BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

PANAJI-GOA

In the matter of First Appeal 02 of 2019 in Consumer Complaint 41 of 2016.

Before: Shri Dhananjay A. Jog, President

              Dr. Nagesh S. Colvalkar, Member

  Adv.Ms. Rachna A.M.Gonsalves, Member

Shri. Shaikh Abdul Azeem,

s/o Dr. Shaikh Abdul Shakoor,

Ahmed Manzil, Chandrawado,

Fatorda, Margao, Salcete Goa.                   .....Appellant

V.

Shri Antonio Carmo Camilo Ferrao,

s/o Shri Bento Ferrao,                              .....Respondent-1

Smt.Goretti Ferrao,

d/o Shri Piedade Fernandes,                    .....Respondent-2

both above residents of, 

House no. 169, Bolepand,

Fatorda, Margao, Salcete Goa.

• None present for Appellant.
• Adv. Ms. Philomena D’Silva argues for Respondents.

          Date:- 26/04/2023

JUDGMENT

[per Shri Dhananjay A. Jog, President]

1. This Appeal filed on 11/01/2019 was taken on record after a preliminary Application for Condonation of Delay (MA/CD/38/2018) was allowed.

2. Arguments on admissibility preferred by Counsel Shri B. P. Sardesai for Appellant were heard on 24/01/2019 on which date, against an Application by Appellant, proceedings in Execution Application EA/09/2016 at the District Commission were stayed.

3. On 02/04/2019 Appellant as well as Respondents represented by Adv. Ms. Philomena D’Silva filed Written Arguments. Respondents filed an Application to produce documents, to which Appellant endorsed his say viz. “Leaving it to the Court”. The Application was allowed and said documents were taken on record. Respondents filed another Application directing Appellant to deposit decretal amount together with interest thereon on 07/05/2019. Arguments on this were heard on 08/05/2019 and this Commission dismissed the Application vide Order of 10/07/2019.  

4. Subsequently, Final Oral Arguments could not be heard for a considerable period of time; initially due to Counsel seeking time; Covid Lockdown restrictions for some period; and absence of Appellant/Counsel. Further substantial delay also occurred since for a considerable time (15/02/2021 till about 15/06/2022)  this Commission functioned as a Single-Member-Bench, this being an incomplete quorum. On the latter date office of this Commission was directed to issue notice to Appellant, though not required to do so, in the interest of Justice, to appear or be represented.  

5. This notice was returned with remark “Unclaimed”. Adv. Shri B.P. Sardesai for Appellant was telephonically directed on 25/07/2022 to appear and argue.

6. However, apart from one hearing (17/08/2022) when Adv. Shri Gaonkar, holding for Adv. Shri B. P. Sardesai, appeared for Appellant; the latter failed to appear or be represented on all subsequent hearings.  

7. For the hearings on 28/10/2022, 30/11/2022, 14/12/2022, 26/12/2022, 16/01/2023, 06/02/2023 & 10/02/2023, Appellant remained absent. On this last date Respondents filed an Application to set aside this Commission’s Stay Order dated 24/01/2019. Due to consistent absence of Appellant, arguments on said Application were heard from Adv. Ms. Philomena D’Silva for Respondents alone, and said Application was allowed vide Order of 13/03/2023, pronounced in Open Court on 20/03/2023.

8. In view of continued absence of Appellant it was determined on 13/03/2023 and again on 20/03/2023 that whosoever shall be present will be heard on the next date and matter be decided.

9. Accordingly Final Arguments were heard on behalf of Respondents alone on 23/03/2023. However this Judgment has taken cognizance of written submissions filed by both sides. 

10. This Appeal u/s 15 of CPA 1986 seeks to challenge the Judgment by District Commission, South Goa dated 31/07/2018 pronounced in Execution Application EA/09/2018. Said Judgment Ordered issue of Recovery Certificate to the Collector for amounts as mentioned therein. 

11. Appellant was Opposite Party before said District Commission and Respondents were Complainants. Parties shall be addressed, for the purpose of this Judgment, as they stand before us.

12. The brief facts of the matter are as follows:

1. Respondents were co-owners of a property known as “Fatorda” or “Fatradichem” situated at Fatorda, Madgaum City in Goa bearing chalta numbers as stated in the Appeal and in the Complaint at District Commission.

2. An Agreement for Sale & Development was executed on 22/05/2007 between Respondents and other co-owners on the one side; and Appellant on the other; whereby the latter agreed to allot a single bedroom flat having super built-up area of 50 sq. mtrs. on the second floor and also a shop of double height, having area 16 sq. mtrs. on the ground floor to Respondents. Both these premises were to be handed over by Appellant to Respondents within 24 months of the date of Agreement and also obtain Construction License. On default, Appellant was liable to pay Rs.3,000/- per month to each of the co-owners including present Respondents towards rent for alternate accommodation.

