State Consumer Disputes Redressal Commission
Shri Anil K Zunjurwad vs Mr Ratnakar Ramchandra Puranik on 11 February, 2011
Daily Order
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. A/10/620
(Arisen out
of Order Dated 21/04/2010
in Case No. 89/2004 of District Pune)
1. SHRI ANIL K ZUNJURWAD
M/S HRISHIKESH CONSTRUCTIONS, PLOT NO 8 RAMBAUG
COLONY, PAUD ROAD, KOTHRUD
PUNE 411 038
MAHARAHTRA
...........Appellant(s)
Versus
1. MR RATNAKAR RAMCHANDRA PURANIK
40, AMAR
HOUSING SOCIETY ERANDAWANE PUNE 411004
MAHARASHTRA
...........Respondent(s)
BEFORE:
Hon'ble Mr. P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mr. Dhanraj Khamatkar Member
PRESENT:
Mrs.A.A. Agarwal, Advocate @ Mr.S.S. Jinsiwale,
Advocate for the Appellant.
Mr.Amogh Paralikar, Advocate for the Respondent.
ORDER
Per Shri P.N. Kashalkar - Hon'ble Presiding Judicial Member:
(1)This appeal is filed by original Opponent against the judgement and award passed by Consumer Disputes Redressal Forum, District Pune in Consumer Complaint No.89/2004 decided on 21st April, 2010. While allowing the complaint the District Forum, Pune directed Opponent to pay a sum of `6,49,000/- to the Complainant together with interest @9% per annum from the date of complaint till realization thereof and also directed to execute a final conveyance either in favour of a Co-operative Housing Society or an Association of Apartment or Company as case may be within a period of three months from the date of receipt of copy of the order. As such original Opponent has filed this appeal.(2)
Facts to the extent material may be stated as under:
Complainant/Respondent was owner of Flat No.8, bearing Survey No.120 + 121 Rambaug Colony, Kothrud, Pune, admeasuring 1248 sq.meters. Complainant being permanent resident of U.K. wanted to develop the plot. He entrusted development rights of his development of plot to his brother on certain terms and conditions mentioned in the agreement. The Opponent had agreed to construct residential accommodation on the said plot. Opponent became promoter of the entire project. After inordinate delay of four years Opponent informed the Complainant by letter dated 29.09.1989 that the flats allocable to the Complainant were ready. He executed power of attorney in favour of Opponent, but since there was collusion between the Opponent and brother of the Complainant he withdrew power of attorney and gave independent authority to the Opponent. The building constructed by the Opponent was of inferior quality and there were many defects in the construction, water proofing, entire terrace was defective.
Complainant was required to pay an amount of `1,00,000/- for the repairs. The floor height was to be 3.15 meters which was actually 2.745 sq.meters.
The Complainant/Respondent by letter dated 06.10.1989 informed the Opponent about the deficiencies and defects noticed in the construction of the flats allotted to him. Despite notice no steps were taken by the Opponent.
The Complainant was required to shell out huge expenses for removing defects in the construction because of defective construction. The Complainant was not in a position to segregate top floor into two independent flats. The Complainant pleaded that northern and eastern side windows of the flat in his possession were completely bricked up and the Complainant was deprived virtually of light and air which he was enjoying through the northern window of his flat. He also pleaded that opponent had constructed the rooms at the eastern and northern location of the terraces open to sky. He pleaded that opponent failed to pay non agricultural taxes for the period of last 16 years arrears to the extent of `48,000/-. The Opponent was liable to pay the said amount.
He also alleged that conveyance deed has not been executed in favour of association of apartments of the Opponent. He also alleged that Opponent was depriving the Complainant of using common areas of the building. He also alleged that as a promoter of the project, the Opponent is under statutory obligation to form and register organization of unit purchasers and convey title of land in favour of flat purchasers. This is his obligation that as per clause 13 and 19 of an Agreement of Sale executed by him in favour of Complainant dated 02.12.1985 and for 15 years this obligation has not been complied with by the Opponent.
