JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      This order shall decide seven above mentioned revision petitions, which involve the same question of law and facts.  These revision petitions arise out of the common order dated 30.9.2013 passed by Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench, Nagpur.  We have taken the facts from revision petition No. 755 of 2014-Malti Construction vs. Arun K. Hirulkar.

2.      All the complainants agreed to purchase their respective flats from the original opposite parties vide respective agreements of sale.  All the three opposite parties were having 1/3 share in the land upon which the apartment comprising of different flats was to be constructed by M/s Malti Construction, opposite party No. 1.  The other opposite parties gave their irrevocable power of attorney in favour of M/s Malti Construction, opposite party No. 1.  They agreed for development of that plot.  M/s Malti Construction, opposite party No. 1 developed the said plot in the name and style of “Gangadham Apartments”.  All the complainants paid costs of the respective flats and opposite party No. 1 also acknowledged the receipt, thereof, by issuing consolidated statement signed by him besides the other charges.  All the complainants got the possession of their respective flats.  They paid full price and other extra charges as per agreement to sell.

3.      The grouse of the complainants is that they made several requests to the opposite parties to execute the sale deed in their favour but it did not ring the bell.  In this regard, the letter dated 21.3.2004 and reminder dated 29.6.2005 were issued but those did not yield any result.  Thereafter, seven complaints were filed.  The complainants also claimed Rs.25,000/- towards mental harassment and Rs.10,000/- towards costs of each complaint.

4.      The District Forum passed the following order:

“From the above said overall discussion, documents      filed on record, we are of the opinion that the said complaint is premature and the claim of the complainant cannot be allowed till the complainant and non-applicant No. 1 proves that how much is the additional construction, its total area and how much its total cost.  Thus, we proceed to pass following order with protecting the right of Complainant to file fresh complaint.

FINAL ORDER

1. The complaint of the complainant is disposed of
2. The right of the complainant is protected for filing a fresh complaint case.
3. Both the parties to bear their own cost.”

5.      Aggrieved by this order, the complainants filed first appeals before the State Commission.  The State Commission vide its order dated 30.9.2013 partly allowed the complaints and passed the following directions:-

“i.       The appeal Nos. A/07/581 to A/07/587 are hereby partly allowed.

ii.       The impugned orders dtd 21.04.2007 passed in seven complaints bearing Nos. CC/06/186, CC/06/187, CC/06/188, CC/06/189, CC/06/190, CC/06/191, CC/06/199 are hereby set aside.

         iii.      The said seven complaints are partly allowed.

iv.      The complainants/appellants shall pay to the respondents Nos. 1, 2 and 3 additional price of the additional construction at the rate specified in ready reckoner maintained by Government on the date of respective agreement to sell of each flat.

v.       The original O.P. Nos. 1, 2 & 3/respondent Nos. 1, 2 & 3 herein shall execute sale-deed of the respective flats including that of the additional construction, in favour of the respective complainants within one month on receiving the aforesaid additional price of the additional construction.

vi.      The expenses of the said sale-deeds shall be borne by the respective complainants.

vii.     The respondent Nos. 1, 2 & 3 herein shall pay to the respective complainants in each complaint Rs.3,000/- towards mental harassment and Rs.1,000/- towards cost of complaint.

         vii.     No order as to cost in this appeal.

         viii.    Copy of this order be supplied to the parties.”

6.      We have heard the learned counsel for the petitioner at length.  Although, in the written statement, petitioner No. 1 had picked up a conflict on various issues, yet, the principal argument raised by the petitioner’s counsel was that as per revised map dated 2.12.2004, the complainants are liable to pay the amount for excess area of more than 344 sq. ft. and hence a letter dated 13.6.2005 was sent to them for payment of balance amount.  The State Commission has taken care of that aspect and has directed the complainants to pay the respondents No. 1, 2 and 3 additional price of the additional construction at the rate specified in ready reckoner maintained by Government on the date of respective agreement to sell of each flat.  Consequently, this grievance of the opposite parties stands satisfied.

