State Consumer Disputes Redressal Commission
Niranjan Nimgiri Giri vs Ravindra Mohan Killedar on 26 February, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH
AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES,
NAGPUR-440 001
First Appeal
No. A/05/2560
(Arisen out of
Order Dated 27/09/2005 in Case No. CC/28/2004 of District None)
1. Niranjan Nimgiri Giri
R/o.Shri
Datta Apartment, Samartha Nagar,
M I D C
Rd, Malkapur, Akola, Dist. Akola
2. Sau. Vanmala Niranjan Giri
R/o.Shri Datta
Apartment, Samartha Nagar,
M I D C Rd,
Malkapur, Akola, Dist. Akola
...........Appellant(s)
Versus
1. Ravindra Mohan Killedar
C/o.
National Insurance Co.Ltd., G.M. Rd.
Akola,
Dist. Akola
2. Sanjay Shivcharan Puri
R/o.
Mukund Nagar, Near Gajanan Maharaj
Mandir,
Akola
...........Respondent(s)
First Appeal
No. A/05/2563
(Arisen out
of Order Dated 27/09/2007 in Case No. cc/04/29 of District Akola )
1. Niranjan Nimgiri Giri
Shri Datta
Apartment,Samartha Nagar,
MIDC Road
Malkapur,Dist-Akola
2. Sau Vanmala Niranjan Giri
Datta
Apartment, Samarth Nagar,
MIDC Road,
Malkapur,Dist Akola
...........Appellant(s)
Versus
1. Vilas Madhukarrao Kale
R/o Mukund
Nagar, Near Gajanan Maharaj Mandir,
Akola,Dist
Akola.
2. Sanjay Shivcharan Puri
R/o Mukund
Nagar, Near Gajanan Mandir,
Akola,Dist
Akola
...........Respondent(s)
BEFORE:
HON'ABLE MR. B.A.Shaikh PRESIDING MEMBER
HON'ABLE MR. S.B.SAWARKAR MEMBER
PRESENT:
Adv.D.R.Goenka
......for the Appellant
Adv.Jayesh Vora
......for the Respondent
ORDER
(Passed on 26/02/2014) PER SHRI B.A.SHAIKH, HON'BLE PRESIDING JUDICIAL MEMBER
1. Both these appeals are being decided by this common order as common question of law and facts is involved in them. These appeals are preferred against two separate identical final orders dated 27/09/2005 passed in Consumer Complaint Nos. 28/04 and 29/04 by the District Forum, Akola by which both the complaint have been partly allowed.
2. The common case of the complainants, as set out in both the complaints, in brief is that the original Opposite Party (for short OP) No.1 & 2 in both the complaints who are the appellants herein, are the original owners of plot No.8 admeasuring 3100 sq.ft. situated at village Malkapur of District Akola . The original OP No.3 in both the complaints and Respondent No.2 in both these appeals is the builder and developer. Original O.P.Nos.1 & 2/appellants herein had executed registered power of attorney on 10/1/2002 in favour of the original OP No.3/Respondent No.2 herein, to develop said plot No.8 and to construct thereon Apartment named as "Shridatta apartment" and to sell flats of the same to the prospective purchasers. In pursuance of the said Power of attorney, Resp.No.2 herein started construction of the aforesaid apartment on the said plot. The complainant Mr.Ravindramohan Killarkar (in CC No.28/04) and Mr.Vilas Madhukar Kale (in CC No.29/04), therefore, entered into separate agreements with Ori.OP No.3/Resp.2 herein for purchasing flat Nos.12 & 1 respectively. The price of the said flats was fixed at Rs.250000/- and Rs.280000/- respectively and each of the complainants paid Rs.1,20,000/- to the Resp.No.2 on 30/1/2003 and Rs.12/1/2004 respectively and on the same dates, the Resp.No.3 exected Isar Pavti (earnest money receipt) in favour of said respective complainants. It was agreed by Resp.No.2 that he would make full construction of the said flats and hand over its possession to respective complainants and execute sale deed thereof in their favour, on or before 30/12/2003. However, the OP No.4/Resp.No.2 herein stopped the construction work abruptly. Hence the complainant in CC No.28/04 issued legal notice to original Ops.No.1,2 & 3 on 23/12/2003. However, no compliance of that notice was made. The Original OP No.3/Resp.No.2 herein, on enquiry within said that the original OP No.1 & 2, appellants herein has cancelled their power of attorney and, therefore, construction can not be completed. Therefore, the complainant Mr.Ravindramohan Killarkar filed consumer complaint bearing CC No.28/04 and Mr.Vilas Madhukar Kale filed consumer complaint bearing CC No.29/04 and made common prayer that direction be given to original OP Nos.1,2 & 3 to make construction of their respective flats as per agreement and to give its possession to them and also to execute sale-deed thereof in their favour. They also prayed that as the construction of the flats was not completed on or before 30/12/2003, as per agreement, the Ops No.1,2 & 3 be directed to pay them rent @Rs.2500/- per month w.e.f.30/12/2003 till possession of the respective flats is given to them and also to give them Rs.50000/- towards mental harassment and also Rs.3000/- towards cost of complaint.
