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State Consumer Disputes Redressal Commission

1. Sau. Snehlata Sudhir Deshpande vs 1. Shri. Sandeep Suresh Yeolekar on 27 July, 2011

                                   1                F.A.No.:223 & 1356-08

    STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
       MUMBAI, CIRCUIT BENCH AT AURANGABAD.
                                 Date of filing :18.03.2008
                                 Date of Order: 27.07.2011
         (1)

FIRST APPEAL NO.: 223 OF 2008
IN COMPLAINT CASE NO.: 76 OF 2006
DISTRICT CONSUMER FORUM: DHULE.

1. Sau. Snehlata Sudhir Deshpande
2. Shri. Sudhir Chintaman Deshpande
  R/o. Both C/o. Shivajirao Marathe,
  62, Shivshakti Colony,
  Chitod Road, Dhule-424 001.                    ...Appellants

     -Versus-
1. Shri. Sandeep Suresh Yeolekar
2. Shri. Suresh Bhaskar Yeolekar
   Both R/o. Sonya Maruti Mandir,
   Near Railway Station, Dhule,
  At & Post. Dhule, Tq. & Dist. Dhule.             ...Respondents

                                         Date of filing :10.03.2008
                                         Date of Order: 27.07.2011
           (2)
FIRST APPEAL NO.: 1356 OF 2008
IN COMPLAINT CASE NO.: 76 OF 2006
DISTRICT CONSUMER FORUM: DHULE.

1. Shri. Sandeep Suresh Yeolekar
2. Shri. Suresh Bhaskar Yeolekar
   Both R/o. Sonya Maruti Mandir,
   Near Railway Station, Dhule,
  At & Post. Dhule, Tq. & Dist. Dhule.           ...Appellants
                                   2                    F.A.No.:223 & 1356-08



           -Versus-

1. Sau. Snehlata Sudhir Deshpande
2. Shri. Sudhir Chintaman Deshpande
   R/o. Both C/o. Shivajirao Marathe,
  62, Shivshakti Colony,
  Chitod Road, Dhule-424 001.                         ...Respondents

Coram : Mr. D. N. Admane, Hon'ble Presiding Judicial Member

Mrs. Uma S.Bora, Hon`ble Member.

Shri. K. B. Gawali, Hon'ble Member.

Present: Adv. Shri. Swapnil Patunkar, for org. complainants.

Adv. Shri. Jayant Chitnis for the org. respondent.

- :: ORAL ORDER ::-

Per Shri. K. B. Gawali, Hon'ble Member.

1. Both these appeals are originated from the same judgment and order dated 31.01.2008 passed by the District Consumer Forum, Dhule in complaint case No. 76/2006. The appellants in appeal No. 223/2008 are the original complainants (hereinafter termed as "complainant") whereas appellants in appeal No. 1356/2008 are the original opponents (hereinafter termed as "respondents"). Since the subject matter involved in both the appeals is same, we have decided to dispose of these appeals by way of common judgment. Hence, this judgment.

