State Consumer Disputes Redressal Commission
Shri. Gajanan Shamgiri Gosavi vs Sou. Jyoti Jagannath Shirsat & Ors. on 21 October, 2011
A-339/2003
BEFORE THE HON'BLE STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/05/764
(Arisen out of Order Dated 16/03/2005
in Case No. 12/2003 of District Nashik)
1. Shri. Gajanan Shamgiri Gosavi
R/at 6, Sagar Row Houses,
Near Filteration Plant, CIDCO, Nashik
...........Appellant(s)
Versus
1. Sou. Jyoti Jagannath Shirsat
R/at Flat No. , Madhukar
Apartment, Mumbai Naka, Nashik
2. Shri. Dinesh Sonu Nahire
R/at N 52/S F 2/29/2, Uttamnagar,
Ekta Chowk, CIDCO, Nashik - 9.
3. Shri. Ramesh Madhavrao Kale
R/at 4, Vyankatesh Darshan, Jail
Road, Shivajinagar,
Nashik
Road.
4. Shri. Laxman Narayan Bagul
R/at 6, Sagar Row House,
Near Filteration Plant, CIDCO, Nashik.
5. Shri. Ananda Narayan Bagul
R/at 6, Sagar Row House,
Near Filteration Plant, CIDCO, Nashik.
6. Shri. Shashikant Babulal Shah
R/at 6, Sagar Row House,
Near Filteration Plant, CIDCO, Nashik.
7. Shri. Parasmal Mohanlal Fulfagar
R/at 6, Sagar Row House,
Near Filteration Plant, CIDCO, Nashik.
...........Respondent(s)
First Appeal No. A/05/765
(Arisen out of Order Dated 16/03/2005
in Case No. 13/2003 of District Nashik)
1. Shri. Gajanan Shamgiri Gosavi
R/at 6, Sagar Row Houses,
Near Filteration Plant, CIDCO, Nashik
...........Appellant(s)
Versus
1. Sou. Jyoti Arun Jadhav
R/at Mangalmurti Nagar, Arunodaya
Bungalow, Canal Road, Jail Road, Nashik Road,
Nashik
2. Shri. Dinesh Sonu Nahire
R/at N 52/S F 2/29/2, Uttamnagar,
Ekta Chowk, CIDCO, Nashik - 9.
3. Shri. Ramesh Madhavrao Kale
R/at 4, Vyankatesh Darshan, Jail Road, Shivaji
Nagar, Nashik Road,
4. Shri. Laxman Narayan Bagul
R/at 6, Sagar Row Houses,
Near Filteration Plant, CIDCO, Nashik
5. Shri. Ananda Narayan Bagul
R/at 6, Sagar Row Houses,
Near Filteration Plant, CIDCO, Nashik
6. Shri. Shashikant Babulal Shah
R/at 6, Sagar Row Houses,
Near Filteration Plant, CIDCO, Nashik
7. Shri. Parasmal Mohanlal Fulfagar
R/at 6, Sagar Row Houses,
Near Filteration Plant, CIDCO, Nashik
...........Respondent(s)
...........Respondent(s)
BEFORE:
Hon'ble Mr.
P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mr. Dhanraj Khamatkar Member
PRESENT:
Both parties are
absent.
ORDER
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member Both these appeals are filed by org. opponent No.1 arising out of judgement and award dated 16/03/2005 passed by District Consumer Disputes Redressal Forum, Nashik in consumer complaint No.12/2003 and 13/2003, whereby the District Consumer Disputes Redressal Forum allowed the complaints of two complainants and directed the appellant and other opponents to refund amount of `60,000/- to complainant-Sou.Jyoti Jagannath Shirsat complainant in complaint No.12/2003 with interest @ 12% p.a. and also directed to pay `1,000/- for mental harassment and `500/-
towards costs and also directed the appellant as well as other opponents to pay to complainant-Sou.Jyoti Arun Jadhav complainant in complaint No.13/2003 an amount `77,000/- with interest @ 12% p.a. and also directed to pay `1,000/- for mental harassment and `500/-
towards costs by common judgement and award passed on 16/03/2005. Org. opponent No.1 has filed these two appeals challenging the judgement and award passed by the District Consumer Disputes Redressal Forum.
2. These two appeals have been filed in 2005 and after filing of these appeals, not even first order was sought from this Commission. Both these appeals were lying unattended in the office of this Commission. As per policy of this Commission, these appeals were placed before us for disposal on 24/08/2011. On that day on the Internet Board of this Commission and also on the Notice Board of this Commission, the appeals were listed for hearing, but since both parties did not turn up, we directed issuance of notices to both the parties by registered post acknowledgement due through this Commission and adjourned the matters to 21/10/2011 i.e. today. Today both the parties are absent despite the fact that office had issued notices on 01/10/2011 to both the parties by ordinary post. We can presume that the notices were received by both the parties in the normal course of official procedure. Hence, we propose to dispose of these appeals after perusing the appeal memos and other documents placed on record by the parties.
3. It appears that the complainant-Sou. Jyoti Arun Jadhav in consumer complaint No.13/2003 had agreed to purchase from Akash Land Developers a plot and paid total amount of `48,480/- from time to time and opponents had issued receipts for the same.
