National Consumer Disputes Redressal
Chaitanya D. Jaole vs M/S. Keystone Realtors Pvt. Ltd. & 3 Ors. on 19 April, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 368 OF 2019 (Against the Order dated 14/01/2019 in Complaint No. 971/2016 of the State Commission Maharashtra) 1. CHAITANYA D. JAOLE ORIANA, A-WINGH, FLAT NO 901, MODEL MIG CHS LTD BANDRA EAST MUMBAI 40 051 ...........Appellant(s) Versus 1. M/S. KEYSTONE REALTORS PVT. LTD. & 3 ORS. OFFICE AT 702, NATRAJ MV ROAD JUNCTION , WESTERN EXPRESS HIGHWAY, ANDHERI EAST MUMBAI 400 069 2. MODEL MIG CO-OP. HOUSING SOCIETY LTD D-33/301, GANDHI NAGAR MIG COLONY BANDRA EAST MUMBAI 400 051 3. MR. NIMISH SHAH HON. CHAIRMAN OF MANAGING COMMITTEE, MODEL MIG -CO-OP HOUSING SOCIETY LTD, R/AT 42, VISHWAK, ARTEK APARTMENT BANDRA EAST MUMBAI 400 051 4. DR. MUKESH GOKHALE HON SECRETARY OF MANAGING COMMITTEE, MODEL MIG CO-OP. HOUSING SOCIETY LTD, R/AT FLAT NO 1502, A-WING, ORIANA, MIG COLONY, BANDRA EAST MUMBAI 400 051 ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,MEMBER For the Appellant : For the Appellant : Mr. Nishant Panicker, Advocate For the Respondent : For the Respondent No. 1 : Mr. S. B. Prabhavalkar, Advocate For the Respondents No.2 to 4 : NEMO Dated : 19 April 2023 ORDER
1. This appeal under section 19 of The Consumer Protection Act, 1986 is in challenge to the Order dated 14.01.2019 of the State Commission in complaint no. 971 of 2016.
2. We have heard the learned counsel for the appellant (the original complainant's son) and for the respondent no. 1 (the builder co.). No one appears for the respondents no. 2 to no. 4 (the society and its office bearers). We have perused the record including inter alia the State Commission's impugned Order dated 14.01.2019 and the memorandum of appeal.
3. Briefly, as evinces from the appraisal made by the State Commission and the material on record, the original complainant Devendra Jaole had filed a complaint against the builder co. and three others before the State Commission alleging deficiency in service and unfair trade practice. He executed a gift deed on 14.03.2017 in favour of his son Chaitanya D. Jaole who moved an application on 08.01.2018 seeking substitution in place of his father on the basis of the gift deed. The original complainant expired on 09.01.2018. The application dated 08.01.2018 for substitution on the basis of the gift deed was not considered. On 14.01.2019 the State Commission dismissed the complaint as having abated on ground that application for substitution of legal representatives was not moved after the death of the original complainant on 09.01.2018.
4. The crux of the appraisal made by the State Commission as contained in paras 9 and 10 of its impugned Order is being reproduced below for reference:
[9] However, it is material to note that the same gift deed was executed on 14/03/2017. This application was moved on 08/01/2018. However, father of applicant died on 09/01/2018 as submitted by the learned advocate Mr. Rajesh Kanojia for the applicant and the learned advocate Mr. S. B. Prabhawalkar for the respondent. Learned advocate Mr. Prabhawalkar has given a specific application that since original complainant died on 09/01/2018, consumer complaint stands abated as LRs are not brought on record. Here in the present case, this applicant is LR being son of the original complainant. However, application for bringing LRs was not moved by the son, but he continued with application which was filed one day before death of father for substitution. The fact remains that the application is yet not allowed and the original complainant died on 09/01/2018. As LRs are not brought on record and even application was not moved, the consumer complaint stands abated. In view of these facts, entertaining this application amounting to entertain the application in the consumer complaint which is already abated. It was necessary for the applicant who is son of the original complainant to move an application for bringing LRs of the original complainant to move an application for bringing LRs of the original complainant on record within time or with the application for condonation of delay. However, that was not done and hence with these circumstances, this application cannot be entertained. Hence, it is rejected.
[10] Consumer complaint is disposed off as abated.
5. Learned counsel for the complainant's son submits that the complainant i.e. his father had made a gift deed in his favour in respect of the subject flat on 14.03.2017. Based thereon he had moved an application on 08.01.2018 for substitution in place of his father. His application ought to have been duly considered and decided. Without considering his application the State Commission abated the complaint on ground that application for substitution of legal representatives was not filed after the demise of the complainant on 09.01.2018. Submission is that the application for substitution on the basis of the gift deed ought to have been duly considered and decided and he ought to have been substituted in the normal wont and that there was no need for any subsequent or other application for substitution of legal heirs.
Learned counsel also submits that the State Commission has erred in deeming an application for substitution of legal heir to be necessary in accordance with the procedure contained in Order XXII Rule 3 of the CPC, which is not applicable in his case. The said Order is being reproduced below for reference:
3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.-(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
Learned counsel further submits that his application on 08.01.2018 ought to have been allowed in accordance with the procedure contained in Order XXII Rule 10 of the CPC, which is applicable in his case. The said Order is also being reproduced below for reference:
10. Procedure in case of assignment before final order in suit.-(1) In other cases of an assignment, creation, or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefore shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).