3. The OP Nos.1 & 2/appellants herein resisted both the complaints by filing separate written version. They made identical submission in the said written versions, in brief, to the effect that they had executed registered power of attorney in favour of original OP No.3/Resp.No.2 herein. However, they cancelled the said power of attorney by executing another document on 30/10/2003 as the OP No.3/Resp.2 herein did not make construction as per the sanctioned map and did not execute a separate agreement in their favour about oral agreement that he will construct a flat admeasuring 1100 sq.ft. area and two shops each admeasuring 250 sq.ft. area on the ground floor and he will allot the same to them free of cost. They also published a notice in local newspaper namly "Matrubhumi" on 16/11/2003 about cancellation of power of attorney. They also gave reply of the notice of the Ori.OP No.3/Resp.2 herein in respect of the false notice sent by him. He then filed Civil Suit bearing RCS No.11/04 in the Civil Court at Akola in which injunction order is passed to maintain status quo of the construction and about its transaction. The Ori.OP No.3/Resp.No.2 herein, by joining hands with the complainants, got prepared two false Isar Pavtis to pressurize them. The register maintained by the Ori.OP No.3/Resp.Nof.2 herein does not show that he received any such part of consideration from those complainants in respect of flat Nos.12 & 1 and he has also not executed any money receipt in their favour about the said payment. They have given reply to the notice of the complainants also. It is, therefore, submission of original OP Nos.1 & 2/appellants in their written version that both the complaints may be dismissed or its proceeding may be stayed till final decision of the aforesaid Civil Suits or complainants may be directed to approach the appropriate Civil Court for seeking relief. They also alternatively submitted that even otherwise also the OP No.3/Resp. No.2 herein is only responsible for the claim made by the complainants.
4. The Original OP 3/Resp.No.2 herein also resisted the complaint by filing identical written version in both the complaints. He admitted that Original O.P.Nos.1 & 2/appellants herein are the owners of the plot No.8 in question, who had executed registered power of attorney on 10/1/2002 in favour of the original OP No.3/Respondent No.2 herein, to develop said plot No.8 and to construct thereon Apartment named as "Shridatta apartment" and to sell flats to the prospective purchasers. It is his case in brief that in pursuance of the said Power of attorney, he started construction of the aforesaid apartment on the said plot by taking money from the complainants and other purchasers to the extent of Rs.10,40,000/-. He incurred expenses of Rs.16 lac for construction of the building up to three stories. However, OP Nos.1 & 2 cancelled that power of attorney without any intimation to him and, therefore, he filed the Civil Suit before the Civil Court of Akola which granted the order to maintain status quo. He also submitted that the complaints involve various legal issues and hence the dispute does not come within the jurisdiction of the District Forum.. He therefore, requested that the complaints may be dismissed or complainants may be directed to approach the Civil Court.
5. The District Forum below, after hearing advocates of both the sides and considering evidence brought on record came to the conclusion that both the complaints are maintainable under the provisions of Consumer Protection Act. The District Forum below relied upon the power of attorney dated 30/1/2002 executed by original OP Nos.1 & 2 and the Isar Pavti dated 12/7/2002 and 30/1/2003 executed by the Ori.OP No.3 in favour both the complainants and also the averments made in the plaint of the suit filed by the Ori.OP No.3 in the Civil Court and came to the conclusion that the respective complainants entered into agreement with Ori.OP No.3 for purchase of flat Nos.12 & 1 and the same is binding on the Ori.OP Nos.1 & 2/appellants herein in view of the registered power of attorney. It also held that it is not the matter of dispute before it that the original OP Nos.1 & 2 cancelled the registered power of attorney executed in favour of Ori.OP No.3/Resp.No.2 herein as the dispute raised in the complaint has no relevancy with the dispute arose in between the OP Nos.1 & 2 on one side and the OP No.3 on another side. Therefore, the District Forum below held that it can not give any opinion in respect of the said dispute arose in between the Ori.OP Nos.1,2 & 3 as the Civil Suit is pending before the Civil Court in that respect. The Forum below also considered the order passed by the Civil Court to maintain status quo and found that the complainants have no concern with the said order. The Forum below, therefore, directed the OP Nos.1,2 & 3 to make construction of the respective flats as per agreement within 4 months and to give its possession to both the complainants and also to execute sale-deed thereof in their favour after accepting balance consideration of Rs.1,30,000/- from the complainant in complaint bearing CC No.28/04 and Rs.1,60,000/- from the complainant in complaint bearing CC No.29/04. It also directed the OP Nos.1,2 & 3 to pay to the complainants an amount of Rs.750/- each towards cost of complaint.
