State Consumer Disputes Redressal Commission
Deonath S/O Kawaduji Ghodpage vs Vasant S/O.Shamrao Magre on 22 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/06/1381 (Arisen out of Order Dated 20/05/2006 in Case No. CC/97/2005 of District Nagpur) 1. DEONATH S/O KAWADUJI GHODPAGE R/O.125,VASANT VIHAR,RAMDASPETH,NAGPUR NAGPUR ...........Appellant(s) Versus 1. VASANT S/O.SHAMRAO MAGRE R/O.MANGAL MURTI APARTMENTS,BEHIND BHOSTA VED SHALA,MAHAL,NAGPUR NAGPUR 2. M/S RAJ BUILDERS R/O.AMBAZARI LAYOUT,NAGPUR NAGPUR ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MR. S B SAWARKAR MEMBER For the Appellant: Advocate Smt.Shahida Perveen. For the Respondent: Advocate Mr.S.B.Solat. Dated : 22 Jan 2018 Final Order / Judgement PER SHRI B.A.SHAIKH, HON'BLE JUDICIAL MEMBER.
1. This appeal is filed by the original complainant, who is herein after referred to as appellant. Additional District Forum, Nagpur below passed impugned order on 20/05/2006 in consumer complaint No.97/2005, by which the complaint has been partly allowed and following directions have been given.
"The opposite party No.2/respondent No.2 herein shall refund to appellant/original complainant Rs.2,26,000/- with interest @ 12% P.A. and also to pay him compensation of Rs.25,000/- for physical and mental harassment and litigation cost of Rs.1,000/-."
2. The learned advocate of the appellant already filed written notes of argument though none is present today for the appellant for making oral submission. We have therefore considered the written notes of arguments filed in appeal by learned advocate of the appellant. Advocate Mr.S.B.Solat is present for respondent No.1 and he is heard today. The respondent No.2 is already proceeded ex-parte as he failed to appear despite service of notice of appeal.
3. The facts in brief giving rise to present appeal are as under.
The respondent No.1 is the land owner and the respondent No.2 is a Builder. The respondent No.1 had entered in to an agreement for development of his land with respondent No.2. The respondent No.1 also executed power of attorney infavour of the respondent No.2 to develop the land and to sell the apartments to be constructed on that land, to the prospective buyers. However, subsequently the respondent No.1 cancelled the said agreement for development and power of attorney executed infavour of the respondent No.2. Meanwhile the appellant had entered in to an agreement with the respondent No.2 to purchase two flats of the aforesaid apartment and also a separate agreement was entered in to between appellant and respondent No.2 to sell undivided share in that land to the appellant. The appellant paid total amount of Rs.2,26,000/- to the respondent No.2 in installments as a part of consideration of the said flats. However, thereafter it was found by the appellant that the respondent No.2 has not started the construction as per agreement and that therefore he issued notice to both the parties.
4. The appellant got no positive response from them and hence he filed consumer complaint seeking direction to the opposite party Nos.1 and 2 to complete the construction as per the scheme and deliver the possession of the flats to him (appellant) and to execute sale deed of the same in his favour. Moreover he also sought direction to the respondent to pay him damages by way of rent @ Rs.2000/- per month and also to pay him Rs.1000/- as electricity and water charges. The appellant alternatively prayed that direction be given to respondent to refund Rs.2,26,000/- with interest from the date of booking @ 18% P.A. till the realization of the same by him and also to pay him Rs.22,720/- towards stamp duty paid for agreements and Rs.3,00,000/- towards increase in the cost of the flat and also to pay him compensation of Rs.2,00,000/- for physical and mental harassment and Rs.10,000/- towards litigation cost.
