State Consumer Disputes Redressal Commission
Radhakrishna Co-Operative Housing ... vs Vijay Gulabrao Khedikar & Ors. on 22 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR 5th Floor, Administrative Building No. 1 Civil Lines, Nagpur-440 001 First Appeal No. A/646/2007 (Arisen out of Order Dated 08/05/2007 in Case No. CC/06/442 of District Nagpur) Radhakrishna Co-operative Housing Society Through its President Marotrao Nathuji Telrandhe R/o Bhagwan Nagar Nagpur ...........Appellant(s) Versus 1. Vijay Gulabrao Khedikar R/o 9, Khedikar Niwas Near Halba Sanskrutik Hall Deendayal Nagar, Nagpur 2. Sou Kusum Madhavraoji Ghaturle Member, Radhakrishna Co-operative Housing Society R/o Metaumri, Tah. Hinga Dist. Nagpur. 3. Nagpur Improvement Trust Through its Building Engineer (West) 572 Layout, NIT, Nagpur. ...........Respondent(s) BEFORE: Hon'ble Mr. B.A.Shaikh Presiding Member Hon'ble Mrs. Jayshree Yengal Member PRESENT: Adv. Mr S G Shukla ......for the Appellant Adv. Mr Gabhane ......for the Respondent ORDER
(Passed on 22.04.2014) Per Mr B A Shaikh, Honble Presiding Member
1. This appeal is preferred against order dtd.08.05.2007 passed by District Forum, Nagpur in consumer complaint bearing No.CC/06/442 by which the complaint has been partly allowed.
2. The case of the complainant as set out in the complaint in brief is that he entered into an agreement of sale of Plot No.1 of Somalwada with the opposite party (for short the O.P.) No.1 for a consideration of Rs.1,10,000/-. The agreement of sale was reduced into writing on 08.06.1992 which was signed by O.P.Nos. 1 & 2 being the President and the Member of society namely Radhakrishna Co-operative Housing Society (for short the society). The complainant paid part of consideration of Rs.25,000/- and remaining amount was to be paid to O.P.No.1 at the time of registration of sale-deed. The complainant was ready to pay the same to O.P.No.1. But it avoided to receive the same. The complainant made application to Nagpur Improvement Trust (for short NIT) which is joined as O.P.No.3 to the complaint, for regularization of the Plot and permission for making construction thereon. However, the O.P.No.1 without any intimation to its members changed the layout plan and submitted the same to O.P.No.3 (NIT). Therefore, O.P.No.3 rejected the application of complainant vide letter dtd.08.08.2006, mentioning the reason that the Plot No.1 is affected by Development Plan (for short D.P.) reservation for 12 Mtr. width road. The Plot No.1 is thus merged in the road and hence the complainant served legal notice dtd.07.11.2006 to O.P.Nos. 1 & 2. The complainant then filed a consumer complaint, praying that O.P.Nos. 1 & 2 may be directed to execute the sale-deed of the plot by accepting balance consideration or to allot another plot in the same layout to him or in alternative to refund him earnest money of Rs.25,000/- with interest and also to pay him compensation of Rs.3,00,000/- with cost of complaint.
3. The O.P.Nos. 1 & 3 filed their Written Version before the Forum and thereby resisted the complaint. The O.P.No.3 did not appear before the Forum despite of service of notice. Therefore, the Forum proceeded exparte against him as per order dtd.08.03.2007.
4. The O.P.No.1 submitted that the agreement of sale filed by the complainant is false and forged document and that it does not bear his signature. The O.P.No.1 denied that it received Rs.25,000/- from the complainant. It is admitted that the O.P.No.3 had called applications for regularization of the layout and accordingly the O.P.No.3 sanctioned Plot Nos.4 to 6, 18 to 22 and 24 to 29 only. The O.P.No.1 had no authority to change the layout plan after it was sanctioned. Some of the Plots of the layout have been merged in the road. It is, therefore, submitted by O.P.No.1 that the complaint may be dismissed.
5. The O.P.No.3 submitted that it is unnecessarily impleaded in the complaint as no relief is claimed against it. As per layout plan framed by O.P.NO.1, there were 30 Plot holders who had applied for regularization of their respective Plots and out of them, demand notes were issued to 18 Plot holders and that 6 Plots were affected by DP road and hence the same could not be regularized. The application of the complainant was rejected as his Plot was affected by 12 Mtr. DP road. It is, therefore, submitted by O.P.NO.3 that complaint may be dismissed as against it.
6. The Forum below after hearing advocates of the aforesaid contesting parties and considering evidence brought on record observed that O.P.No.1 had entered into agreement of sale with the complainant to sell him Plot No.1 but the O.P.No.1 is unable to execute the sale-deed as his Plot No.1 is merged into the DP road as per sanctioned layout plan. Therefore, the Forum below directed the O.P.No.1 to refund earnest money of Rs.25,000/- with interest @ 12% p.a. from 08.06.1992 till its realization, to the complainant and also to pay him Rs.1.00 Lac towards compensation as it failed to execute the sale-deed of Plot No.1 to him as per agreement dtd.08.06.1992 and also to pay him Rs.3,000/- towards cost of the complaint. The Forum below dismissed the complaint as against O.P.Nos. 2 & 3.