Feeling aggrieved by that order, the original OP Nos.1 & 2 have preferred this appeal.
6. The appellants/original OP Nos.1 & 2and original complainant/respondent No.1 have filed written notes of argument. The original OP No.3/Resp.No.2 herein failed to appear before this Commission though duly served. Therefore, this Commission proceeded exparte against him in both the appeals. We have also heard learned advocates of the appellants and Respondent No.1 herein and we have also perused the written notes of arguments and other documents produced by them in both these appeals. The learned advocates of both the aforesaid parties made common submission in both the appeals. The learned advocate of both the appellants made following submissions..
a.
The complaints are not maintainable as the complainants are not the consumers as defined under provisions of C.P.Act.
b.
The appellants have cancelled the power of attorney executed in favour of respondent No.2 as there was possibility that he may misuse said power of attorney and, therefore, appellants are not liable to execute the sale-deed of the flats in favour of the Respondent No.1 in both appeals.
c.
The diary maintained by the respondent No.2 herein does not show that the respondent No.1 in both the appeals booked any such flats in the building or they paid any such amount to the respondent No.2 and that the alleged Isar pavti's produced by respondent No.1 herein are not admissible as evidence as they are not registered documents and there is no full description of the flats and facilities therein and, they are also very vague and they are manipulated documents and, therefore, they can not form basis for holding that the respondent No.1 in both these appeals actually paid any such amount to the respondent No.2 and booked the respective flats.
d.
The power of attorney which was subsequently cancelled by the appellants, is also not admissible in evidence as it is not registered and it is executed on a document having insufficient stamp duty and it confers no right on respondent No.2.
e.
The Forum below has not properly considered the evidence brought on record and came to erroneous conclusion.
f.
The plaint in Civil Suit No.11/04 filed by the respondent No.2 has been rejected by the Civil Court and hence the respondent No.2 only can be held liable in the present cases.
g.
Appellants have received no amount from the respondent No.1 herein and, therefore, they can not be held liable to make construction of the flats and to execute sale-deed thereof in favour of the complainants.
h.
The respondent No.1 Vilas Madhukar Kale who is one of the complainants, has already filed a Civil Suit bearing SCS No.47/07 (New RCS No.56/12) in the Civil Court for specific performance of contract which is still pending and hence his complaint is not maintainable.
7. The learned Advocate of the appellants has relied upon the following decisions in support of his submission that the impugned orders are liable to be set-aside under these facts and circumstances.
i.
Veena Hasmukh Jain & Anr. Vs.State of Maharashtra and Ors. AIR 1999 Supreme Court 807 (1), it is held in that case that the duty in respect of agreement covered by explanation (1) of Article 25 of schedule (1) of Bombay Court Fee Act is leviable as if it is conveyance.
ii. Hansa P.Gandhi Vs. Deep Shankar Roy & Ors. 2013(4) Bom.
C.R.123 it is held that in the absence of registered document, plaintiff could not get any right with regard to flats.
iii. Kandamath Cine Enterprises Pvt.Ltd. Vs.John Philipose AIR 1990 Kerala 198. It is held that if the terms of the contract are vague and uncertain, the contract itself is void and un enforceable U/s 29 of the Contract Act and that will go into the root of the matter.
iv. Smt.V.Kamala Rao & Ors.Vs.A.P.Stae Consumer Dispute Redressal Commission & Ors. AIR 2010 ANDHRA PRADESH 146. In that case, agreement was entered in between landlord and builder. The complainant was a third party purchaser. It is held that there is no privity of contract between land owners and the complainant and complainant can not be termed as a consumer of land owners.
v. Mohan Co.Pvt.Ltd & Anr.Vs.Santosh Yadav, I (2012) CPJ 335 (NC). In that case, the complex issues of civil nature were involved. Therefore, it is held that such issues have to be decided by the Civil Court in regular proceedings and not by Consumer Commission in summary proceeding.
vi. Prakash Vs. Shrikant III (2013) CPJ 114 (NC). In that case, it is alleged that agreement was fabricated. Therefore, it is held that the issue raised can be addressed properly by the Civil Court only.
