This revision is filed by the OP/JD, and is directed against order dated 5/11/14, in execution application No. 17/08.
2. The short question for consideration is whether the OP/JD is required to execute the sale deed in favour of the Society (i.e. Smita Apartments Co-operative Housing Society Ltd.,) as contended by the Respondents/Complainants or whether the same is to be executed in the names of individual complainants.
3. Some facts are required to be stated to answer the said question.
4. We proceed on the assumption that the Applicant/OP, as successor to the firm M/s. Suhas Constructions, amalgamated two plots of land of Chalta No. 31 and 32 of P.T. Sheet No. 96, admeasuring 1914 and 255 sq.mtrs. respectively, and constructed thereon building No. 1 and building No. 2. Building No. 1 has 19 flats and a stilt area while building No. 2 has a duplex bungalow.
5. That building No. 1 has 19 flats is an admitted position, admitted by the complainants in the complaint, as well as reflected in the final order of this Commission dated 6/7/07 in FA No. 108/06
and otherwise proved by the Applicant/OP with the production of letter dated 21/06/11 issued by the Chief officer of Mormugao Municipal Council.
6. The eighteen complainants were put in possession of their respective flats. The 19th flat is registered in the name of Smt. Reshma A. Shaikh, as can be seen from the said letter dated 21/6/11. The flat S-4 of complainant No. 10 Suresh Rao has been sold to one Vasant V. Naik by deed dated 13/12/05 and he has already become a member of the said Society, but none of the parties have chosen to implead the said Vasant V. Naik as a party to the proceedings. The said Vasant V. Naik has given an affidavit before the District Forum dated 03/10/12 and it appears that he has no objection in case the deed is executed in favour of the said Society. The duplex bungalow has been agreed to be sold, by agreement of assignment-cum-sale dated 30/01/06, to one Mr. Adam Abdul Jumma.
7. The eighteen complainants who were put in possession of their respective 18 flats filed a consumer complaint against the Applicant/OP, interalia, to recover a sum of Rs. 3,36,730.30 with further sum of Rs. 10,000/- and also for a direction to the OP to arrange to constitute a Co-operative Housing Society of the complainants under the name M/s. Smita Apartments Co-operative Housing Society Ltd., as committed in the agreements signed by the complainants, and also to issue No Dues Certificate to the complainants for getting such society duly registered.
8. The complaint which was dismissed by the District Forum came to be allowed by this State Commission by exparte order dated 6/7/07 in FA No. 108/06 in the following words:
“The impugned order dated 19/10/06 is hereby set aside. The OP No. 1 is directed to pay to the complainants a sum of Rs. 3,35,330/- alongwith interest @ 12% p.a. from the date of filing of the complaint till full payment, within thirty days. The OP No. 1 is directed to fully co-operate with the complainants in constituting a Co-operative Housing Society consisting of the complainants/purchasers of “Smita Apartments”, and to issue all required No Objection Certificates, no dues certificates etc. The OP No. 1 is further directed to convey the said property under chalta No. 31 of PTS 96 of city survey Vasco in favour of the Co-operative Housing Society so formed. The formation of the Co-operative Housing Society and the conveyance of the property and building thereon in its favour shall be completed within 90 days. The OP No. 1 is directed to pay to the complainants jointly a sum of Rs. 10,000/- as costs of this litigation throughout. Order accordingly.”
9. The OP preferred a revision application before the National Commission, being RP No. 2931 of 2007. By order dated 4/12/07 the National Commission was pleased to issue notice to the Respondent/Complainant No. 1 only, and only on a limited plea of limitation. After hearing both the parties the National Commission disposed off the revision petition by order dated 23/4/08.
10. Although notice was issued on the limited plea of limitation, the Lr. National Commission reduced the interest payable from 12% to 9% per annum from the date of the complaint till its payment with a further direction that in case the payment was not made within 4 weeks, the interest would be revived to 12% per annum. The Order dated 23/04/08 of the National Commission concluded as follows:
“ The petitioner (OP) shall execute the sale deeds in favour of the Respondents - Complainants within a period of 6 weeks from today. The Respondent (the complainants) shall co-operate in completing all necessary formalities required for the purpose of executing the conveyance deeds.”
