ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. The complainant has filed this complaint U/S 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred in short as O.Ps) alleging deficiency in service on the part of the O.Ps and prays for direction to the O.Ps to execute proper sale deed in favour of the complainant, to transfer ownership without incurring any additional cost and to pay Rs.10,00,000/- compensation towards mental agony and cost of litigation.
2. The brief facts of the complaint is that, the complainant and his wife jointly purchased the flat from the O.Ps for a total sale consideration of Rs.14,73,00,155/- and entered into an sale agreement on 25.6.1994 and the sale consideration includes the charges towards the registration of sale deed in favour of the complainant. The complainant states that they have made payments in accordance with the terms and conditions of the agreement. The complainant alleges that, despite repeated requests and reminders the O.Ps have failed and neglected to perform their legal obligations in terms of construction agreement. Further on failure to execute a sale deed it resulted in financial loss to an extent 10 lakhs as well as created mental agony to the complainant. Hence the complainant got issued the legal notice dated 22.3.2014 calling upon the O.Ps to execute the registered sale deed in favour of the complainant. Whereas O.Ps did not comply the demand neither made in the legal notice nor come forward to registered the sale deed in favour of the complainant and hence the complainant alleging the deficiency in service filed this complaint.
3. Upon issuance of notice O.Ps No.1, 7, 8, 9 and 10 and 11 appeared through their counsel, whereas O.P.No.1 filed version and the version of the O.P.No.1 is adopted by O.P.No.10 and 11. Further O.P.No.7, 8 & 9 filed their version. However, despite service of notice O.P.Nos.2, 3, 4, 5 and 6 remained absent and hence all these O.Ps were placed ex-parte.
4. In the version of O.P.No.1 it is contended that, the notice itself is improper as the same does not specify the name of the partner as representing the O.P No.1 partnership firm. It is contended that complaint is bad for non-joinder of all the partners of the O.P.No.1 partnership firm as each of the said partners of the firm are necessary and proper parties to the instance proceedings. O.P No.1 contended that the complaint is also barred by limitation. It is the contention of the O.P.No.1 that the present complaint is filed only by Mr.Sathish Raj Garhia without impleading his wife Sapna Rajgarhia as a party to the proceedings and sought for execution of sale deed in his favour. It is submitted that, there are serious long standing disputes between the partners of the O.P.No.1 firm and arbitration proceedings had been instituted for dissolution of the O.P No 1.
5. That the O.P No 1 contended that, the prolonged proceedings between the partners of the O.P No 1 subsisted for over a decade and the O.P No 1 partnership firm has ceased to carry on any business for more than a decade. Further the bank accounts of the O.P No 1 partnership firm had been frozen and rendered non operational. The O.P contended that, the sum of money partly advanced by the complainant towards stamp duty and registration expenses also cannot be utilized as the same are deposited in the bank account O.P No 1 firm which has since been frozen. It is contended that, in the absence of the remaining 9 partners assuming the relief prayed in the complaint if granted, the said relief would practically be rendered unenforceable as there is no agreement between the partners with regard to the execution of sale deed in favour of complainant or for that matter in respect of any other matters pertaining to the erstwhile business of the O.Ps partnership firm. Hence contended that, it is not possible to execute the registered sale deed in favour of prospective purchasers in the absence of the any authority. Further contended that, all the partners jointly and severally liable for all the acts of the firm. Further contended that, for the relief sought in the complaint and the complaint relief exceeds pecuniary jurisdiction.
6. It is contended that, the complainant did not pay regular installments to the O.P No 1, however on completion of the project the O.P No 1 partnership firm handed over the possession of the apartment unit to the prospective purchasers. The O.P No 1 also re-issued the purchasers to make timely payment both orally and in writing and also issued several reminders in writing vide letters on different dates. This O.P contended that, they already put the prospective purchasers into possession of the apartment on 2-1-1998 and after that, repeatedly called upon the purchasers to come forward and to obtain execution of the sale deed. However prospective purchasers deliberately failed to do so and had also failed to respond to the letters addressed by the O.P No 1 to the prospective purchasers. It is contended that, as on now the dispute being adjudicated before a duly constituted tribunal and other legal proceedings are pending and the amount paid towards registration charges is in the bank and bank account is in-operable. Subsequently part amounts in deposit were released towards part of the stamp duty and registration fees paid by the prospective purchasers and thereon O.P addressed the letters to the prospective purchasers calling upon them to come forward and obtain the execution of the sale deed. However it is contended that, prospective purchasers again failed to come forward and obtain the execution of the sale deed. Further this O.P contended that, in spite of the final reminder prospective purchasers ignored the request and had failed to respond to the same. It is submitted that despite O.P No 1 being ready and willing to execute the sale deed in favour of the prospective purchasers that the complainant/prospective purchasers have utterly failed to demonstrate their readiness and willingness to come forward and obtain the execution of sale deed despite numerous requests. Further contended that, the complaint is in effect seeking specific performance of the agreement dated 25-06-1994 and the said agreement is not specifically enforced in view of the statutory bar arising in terms of section 16(iii) of the Specific Relief Act 1963. The complaint is filed by suppressing of material facts. Further, there was no agreement regarding the car parking space. The complainant has paid only Rs.1,26,000/-towards the stamp duty and registration fees and it is the obligation and liability of the prospective purchasers to pay the proper stamp duty and registration fees. It is further contended that, the complainant paid the then registration and stamp duty charges and the market value of the immovable property increased and the stamp and registration charges is also increased. Further, this O.P contended that, there is no deficiency in service on their part. Further this O.P No. 1 by denying all the allegations of the complainant and prays to dismiss the complaint with cost. However the O.P No 10 and 11 adopted the version of the O.P No 1.