8. Thus, relying on these decisions, the learned advocate of the appellant submitted that both the appeals may be allowed.
9. On the other hand the learned advocate of the respondent No.1/original complainant supported the impugned order and made the following submissions..
i.
The appellants have not deposited Rs.25000/- in this Commission as per order passed by this Commission while granting stay to the impugned order and, therefore, the appeal is liable to be dismissed. He relied upon the decision of Hon'ble National Commission in the case National Insurance Co.Ltd. Vs. M.R.N.Spinners (P)Ltd. IV (2010) CPJ 81 (NC) in support of his aforesaid submission.
ii. The Respondent No.2, herein, in his written version admitted that he received part of consideration of Rs.120000/- from complainant in each complaint as part consideration against the sale of flat Nos.12 and 1 respectively and therefore, the complaints are maintainable.
iii. The appellants have complied with the order passed in identical complaint filed by Ghanashyam Gawhale and others and executed registered sale-deed in his favour during the pendency of the appeal filed by them against it and they have purposely avoided to execute the sale-deed in favour of the respondent No.1 herein in both appeals to harass them. The District Forum below rightly considered the admission made by the respondent No.2 herein in his written version and in the Civil Suit and rightly held that the respondent No.1 herein paid part of consideration of their respective flats to the respondent No.2. The decisions relied upon by the advocate of the appellant are not applicable to the present case. Thus, learned advocate of the respondent submitted that both the appeals may be dismissed.
10 It is not disputed that the appellants are the owners of plot No.8 of village Malkapur of District Akola and they executed registered power of attorney in favour of respondent No.2 herein on 10/1/2002 to develop the plot and to make construction of building thereon and to sell flats therein to the prospective purchasers. It is further not disputed that thereafter the appellants cancelled the said power of attorney by executing another document on 30/01/2003 and hence the respondent No.2 herein thereupon filed Civil Suit bearing RCS No.11/04 before the Civil Judge, Sr.Dvn. Akola for declaration and permanent and mandatory injunction. Copy of the plaint filed in that suit and the order passed therein is placed before us in this appeal by the appellant. One of the relief sought for in the said Civil Suit was that the document of cancellation of power of attorney dated 30/10/2003 is illegal and fraudulent and not binding on the plaintiff i.e. respondent herein. However, since the plaintiff did not pay the requisite court fee, the said plaint came to be rejected as per order dated 23/4/2007 by the said Court. Thus it is seen that the respondent No.2 herein could not succeed in getting a relief from the Civil Court against cancellation of the power of attorney.
11. It is, no doubt, true that both the Isar Pavtis dated 12/7/2002 and 30/1/2003 are alleged to have been executed before the revocation of power of attorney by the appellants herein i.e. on 30/10/2003. Therefore, for the sake of argument, if it is assumed that cancellation of that power of attorney will have no effect on the alleged rights of the respondent No.1 herein created on the basis of the said Isar Pavtis, then also we find that both the said Isar Pavtis are not supported by any other document like the payment receipt and entries recorded in the relevant register maintained by the respondent No.2 herein. The appellants produced the copies of the register and payment receipts maintained by the respondent No.2 herein in respect of the transactions relating to the building in which disputed flats are to be constructed. There is no entry in the said note book and the copies of the receipts to show that the respondent No.1 herein in both these appeals have paid any earnest money or part of consideration to the respondent No.2, though other entries in respect of payment of part consideration by other persons in respect of other flats, are recorded in those documents. The respondent No.1 herein both appeals have not explained as to why they have not obtained separate receipts of the alleged payment made by them to the respondent No.2 herein. It is also not so explained by respondent No.2 as to why he did not pass any receipt of payment in favour of respondent No.1 or did not record entry in the note book referred to above, about booking of the said flat Nos.12 & 1 in respect of receiving part of consideration from respondent No.1.