He therefore, prayed for award of `6,49,000/-. He had sent notice before filing consumer complaint dated 28.11.2003 and called upon Opponent to comply with the demands made by him. But, despite notice no compliance was made and therefore, he filed consumer complaint with a prayer that Opponent be directed to pass a proper title of the said flat by executing final conveyance in respect of property. He be directed to remove defects in the construction of the flat. He be directed to stop user of the terrace exclusively held by the Complainant. He also prayed that Opponent be directed to allow the Complainant to use open space of the plot and parking area and other common areas and claimed compensation of `6,49,000/- as per particulars in paragraph no.15 of the complaint and also claimed `10,000/- as cost of the proceeding.(3)
The Opponent filed written statement and denied the averments made by the Complainant. According to Opponent by an Agreement dated 02.12.1985 Complainant had not entrusted development rights of the property bearing plot no.8 to the Opponent and thereby he did not become promoter of the entire project.
Opponent pleaded that Complainant by an Agreement of Sale dated
02.12.1985 agreed to sell the property to Hrishikesh Construction a registered partnership firm of which Opponent is a partner. He has pleaded that complaint is bad for non-joinder of necessary party in as much as M/s.Hrishikesh Construction has not been made party to the complaint.
He denied that opponent was Promoter of entire project as alleged by the Complainant. He denied that with his collusion complainant's brother tried to acquire one flat in his own name. He has pleaded that there appears to be some dispute between the Complainant and his brother which Opponent has nothing to do.
Complainant thereafter entered into supplementary agreement dated 08.11.1989 ratifying the above agreement of sale dated 02.12.1985 with certain modifications. He denied that the construction made by his firm was defective and he was required to pay `1,00,000/- for repairs. He denied that the floor height was lesser than as was approved in the original drawing. He denied that because of faulty construction Complainant was not in a position to segregate top floor into two different units. He pleaded that building plans were revised with Complainant's and/or his attorney's consent and knowledge and this was at the instance of Complainant himself. He asserted that as per agreement of sale dated 02.12.1985 read with supplementary agreement dated 08.11.1989 Opponent was authorized to modify building plans. He also empowered the Opponent by irrevocable General Power of Attorney dated 02.12.1985 to modify building plans, etc. So all the modifications in the building plan were approved or accepted by Complainant or his attorney. He denied that there were any defects in the construction or he had used inferior quality of building material.
He pleaded that as per agreement of sale dated 02.12.1985 he offered possession of the flat to the Complainant by letter dated 29/30.09.1989. Complainant inspected the premises and observed some minor defects.
Complainant by letter dated 06.10.1989 informed him about some grievances. But, said letter did not mention so called defects in the construction or inferior quality of the material as Complainant alleged in his complaint. He pleaded that after receipt of said letter Opponent had carried out repairs to the satisfaction of the Complainant and his attorney. All the minor changes required or suggested by Complainant or his attorney were attended to and thereafter he got themselves satisfied about the quality and workmanship of the construction and then he took possession of the premises on or about 08.11.1989 and on 08.11.1989 he executed supplementary agreement confirming the agreement of sale dated 02.12.1985 with certain modifications.
(4)The Opponent pleaded that Complainant with an ulterior motive had made vague allegations regarding so called defects and deficiencies and he was coming with defects after so many years. He pleaded that Complainant had avoided to give particulars about water proofing of the terrace etc. He pleaded that after so many years he cannot be held responsible or liable for the defects in water proofing. He pleaded that plot was found having surplus area admeasuring 248 sq.mts. and it got released from the competent authorities and with the consent and knowledge of the Complainant or his attorney Shri Nimkar further construction was made. So called structure was as per building plan and building rules and there has been no infringement of light and air and privacy of the Complainant as alleged.
