Complainant through Lrd. Adv. Z.M. Shaikh
Opponent No. 1 through Lrd Adv. Paralikar
Opponent No. 2 through Lrd Adv. Bhujbal
Opponent No. 1 through Lrd Adv. Anantpure
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(10/12/2013)
This complaint is filed by the consumer against the opponent for deficiency in service under section 12 of the Consumer Protection Act, 1986. The brief facts are as follows,
1] The complainant is a resident of Azadnagar, Wanworie, Pune – 45. He was the tenant in the building which was bearing city survey no. 563 C and 563 D, situated at Nana Peth, Pune and he had occupied shop premises admeasuring 250 sq. mtrs. The complainant had purchased the said property from the title holder i.e. Nivdungya Vithoba Devsthan Trust under registered sale deed dated 10/8/1989 and 28/9/1993. Thereafter he had entered into partnership named as “M/S Kachhi Associates” with Shri. Mushtaque Parwani and others. The said property was given to the firm for development. It was mutual understanding between the complainant and the firm that his tenancy rights will remain intact and he will be entitled for a flat in the proposed building admeasuring 1635 sq. ft. along with balcony admeasuring 500 sq. ft. and shops admeasuring 214.37 sq. ft. and 177.93 sq. ft. Subsequently, the complainant retired from the said partnership and at that time opponent no. 3 i.e. M/S Kachhi Associates agreed to allot disputed property i.e. flat and shops to the complainant. Then M/S Kachhi Associates transferred the said property to the opponent no. 2 M/S Sanghavi Shah and others for development. Thereafter M/S Sanghavi Shah had transferred this property to opponent no. 1 for development. It is the case of the complainant that, the opponent no. 1 and 2 had purchased rights of the property knowingly that the complainant had right in the disputed property, which is confirmed by the opponent no. 3. The opponents are denying for discharging their liabilities under the Maharashtra Ownership Flat Act by not executing agreement and allotting flat as well as shops as per the confirmation deed between the complainant and the opponent no. 3 and that amount to deficiency in service. Hence, complainant has filed this complaint for directions to the opponent to execute the conveyance deed of the disputed property and compensation of Rs. 5 lacs. The complainant has also claimed relief of injunction, restraining the opponent from creating third party interest in this disputed property.
2] The opponent no. 1 and 2 resisted the complaint by filing written version separately. They have denied the contents of the complaint. It is flatly denied that there was agreement between complainant and the opponents. It is further contended that there was privity of contract between the complainant and opponent no. 2 and 3, hence complainant is not at all entitled for the relief as claimed. It is also denied that they were knowing the transaction between the complainant and the opponent no. 1. It is the case of the opponents that as soon as the complainant had purchased the disputed property from the original owner, his tenancy rights merged in title and the complainant is not entitled for flat and shop in lieu of tenancy rights. It is further contended that many factual and legal complications are involved in this proceeding. Complainant is not a ‘consumer’. Hence, this Forum has no jurisdiction to entertain the present complaint. The opponents have prayed for dismissal of the complaint.
3] After considering pleadings of both the parties and scrutinizing the voluminous documentary evidence, which is produced before this Forum and hearing the arguments of both the counsels, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether complainant has proved that, the opponent no. 3 had left any saleable interest in the disputed property? | In the negative |
2. | Whether complainant has proved that there was privity of contract between opponent no. 1, 2 and the complainant? | In the negative |
3. | What order? | Complaint is dismissed. |
REASONS :-
4] On careful scrutiny of the documents, which are produced by the complainant, it would reveal that once upon a time the complainant was a tenant in the disputed property, when the property was belonging to the trust namely Nivdungya Vithoba Devsthan Trust. It is the case of the complainant that, he had purchased disputed property from the said Sansthan, as soon as he had purchased the said property, his tenancy rights presumed to be merged in the right of title. In such circumstances, it is very difficult to accept that, subsequently his tenancy rights were revived after retirement from the partnership with the opponent no. 3. It is not in much dispute that the opponent no. 3 had sold out the disputed property to the opponent no. 2 and thereafter the opponent no. 2 had transferred the said property in favour of the opponent no. 1. Sale Deed between the parties is placed before the Forum. It is not the case of the complainant that there was privity of contract between himself and the opponent no. 1 and 2. According to the complainant, opponent no. 1 and 2 were fully aware about the transaction between himself and the opponent no. 3. In these circumstances, they are bound to execute the sale deed and fulfill the obligation as per Maharashtra Ownership Flat Act. It is significant to note that, the complainant himself has admitted that the opponent no. 3 had sold out the disputed property, then it is crystal clear that the opponent no. 3 had not left any saleable interest in the disputed property. As there was no privity of contract between the complainant and opponent no. 1 and 2, then, opponent no. 1 and 2 can not be directed to execute any conveyance deed in favour of the complainant. The learned Advocate for the complainant had argued before me that the opponent no. 1 and 2 are not bona fide purchaser for value without notice. The opponent no. 1 and 2 had purchased the disputed property, with knowledge of transaction between complainant and opponent no. 3. In such circumstances, they should be directed to fulfill the obligation, which were agreed by the opponent no. 3. It reveals from the pleadings and the documents, which are produced before the Forum, that there are so many factual and legal complications involved in the present proceeding. It is to be determined, as to whether tenancy rights of the complainant will remain intact after purchasing disputed property. It is to be determined that, whether opponent no. 1 and 2 were aware about confirmation deed between complainant and the opponent no. 3. In order to investigate the real controversy between the parties, the detail enquiry should be made and for that the evidence should be recorded. It is significant to note that, it appears from the pleadings that civil rights of the parties are involved and not the consumer rights. Hence, it is convenient to adjudicate the dispute between the parties by the Civil Court, as the consumer failed to prove that he is a consumer of opponent no. 1 and 2, who had subsequently purchased the disputed property. Under these circumstances, I answer the points accordingly and pass the following order.
** ORDER **
1. Complaint stands dismissed with
no order as to the costs.
2. Copies of this order be furnished to
the parties free of cost.
3. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 10/12/2013