11. Thereafter, the Applicant/OP and the said Co-operative Housing Society represented by its Chief Promoter entered into an agreement dated 5/2/14, and presumably pursuant thereto, the said Society was registered under Section 8 of the Goa Co-operative Society Act 2001 w.e.f. and vide registration certificate dated 19/8/14. It may be noted here that out of 18 complainants only 15 have become members of the said Co-operative Society and complainant Nos. 2,6,16 have so far not became the members of the Society. The said Vasant V. Naik who has stepped in the shoes of complainant No. 10 has already became the member of the Society, as already noted.
12. The above would be the sequence of events leading to the present controversy. We assume, that the Lr. District Forum by impugned order dated 5/11/14 has directed the Applicant/OP to execute the sale deed as sought for by the Respondents/Complainants in favour of the said Society though the last part of the order is not clear.
13. Shri. A. Monteiro, the lr. advocate, on behalf of the Applicant/OP would submit that there is no question of any interpretation of the order of the National Commission dated 23/4/08 as it is unambiguous and enjoins the Applicant/OP to execute the sale deeds in favour of the complainants. Lr. advocate submits that the Applicant/OP is prepared to convey to the Respondents/complainants not only the undivided right to 1914
sq.mtrs. of Chalta No. 31 in favour of the Respondents/Complainants but even to convey the undivided right to the entire amalgamated property i.e. undivided right to 255 sq.mtrs. of Chalta No. 32 as well. Lr. advocate submits that one flat belongs to Smt. Reshma A. Shaikh and she is not one of the complainants and moreover the duplex bungalow is also required to be transferred in terms of agreement dated 30/01/06 in favour of the said Adam Abdul Jumma alongwith undivided right to the land. Lr. advocate submits that the order of the National Commission cannot be interpreted as sought to be done by the complainants and otherwise it is also legally impermissible, as three of the complainants have not became the members of the said Society and the Applicant/OP cannot be expected to convey the rights of 18 complainants to only 15 members of the said Society. Lr. advocate submits that complying with the order of the National Commission by transferring the undivided right to the flats to the complainants is the only solution to the present controversy. According to Shri. Monteiro, this position was brought to the notice of the National Commission before which he had appeared and that is how the orders of the National Commission came to be passed directing the Applicant/OP to execute the sale deeds in favour of the Respondents – Complainants.
14. On the other hand, Shri. Khandeparkar, the lr. advocate of the contesting complainants, would submit that the question is one of interpretation of the order of the National Commission dated 23/4/08. The lr. advocate submits that there is a typographical mistake in referring to one sale deed, as deeds (in plural) in the said order. Lr. advocate further submits that the RP filed by the Applicant/OP was admitted by the National Commission on a
limited question of limitation, as can be seen from order dated 4/12/07. Lr. advocate further submits that for the formation of the Society, as enjoined by this State Commission as well as by the National Commission, an agreement was entered into between the Applicant/OP and the Chief Promoter of the said Society. Lr. advocate submits that the contesting Respondents/Complainants would be happy in case the flats alongwith undivided proportionate rights are conveyed to the Society in Chalta No. 31 admeasuring 1914 sq.mtrs. though as per the original agreements as well as the final order of this Commission the Applicant/OP was to convey to the Society the entire area of Chalta No. 31 of P.T. Sheet No. 96. Lr. advocate submits that amalgamation of both the plots of Chalta No. 31 and 32 cannot be a hurdle in execution of the sale deed by the Applicant/OP in favour of the said Society. Lr. advocate submits that three complainants would be joining very soon as members of the said Society and that the 19th flat owner namely the said Smt. Reshma Shaikh has also shown her inclination to become a member of the Society. Lr. advocate submits that it is no concern of the Applicant/OP that three of the complainants have not became members of the Society because by executing the sale deed in favour of the said Society, the Applicant/OP would only discharge his obligations under the final order of this Commission dated 6/7/07.
15. We are unimpressed with the submissions made by Shri. Monteiro, the lr. advocate of the Applicant/OP.
16. When did the Applicant /OP realise that the sale deed/s had to be made individually in the name of the Complainants and not in the name of the Society?