He denied that he had not paid any taxes (about `40.000/-). He pleaded that Opponent had allowed the allottees on the ground floor units to use the marginal utilization of the plot for commercial purpose and constructed elevated platform in common areas of the building. But, he has asserted that Complainant is not deprived of his portion of common area. He pleaded that as per agreement of sale/supplementary agreement dated 08.11.1989 Complainant is entitled to claim and receive consideration of plot no.8 in cash and in kind namely premises admeasuring 3523 sq.ft. and all other right, title and interest in the said plot and construction thereupon vest with Opponent including marginal open spaces. The other unit holders are using marginal open spaces and there is no question of Complainant being entitled exclusively to half of the open space allotted to him. According to Opponent N.A. taxes are not only payable by opponent but also by Complainant and other unit holders jointly. The Complainant is not paying his own contribution.
According to Opponent he is not promoter vis--vis Complainant. The Suit agreement dated 02.12.1985 is agreement of sale. This agreement specifies that the Vendor i.e. Complainant shall execute sale deed and purchase shall purchase plot no.8 admeasuring 1248 sq.mts. Para 13 of the suit Agreement further specifies that Vendor i.e. Complainant shall execute Sale Deed in favour of purchaser i.e. Opponent or members of Co-operative Society of the prospective purchasers of the flats or Association of apartment owners or nominees of the opponent. Thus, he pleaded that it is for the Complainant to grant transfer and assign property in favour of the Opponent or his nominees. Thus, it is the contractual obligation on the part of the Complainant to execute sale deed transferring the property in favour of Opponent or his nominees.
He therefore denied that he is promoter of the building as alleged. He denied the monetary claim alleged by the Complainant in paragraph no.15 of the complaint. He therefore prayed that complaint should be dismissed with costs.
(5)Both parties have filed affidavit and documents and considering the same the District Forum allowed the complaint and directed the Opponent to pay `6,49,000/- with interest @9% per annum from the date of complaint till realization and also directed Opponent to execute final conveyance deed either in favour of the Co-operative Housing Society or in favour of association of apartment or Company within three months. As such original opponent has filed this appeal.
(6)We heard submissions of Mrs.A.A. Agarwal, Advocate @ Mr.S.S. Jinsiwale, Advocate for the Appellant and Mr.Amogh Paralikar, Advocate for the Respondent.
(7)We are finding that the District Forum has totally neglected or overlooked the law of limitation as applicable to the Consumer complaints. Under Section 24-A of the Consumer Protection Act duty is cast on the District Forum or State Commission or National Commission not to admit the complaint unless it is filed within two years from the date of accrual of cause of action and if complaint is not filed in two years, as per proviso incorporated in Section 24-A of the Consumer Protection Act, the complaint cannot be admitted after two years if sufficient cause has not been shown for filing the complaint after two years.
(8)In this case, Complainant received possession of the flat and premises from the Opponent in the year 1989 and till 2003 he did not raise any grievance of any nature against the Opponent, the present appellant herein.
If he had received possession in the year 1989 he should have filed consumer complaint within two years, so he should have filed the consumer complaint or before 08.11.1991, but this complaint came to be filed as late as on 3rd March, 2004. It means, patently complaint filed by the Complainant for various monetary reliefs was absolutely barred by limitation and he had not filed condonation of delay application along with the complaint.
In the case of Haryana Urban Development Authority V/s. B.K. Sood, reported in (2006) 1 Supreme Court Cases 164, it has been clearly led down by Hon'ble Apex Court that, under section 24-A of the Consumer Protection Act, provision incorporated in respect of limitation is mandatory in nature and if the complaint is filed after limitation without there being prayer for condonation of delay, such complaint must be held to be clearly barred by limitation u/sec.24-A of the Consumer Protection Act.
(9)In our case certain monetary reliefs were claimed under various heads by the Complainant as per paragraph 15 of the complaint and total monetary claim was `6,49,000/-. He has sought various compensation on various counts. Thus, monetary relief as claimed by the Complainant/Respondent herein amounting to `6,49,000/- was clearly barred by limitation and he cannot recover the said amount by filing consumer complaint as late as on 6th March, 2004 when he had been given possession of the flat and premises as per agreement in 1989.