5. The said complaint was resisted by the respondent Nos.1 and 2 by filing reply. The respondent No.1 raised preliminary objection that he has not signed the two agreements entered in to between the appellant and respondent No.2 and payment of Rs.2,26,000/- was also not made to him by the appellant and therefore the complaint is not maintainable against him. He also submitted that he already cancelled the agreement of development entered in to between him and respondent No.2 and also cancelled the power of attorney executed by him infavour of the respondent No.2 and that the respondent No.2 has filed a civil suit in civil Court against him. He also submitted that after cancellation of the said agreement, he sold the said land to one Shashank Govindprasad Pande and also executed a general power of attorney in his favour inrespect of the said land and said Shashank Pande started making construction over the same. He therefore requested that the complaint as against him may be dismissed.
6. The respondent No.2 in his reply filed before the Forum admitted that he is engaged in the construction work and that the respondent No.1 is the owner of the land and he entered in to an agreement for development with the respondent No.1 for a consideration of Rs.18,50,500/-. However the respondent No.1 did not hand over the documents of title to him. He paid Rs.21,000/- on 27/08/2008 to respondent No.1 and then Rs.18,000/- on 22/10/2008 to him. It was agreed by the respondent No.1 that the construction would be completed within 12 months from the date of sanctioning of the building plan, after perfection of the title. The respondent No.1 also executed general power of attorney on 22/04/2002 duly registered and respondent No.1 paid Rs.1,00,000/- to him at that time. The respondent No.1 had not taken steps to record his name in the record of rights as regards the land which was devolved on him, after the death of his father and mother. However, subsequently his name was recorded in the record of right on 05/01/2002. The respondent No.2 also engaged Tushar Deshpande, Architect to persue the formalities of sanctioning of building plan. He applied for sanction of the building on 17/01/2002. However Nagpur Improvement Trust issued a letter that there was encroachment on the plot. Moreover adjoining land owner Ashok Nathuji Joshi also created hurdle in the way of the respondent No.1. Lastly building plan was sanctioned on 08/04/2003. However the respondent No.1 by public notice dated 01/04/2003 with dishonest intention cancelled the aforesaid agreement, though huge amount of Rs.4,00,000/- was paid to him by respondent No.1 and hence the respondent No.2 filed a suit for Specific Performance of Contract against him before civil Court, which is pending. Moreover, the respondent No.1 also sold the land to Shashank G.Pande on 07/01/2004 by registered sale deed. The appellant is well aware of the above dispute in between respondent Nos.1 and 2. The matter is sub-judice before the civil Court and therefore District Consumer Forum can not pass any order in the complaint, on these grounds, it was prayed by respondent No.2 that complaint as against him may be also dismissed.
7. The Forum below after hearing both parties and considering evidence brought on record passed the impugned order. The learned Forum found that the land in question is now in possession of the third person and that said land was already sold to 3rd person before the complaint was filed before the District Forum and therefore no direction can be given to the respondents for execution of the sale deed alongwith the possession of the flat. The District Forum below also observed in the impugned order that the civil suit in between the respondent Nos.1 and 2 is pending before the civil Court, but as the appellant paid an amount of Rs.2,26,000/- to the respondent No.2, there exists a relationship of consumer and the service provider in between them. The Forum also held that the respondent No.2 failed to provide the flats to the appellant and he also did not refund Rs.2,26,000/- to the appellant and this constitutes deficiency in service on the part of respondent No.2. On these grounds the Forum below directed the respondent No.2 to refund Rs.2,26,000/- with interest @ 12 % P.A. and also to pay him compensation of Rs.25,000/- for physical and mental harassment.
8. As observed above, this appeal is filed by the original complainant for enhancement of compensation and for grant of all the reliefs as sought for in the complaint, as not granted under impugned order by the District Forum below.
9. The learned advocate of the appellant in the written notes of arguments filed in appeal reiterated the aforesaid case of the appellant as set out in the complaint. In addition to the same, he submitted that the District Forum below failed to consider the material aspect that the appellant spent Rs.30,000/- for registration and execution of agreements of sale dated 22/04/2002 and therefore he is entitled to recover the same with interest from both the respondents. He also submitted that the agreements were signed by both the respondents and hence respondent No.1 can not run away from joint responsibility with the respondent No.2 and this fact was not considered by the District Forum below. He also submitted that the respondent No.1 knowingly executed the sale deed of the plot infavour of 3rd person and therefore the impugned order needs to be modified and corrected in terms of the prayer made in the complaint. Thus according to him the respondent No.1 acted as a principle and respondent No.2 acted as his agent and both are jointly and severally liable for deficiency in service as well as for refund of the amount.