Payment was made from 05/10/1998 to 05/12/1999. Total amount paid for which receipts were passed by the opponents was `48,480/-. Thereafter also the complainant-Sou. Jyoti Arun Jadhav had further paid `17,719/- in cash, but the receipt was not passed. Opponents had agreed to execute Sale Deed of plot of 154 sq.yard. She further paid an amount to the opponents. Totally she paid amount of `77,000/- to the opponents. However, opponents had not executed the Sale Deed despite grabbing the amount of `77,000/-. Ultimately, on the basis of receipts and agreement of sale executed by Akash Land Developers Sou. Jyoti Arund Jadhav filed consumer complaint for claiming execution of Sale Deed of said plot or alternatively for refund of `77,000/-
with interest @ 18% p.a. She also prays for compensation of `25,000/-
for mental harassment from the opponents.
4. In other complaint Sou.Jyoti Jagannath Shirsat in the like manner had booked a plot by paying amount of `44,281/- for which receipts were issued by the opponents. She also paid amount of `15,719/- in cash for which receipt was not issued by the opponents.
She then claimed amount of `60,000/-
from the opponents since the opponents failed to execute Sale Deed in terms of agreement of sale executed by the opponents in favour of Sou.Jyoti Jagannath Shirsat. Both these complaints were tagged together.
Notices were issued to both the parties.
5. Opponent No.1/appellant herein appeared and contested the matter.
He pleaded that he was not concerned with Akash Land Developers, who had not developed the Suman Nagar at Nashik. He was simply a Manager of opponent Nos.2&3 and as such Manager he had issued receipts and executed agreement of sale in favour of the parties but he had not taken any money. He was simply employee and since he had not been paid salary, he had even filed criminal case of cheating in the Court of Magistrate. He therefore pleaded that both complaints should be dismissed with compensatory costs of `5,000/-. Opponent Nos.2, 4 to 7 refused to accept the notice sent by District Consumer Disputes Redressal Forum. So, they were proceeded ex-parte. Opponent No.3 was not served at all. No steps were taken by the complainants to serve opponent No.3 and therefore, District Consumer Disputes Redressal Forum was pleased to dismiss the complaints against opponent No.3 for non-service against opponent No.3.
6. Upon considering the documents and affidavits placed on record, District Consumer Disputes Redressal Forum held that in complaint No.12/2003 Sou. Jyoti Jagannath Shirsat had paid total amount of `60,000/- and after accepting that amount, agreement of sale was executed in her favour by the opponents, but despite agreement of sale, she was not given possession of the plot or Sale Deed of the agreed plot was not executed by all the opponents. In complaint No.13/2003 complainant-Sou.Jyoti Arun Jadhav had paid total amount of `77,000/- to the opponents. Opponents had executed agreement of sale, but they had not taken steps to give possession of the plot nor they had executed Sale Deed of the agreed plot and therefore, District Consumer Disputes Redressal Forum relying on the receipts of payment and also relying on the agreement of sale executed by the opponents in favour of the complainants and also relying on the affidavits placed before it by both the complainants allowed both the complaints partly and directed the opponents jointly and severally to give possession of the plots agreed to be sold to both the complainants or alternatively refund amount of `60,000/- to complainant Sou.Jyoti Jagannath Shirsat and `77,000/- to Sou.Jyoti Arun Jadhav with interest @ 12% p.a. and also directed to pay each of the complainants `1,000/-
for mental harassment and `500/-
towards costs. Aggrieved by this order, only opponent No.1 had filed these two appeals.
7. We are finding that the order passed by District Consumer Disputes Redressal Forum is just and proper and it is sustainable in law. The appellant along with other opponents had executed agreement of sale in favour of respondent No.1/complainants in both the appeals. They had paid consideration amount. One complainant had paid `60,000/- and other complainant had paid `77,000/- and despite agreement of sale executed in favour of both the complainants all the opponents including appellant failed to give possession of the plot agreed to be sold to both these complainants nor they had executed sale deed in favour of the complainants. So, both complainants were left in lurch. They lost their valuable money, but got nothing in return.
It is a clear-cut case of deficiency in service on the part of builders. It is tried to be contended by the appellant in the appeal memo that he was simply an employee of the Akash Land Developers and opponent Nos.2&3 were partners of said firm. However, we perused the agreement of sale executed in favour of Sou.Jyoti Jagannath Shirsat and Sou.Jyoti Arun Jadhav by Akash Land Developers. It will be clear that Mr.Gajanan Shamgiri Gosavi-appellant had executed agreement of sale on behalf of Akash Land Developers and he styled himself as Director of said Akash Land Developers. When this is so, he cannot be heard to say that he was simply a Manager of Akash Land Developers and partners were opponent Nos.2&3 in the original complaints. We are finding that he was very much involved in the transaction.
In fact he had executed agreement of sale in favour of both the complainants/respondent No.1 in both appeals and after taking substantial amount from both the complainants he had failed to execute Sale Deed and to give possession of the plot agreed to sold to the complainants and therefore, this was a clear-cut case of deficiency in service not only on the part of opponent Nos.2to7, but also on the part of appellant-Mr.Gajanan Shamgiri Gosavi. In the circumstances, we are finding that both these appeals filed by appellant-Mr.Gajanan Shamgiri Gosavi are devoid of any substance. The order passed by the District Consumer Disputes Redressal Forum is appearing to be just and proper and as such, we pass the following order :-
-: ORDER :-
1. Appeals Nos.764/2005 & 765/2005 are dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 21st October 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mr. Dhanraj Khamatkar] Member dd