7.      The second argument raised by the counsel for petitioner was that this Court has no jurisdiction.  It involves complicated questions, therefore, the civil court should decide the matter.

8.      We clap no value with this argument.   As per Section 3 of the Consumer Protection Act, 1986, this Court has got parallel additional jurisdiction.  Moreover, from the pleadings of opposite parties 2 and 3, it is apparent that civil suit No. 11 of 2006 is pending inter se the opposite parties.  The only question raised by learned counsel for the petitioner was that he has constructed the entire house and the additional payment should be made to him alone.

9.      We find no merits in this argument.  It is pertinent to note that the petitioner has failed to produce on record the power of attorney given by opposite parties 2 and 3 in favour of petitioner/opposite party No. 1.  In absence of that significant document, the position does not begin to jell.  The petitioner also failed to produce the agreement executed between the complainants and the petitioner without which it is difficult to know who is responsible for the deficiency.  In absence of those documents, it dampens the ardour of the case of petitioner No. 1.  Those documents were not produced.  It is to be assumed that those documents are of no help to the petitioner.

10.    The case of opposite parties 2 and 3 is stated in para 4 of the judgment of the State Commission, which is reproduced as under:

“The O.P.Nos. 2 & 3 filed their common written version and they came with a case that they have got 2/3^rd undivided share in the land and they had assigned the right to O.P. No. 1 to develop the said land as per agreement and they had also executed power of attorney in its favour.  They further submitted that they revoked power of attorney and cancelled said agreement vide legal notice dtd. 30.09.2006.  They published the said notices in local news papers on 01.10.2006.  The entire transaction referred to in the respective complaints were entered into between the respective complainants and O.P. No. 1 only and O.P. No. 1 received the entire amount payable under the agreement to sell.  The O.P. Nos. 2 and 3 are not liable to execute the sale-deed in favour of the complainants and also to pay compensation to the complainants.  They also submitted that if the complainants pay to them outstanding amounts they will be ready & willing to execute the sale deeds in their favour.  They also submitted that they have filed civil suit No. 11/2006 seeking injunction restraining O.P. No. 1 taking steps pursuant to agreement of development or power of attorney dtd. 18.09.2002.

11.    It clearly goes to show that civil case is pending inter se the opposite parties.  This dispute has nothing to do with that civil dispute.  The civil court will decide which of the opposite parties is entitled to have the amount.  That is not a consumer dispute.

12.    It may be mentioned here that the opposite parties are entitled to increase the disputed premises as per clause No. 6 of the agreement.  The purchasers agreed that the venders shall have full right to amend the date of declaration if the situation warrants and in such event, the undivided share and interest of the purchasers in the said land and the super built area of the apartments chosen shall be proportionately reduced or increased and the proportionate cost of the same shall be adjusted accordingly.

13.    The State Commission has rightly placed reliance in the case of G.L. Narasimham vs. B. S. Venkateswarule and Anr., revision petition No. 3415/2008, reported in 2010 (I) CLT 392 wherein it was held that consumer cannot be made to suffer because of the dispute between the builder and the owner of the property when the consumer has paid substantial amount and is willing to pay the balance amount at the time of execution of sale deed and when building has already been constructed and possession has already been handed over.

14.    It must be mentioned here that opposite parties 2 and 3 have filed caveat petition.  They have not called into question the order passed by the State Commission.  As we are not admitting the case, therefore, there is no need to serve them.  All the complainants are directed to pay the additional amount within 90 days from the date of receipt of this letter to all the opposite parties equally i.e. 1/3 share to each of them.  The complainant can deposit the amount with the District Forum.  Thereafter, the complainants will give notice to all the opposite parties to execute the sale deed within next 90 days.  If there is any default on the part of the opposite parties, they will be liable to pay additional penal costs in the sum of Rs.5,000/- each per opposite parties per month to the complainant in equal share till the decree stands satisfied.  The opposite parties will be bound by the order to be passed by the Civil Court.

15.    The revision petitions filed by the petitioner are lame of strength.  Therefore, the same are hereby dismissed.