State Consumer Disputes Redressal Commission
Suyogit Infrastructure Ltd vs Dr. Indra Rupchandji Ostwal on 30 June, 2017
1
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No. A/15/1114
(Arisen out of order dated 29/07/2015 passed in Complaint No.164/2013
by District Forum, Nashik)
[1] Suyojit Infrastructure Ltd.,
Add. F-12, First Floor, Suyojit Heights,
Opp.Rajiv Gandhi Bhavan, Sharanpur Road,
Nashik, through Director : Sou.Vaishali Ail
Jain through GPA Mr.Anil Bhavarlal Jain
Both r/o. Sneh, 11, Murkute Colony, New
Pandit Colony, Nashik.
[2] Suyojit Infrastructure Ltd.,
R/o. Sneh, 11, Murkute Colony, New Pandit
Colony, Nashik.
[3] Suyojit Infrastructure Ltd.,
Through Executive Director,
Add. F-12, First Floor, Suyojit Heights,
Opp.Rajiv Gandhi Bhavan, Sharanpur Road,
Nashik. ...........Appellant(s)
Versus
[1] Dr.Indra Rupchandji Ostwal,
[2] Sau. Anita Indra Ostwal,
Both r/o. Ostwal Hospital, Doctor Colony, Near
Bus Stand, Parbhani 431 401. ............Respondent (s)
BEFORE:
P.B. Joshi - Presiding Judicial Member
D.R.Shirasao, Jucidial Member
ORDER
Per Mr.D.R.Shirasao, Judicial Member [1] Being aggrieved by order passed by the District Consumer Disputes Redressal Forum, Nashik in consumer complaint no.164/2013 on 29/07/2015 directing the opponents to execute sale 2 deed of plots in favour of the complainants or to give other plots of the same area to the complainants and also to pay costs and compensation to the complainant, opponents have preferred this appeal.
[2] Brief facts of this appeal are as under:-
Respondents/complainants filed consumer complaint against the opponents for getting possession of plots and for execution of sale deed in respect of those plots from opponents along with compensation and cost of litigation. They submitted that they were in need of plot for construction of house. Hence, they approached opponents for purchase of plot. Opponents agreed to sell plot no.61 and 62 from agricultural land bearing survey no.57 of Chandashi village, Tal. And Dist.Nashik to the complainants after getting the land converted for non-agricultural purpose and after getting lay-out sanctioned from the concerned authority. Complainants submitted that opponents agreed to sell plot no.61 admeasuring 276 sq.mtr. and plot no.62 admeasuring 276 sq.mtr.to the complainants for total consideration of Rs.8,25,000/-. They submitted that they had paid amount of Rs.2 lakhs to the opponents by cheque on 16/07/2003 and further made payment of Rs.5 lakh to the opponents. They submitted that it was agreed that rest of the amount of Rs.1,25,000/- was to be paid at the time of execution of sale deed. They submitted that opponents had agreed to get the land converted for non-agricultural purpose and to get the lay-out sanction from the concerned authority. They submitted that opponents had executed Memorandum of Understanding in respect of those plots in favour of the complainants on 16/03/2009. They submitted that as the opponents failed to give possession of plots to them, they had given letters in that respect to the opponents on 06/10/2009 and 14/01/2010. Thereafter, they had given notice to the opponents through their advocate on 12/03/2012. They submitted that 3 irrespective of that, opponents failed to give possession of the plots and failed to execute registered sale deed of those plots in favour of the complainants and hence the complainants filed this consumer complaint against the opponents.
[3] Opponents contested consumer complaint by filing written version on record. They submitted that although Memorandum of Understanding in respect of plots was executed in the year 2009, complainants filed consumer complaint in the year 2013. Hence, they submitted that complaint filed by the complainants is not within limitation. They submitted that the agreement executed by the opponents in favour of the complainants was in respect of sale of agricultural land. Hence, that transaction will not be covered under the provisions of the Consumer Protection Act, 1986. Hence, they submitted that the complaint of the complainants is not tenable before the Forum. They submitted that in respect of agricultural land, a civil suit is already pending in the court and the court has granted injunction against the opponents so that they should not develop the land or sell the same. Hence, they submitted that there is no deficiency in service given by the opponents to the complainants. Hence, they submitted that the consumer complaint filed by the complainants is to be dismissed.
[4] Considering rival contentions of the parties and evidence adduced by them on record and documents filed on record, the learned District Forum had allowed the consumer complaint filed by the complainants and directed the opponents to execute the registered sale deed in respect of both the plots in favour of the complainants by accepting balance amount of consideration from them. Learned District Forum had also directed the opponents that if it is not possible, then they should give possession of other plots of similar area to the complainants by executing sale deed in respect of the 4 same. Leanred District Forum had also directed to the opponents to give costs and compensation. Being aggrieved by the same, the opponents have preferred this appeal.