2. The background of both these appeals in a nut shell is as under:

The complainants 1 & 2 are having relation of husband and wife and they reside together, whereas the respondent No. 1 & 2 3 F.A.No.:223 & 1356-08 are having the relation of son and father i.e. respondent no.1 is son of respondent No.2. The complainants had a desire to have their own house within Dhule Municipal Corporation. They received the information from respondent No.1 that his father i.e. respondent No.2 is having open plot No.7 in survey No. 537/2-A situated within the Municipal Corporation of Dhule and there was a proposal to construct residential house on that plot. It was also told by the respondent No.1 that the said land is converted into Non Agricultural with the permission of Collector, Dhule and lay out is also approved. As per the said lay out plot No.7 i.e. 2750 sq. ft. was owned by Respondent No.2. As per the contention of the complainants it was submitted by the respondent No.1 that the half of the plot owned by respondent No.2 which admeasures 2750 sq. ft has been sub divided amongst which sub divisions bearing No. 26 and 27 each are having area 440 sq. ft. It is further contended by the complainants that respondent No.1 i.e. Suresh Bhaskar Yeolekar who was also the proprietor of the Firm namely M/s. Rajdeep Builders and Land Developers and having power of attorney on behalf of his father i.e. respondent No.2 entered into agreement dated 17.07.2004 with the complainant no.1 i.e. Snehlata Sudhir Deshpande. As per the said agreement the Respondent No.1 himself and on behalf of respondent No.2 were to construct the house of both the plots bearing No.26 and 27 and the built up area of each house was to be 330 sq. ft. The total construction pertaining to both the plots consisted of 4 rooms, two WC's, two bath rooms, along with doors, windows and appurtinant open space etc. with material was to be done by the 4 F.A.No.:223 & 1356-08 respondents and the cost of the construction along with the cost of plot was agreed upon at Rs.2,90,000/-. The said agreement dated 17.08.2004 was executed on Rs.10/- stamp paper before the public notary. It is the case of the complainants that in response to this agreement they have paid Rs. 1,70,000/- through different cheques and on different dates. After the payment of Rs. 1,70,000/- another cheque bearing No.303389 dated 30.10.2004 for the amount of Rs. 20,000/- was issued but its payment was stopped by them. The reason for stopping the payment as given by the complainants was that there was a news in the newspaper, "Daily Sakal Khandesh"

dated 25.10.2004 in which it was mentioned that the construction being made by Shri. Yeolekar on the land comprising of 537-A are affected by the reservation of "play ground and market" of the development plan of Dhule Municipal Corporation and those constructions would be removed on behalf of Municipal Corporation. It was further contended by the complainants that after this news was flashed in the newspaper they tried to obtain additional information regarding the legality of the said plot and they came to know that the total plot of 5500 sq. ft was owned jointly by the respondent No.2 i.e. Suresh Bhashkar Yeolekar and his brother Sudhakar Bhaskar Yeolekar and there are no sub-division approved. Even the building plan regarding construction to be made as per the agreement was not approved by the Municipal Corporation and that the construction was being done unauthorizedly by the respondent. Therefore, the respondents had no right to construct and sale those plots bearing No. 26 & 27 which were said to be the part of original 5 F.A.No.:223 & 1356-08 plot No.7. Complainants therefore issued legal notice dated 21.07.2005 to the respondents and to obtain the building permission and then to construct the houses as per the agreement dated 17.08.2004 and they are ready to pay the balance amount of Rs. 1,20,000/-, failing which they will take legal action against them. However, it was not complied with by the respondents and therefore complainants approached the District Forum seeking directions to the respondents to pay Rs. 1,70,000/- which were paid by them from 17.078.2004 to 27.10.2004. In addition additional amount of Rs. 1,70,000/- towards damages, also Rs.1,00,000/- for the mental agony and Rs. 10,000/- towards cost of the complaint.

3. The present respondents appeared before the Forum and resisted the claim of the complainant. It was contended by the respondents that the complainant No.2 i.e. Sudhir Chintaman Deshpande has no relation with the said agreement or other transactions, however he has been wrongly impleaded in the complaint and hence the complaint suffer from mis-joinder of necessary parties. Further they have totally denied the execution of the said agreement dated 17.08.2004 and even receipt of the amount of Rs. 1,70,000/-. However, in their W.S. para-26 it was mentioned that the said agreement was only concerned with the open plots bearing No. 26 & 27 and the cost of their plots agreed upon was Rs. 50,000/-. It was however contended in para-27 to 30 that the lay out pertaining to the said construction is sanctioned and that the building permission has also been obtained from the Municipal Council and the said plot have not been sold to anyone. It was further 6 F.A.No.:223 & 1356-08 contended that as per agreement they have almost completed the construction work and the total expenditure made from their own pocket was to the tune of Rs. 1,80,000-. However, the complainants have not paid the balance amount and they had to bear the financial loss and further contended that they are entitled to receive the balance amount of Rs. 1,80,000/- as spent by them from own pocket i.e. total Rs. 5,00,000/- and after receipt of Rs.3,00,000/- the possession of the house would be given to the complainant and finally prayed to dismiss the complaint and to direct the complainants to pay them Rs. 5,00,000/- towards financial loss as well as the mental agony.