6. Learned counsel for the builder co. draws attention to the definition of 'complainant' as contained in Section 2(1)(b) of the Act 1986. The said definition is being reproduced below for reference:
(b) "complainant" means-
(i) a consumer; or
(ii) Any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) The Central Government or any State Government; or [(iv) One or more consumers, where there are numerous consumers having the same interest'] [(v) in case of death of a consumer, his legal heirs or representative; who or which makes a complaint;
Learned counsel submits that in accordance with sub-clause (v) in case of death of a 'consumer' his legal heir or representative can be a 'complainant'. Submission is that as such an application for substitution of the legal heirs or representatives of the original complainant ought to have been filed after his demise, in default whereof the State Commission has rightly dismissed the complaint as having abated.
Learned counsel also submits that the service of housing construction was availed by the complainant and not by his son and as such the deficiency in service or unfair trade practice as alleged in the complaint was only apropos the complainant and not his son and therefore his son has no cause to agitate.
Learned counsel further submits that the complainant's son perhaps wanted to oust the other legal heirs to his sole benefit. But he fairly admits that there is nothing on record to question the gift deed or to show any malafide on the part of the complainant's son herein Chaitanya D. Jaole who moved the application dated 08.01.2018.
7. We may first observe that it was required of the State Commission to duly consider and decide the application for substitution on the basis of the gift deed which was moved by the complainant's son on 08.01.2018 rather than to leave it unaddressed or to ignore it altogether. The right to get the application considered accrued to the complainant's son on 08.01.2018 itself when he moved the application.
The legislature in its wisdom has given the right to a legal heir or representative to make a complaint even after the death of a consumer. The right to step into the shoes of the complainant prior thereto during his lifetime can in no manner be said to be inferior. The cause devolved on the complainant's son after he became the owner of the subject flat on the basis of the gift deed bestowed on him by his father i.e. the original complainant during his lifetime.
A son is a class I heir. As such the only precaution which ought to have been prudently taken by the State Commission was to satisfy itself that the gift deed in question was not being challenged by any other class I heir. This could have been done by seeking affirmation on affidavit or publication inviting objections etc. in the normal wont. However the application for substitution on the basis of the gift deed could not have been altogether ignored or disregarded. And if the application was allowed there would then have been no need for any subsequent or other application for substitution of legal heirs or representatives after the demise of the original complainant since his son would already have been the sole owner of the subject flat on the basis of the gift deed bestowed to him by his father during his lifetime.
We agree with the learned counsel for the complainant that the matter ought to have been considered in accordance with the principle contained in Order XXII Rule 10 which requires that in cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may be continued by the person to whom such interest has come or devolved.
We are also constrained to note that the grievances apropos the subject flat have been rendered infructuous and meaningless by abating the complaint. In one contingency the application to step into the shoes of his father i.e. the original complainant on the basis of a gift deed made during his lifetime was ignored and kept undecided and in the other contingency reasonable opportunity to get the legal heirs substituted after the demise of the original complainant was not provided. The State Commission erred in making the complaint infructuous.
8. In the light of the above, we set aside the impugned Order dated 14.01.2019 of the State Commission and remand the case back to the State Commission with the observations that under the scheme of the Act 1986 the right to continue the complaint comes and devolves on the person to whom the subject flat was duly gifted by the original complainant during his lifetime and also that the application dated 08.01.2018 seeking substitution on the basis of the gift deed ought to have been duly considered and decided by the forum in the normal course and not relegated to ignored inconsequence. The State Commission shall satisfy itself by way of affidavit or publication etc. as it may deem fit that there is no challenge to the gift deed from other class I heirs and there is no undue attempt on the part of the complainant's son herein i.e. Chaitanya D. Jaole to oust other class I heirs to his sole benefit. If the application dated 08.01.2018 is decided in favour of the complainant's son herein Chaitanya D. Jaole it may then proceed with the complaint on merit as per the law. If the said application is not decided in favour of the complainant's son Chaitanya D. Jaole the State Commission shall provide opportunity to the class I heirs of the original complainant including his son Chaitanya D. Jaole to get themselves jointly substituted in place of the original complainant and to then proceed with the complaint on merit as per the law. We may clarify that ordinarily in the normal course either the complainant's son herein Chaitanya D. Jaole shall be substituted on the basis of the gift deed by allowing his application dated 08.01.2018 or all class I legal heirs of the original complainant including his son Chaitanya D. Jaole shall be substituted on the basis of an application for substitution of legal heirs for which reasonable opportunity shall be now provided by the State Commission. But in no contingency shall the cause abate or the grievances apropos the subject flat be rendered infructuous.
The parties shall appear before the State Commission on 08.06.2023.
9. The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel immediately. It is also requested to forthwith send a copy of this Order to the State Commission by the fastest mode available. The stenographer is requested to upload this Order on the website of this Commission immediately.
...................... DINESH SINGH PRESIDING MEMBER ......................J KARUNA NAND BAJPAYEE MEMBER