3. There was a further rectification/addendum on 09/09/2008 to the said Agreement referred to in paragraph b) above by which Respondents were allotted a double bedroom flat bearing number FF-4 on the first floor having an area of 80 sq. mtrs.

4. Appellant discontinued making payment of the agreed rents from October 2011. So also the flat was not constructed as per specifications and this was brought to the notice of Appellant by letter of 20/10/2011 against which no reply was received. The area of said flat FF-4 is 65.06 sq. mtrs. instead of 80 sq. mtrs. agreed, as per said addendum. Respondents further informed Appellant by letter of 20/01/2012 that the flat was not as per agreed specifications.

5. By virtue of a Memorandum of Understanding (MOU) of 14/07/2012, Appellant agreed to pay a lump sum of Rs.6/-Lakhs to Respondents by way of compensation towards payments of rents. Appellant then paid an amount of Rs.3/-Lakhs by Demand Draft and the rent arrears of Rs.1,82,000/- was also paid vide cheque dated 12/07/2012 on Federal Bank. Vide this MOU, Appellant also agreed to complete the flat, obtain necessary certificate from SGPDA and deliver possession to Respondents. Appellant also agreed to rectify defects in the suit flat and promised to pay Rs.6,000/- per month to Respondents. However Appellant neither paid this sum, nor executed Sale Deed nor handed over possession.

6. The present Appeal Memo states that possession of the flat was taken by Respondents in mid 2016.

7. It is Appellant’s contention that the original Complaint CC/41/2016 was filed on 15/07/2016 which is beyond the limitation period and hence that the Complaint should not have been admitted or if so admitted should have been dismissed.

8. Appellant further contends that he left on 22/06/2016 for UAE and since then has been away from India. That this fact is substantiated by visa dates stamped on his Passport and that he was not aware of the proceedings instituted before District Commission. Hence that the proceedings at said District Commission continued ex-parte in his absence. Further that he returned to India only on 10/07/2018 and then learnt about said proceedings about which an intimation was received by his father. He/his Father hence approached the post office and received the relevant copy on 27/06/2018.                            

13. Appellant hence contends that he was unaware of the proceedings that occurred “.....behind his back” and hence that the Impugned Judgment be quashed and set aside. Further that the matter be remanded back to District Commission for proceeding afresh on merits. 

14. Written Arguments of Appellant and those of Respondents are on record.

15. As stated in paragraph 9. above, after multiple opportunities given to Appellant, Oral Arguments were preferred on behalf of Respondent alone.

16. In view of the background as described above, and after having perused Written Submissions of both sides and Oral Arguments preferred by Respondents, we proceed to list as below our:

OBSERVATIONS & FINDINGS

1. Appellant had agreed to build, construct and deliver agreed premises to Respondents vide Agreement dated 22/05/2007 entered between Parties and also further vide Rectification/Addendum dated 09/09/2008. A further MOU was executed on 14/07/2012.

2. Even assuming, without admitting, that Appellant remained out of India from 22/06/2016 till 10/07/2018, the above dates clearly establish that he did have certain substantial liabilities to be fulfilled towards Respondents. It cannot be said that he was unaware of these liabilities.

3. As a Builder/Developer, it can be reasonably inferred that he is an educated and literate person. Even assuming that he was indeed, away, it is universally known that in this present century, extensive communication means exist. It should be hence reasonably assumed that Appellant had access to Telephones, Mobiles and Internet Emails.

4. Appellant states that he had gone to UAE. He admits that his Father (and possibly other family members) remained in Goa. Even if the electronic communication means mentioned in iii. above were not accessible, courier services including the Indian Postal Department’s Speed-Post service are available today to every citizen.

5. Appellant’s contention of lack of knowledge of proceedings cannot be accepted. Even otherwise, as observed in i. above, he was fully aware of his liabilities.
6. It is observed that Stay Order granted by this Commission on 24/01/2019, has been vacated by this Commission vide our Order dated 13/03/2023 pronounced on 20/03/2023. Respondents are hence at liberty to proceed at the appropriate District Commission in view of vacation of said Stay Order.

7. In accordance with all our above observations, we hence determine as under:

ORDER

1. The present Appeal before us is hereby dismissed in view of our above Observations and Findings.

2. There shall be no Order as to further costs.

3. Proceedings in this matter stand closed.

[Shri Dhananjay A. Jog]

President

[Dr. Nagesh S. Colvalkar]

                  Member

[Adv. Ms. Rachna A.M.Gonsalves]

Member

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