(Passed this on 22th August, 2017)
Shri. S.P. Muley, President –
1. This complaint u/s 12 of the Consumer Protection Act (the Act for short) is against a construction company by name M/s Ketan Construction and land owners for their failure to execute sale deeds of two flats booked by the complainant.
2. Facts in short are that the complainant, who has filed this complaint through its Power of Attorney holder Sanjay Soni, had booked two flats, No. 201 and 202, on second floor, along with 1/6 undivided share in Shivshankar Apartments to be constructed by the Opposite Party 1, M/s Ketan Construction. The OPs 2 to 9 are the land owners of the plot on which said construction was proposed. The two flats were booked for Rs 2,50,000/- each and entire amount was paid to the O.P.1. But the OP1 failed to execute sale deeds and deliver possession. Till 1994 construction was not completed. The complainant, therefore, had filed consumer complaint case No. 238/1994 before the State Consumer Commission. The complaint was allowed by order dated 31/5/1996. The complainant and the OPs thereafter, entered into a agreement on 28/6/1996. But even thereafter the sale deed was not executed nor was possession delivered till the year 2002. Then the complainant took possession of the flats in the year 2002. By avoiding to execute sale deed, the O.P.1 has made deficiency in service. Hence, this complaint to direct the OPs to execute sale deed of two flats in his favour, to pay compensation of Rs.2 lakh towards mental agony and litigation cost Rs. 10,000/-.
3. The OP1 filed reply at Ex.23 and opposed the complaint on the grounds that the dispute is of civil nature. Further, it is stated as per the deed of power of attorney, the holder of power of attorney, Sanjay Soni, has purchased the two disputed flats and the complainant has no interest or rights in those flats. The complaint is also said to be time barred. Moreover, the two flats were purchased for commercial purpose. For all these reasons, the complaint is said to be not maintainable before the consumer forum.
4. In para wise reply, it is denied the complainant had booked the flats with 1/6 undivided share. It is denied the flats were booked for Rs. 2,50,000/- each and entire amount was paid to him. It is not disputed that the land, owned by the O.P. 2 to 9, was to be developed into multi storied building by it. It is denied till 1994 the O.P.1 failed to complete construction and deliver possession of the flats. It is further stated the O.P.1 though executed an agreement on 28/6/1996 as per the order of the State Commission, but no consideration amount was received from the complainant till date. Therefore performance of that agreement by it does not arise. Since entire amount has not been paid, question of executing sale deed also does not arise. It is denied the complainant has taken possession of the flats in 2002. It is therefore prayed to dismiss the complaint.
5. The O.P. 2 and 4 died during pendency of the proceeding and before they could file their reply. Legal representatives of O.P.4 are already on record and LRs of O.P.2 are brought on record. But despite service of notices, they preferred to remain absent. Therefore the complaint is heard ex-parte against them.
6. The OPs 3 and 5 to 9 have filed joint reply at Ex.12. Denying the complaint, it is stated earlier the complainant had filed consumer complaint (No. 238/1994) before the State Commission which was disposed of on 31/5/1996. After lapse of 9 years he had filed execution application (MA No. 39/ 2005) u/s 27 of the Act, which was pending before the Commission when this complaint was filed. Hence it is said to be not maintainable on same cause of action. It is also said to be time barred. The said flats are sold to POA holder, Soni and so the complainant has no interest in the flats. The POA is neither notorised nor registered. They have not received land price from the O.P.1 and till then no sale deed could be executed in favour of anybody. They have cancelled power of attorney given to the O.P.1. So the O.P.1 cannot execute sale deed.
7. Para wise reply is almost same as that of the O.P.1, denying booking of flats by the complainant and paying any amount to these OPs. They are not aware of any agreement between the complainant and O.P.1. Since they are not signatories on the agreement, the same is not binding on them. It is stated for any deficiency in service of the O.P.1 they cannot be held liable. Thus denying the claim of the complainant, it is submitted to dismiss the complaint.
8. Heard Ld counsels for both the parties. Perused documents and rejoinder. Upon considering all relevant documents, and submissions, we record our findings and reasons as under.
FINDINGS AND REASONS
9. Before discussing on the disputed issues, it is to be mentioned that earlier the complainant and 3 others had filed consumer complaint (No.238/1994) before the State Commission. That complaint was disposed of by order dt 31/5/1996. By that order the OPs were directed to enter into an agreement with the complainant and 3 others and complete construction within a period of 6 months, else they shall be liable to pay penalty of Rs.1000/- pm to each of the complainants. In view of that order, the complainant and O.P.1 entered into a agreement on 28/6/1996. Since that order was not fully complied, execution application (No.39/2005) was filed before the State Commission. These facts are not disputed.
10. Now coming to the present case, the complaint is filed by the holder of POA on behalf of the complainant. There is no legal bar for filing a complaint through holder of POA. But, here the facts are slightly different and therefore status of the complainant as a consumer is questioned by the OPs. To understand the controversy, it is necessary to examining the deed of Power of Attorney executed by the complainant.
11. A perusal of the POA reveals there is no date when it was executed. It is a xerox copy. Even date of purchase of stamp paper is also not legible. The POA was executed because the complainant sold his interest in the flats in dispute to the holder of POA. The holder of POA is also given power to adduce evidence, oral or documentary, on behalf of the complainant in courts/tribunal/commission. In fact, by this POA the holder of it has been placed in shoes of the complainant. He has specifically mentioned since he has sold the flats to holder of POA, he has no interest in the said flats.