7. Feeling aggrieved by that order, the original O.P.No.1 has preferred this appeal. Hereinafter the O.P.No.1 is referred to as appellant, original complainant as respondent No.1 and original O.P.Nos.2 & 3 as respondent Nos. 2 & 3 respectively, for the sake of convenience. We have heard learned advocate of appellant and respondent No.1 and perused the Written Notes of Arguments and other documents filed by them. The appeal is proceeded exparte against respondent Nos. 2 & 3.
8. The learned advocate of the appellant reiterated the case of appellant as put forth above and submitted that actually the agreement dtd.11.12.2002 was entered into the appellant and respondent No.1 in respect of Plot of No.30, which was subsequently cancelled as per request of respondent No.1. He has drawn our attention to copy of the said cancelled document and submitted that the copy of the agreement of sale dtd. 08.06.1992 produced by the respondent No.1 about Plot No.1 is false and forged document. He further submitted that the complaint is also barred by limitation as it was not filed within two years from the date of alleged agreement dtd.08.06.1992. He further submitted that the area of Plot No.1 shown in the disputed agreement is different from the area of the same shown in the application dtd.07.04.2001 by the complainant and therefore it also shows that the said agreement is forged document. He also submitted that as the appellant raised plea of fraud and forgery, the remedy lies with the Civil Court and therefore, the Forum below has erred in entertaining the complaint. He therefore, submitted that impugned order is illegal and hence, it may be set aside. He relied upon observations made in the following cases:-
i. Dowell Plastic Pvt. Ltd Vs. Sham Plastic Consultants & Ors., III(1995) CPJ 77 Karnataka SCDRC, Bangalore.
In that case there was fraud and forgery. Therefore, it is held that the question cannot be decided by redressal Forums under Consumer Protection Act, 1986.
ii. Anjana Abraham Vs. Koothattukulam Farmers Service Co-op. Bank Ltd., IV (2013) CPJ 333 (NC).
In that case there was conflict of member with co-operative society. Therefore, it is held that the dispute of this nature is not a consumer dispute under CP Act and right Forum was to have once remedy under Co-operative Societies Act.
iii. Thiruvengadam Pillai Vs. Navaneethammal & Anr., (2008) IV Supreme Court
530.
It is held that the burden was on the plaintiff to prove that the first defendant has executed the agreement and not on the first defendant to prove the negative.
9. On the other hand the learned advocate of respondent No.1 supported the impugned order and submitted that there was no such plea raised before the Forum below as regard the agreement of sale relating to Plot No.30 and therefore, in appeal the same cannot be considered. He, therefore, submitted that the appeal may be dismissed.
10. No doubt, burden lies on respondent No.1 to prove that the agreement dtd.08.06.1992 is a genuine document and it bears signature of the President of appellant society. In our view, the respondent No.1 herein has discharged the said burden by producing the copy of that agreement and the relevant documents. The respondent No.1 had also moved an application to respondent No.3 (NIT) on 07.04.2001 for regularization of Plot No.1 on the basis of the aforesaid agreement dtd.08.06.1992. Undisputedly, the Plot No.1 was merged in the road under development plan sanctioned subsequently by respondent No.3 NIT. It is not explained by the appellant as to whether or not the Plot No.1 was sold by it to somebody as per the layout plan prepared by it before sanction of the layout by NIT. The appellant has filed copy of the subsequent agreement dtd.11.12.2002 relating to Plot No.30 to show that the agreement in between the parties was actually relating to said Plot No.30. However, we find that the said agreement dtd.11.12.2002 cannot be considered in this appeal as it was not produced before the Forum below and no plea was raised about that agreement relating to Plot No.30, in a Written Version filed before the Forum below, by the appellant / original O.P.No.1.
11. It is pertinent to note that though the appellant alleged that the respondent No.1 prepared false and forged document in respect of Plot No.1, but no report was lodged by it with the Police against said forgery. Moreover, the O.P.No.1 though denied signature of its President on the said agreement of sale dtd.08.06.1992, it did not ask the Forum below to get examined the said signature from the handwriting expert by making comparison with admitted signature of the said president.
12. Thus, we find that the appellant has not adduced cogent evidence in rebuttal of evidence adduced by the respondent No.1 herein. We, thus, find no reason to disbelieve the evidence adduced by the respondent No.1. Thus, the copy of agreement dtd. 08.06.1992 produced by respondent No.1, can be said to be genuine document and it bears signature of the appellant.
13. We also find that the complaint is not barred by limitation, since it is filed within a period of two years from the date of rejection of the application of respondent No.1 on 08.08.2006 by the respondent No.3 which was made by respondent No.1 for regularization of his Plot No.1.
14. We also find that the aforesaid decisions relied upon by the learned advocate of the appellant are not applicable to the present case since the facts & circumstances of the present case are different form those of said cases. Thus, we hold that the Forum below has properly considered the evidence brought on record and reached to correct conclusion and finding. There is no merit in the appeal.
Hence, the order.
ORDER i.
The appeal is dismissed.
ii.
No order as to cost in appeal.
iii.
Copy of this order be supplied to the parties free of cost.
[ B. A. SHEIKH] PRESIDING MEMBER [ SMT.JAYSHREE YENGAL] MEMBER sj