(10)That apart, the District Forum also directed Opponent herein to execute final conveyance deed in favour of Complainant and unit holders of the flat purchasers of the said building. We are finding that the Complainant has simply executed agreement of sale in favour of the Appellant. Agreement of sale does not convey title of the property in favour of the purchaser. If there is an agreement of sale it simply gives right to the purchaser to claim specific performance of contract and to seek execution of sale deed in his favour but Complainant, who is Vendor in the instant case, in the consumer complaint made a prayer that Opponent/appellant herein should be directed to execute deed of conveyance in favour of Complainant and other unit holders of the said building in terms of agreement of sale executed by him dated 02.12.1985 and ratified further by supplementary agreement dated 08.11.1989. He had executed power of attorney in favour of Appellant. However, the title of the property is still with the Respondent herein because he had simply executed agreement of sale in favour of the Appellant and not final conveyance deed or sale deed of the property in question. A person who is in possession of the property on the basis of agreement of sale executed by Respondent in favour of Appellant (in the instant case) cannot seek conveyance deed from the purchaser himself. Purchaser's title is inchoate or inadequate.
Because by agreement of sale he was simply permitted to develop property and sell some flats to the persons of his choice or giving some portion of property to the purchasers by way of consideration besides some cash amount. So ownership of the property, flats in question is still with the Respondent and therefore, Respondent cannot ask Appellant to execute conveyance deed or sale deed of the flats in question on the basis of agreement of sale executed between the parties dated 02.12.1985 or on the basis of supplementary agreement dated 08.11.1989 also in favour of Respondent by the Appellant. This legal hurdle was not noticed by the District Forum while passing the order.
We are finding that in clause 13 of the agreement dated 02.12.1985 it has been clearly mentioned that Vendor shall execute sale deed in favour of the purchasers or members of the co-operative Society of the prospective purchasers of the flats or association of apartment owners or private limited company or anyone nominated by the purchasers. This clause has been totally ignored by the Ld.District Forum while passing order directing Appellant to execute conveyance deed in favour of Complainant/Respondent and other unit holders of the said building. This clause casts duty on the Respondent to execute sale deed in favour of purchasers of flats or members of co-operative Society or association of apartment of the said building after it is developed fully by the Appellant herein.
(11)Further, we are finding that the Agreement of sale was executed between Mr.Ratnakar Ramchandra Puranik and Shri Anil K. Zunjurwad as Vendor, through power of attorney holder Kamalakar/Kamalakant Ramchandra Puranik and M/s.Rishikesh Construction a registered partnership firm. So, if at all complaint was to be filed it should have been filed against M/s.Rishikesh Construction a registered partnership firm who was purchaser under agreement of sale dated 02.12.1985.
However, complaint came to be filed only against Mr.Anil K. Zunjurwad, who is one of the partners of the said firm. All the partners and firm were not impleaded in the consumer complaint filed by the Complainant in District Forum Pune and so for non-joinder of necessary parties the complaint should have been thrown out of Forum by the Ld. District Forum, Pune.
(12)For all these reasons discussed above, we are of the view that Ld.District Forum erred in law in allowing the complaint which complaint was patently barred by limitation, which complaint in our view was not tenable in law because agreement of sale was between the Respondent on the one hand and Rishikesh Construction on the other hand and Rishikesh Construction was not made party or opponent in the present complaint disposed of by the District Forum, Pune. In the circumstances, we are inclined to quash and set aside the order passed by the District Forum. As such, we pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Impugned judgement and award passed by the District Forum, Pune in Consumer Complaint No.89/2004 is quashed and set aside.
(iii) Complaint stands dismissed.
(iv) Parties are left to bear their own costs.
(v) Inform the parties accordingly.
Pronounced on 11th February, 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mr. Dhanraj Khamatkar] Member ep