10. On the other hand, the learned advocate of respondent No.1 Shri S.B.Solat, supported the impugned order and submitted that both the agreements executed infavour of appellant were not signed by respondent No.1 and amount was admittedly paid by the appellant to respondent No.2 only and therefore the District Consumer Forum below has rightly directed the respondent No.2 to refund that amount with interest and compensation. Thus according to him no liability can be fastened on the respondent No.1 when he has already cancelled the agreement of development and the power of attorney as per law. He therefore requested that the appeal filed against respondent No.1 may be dismissed.
11. As observed above, the respondent No.2 failed to appear despites service of notice of this appeal and hence this appeal is proceeded ex-parte against him.
12. We have perused the entire record and proceedings of this appeal.
It is seen that the respondent No.2 has not filed any appeal to challenge the impugned order and hence the findings of District Forum below that the respondent No.2 rendered deficient service to the appellant has became final.
13. It is seen from the agreements entered in to between the appellant on one side and respondent No.2 on another side that both the agreements are duly registered with the office of the Registrar. We find that as the respondent No.2 failed to perform his part of contract as per both the agreements and failed to give possession of the flats to the appellant as per the said agreements, the appellant is unable to get the flats with the sale deed. Hence the expenses of Rs.22,720/- incurred by appellant for execution and registration of both the agreements are required to be paid to him by respondent No.2. The District Forum below has not given any reason as to why no direction is given to the respondent No.2 to pay Rs.22,700/- when there was no fault on the part of the appellant and it was the totally fault on the part of the respondent No.2 in not obeying the terms and conditions of both the agreements.
14. Moreover we also find that the District Forum below has not granted compensation on account of the loss incurred by the appellant due to escalation in the price of the flat. The District Forum below simply directed respondent No.2 to refund Rs.2,26,000/- with interest. In addition to the same we find that the appellant is entitled to compensation of Rs.50,000/- towards the loss suffered by him due to cancellation of his agreements and further compensation of Rs.25,000/- for physical and mental harassment. The District Forum below has not given the date since when the interest @ of 12% P.A. is applied over Rs.2,26,000/-. We find that the appellant is entitled to the same interest from the date of the complaint i.e. from 09/03/2004 till its realization of the same by the appellant.
15. So far as the liability of the respondent No.1 is concerned, we find that under the facts and circumstances of the present case, no liability can be fastened on respondent No.1 since the entire amount of Rs.2,26,000/- was admittedly paid to the respondent No.2 only by the appellant and it is not shown by respondent No.2 that he paid that amount to respondent No.1. The respondent No.2 cannot avoid its sole responsibility to refund that amount when he himself appropriated that amount.
16. Moreover, when we found that the amount is to be refunded with compensation then in the present case it is the respondent No.2 only on which the said liability is required to be fastened. Hence the appeal deserves to be dismissed as against the respondent No.1. Accordingly the following order is passed.
// ORDER // The appeal is partly allowed.
The impugned order is modified and substituted to the following effects.
The respondent No.2 shall refund to the appellant/original complainant Rs.2,26,000/- with interest @ 12% P.A. from the date of complaint i.e.09/03/2004 till its realization by the appellant.
The respondent No.2 shall pay to the original complainant/appellant Rs.50,000/- as compensation towards the loss sustained by the appellant.
The respondent No.2 shall also pay to appellant further compensation of Rs.25,000/- for physical and mental harassment and litigation cost of Rs.1000/-.
The respondent No.2 shall also pay Rs.22,720/- to the appellant towards the expenses incurred by him for registration of aforesaid two agreements.
The appeal as against the respondent No.1 is dismissed.
Copy of order be furnished to both parties free of cost.
[HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MR. S B SAWARKAR] MEMBER