17. The Applicant/OP stated, as earlier as on 6/4/09, after the Order of the National Commission, in his reply, that he was ready and willing to execute the conveyance in the name of the Society (emphasis supplied). In case the sale deeds were to be made individually in the name of the complainants, as contended by the Applicant/OP, one fails to understand as to why there was a need for the formation of the Co-operative Society and for the Applicant/OP to enter into an agreement with the Chief Promoter of the said Society on 5/2/14. When asked about this agreement, Shri. Monteiro, the lr. advocate of the Applicant/OP merely submits that the said Chief Promoter of the said Society came with the said agreement and the Applicant/OP signed the same. This explanation is too lame, to be accepted. The Applicant/OP is bound by the said agreement. It is to be noted that the Applicant/OP in the said agreement dated 5/2/14 has agreed to execute a sale deed in compliance with the order of this State Commission dated 6/7/07 which was confirmed by the Hon. National Commission by order dated 23/4/08 in RP No. 2931 of 2007 in terms of the original agreements with the complainants-Purchasers to convey and transfer the title of the said plot bearing Chalta No. 31 of PT Sheet No. 96 in the name of the proposed Society and submit all documents and papers for the purpose of the registration of the same. There can be no doubt that pursuant to the said agreement dated 5/2/14 that the said Society came to be registered w.e.f. 19/8/14 with 15 members. It is therefore obvious that the parties, particularly the Applicant/OP always understood the order dated 23/4/08 of the National Commission as an order directing the Applicant/OP to execute a sale deed in favour of the said Society (emphasis supplied). One fails to understand as to when exactly and why the Applicant/OP changed his mind because till as late as the
said agreement dated 5/2/14 the Applicant/OP wanted to convey the title of the flats in possession of the 18 Applicants to the Society formed by them. In our view, the fact that three of the complainants are yet to become members of the said Society cannot come in the way of the Applicant/OP conveying the title to the 18 flats in the name of the Society with proportionate undivided right in the land of Chalta No. 31 of PT Sheet No. 96 since by doing so the Applicant/OP would be only discharging his obligations under the final order (decree) of this Commission dated 6/07/07. The said three complainants can have no grievance now in case the Final Order of this Commission is complied with as the said three non members can acquire the rights to the flats and proportionate undivided right by becoming members of the Society. This is one aspect.
18. Admittedly, the revision petition was admitted on the limited issue of limitation though the Hon. National Commission did interfere to some extent with the interest ordered to be paid by this Commission on the said sum of Rs. 3,36,730/-. The final order of this Commission directing the OP to co-operate with the complainants for formation of the Co-operative Society and to convey the property in favour of such Society has not been set aside by the National Commission by order dated 23/4/08 in RP No. 2931/07, and, if it was set aside the Hon. National Commission would not have directed the Respondents – Complainants to co-operate in completing all necessary formalities required for the purpose of executing the conveyance deeds. In other words the formation of the Society (and needless to say for the purpose of conveying title to the flats) was very much in the mind of the National Commission while passing Order dated 23/4/08.
19. The second aspect is that the National Commission could not have intended execution of sale deeds individually in the names of the complainants, without setting aside the final order of this Commission dated 6/7/7 which contemplated execution of sale deeds in favour of the Society and therefore the final order of the National Commission dated 23/4/08 has got to be read with final order of this Commission dated 6/7/07 which can only mean that the Applicant/OP is required to convey title to the 17 flats in the name of the Society with proportionate undivided right to the said land admeasuring 1914 sq.mtrs. and not individually in the names of the Respondents/Complainants.
20. Consequently, we find there is no merit in this revision and the same is hereby dismissed. The Applicant/OP shall execute the sale deed conveying title to the 17 flats to the said Society with proportionate undivided right to the land of Chalta No. 31 of PT Sheet No. 96, now within a period of 30 days. This is by way of clarification to the impugned order dated 5/11/14. In case of failure to execute the said deed within the stipulated time of 30 days, the Lr. District Forum would be at liberty to proceed against the Applicant/OP under Section 27 of the C.P. Act, 1986.
21. Although some time might have been taken by the parties for the formation and registration of the said Society, we find that there is absolutely no reason why the OP did not deposit the sum of Rs. 3,36,330/- before the District Forum or why the Lr. District Forum chose not to enforce the payment of the said amount as per the provisions of C.P. Act, 1986.
22. Although we had directed the Applicant/OP to deposit the said amount within a period of 4 weeks from 10/12/14, the said
order appears not to have been complied by the Applicant/OP nor the Applicant/OP has obtained further orders on applications for extension of time filed by him.
23. Revision petition is dismissed. Both parties are hereby directed to appear before the Lr. District Forum on 27th instant for further proceedings.