[5] Heard learned advocate appearing for the appellants. He has mainly taken objection on the ground that the transaction is in respect of agricultural land and complaint in respect of the same is not tenable before the Consumer Forum. He also submitted that in respect of sale of plots, agreement was executed in the year 2009. However, complaint is field in the year 2013 and the same is not within limitation. He also submitted that in respect of that agricultural land, civil suit is already pending in the Civil Court and Civil Court has issued injunction against the opponents so that they should not develop that land and sell the same. Hence, he submitted that the complaint filed by the complainants in respect of those plots is not tenable. He submitted that the learned District Forum has not considered all these facts and allowed the consumer complaint. Hence, he submitted that appeal be allowed and order passed by the District Forum be set aside and quashed.
[6] Learned advocate for the appellants relied on following rulings:-
(i) III (2014) CPJ 3 (NC) - Arvind Pundlik Dhamne vs. Raghuvir Wamanrao Joshi. In this case, cause of action had arisen in the year 1985 and complaints were filed after 17-18 years without any application for condonation of delay.
The Hon'ble National Commission observed that both the complaints were barred by limitation.
(ii) 2015 NCJ 346 (NC) - Employees Provident Fund Organization vs. Shri Ganesh Rao - In this case, the Honble National Commission considered that the prayer which is 5 not made by the complainant in the complaint cannot be entertained as the same is without jurisdiction.
[7] Heard complainants in person. They submitted that although at the time of execution of agreement, land was agricultural land, the opponent had promised to get it converted into non-agricultural land and to get lay-out of the land sanctioned from the concerned authority. They submitted that opponents had specifically agreed to sell two plots to the complainants having specified area. Hence, they submitted that the transaction is not in respect of agricultural land, but it is in respect of plots and hence consumer complaint is tenable before the District Forum. They submitted that as the opponents failed to give possession of the plots, cause of action against the opponents is continuous. Hence, they submitted that the consumer complaint filed by them against the opponents is within limitation. They submitted that if there is civil suit in respect of land, it is in between owner of the land and the opponents. The complainants have no concern about the same. Hence, they submitted that the order passed in that civil suit will not prohibit the complainants from filing consumer complaint in respect of those plots. They submitted that learned District Forum had considered all these facts and allowed the consumer complaint of the complainants. Hence, they submitted that appeal be dismissed and order passed by the District Forum be confirmed.
[8] For that purpose, complainants relied on following rulings:-
(i) 2013 (2) CPR 285 (SC) - Punj Lloyd Limited vs. Corporate Risks India Pvt.Ltd. - In this case, the Hon'ble Apex Court considered that consumer complaint cannot be dismissed only on the ground that disputed question of law and facts are involved in the complaint.6
(ii) 2014 (3) CPR 486 (NC) - M/s.True Zone Buildwell Pvt.Ltd.
vs. Bhoop Singh - In this case, the Hon'ble National Commission has considered that if the builder is agreeing to sell the plot to the complainants and accepting money from the complainant and is not willing to perform his part, complaint filed by the complainant in that respect will be tenable.
(iii) 2012 (4) CPR 220 (NC) - Meerut Development Authority though its Secretary, Meerut (UP) - In this case, Hon'ble National Commission considered that when there is no delivery of possession of the plot, cause of action for filing consumer complaint continues.
(iv) 2012 (4) CPR 230 (NC) - Haryana Urban Development Authority through its Chief Administrator and ors. vs. Tej Refrigeration Industries - In this case, the Hon'ble National Commission considered that when possession of plot is not given and amount taken was also not returned, cause of action for filing consumer complaint continues.
(v) Complainants also relied on Revision Petition No.2391/2013 & ors. Decided on 02/04/2014 in the matter of 1. Rajubhai Tank & ors. Vs. 1. Bindraben Bharatkumar Mavani (Minor) & ors. - It was also the case of purchase of plots after getting it converted from agricultural land to non-agricultural land and after getting lay-out sanctioned. In this case also, the Hon'ble National Commission considered that when possession is not given, cause of action continues.
7(vi) Order dated 22/04/2014 passed by the Hon'ble National Commission in Revision Petition No.237/2013 in the matter of - M/s.Country Club (India) Ltd. & ors. Vs. Mr.Nirmal Kumar Pandey - It was the case in respect of purchase of plots in respect of which MOU was executed. Opponents failed to transfer those plots in favour of the complainants. In that respect, order was passed by the District Forum and the same was upheld by the State Commission. Revision petition filed against that order was dismissed by the Hon'ble National Commission.