4. The District Forum after hearing the parties and on perusal of the record have partly allowed the complaint and directed both the respondents to complete the construction work as per the agreement and to hand over the possession and also execute the sale deed within a period of 60 days and after receipt of possession and execution of sale deed the complainants directed to pay balance amount of Rs. 1,20,000/- to the respondents. It was further directed if the complainants do not issue the possession and execution of sale deed within 60 days then the respondents should individually and jointly refund the amount of Rs. 1,70,000/- to the complainants along with interest @ 15% p.a. from the date of complaint i.e. 18.07.2006 within a period of 30 days. In addition respondents were directed to pay Rs.15,000/- towards mental agony and Rs.1,000/- as cost of the complaint.

5. Aggrieved by the said judgment and order the complainants came in appeal with the prayer to set aside the order of the District Forum on the ground that they had never prayed for the relief of possession of the said house and the execution of the sale deed. In fact they had demanded the refund of Rs.1,70,000/- as the said plot is illegal and there was no building permission taken from the local planning authority. Whereas the respondents came in appeal with the request to quash and set aside the impugned judgment and order on the ground that the District Forum having made observations that the construction was being done after the building permission obtained from Municipal Council the order was made against them.

6. Notices were served to both the parties and both these appeals were kept together for final hearing on 27.07.2011. Adv. Shri. Swapnil Patunkar appeared for the complainants. Whereas Adv. Shri. Jayant Chitnis appeared for the respondent. We heard both the advocates at length. The learned counsel Shri. Patunkar for the complainant submitted that there was no prayer in the original complaint for the possession or execution of sale deed in respect of said house, however, the District Forum has ordered so by way of its impugned judgment and order. He further contended that the said plot No.7 admeasuring 5500 sq. ft is jointly owned by the respondent No.1 and his brother Sudhakar. There is no approved sub division and therefore the respondents are not empowered to sale any portion of the said plot. It was also contended that no building permission was obtained and unauthorized construction was being done which 8 F.A.No.:223 & 1356-08 was came to their notice through newspaper. Since the said construction is unauthorized no sale deed can be executed and therefore complainant are claiming the refund of amounts of Rs. 1,70,000/- which was taken fraudulently by the respondents. In support of his contention he has relied on following two citations:

i) IV (2005) CPJ 532 - Rajendra Jain Vs. Gajanand Berelya, in which Delhi State Commission held that, having no clear title of law guilty of unfair trade practice.

ii) III (1995) CPJ - 63 (NC), in Delta Associates and Other Vs. Lalasaheb Naikodi, in this case the Hon'ble National Commission has held that, "vendor has to establish that he has a clean, clear and marketable title to the property before it is sold, and if there is no such title its amount to as act of deficiency in service.

7. On the other hand the learned counsel for the respondent submitted that the building permission was obtained and the same is on record. About 90 % constructions was being completed, however the complainants themselves are not coming to pay the balance amount and also not wiling to get the possession and execution of the sale deed pertaining to the said house. Therefore, there is no deficiency on the part of respondents, however, the District Forum wrongly held liable to both the respondent by way of impugned judgment and order therefore, the said order be quashed and set aside.

