State Consumer Disputes Redressal Commission
Mahindra Gesco Developers Ltd. vs Sunil Jasuja on 22 November, 2010
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 22.11.2010 First Appeal No. FA-09/255 (Arising out of Order dated 11.2.09 passed by the District Consumer Forum-II, Delhi) Mahindra Gesco Developers Ltd. Appellant UGF, The Great Eastern Plaza, 2-A, Bhikaji Cama Place, New Delhi-110066. Versus 1. Shri Sunil Jasuja Respondent S/o Late Shri A.S. Jasuja, 1511 B, Beverly Park-II, Gaugaon-122 002. 2. Shri Samir Jasuja S/o Late Shri A.S. Jasuja, 1511 B, Beverly Park-II, Gurgaon-122 002. 3. M/s. Gulab Farms(P) Ltd. 21/48, Malcha Marg, Diplomatic Enclave, New Delhi. 4. M/s. Sweet Peas Farms(P) Ltd. 21/48, Malcha Marg, Diplomatic Enclave, New Delhi CORAM: Justice Barkat Ali Zaidi President Ms. Salma Noor Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice Barkat Ali Zaidi, President (Oral)
1. The short facts of the case are that the complainant entered into an agreement with OP-1 & 2 for purchase of an apartment in the Group Housing Society in Central Park, Sector-42, Gurgaon, Haryana for a total sale consideration of Rs. 86,92,275/-. This agreement was signed on behalf of OP-1 & 2 by their constituted attorney OP-3 Mahendra Gesco Developers Ltd. Subsquently a sale deed was executed of the apartment in favour of the complainant by OP-1 & 2 M/s. Gulab Farms (P) Ltd. and M/s. Sweet Peas Farms(P) Ltd.
2. The complainant filed a complaint against all the three OPs before the District forum, alleging that the escalation charges amounting to Rs. 23,08,432/-, service tax, maintenance and subscription charges for the residential club etc. as demanded by demand letter dated 28.11.06, were not payable, with a prayer to pass an award of Rs. 23,08,432/- alongwith pendentelite and future interest @ 18% under various head as set out in paragraph 49 of the complaint in his favour.
3. OP-1 & 2 contested the case on merits and filed the written statement while OP-2 filed an application to delete his name from the array of parties on the ground that there was no privity of contract between the complainant and OP-3, who acted as an attorney/agent of OP-1 & 2, and OP-1 & 2 being his principals were already impleaded.
4. The District Consumer Forum, after hearing both the parties vide order date 11.2.09, has dismissed the application of OP-3.
5. That is what brings OP-3 in appeal before this commission.
6. We have heard Shri Vikas Dhawan, counsel for the appellant, and Shri Harsh Virmani for respondent-1 & 2.
7. It will be noticed that appellant(OP-3) in the case is the developer of the land, and the project manager. He is as such real executor. The OP-1 & 2 may have signed the sale deed as owners, but the man behind the scene, who holds the strings is the appellant(OP-3). It is OP-3 with whom the original agreement was made. As such, even if the sale deed was not executed by OP-3, merely because the ownership lay with OP-1 & 2, it cannot be said that he is completely a outsider, and has nothing to do with the controversy in question.
8. The guiding principle is that if there is some doubt about the question, whether a person should be made a party to the proceedings or not, the court should usually decide in favour of retaining the person as a party. The reason is that, when after all facts have been unfolded, and at the time of hearing, it is found, that the person concerned was a necessary or proper party, whole exercise will have to be restarted, while on the other hand if it is found at the final stage that the person in question was not a necessary party, he can be exonerated.
9. The order for deletion of a party at the initial stage has to be passed only in cases, where prima facie and per se, the party in question is completely outsider, and has nothing to do with the case, and the court therefore feels that he should not subjected to the tribulations of a trial. This is not the case here. The appellant made the initial agreement with the complainant which ultimately led to the sale deed. He is the developer and the project manager. It cannot therefore be said at this stage that he is not a necessary or a proper party.
10. The appeal is accordingly rejected.
11. Bank Guarantee/FDR, if any furnished by the appellant, be returned forthwith.
12. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.
13. Announced on 22nd day of November, 2010.
(Justice Barkat Ali Zaidi) President (Salma Noor) Member ysc