being hopelessly barred by limitation are not at all maintainable etc Since it is obvious from the record that the complainants have failed to pay the balance consideration after 1993-94 and they have filed complaints in the year 2005, we find much force in the submission of Mr.Solat, Ld.counsel for the Opponent. However, from the copy of impugned judgment and order, it reflects that the District Consumer Forum, without considering this legal aspect and also the failure of the complainants to make the payment of balance consideration, committed error in holding that the Opponent is liable to execute the sale-deed etc.
3. Not only this, but the impugned judgment and order further reflects that the District Consumer Forum erred in directing the Opponent to execute the sale deed of the plots agreed or if there is any legal hurdle to do so, to execute sale deeds of other plots from the same locality, can not be justified. Because there is no evidence on record that the Opponent is an owner of other land from that locality. Therefore, such erroneous order can not be sustained. However, considering the peculiar facts of the case and conduct of the Opponent/appellant in accepting the amount of consideration from the complainants after the expiry of stipulated period, we feel it just and proper to direct the Opponent to refund the amount to the complainants which they have paid, within 3 months from today, else, to pay interest @12% p.a. w.e.f. the date of this order till realization of the amount.
4. In the result, both the appeals deserve to be partly allowed and the impugned judgment and order are to be modified as follows...
Hence the order...
ORDER
1. Both the appeals are partly allowed and the impugned judgment and orders are modified as follows.
2. The Opponent is directed to repay the amount Rs.12400/- to the complainant Dilipkumar and Rs.5400/- to complainant Minatai within 3 months from today, else, to pay interest @12% p.a. w.e.f. date of this order till realization of the entire amount.
3. Considering the peculiar facts of the case, we direct the parties to bear their own cost.
Dated : 08/02/2013 [ Hon'ble Mr.S.M. Shembole] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER