Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member
Both these appeals are being disposed of by this common order since they involve identical question of facts and common question of law. Appeal no.10/1017 arise out of order dated 28/06/2010 passed in consumer complaint no.18/2010, Rohit Shamkant Gharat v/s.Chetana Constructions through Proprietor Smt.Madhu Amarlal Purswani, and another appeal bearing no.10/1018 arises out of impugned order dated 28/06/2010 passed in consumer complaint no.19/2010, Sau.Anuradha Shamkant Gharat v/s. Chetana Constructions through Proprietor Smt.Madhu Amarlal Purswani; both passed by District Consumer Disputes Redressal Forum, Raigad at Alibag (‘forum’ in short).
Undisputed facts are that respective flats of complainant in both the complaints were handed over to them and accordingly are in their possession since from the year 1996 itself. They are put in the possession by the respondent/original opponent (herein after referred as ‘builder’). Builder has also received full consideration in respect of those flats. It is further alleged that the agreements executed in favour of these respective flat purchasers were not registered and, therefore, the society of the flat purchasers in which these flats are situated is not recognizing the complainants as its members. Therefore, consumer complaints were filed alleging deficiency in service on the part of the builder to execute registered agreement.
Forum finding that both the consumer complaints are barred by limitation, dismissed the consumer complaints and feeling aggrieved thereby respective complainants filed these appeals.
Both these appeals are admitted and heard forthwith with consent of parties.
Admittedly, considering nature of dispute, it relates to the execution of the registered agreements. Agreement is already executed but it is yet to be registered as per the provisions of Maharashtra Ownership Flats Act 1963 (MOFA). Therefore admittedly, builder failed in his statutory duties towards the flat purchasers and, thus, deficiency in service is well established. Since the document is yet to be registered the cause of action is continuous. Forum did not appreciate this particular aspect properly and committed an error of law. Holding accordingly we pass the following order:-
ORDER
Appeal nos. 10/1017 & 10/1018 are allowed.
Common impugned order dated 28/06/2010 passed in both the appeals stands set aside.
Both the consumer complaints are remitted back to the District Consumer Forum with a direction to conduct de novo inquiry into the dispute inter alia including allowing the appellant to file written version and then receiving evidence led by both the parties u/sec.13(4) of Consumer Protection Act, 1986 and settle the dispute according to law. Both the parties shall appear before the forum on 03/10/2011.
In the given circumstances both the parties to bear their own costs.
Copies of the order be furnished to the parties.
Pronounced on 26th August, 2011.
