State Consumer Disputes Redressal Commission
. Hariprasad Bisandayal Potddar & 3 vs Sardar Satpalsingh Dharamsingh & 2 on 2 September, 2013
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/07/611
(Arisen out
of Order Dated 12/05/2007 in Case
No.CC/06/310 of District Consumer
Forum, Nagpur.)
1. Hariprasad Bisandayal Potddar,
2. Mahendrakumar Bisandayal Potddar
(Since
dead)
3. Shri Krishna Properties
Through
its Partner-
Mahendrakumar
B. Potddar
Regd.
Office Shantiniketan
136,
Canal Road, Ramdaspeth,
Nagpur.
4.
Smt. Paturkar,
C/o.
Anil Vinayakrao Paturkar,
Land
Owner, Modi No.3, Sitabuldi,
Nagpur.
All
R/o. Bunglow No. 01,
Plot
No. 159, Shubhankar Aptt.,
Hiltop,
Ramnagar, Nagpur. .... ...Appellant(s)
Versus
1. Sardar SAtpalsingh Dharamsingh
2. Sardar Gurmukh Singh S/o.
Dharamsingh
,
3. Sardar dharamsingh S/o. Bishan
Singh
Marhas,
All
r/o. Kh. No.36/5, Nari,
Sugar
Nagar Extn. Post-Uppalwadi,
Nari,
Nagpur.. .... ...Respondent(s)
BEFORE:
HON'ABLE MR. B.A. Shaikh, Judicial PRESIDING MEMBER
HON'BLE SMT.JAYSHREE YENGAL MEMBER
HON'BLE MR.N. ARUMUGAM MEMBER
ORDER
(Delivered on 02/09/2013) Per Smt. Jayshree Yengal, Hon'ble Member.
1. The challenge in this appeal is the order dated 12/05/2007 passed by the District Consumer Forum, Nagpur partly allowing the consumer complaint bearing No.310/2006 and thereby directing the opponents/appellants herein to execute the sale deed according to terms and conditions mentioned in the agreement to sale dated 30/06/1997 in respect of the shop block purchased by the complainants. Further directing the opponents/appellants to refund the excess amount of Rs.75,000/- received by them from the complainants with 9% interest thereon and further imposing Rs.1500/- as compensation for mental and physical harassment and Rs.5000/- more towards cost of proceeding.
2. The appellants to refer as opponents and respondents to referred as complainants for the sake of brevity.
3. Brief facts giving rise to this appeal are the complainants had booked a shop block bearing No. M-2 in the complex built by the opponents. The opponents are the builders are doing the business of the construction in the name and style as M/s. Shri Krushna Properties The complainants paid Rs.2,00,000/- on 10/06/1997 to the opponents towards the booking of the said shop block. Both the parties executed an agreement to sell on 30/06/1997 in which the shop block was valued at Rs.1,25,000/- and the mode of payment mentioned therein was Rs.1,00,000/- to be paid by the complainants to the opponents on or before 28/06/1997 at the time of execution of this agreement, Rs.10,000/- to be paid by the purchasers/complainants on or before 28/07/1997, Rs.10,000/- to be paid by the complainants on or before 28/08/1997 and the remaining amount of Rs.5,000/- to be paid by the purchaser/ complainants on or before taking over the actual possession of the shop block. The complainants repeatedly reminded the opponents to execute the sale deed and also to refund the excess amount of Rs. 75,000/- recovered by the opponents. The opponents however failed to comply both the demands therefore alleging deficiency in service the complainants filed a consumer complaint seeking redressal as aforesaid.
4. The opponents resisted the complaint by filing its written version and lodged its preliminary objection that the dispute is not a consumer dispute since the shop block purchased is for commercial purpose therefore, the complainant do not fall in the definition of a Consumer U/s 2(1)(d)(ii) of the Consumer Protection Act and therefore the consumer complaint deserves to be dismissed. The opponents have further denied the receipt of Rs.2,00,000/- dated 10/06/1997 and also the agreement to sell dated 30/07/1997. The opponents have further submitted that they have received an amount Rs.1,00,000/- only and Rs. 25,000/- is still outstanding against the complainants/ purchaser towards the total consideration of the shop block. Therefore, the demand of the complainants to refund the amount of Rs.75,000/- alleged to be received in excess is illegal. Therefore, the consumer complaint deserves to be dismissed. The opponents have further submitted that the dispute in issue being of civil in nature would require detailed evidence and the dispute cannot be decided in summary proceeding. Therefore, the complaint deserves to be dismissed on that count also.
5. The Forum after hearing both the sides and considering the documents filed on record by both the parties partly allowed the complaint with directions as aforesaid.
6. Feeling aggrieved by the aforesaid order the opponents have filed this appeal on the ground that forum should have dismissed the complaint being time barred and has not considered the documents filed on record in its correct perspective.
7. We heard Counsel for both the sides and perused the copy of the complaint, written version, agreement to sale dated 30/07/1997,copy of the receipt dated 10/06/1997and other documents on record.
