Complainant through Lrd. Adv. Raje   

Opponent No. 1, 2, 3, 5 & 6 are absent

Opponent No. 4 through Lrd. Adv. Nitin Joshi

Opponent No. 7 & 8 through Lrd Adv. Smt. Asnikar 

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Per : Mr. V. P. Utpat, President              Place   :  PUNE

// J U D G M E N T //

(26/11/2013)

                                                                                                                    This complaint is filed by the legal heirs of the consumer against the builder and the owner of the land for deficiency in service under section 12 of the Consumer Protection Act, 1986.   The brief facts are as follows,

1]       Complainant no. 1 to 6 are the legal heirs of deceased Shivshankar Durgashankar Dave, who had entered into agreement with the opponent no. 1 with respect to sale and purchase transaction of shop admeasuring 60 sq. ft. situated at ground floor of the building at C.T.S. No. 169, Budhwar Peth, Pune. 

          The predecessor of the complainants had entered into an agreement with the opponent no. 1 on 23/8/1989.  It was agreed between the parties that the consideration of the said shop was Rs. 1 lac.  The predecessor had paid an amount of Rs. 11,000/- in cash and an amount of Rs. 11,000/- by cheque on 22/8/1989.  Thereafter an amount of Rs. 5,000/- was paid by him by issuing cheque dated 20/9/1990.  Thus in all he paid an amount of Rs. 52,000/- to the opponent no. 1.  The opponent no. 1 had assigned development rights to the opponent no. 2 and 3.  The opponent no. 5 to 8 are the owners of the land, who had executed power of attorney in favour of the opponent no. 1.  The opponent no. 4 is another builder, in whose favour the opponent no. 1 had assigned the rights in the property.  According to the complainants, even after paying substantial amount, there was no progress in the construction work.  Their predecessor Shri. Shivshankar Durgashankar Dave died on 18/4/1993.  Thereafter notices were issued in daily ‘Sakal’ as regards the claim over the disputed property.  The complainants had replied the notices promptly.  The opponents have neither refunded the amount nor completed the project and delivered the possession of the disputed property, that amounts to deficiency in service.  Hence, the complainants have filed this complaint for directing the opponent to perform their obligation as per the agreement.  The complainants have asked refund of Rs. 52,000/- along with interest and compensation of Rs. 50,000/- in the alternate. 

2]      The opponents have resisted the complaint by filing written version.  According to the opponent no. 4, there was no privity of contract between themselves and the complainants; hence complaint is not maintainable against them.  Moreover, the complaint is time barred, hence it is liable to be dismissed.   The opponent no. 4 has contended that the development agreement was executed by opponent no. 6 and 7 in their favour and they have right to erect building on the disputed property.

The opponent no. 7 and 8 have submitted that there was no agreement between themselves and the complainants.  They have specifically denied the alleged agreement, which was executed and registered on 23/8/1989.  Rest of the contents were also denied by them.  

Opponent no. 1 to 3 and opponent no. 5 and 6 though duly served with the notice remained absent; hence complaint proceeded ex-parte against them. 

3]      After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-

REASONS :-

4]      It reveals from the record that the original owners of the property had executed power of attorney in favour of opponent no. 1 and opponent no. 1 had executed disputed agreement in favour of the predecessor of the complainants.  It is not in much dispute that there was no privity of contract between opponent no. 2 and 3 as well as opponent no. 4, as they are sub-sequent purchaser of the disputed property.  Opponent no. 5 to 8 are the original owners of the disputed land and they are bound to comply the contract between the predecessor of the complainants and opponent no. 1.  It is settled principal of law that the land owner is also under obligation to execute relevant documents in favour of the purchasers.  It reveals from the record that the complainants have paid an amount of Rs. 41,000/- to the opponent no. 1 by issuing cheque and Rs. 11,000/- by cash at the time of execution of agreement.  Thus, it is crystal clear that the opponent no. 1 had received an amount of Rs. 52,000/- from the predecessor of the complainants.  It reveals from the pleadings of the opponent no. 4 that the complaint is time barred, as the alleged agreement is executed in the year 1989 and the present complaint is filed in the year 2003.  In that context, the complainants have placed reliance upon ruling of “Sunil Krishna Ghosh V/S Calcutta Improvement Trust” reported in 2001 DGLS(AHC) 3610.  In that ruling it has been observed that there is continuous cause of action, if conveyance deed is not executed.  In the present proceeding also the opponents have not executed conveyance deed.  Hence, I held that the complaint is filed within the period of limitation.  As, it reveals from the record that the parties have assigned rights in favour of the opponent no. 2 and 3 and thereafter in favour of opponent no. 4, there is no privity of contract between predecessor of the complainants as well as in between complainants and the opponent no. 2 and 3 as well as opponent no. 4.  In order to avoid the further complications, it would be justifiable to grant alternative relief in favour of the complainants.  As the opponent no. 2, 3 and 4 are not party to the contract, they can not be held responsible for the refund of earnest money.  Hence, complaint can be allowed only against the opponent no. 1 & 5 to 8.  In my opinion, if interest @ 9% p.a. would be awarded to the complainant by way of compensation for deficiency in service,

that would meet the ends of justice.  I answer the points accordingly and pass the following order.

                                      **  ORDER **

1.                 Complaint is partly allowed against

Opponent No. 1, 5, 6, 7 & 8.

2.                 Complaint is dismissed against the

Opponent No. 2, 3 & 4.

3.          It is hereby declared that the opponent

No. 1, 5, 6, 7 & 8 have caused deficiency

in service.

4.          The opponent No. 1, 5 to 6 are  directed

To pay jointly and severally an amount

of Rs. 52,000/- (Rs. Fifty Two Thousand

only) to the complainants along with interest

@ 9% p.a. from the date of filing of this

complaint till its realization and an amount

of Rs.  10,000/-  (Rs. Ten Thousand only) 

towards compensation for mental and

physical  sufferings  and  an amount of

Rs. 3,000/- Rs. Three Thousand only) towards

cost of litigation to the complainant, within

six weeks from the date of receipt of copy

of this order. 

5.         Copies of this order be furnished to the

    parties free of cost.

                   6.       Parties  are directed to collect the sets,

which were provided for Members within

one month from the date of order, otherwise

those will be destroyed. 

Place – Pune

Date- 26/11/2013