(vii) Order dated 30/04/2014 by the Hon'ble National Commission in Revision Petition No.2984/2013 in the matter of - 1. DLM Enclave & ors. Vs. Naresh Batham. It was also the case in respect of sale of plot in which opponent failed to give possession of the plot and execute sale deed in favour of the complainant. The Hon'ble National Commission considered that the complaint filed by the complainant is tenable and for non-delivery of possession, cause of action will continue.
[9] Learned advocate appearing for the appellants has mainly taken objection on the ground that the transaction in between the parties is in respect of agricultural land and hence consumer complaint filed by the complainants about the same will not be tenable before the District Forum. On perusal of record, it appears that the opponents had agreed to sell plot no.61 and 62 admeasuring 276 sq.mtr. each. Opponents had executed Memorandum of Understanding in respect of those plots in favour of the complainants on 16/03/2009. Hence, it has become clear that agreement was in respect of sale of plot. It was not in respect of agricultural land. It appears that both the plots were pertaining to the Survey No.57 of Chandashi village, Tal. And 8 Dist.Nashik. However, opponents had agreed to get agricultural land converted into non-agricultural land and to get the lay-out sanctioned from the concerned authority.
[10] Opponents had agreed to sell both the plots for Rs.8,25,000/- to the complainants and had accepted an amount of Rs.7 lakhs from them. It was agreed that balance amount will be given to the opponents by the complainants at the time of execution of sale deed. Hence, it has become clear that the agreement is in respect of sale of plots and not for agricultural land. Hence, consumer complaint in respect of plots is tenable before the District Forum. Different rulings filed by the complainants in that respect also are in support of the consumer complaint.
[11] Learned advocate appearing for the appellants has also taken objection on the ground that the consumer complaint filed by the complainants is not within limitation. He submitted that the MOU was executed on 16/03/2009. Consumer complaint was filed on 07/10//2013 and hence the same is not within limitation. However, in this consumer complaint, complainants have claimed possession of the plots and execution of the sale-deed from the opponents. In view of the rulings relied upon by the complainants, cause of the action for filing the consumer complaint continues. Hence, the contention of the appellants that the consumer complaint filed by the complainants is not within limitation cannot be accepted.
[12] Learned advocate appearing for the appellants has mainly taken objection on the ground that a civil suit is pending before the Civil Court in between the land owner and the opponents and in that suit, an injunction has been granted against the opponents that they should not develop the land or sell the same. Hence, they submitted that there is not deficiency in service given by the opponents to the 9 complainants. On the contrary, because of judicial order passed against the opponents, they are not in a position to develop that land and give possession of the plots to the complainants. Hence, he submitted that under these circumstances, consumer complaint filed by the complainants is not tenable. However, we are not inclined to accept this contention of the appellants because the complainants have not concern about that litigation. Opponents have agreed to give possession of the plots to the complainants and execute the registered sale deed in their favour. Hence, the civil proceedings pending in between the land owner and the opponents will not preclude the complainants from filing complaint in respect of possession of the plots. Hence, we are of the opinion that contention of the appellants that as civil suit in respect of that land is pending before the Civil Court, the complaint filed by the complainants for getting possession of the plots from the opponents is not tenable. We are of the opinion that the learned District Forum after considering all these facts had rightly allowed the consumer complaint filed by the complainants against the opponents.
[13] Learned advocate appearing for the appellants also submitted that the complainants had not made prayer for getting alternate plots and hence order passed about the same by the District Forum is out of jurisdiction. However, contention of the learned advocate appearing for the appellants in this respect cannot be considered. In view of the civil litigation pending in respect of the land, District Forum has given alternate remedy to the complainants. Hence, we are of the opinion that the order passed by the District Forum in that respect cannot be said to be out of jurisdiction.
[14] As the learned District Forum after considering all these facts had allowed the consumer complaint filed by the complainants/respondents herein, we are of the opinion that the 10 appeal filed by the appellants/original opponents against that order is to be dismissed. Hence, we proceed to pass the following order.
ORDER
1) Appeal is dismissed.
2) Order passed by the learned District Forum, Nashik in the consumer complaint no.164/13 on 29/07/2015 is hereby confirmed.
3) No order as to costs.
4) Certified Copies of this order be supplied to both the parties free of cost.
Pronounced on Dated 30th June, 2017.
[P.B. Joshi] Presiding Judicial Member [D.R.Shirasao] Judicial Member pg