8. The receipt dated 10/06/1997 reflects that Rs.2,00,000/- is received in cash from the complainants Nos. 2&3 towards booking of shop No.2 on mezzanine floor in Shri Krushna Market. The said receipt is duly signed on behalf of Shri Krushna Properties and the purchaser/complainants and the land owner. Therefore, it is inferred that the appellants have received an amount of Rs.2,00,000/- towards the disputed shop block and in absence of any other cogent evidence on record mere denial of the appellants in respect of the receipt of the said amount cannot be sustained in law.
9. We also perused the agreement to sale dated 30/07/1997 in detail and find that the shop block is valued at Rs.1,25,000/- and there is also a column mentioning the 'Manner of Payment' being Rs.1,00,000/- be paid by the purchaser on 28/06/1997, 10,000/- to be paid by the purchaser on or before 28/07/1997, Rs.10,000/- to be paid by the purchaser on or before 28/08/1997 and Rs.5,000/- to be paid by the purchaser on or before taking the actual possession of the shop block. Thus the transaction in respect of the shop block is of Rs.1,25,000/-. The appellants have tried to controvert that the agreement to sale is dated 30/07/1997 and the alleged payment of Rs.2,00,000/- is received by the opponents on 10/06/1997 and in the event of the agreement being signed by both the parties and the said agreement not making any mentioned of the said payment of Rs.2,00,000/- itself shows that the said payment is neither paid by the purchaser nor received by the opponents. It is difficult to accept the contention of the opponents because there is a letter dated 30/06/1997 written by the opponents to the complainants seeking correction in the agreement to sell to the effect that the total consideration of Rs.1,25,000/- is already received by the purchaser and the term and conditions at Sr. No. 2 of the said agreement reflecting the manner of payment requires to be deleted. Therefore on this count also and in view of the receipt dated 10/06/1997 it is inferred that the appellants have received the amount of Rs.2,00,000/- and the cost of the shop block as per the agreement is Rs. 1,25,000/- therefore, it clearly indicates that the opponents have received an amount of Rs. 75,000/- in excess towards the cost of the shop block.
10. We also perused the authorities filed on record by the appellants in support of the preliminary objection raised by the opponents that this transaction being for commercial purpose the complainants cannot be a consumer as defined under Sec. 2(1)(d)(ii) of the Consumer Protection Act. These authorities are as under:-
i.
Chilukuri Adarsh Vs. Ess Ess Vee Constructions, III (2012) CPJ 315 (NC) ii Shikha Bira Vs. DLF retailer, I (2013) CPJ 665 NC.
iii.
RICA & Co. Vs. DLF, IV (2012) CPJ 597 (NC).
iv.
Satish Vs. Srushti Sangam, III ( 2012) CPJ 264 (NC).
v.
Oriental Insurance Company Ltd. Vs. Munimahesh Patel, 2006 CTJ 1073 (Supreme Court) (CP) vi.
Bhandari Construction Co. Vs. Narayan Gopal Upadhye, 2007 (3) Mh. L.J. 837 (Supreme Court) vii.
Sahara India Commercial Corporation Ltd. and another Vs. C Madhu Babu , 2011 CTJ 365 (CP) (NCDRC).
viii.
Ludhiana Improvement Trust, Ludhiana and another Vs. Shakti Cooperative House Building Society Ltd, 2009 CTJ 594 (Supreme Court) (CP).
11. We find that the ratio laid down in these authorities is not applicable to the facts of the present case. In the case in hand the complainants had purchased the shop block to do their business to support the other aged family members.
12. It is not the case that the shop block was purchased for resale etc. Therefore, the facts of this case do not for within the exception of commercial purpose.
13. As regards the challenge in respect of the complaint being time barred, we perused the application dated 05/09/2006 filed by the complainants seeking condonation of delay in filing the complaint. We also perused the contents of the said application and find that the consumer complaint bearing No. 310/2006 was filed on 05/09/2006 in pursuance of the order dated 01/06/2006 passed by the Forum directing the complainants to file the consumer complaint afresh by adding the two sons of the complainant in the array of complainants and that the Forum would condone the delay so caused. The complainants have also sought the condonation on medical grounds.
14. The Forum has observed that although the application seeking condonation of delay does not mention the actual period of delay but the ground mentioned therein seeking condonation being is ill health of the complainants and the supporting medical certificates and affidavit being filed on record by the complainants, the Forum has condoned the delay in the interest of justice.
15. The Forum has rightly considered the application and has condoned the delay to meet the ends of justice. We find no glaring illegality or infirmity in the said finding.
16. Therefore, for the foregoing reasons we are of the opinion that the Forum has rightly allowed the complaint with directions as aforesaid.
17. Therefore, we find that the appeal is devoid of any merits and wants no interference and deserves to be dismissed.
In the result we pass the following order.
ORDER
1. Appeal is dismissed.
2. Order dated 12/05/2007 passed by the District Consumer Forum, Nagpur in consumer complaint No. 310/2006 is upheld.
3. In the peculiar facts and circumstances parties to bear their own cost.
Dated:-
02/09/2013 [HON'ABLE MR.
B.A. Shaikh, Judicial] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER ay