12. Counsel for the O.P.1, in view of the POA, has contended the complainant having transferred his interest to holder of POA, now cannot maintain the complaint. It is further contended when the complainant has no interest in the subject matter there is no question of granting any reliefs to him in respect of the subject matter. However, Ld counsel for the complainant refuting this contention, said the complainant still has right and interest in the flats and he has not sold the same to anybody and he is still in possession of the flats. He submitted no transfer of property can be effected by executing POA. Therefore even though the POA mentions sale of flats by the complainant, legally there cannot be transfer of title unless there is a registered sale deed.
13. We have considered rival contentions on this point. We agree that no transfer of property can be effected by such mode, yet we cannot ignore the fact that the complainant has sold his interest in the flats to the holder of POA. There may not be sale deed as ownership of the flats is yet not transferred to the complainant, but the right accrued to him by virtue of an agreement with the O.P.1, is admittedly transferred to the holder of POA. We also fail to understand, if the complainant has not sold interest in the flats, why he has mentioned this fact in the POA. The complainant is not an illiterate person. Pertinently, he has not denied execution of POA in favour of Soni. Therefore he cannot admit some part and deny other part of it. Further, the complainant claims to be in possession of the flats but the O.P.1 has strongly denied it. The O.P.1 therefore sought appointment of a commissioner to ascertain who is in possession of the flats. However, his application was rejected. But, the complainant has not produced any evidence, like light bill, water bill, tax receipt, maintenance receipt, etc to prove his possession.
14. The complainant has filed a copy of reply of O.P.1 filed in execution proceeding (39/2005) filed by him against the OPs before the State Commission. In the reply it is stated by the O.P.1 that he has completed construction and each and every complainant was put in possession of the same. It is thus submitted this is clear admission of the OP1 that the possession has been given to the complainant. From the O.P.1 it is tried to explain that possession was given to other complainants only. But we do not see much merit in this submission.
15. This reply in the execution proceeding was filed on 13/10/2008. The POA was executed in the year 2010 and it is mentioned in it that the complainant has no objection if possession of the flats was given to holder of POA by the O.P.1. This fact contradicts the fact in reply as to delivery of possession to the complainant. As per POA, possession was with the O.P.1 in the year 2010. From such contradictory facts we feel that the complainant has not come clean on the point of possession. He has also not explained why he filed the complaint in his name when he had sold the flats and had no interest in the same. It appears Sanjay Soni must have purchased the rights and interest of the flats from the complainant by paying him the amount, but as Soni cannot become an owner or get locus to file complaint in his name, POA was executed in his favour and complaint is filed in complainant name. If the POA is to be accepted, it is clear that the complainant did not want the flats for his own use.
16. The OPs have stated the complainant has not paid entire consideration amount of two flats, which amounts to Rs.5,00,000/-. The complainant has filed receipts on record. Some, in fact, are not receipts, but demand letters (receipt No.17 to 19) and some receipts (receipt No.7,15 and 16) are duplicate of receipt no 1and 2. Total amount paid as per the receipts is Rs. 4,80,000/- out of total consideration of Rs.5,00,000/-. An amount of Rs.20,000/- is still balance. Though the OP1 has denied having received the amount from the complainant, the receipts say otherwise. Receipts bear signatures of the O.P.1 and are not denied by him.
17. We do not endorse the submission of the Ld counsel for the O.P.1 that the complaint is time barred. A substantial amount has been paid and sale deed is yet to be executed. Therefore cause of action is continuing one. Another objection is of commercial purpose for purchasing the flats. It is contended two flats were booked by the complainant and that itself indicates commercial purpose behind the transaction. We are not able to convince ourselves by this contention. Merely because two flats were booked does not ipso fact establish commercial purpose. Ld counsel for the complainant refuting this objection, relied on a judgment. In Rajesh Malhotra v/s Acron Developers Pvt. Ltd. 2016 NCJ 617 (NC) it is held that mere booking and executing sale deed of two villa cannot bu itself reflects commercial purpose. Mere bald statement is not enough to hold that the flats were booked for making profits.
18. Another objection of the OPs is that earlier complaint relating to the same dispute was disposed of and an execution application is pending for compliance of the order. Therefore for same cause of action, present complaint is not maintainable. Admittedly, for same dispute complaint case (238/1994) was filed and it was disposed of by order dated 31/5/1996. In compliance of the order, both the parties executed fresh agreement on 28/6/1996 in respect of the flats. The important feature of the agreement was that, the time was the essence of the contract. It appears, since construction could not be completed within stipulated time, execution application came to be filed and it is said to be still pending. In that view of the matter, it was not necessary to file this complaint for same cause of action. But the complainant in notes of argument stated the execution proceedings were later withdrawn by the complainant. No copy of withdrawal application or order of withdrawal is placed on record. Why the execution proceedings were withdrawn if the O.P.1 has not fulfilled his part of agreement, is not explained. He could have got reliefs in execution proceedings had he continued it.
19. As we observed before, the complainant has not come with clean hands. We are doubtful whether he still holds the flats. By all probability, he has sold his interest in the flats to Sanjay Soni, his attorney. The complainant never appeared before the forum and all the while his attorney attended the proceedings. When the complainant does not approach the forum for seeking reliefs with clean hands, he becomes entitled to get reliefs. Therefore, in the result we pass the following order.
ORDER
- The complaint is dismissed.
- No order as to cost.
- Copy of judgment be given to both the parties, free of cost.