12. Both the Isar Pavtis are also unregistered documents and they have been executed on a stamp paper of Rs.100/-. The said document is also not notarized. No explanation is given by the respondent No.1 or 2 as to why the said documents were not duly registered under the provisions of law. No similar Isar Pavti of other transactions relating to other flats is produced on record to show that similar Isar Pavtis were obtained from prospective purchasers of other flats of same apartment. On the contrary, the aforesaid notebook and the receipts shows that separate receipts were issued to the other purchasers against payment of part consideration made by them. Moreover, both the aforesaid Isar Pavtis dated 12/7/2002 and 30/1/2003 are also very vague. They do not show the whole description of the flat. They only refer to the flat Nos. as 12 & 1 respectively. These facts and circumstances raise serious doubt about genuineness of both the said Isar Pavtis. Thus there is a room to believe that they are brought up documents to support the claim against appellant.
13. The District Forum below did not consider these material facts and circumstances in right perspective. The respondent No.2 herein, in his written version and in the civil suit referred to above, admitted that he received the aforesaid part of consideration from the respective complainant/respondent No.1 herein. However, that much is not sufficient to come to the conclusion that actually any such transaction was made in between the respondent No.1 on one hand and respondent No.2 on another hand, in the above facts and circumstances.
14. It is true that this Commission, while granting stay to the impugned orders, had directed the appellants to deposit Rs.25000/- in the District Forum Akola. The said order is not complied with by the appellant. The learned advocate of the respondent No.1 moved an application to dismiss the appeal for non compliance of that order or to vacate the stay. This commission, while passing order dated 2/4/2012 also considered the said aspect and vacated the interim stay granted by this Commission earlier for non deposit of said amount of Rs.25000/- with this Commission. This Commission, then admitted the appeal as per order dated 2/4/2012 and then listed the appeal for final hearing. Therefore, we find no substance in the argument of learned advocate of the respondent No.1 that the appeal is liable to be dismissed for non deposit of Rs.25000/- by the appellant in this Commission. The authority relied upon by the learned advocate of the respondent No.1 is not applicable to the present case as the amount of Rs.25000/- not deposited by the appellants was concerning to the grant of stay only as condition precedent.
14. Thus, it is not disputed that the appellants/original OP Nos.1 & 2 have received no amounts from the complainants/respondent No.1 herein. We have also found that the appellants have already revoked power of attorney executed by them in favour of the respondent No.2 herein. Moreover, we have also found that the Isar Pavtis produced on record are not sufficient to come to the conclusion that actually genuine transaction was made in between the respondent 1/complainants and respondent No.2 in respect of flat Nos.12 & 1 respectively. Under these facts and circumstances, we hold that the appellants can not be held responsible to execute sale deeds of the said flats in favour of the original complainants/respondent No.1 herein. Moreover, they are also not liable to refund the amount paid by the original complainants to the respondent No.2 herein.
The District Forum below erred in giving direction to the appellants to execute sale deed of the flats in favour of the complainants and to pay Rs.750/- to each of the complainant towards cost of the complaint. However, we find that as the respondent No.2/original OP No.3 admitted that he received part of consideration of Rs.120000/- from the complainant in each complaint/respondent No.1 herein and he has not shown that he paid that amount to the appellants, he is liable to refund the said amount to the complainants with interest @9% p.a. from the alleged date of Isar Pavtis i.e. from 30/1/2003 and 12/7/2002 respectively, till its realization. Further the respondent No.2 herein is also liable to pay to each of the complainant cost of Rs.750/- as awarded by the Forum below. Hence we proceed to pass the following order..
ORDER i. Both the appeal bearing Nos.A/05/2560 & A/05/2563 are hereby partly allowed as under..
ii.The impugned orders dated 27/09/2005 passed by the District Forum, Akola in Consumer Complaint bearing CC Nos. 28/04 and 29/04 are modified as under..
iii.
The original OP No.3/respondent No.2 herein shall refund Rs.120000/- to each of the complainant in Consumer Complaint CC Nos. 28/04 and 29/04 namely Ravindra Mohan Killedar and Mr.Vilas Madhukar Kale. He shall also pay interest @9% p.a. over the said amount to them w.e.f. 30/1/2003 and 12/7/2002 respectively, till its realization.
iv.
He shall also pay to them Rs.750/- towards cost of litigation.
v.
Both the complaints, as against the original OP Nos.1 & 2/appellants herein only are hereby dismissed.
vi.
Original OP Nos.1 & 2/Appellants herein shall bear their own cost.
vii.
No orders as to cost in both the appeals.
viii.
Copies of the order be furnished to both the parties free of cost.
[HON'ABLE MR.
B.A.Shaikh] PRESIDING MEMBER [HON'ABLE MR.
S.B.SAWARKAR] MEMBER