8. We have carefully gone through the papers before us and also the oral submissions made by learned counsel of both the parties. It is firstly revealed that the agreement dated 17.08.2004 has been executed by the respondent in favour of the complainants by which they had agreed to sale two plots which admeasures 440 sq. ft. each bearing Nos. 26 & 27 along with construction on two load bearing houses, admeasuring 330 sq. ft on these plots and that the consideration to be paid as cost of construction in respect of both the plots was Rs.2,90,000/-. It is also revealed that out of total consideration of Rs. 2,90,000/- the complainants have already paid Rs. 1,70,000/- to the respondents. As regards the main allegations of the complainant that the respondent have no marketable title to sale the plot under reference & also there is no building permission from the local planning authority which they came to know from the news flashed in the daily newspaper "Sakal Khandesh" dated 29.10.2004 and they are subsequent inquiries with the concern authorities. As regards the permission the respondents have contended, they have taken the building permission and also submitted a copy of the plan and also letter of the town planning dated 10.05.2006. On observations of this letter and also the building plan it reveals that the said plan pertains to the plot No.7 under reference and the said permission appears to have been given by the town planner, Municipal Council, Dhule vide order No. 81 dated 01.11.1996. In fact this plan has nothing to do with the proposed construction in respect of the complainants. The first thing to be noted is that, it is the approval dated 01.11.1996. Generally, the permission is given for a 10 F.A.No.:223 & 1356-08 period of one year and the construction could not be done within a given period the same is to renew afterwards, which does not appears to be done with this case. Secondly, the approval of the plan is in the joint name of the present respondent No.2 and his brother Sudhakar Bhaskar Yeolekar. The area of the plot given is total plot of 510 sq. mtr (5500 sq. ft). Thirdly, the building permission obtained is only for the built up area of 31 sq. mtr. i.e. 330 sq. ft whereas in the present case as per the agreement two houses each admeasuring 330 sq.ft. were to be constructed by the respondents. Thus it is widely proved that there was no valid building permission for the construction of the said houses as per the agreement dated 17.08.2004. District Forum appears to have not properly verified the said building permission and has wrongly observed that the respondents have obtained building permission.

9. Secondly, the respondents have also no clear and marketable title to sale the same plot No. 26 & 27 to the complainants. The plot No. 7 from survey No. 537/A/2A is in the joint name of Suresh Yeolekar (Respondent No.2) and his brother Sudhakar Yeolekar. The respondents have not produced any documents to prove that the sub division of this plot having two divisions which admeasuring 2750 sq. ft. are approved by the competent authority. It is further to be noted that as per the agreement dated 17.08.2004 there is a mention that the respondents have again sub divided their hissa 2750 sq. ft in different parts, and the part no.26 & 27 each admeasuring 5500 sq. ft have been sold to the complainant. But the 11 F.A.No.:223 & 1356-08 fact is there is no approval on record for these sub divisions as contended by the respondents.

10. Thus it is amply proved that having no clear and marketable title and also having no valid building permission the respondents have played fraud and entered into an agreement dated 17.08.2004 with the complainants and also fraudulently obtained Rs.1,70,000/- therefore, they have not only committed deficiency in service but also played the unfair trade practice. In view of the above said facts and also the citations under reference the complainants claim ought to have been allowed by the District forum. However, the District Forum erred in directing the respondent to complete the work and hand over the possession of the said house and also execute the sale deed. In fact the complainants had never claimed the possession and execution of sale deed, for the clear reasons that the respondents have no marketable title and they have not obtained any building permission form the Municipal Council. Therefore, we have to allow the appeal of the org. complainants i.e. 223/08 by quashing and setting aside the District Forum's impugned judgment and order to that extent as it is proved that the respondents have played a fraud.

11. On the other hand, the appeal of the org. opponents bearing No. 1356/2008 carries no merit, however since the rate of interest awarded as on Rs.1,70,000/- and also the amount of mental agony awarded by the Dist. Forum appears to be on higher side. We are of the view to allow the said appeal partly by modifying the Forum's order, according. Hence the following order.

-:: ORDER ::-

1. Appeal No. 223/2008 is allowed.

2. Appeal No. 1356/2008 is partly allowed.

3. The impugned judgment and order passed by the District Forum is hereby quashed and set aside and the respondents individually and severally directed to refund Rs. 1,70,000/- to the complainants with the interest @ 9 % p.a. instead of 15 % from the date of filing the complaint i.e. 18.07.2006 till the realization of the amount, within a period of 30 days.

4. The respondents are also directed to pay to the complainants Rs. 10,000/- instead of Rs.15,000/- towards mental agony and Rs. 2,000/- towards cost of the complaint, within period of 30 days, failing which the interest @ 9 % will have to be paid till realization of the amount.

(K. B. Gawali) (Mrs.Uma S. Bora) (Mr. D. N. Admane) Member Member Presiding Judicial Member Kalyankar