This appeal is filed by OP Nos. 2 to 9 in C.C. No. 07/09 and is directed against final order dated 17/6/14.
2. The appeal was directed to be registered on 20/11/14, after delay in filing the same, was condoned.
3. The Appellants/OP Nos. 2 to 9 remained present on 08/01/15 through their advocate but later on have chosen to remain absent on 20/01/15 as well as on 3/2/15 and as such we have decided to deal with the appeal on merits, rather than dismiss the same for default, relying on Deepak Jaiswal vs. Oriental Insurance Company, 1993(1) CTJ 843.
4. We have heard Shri. A. Shetye, the lr. advocate of Respondent No. 1/Complainant, and, perused the record.
5. The facts stated by Respondent No. 1 i.e. the complainant would show that OP No. 1 is a developer who had entered into an agreement for sale dated 7/10/05 with OP Nos. 2 to 9 by which they had agreed to sell to OP No. 1/developer, 5 plots of land as well as remaining area of 4428 of sq.mtrs of survey No. 1/9 of Chicalim Village. OP Nos. 2 to 9 are some of the co-owners of the said property. OP No. 1/the developer had also entered into similar agreements with other co-owners of the said property, dated 30/11/05, 29/12/05, 4/2/06 and 1/2/06.
6. OP No. 1/developer then prepared a scheme for the development of the said property vide development permission dated 20/02/06 from MPDA and also from the village Panchayat of Chicalim and as stated by the Complainant, then by agreement dated 24/02/06, OP No. 1/developer alongwith OP Nos. 2 to 9 agreed to sell to the complainant a sub divided plot admeasuring 422.10 sq.mtrs for a sum of Rs. 4,22,000/-. The said plot was
identified as plot No. 2. This agreement was duly registered and by virtue of clause 4 of this agreement, and, as per the complainant the OP No. 1 developer had undertaken to obtain a proper deed of conveyance of plot No. 2 in favour of the complainant within a period of 12 months from the date of execution of the said agreement subject to payment of entire consideration.
7. The complainant paid the entire sum of Rs. 4,22,000/- by receipt dated 8/2/06. Here, it may be stated that by earlier agreement dated 7/10/05 with OP No. 1, the developer, the OP No. 2 to 9, by virtue of clause 10 of the said agreement, had stipulated that the purchasers would have a right to request the vendors to convey to them the plots in favour of the purchasers or their assignees or nominees. It was also stipulated that it would be compulsory on the part of the vendors (i.e. OP Nos. 2 to 9) to sign, execute and deliver such deeds at the expense of the purchasers).
8. The complainant came down to Goa on or about 18/11/07 and was informed by letter dated 19/11/07, by OP No. 1/developer that the area of plot No. 2 was 362 sq.mtrs. as against the area agreed upon to be sold of 422.10 sq.mtrs and as such the complainant was given a refund of Rs. 16,100/-.
9. The complainant then purchased the stamp papers of the required value as instructed by OP No.1/developer and the sale deed was duly signed by the complainant and OP No. 1 developer for self and as constituted attorney of the other co-owners, but, OP Nos. 2 to 9 avoided to sign the same although the same was delivered to OP Nos. 2 to 9 by OP No. 1 the developer. Hence the complainant filed the complaint against OP No. 1 developer as well
as OP Nos. 2 to 9, the owners of property and parties to the agreement dated 7/10/05.
10. The OP Nos. 2 to 9 resisted the complaint stating that (a) the complaint is bad for non joinder of the other owners of the property, (b) the complainant was not a consumer as he had purchased the plot for commercial purposes and (c.) it was not known as to how the complainant would have a residential house in Goa when the complainant was a native of Orissa who was having his work place at that place.
11. Shri. Shetye the lr. advocate of the complainant would submit that the complainant has paid the entire consideration for the plot agreed to be sold to him. He further submits that the other co-owners are ready to execute the sale deed. Lr. advocate further submits that the complainant will now be a looser, as the stamp duty as well as registration charges have now been increased by the Government.
12. The Lr. District Forum has relied on clause No. 10 of agreement for sale deed dated 7/10/05 and held that there was a gross negligence specially on the part of the OP Nos. 2 to 9.
13. Admittedly, OP Nos. 2 to 9 by virtue of agreement dated 7/10/05 duly registered had agreed that the purchasers would have a right to request the vendors to convey the plots unto them or their nominees or their assignees and based on the same that the complainant as purchaser had entered into another agreement with the developer dated 24/2/06. This agreement was also duly registered and was executed by OP No. 1/developer for self and as attorney of OP Nos. 2 to 9, and, therefore, the complainant had every
right to insist that OP Nos. 2 to 9 as vendors also execute the sale deed in his favour.
14. As far as the plea of non joinder is concerned the other owners of the property have already signed the sale deed in favour of the complainant through OP No. 1/developer as their attorney, and, therefore it could not be said that the complaint was bad for non joinder of parties. In fact there was no subsisting cause of action for the Complainant to add them as parties. In any event, OP Nos. 2 to 9 were bound to comply their parts of agreement dated 7/10/05 as well as agreement dated 24/2/06. The complainant is a purchaser of a small plot of land admeasuring 362 sq.mtrs which he had purchased to build a house, and, therefore, by no stretch of imagination it can be said that he had purchased the same for a commercial purpose. As to how the complainant would build a house on the said plot by residing in Orissa is his concern and that cannot be the concern of OP Nos. 2 to 9.
15. The OP Nos. 2 to 9 were therefore bound to execute the sale deed in favour of the complainant, as ordered by the Lr. District Forum which we hereby direct to be executed within a period of 30 days from the date of this order.
16. No grievance is made in the memo of appeal as regards the compensation awarded to the complainant and otherwise also, it does not call for our interference.
17. As already stated the appeal was registered on 20/11/14. The Appellants/OP Nos. 2 to 9 are being represented by an advocate and till date they have not complied with the 2nd proviso to Section 15 of the C.P. Act, 1986. This would be another ground for
dismissing the appeal (see M/s. Shreenath Corp. & ors, 2015(1) CPR 1).
18. For reasons aforesaid we proceed to dismiss the appeal with costs of Rs. 5000/- to be paid by the Appellants/OP Nos. 2 to 9 to Respondent No. 1/Complainant.