7. It if further to note that, though the O.P No 7 to 9 came on record but they did not choose to file evidence on their behalf.
8. In the version of O.P No 7 to 9 it is contended that, complaint is wholly false, frivolous and vexatious and the same is filed with intention to harass the O.Ps. Further contended that, the complaint lacks the bona-fides and not maintainable either in law or on facts. It is contended that, at all material times one Mr. Arjun Menda was looking after the day to day affairs of the O.P No 1 and is aware of the relevant facts and records in the matter and has all the source and knowledge of the factual situation to reply to all the false and baseless allegation made in the complaint. Hence the O.P.No.7 to 9 submitted that the version filed by the O.P.No.1 is also adopted by these O.Ps in order to avoid the repetition of objections already filed by the O.P.No.1
[[9. In order to substantiate the case of the parties and both parties filed their affidavit evidence and also heard the arguments and the parties also filed the written arguments.
10. On the basis of the pleadings of the parties, the following points will arise for our consideration are:-
(A) Whether the complainants has proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainants are entitled to
the relief prayed for in the complaint?
(C) What order?
11. Our answers to the above points are:-
POINT (A): In the Affirmative.
POINT (B): In the Affirmative.
POINT (C): As per the final order
for the following:
REASONS
POINT No.(A):-
12. On perusing the pleadings of the parties, it is an undisputed fact, that, the complainant purchased the apartment from the O.Ps by paying consideration amount of Rs.14,73,00,155/- by entering into an sale agreement dated 25.6.1994 and it includes the registration and stamp charges paid to the O.P.No.1. It is also not in dispute that, inspite of the possession of the apartment delivered by the O.Ps long back to the complainants i.e. during the year 1998 but the sale deed is not executed by the O.Ps and hence the present complaint.
13. Per contra, O.Ps contended that, there is the dispute pending before the duly constituted Arbitrator and the proceedings are pending for consideration and due to the long drawn litigation the amount paid by the complainant/prospective purchasers frozen in the bank. Further, by the order of the authority, when the part payments released by the bank towards stamp and registration charges and thereby O.Ps intimated the complainant/prospective purchasers to get registered the apartment but the complainant/prospective purchaser themselves did not come forward to registered the case. Further contended that, even after the final reminder complainant/prospective purchasers did not respond to the final reminder. Further, contended that, the complainant is barred by limitation.
14. The crux of the matter is to consider that, whether the complainant is entitled to get the sale deed registered without incurring any additional expenditure of the stamp duty and registration charges.
15. On perusal of the evidence placed on record, in pursuance of the sale agreement, complainants paid total consideration amount towards the apartment. It is also not in dispute that, the total sale consideration paid by the complainant to the O.Ps and it includes stamp and registration charges. As per the saying of the O.Ps they have delivered the possession of the apartment to the complainants during year 1998 itself. Further O.Ps contended that, the delay in registration of the apartment due to pending dispute before the Arbitrator and the amount collected from the prospective purchaser were kept in deposit in the bank and the account due to litigation is in operated for a decade. However, when the amounts released they have issued notice to the prospective purchaser and called upon them to get the sale deed registered in their favour. It is further contended that, complainant nor the prospective purchasers came forward get the sale deed registered in their favour.
16. It is worth to note that, when the litigation is between the partners of the O.Ps for which complainant should not be suffered. Furthermore, the duly constituted Arbitral proceedings are pending in Mumbai jurisdiction and how can complainant expect more the day to day arbitration proceedings. The complainants or other prospective purchasers might have kept quiet for a long time due to pending litigation. It is the duty of the O.Ps when they received full consideration amount and handed over the possession to the complainant there should ought to have registered the sale deeds in favour of the complainant. Somehow for the reasons required sale deed is not registered in favour of the complainant. Hence the litigation is due to the reason of between the partners of the O.Ps and not from the cause of the complainant. Hence the contention of the O.P that the present complaint is filed is hit by limitation cannot be acceptable one. Unless and until O.Ps registered the require sale deed in favour of the complainant, the cause of action is continuing one. Hence O.Ps cannot exonerate their liability. The non-registration of the sale deed in favour of the complainant after receiving the full consideration amount obviously amounts to deficiency in service on the part of the O.Ps. Accordingly, we answered this Point in the affirmative.
POINT No.(B):
17. As per the evidence on record complainant paid full consideration amount towards the purchase of the apartment to the O.Ps and the consideration amounts includes the cost of the registration of the sale deed. The contention of the O.Ps are that when they called upon the complainants or the prospective purchasers they did not come forward to get registered the sale deed. Hence contended that now the stamp duty on registration charges increases and hence O.Ps contended that the complainants have to bear the additional registration charges. However, on perusal of the copies of notice produced by the O.Ps dated 16.10.1997 it discloses that O.Ps called upon the complainants and asked him to come forward to take possession and for the registration of the sale deed. The copy of acknowledgement due is also evidence that notice served on the complainant, further on perusal of Doc.No.2 produced by the O.Ps it also discloses that the O.Ps No.1 issued a notice through registered post to the complainant and asking him to come forward for registration to complete the formalities and also asked the complainant to bring two passport size photograph, PAN Card to complete the formalities of the registration. However, the complainant was silent about the issuance of notice by the O.Ps and called upon the complainant for registration. It shows that on one way the complainants also contributed for the delay in order to get registration of the sale deed in respect of the apartment. In these peculiar circumstances and to strike the balance of justice between the parties we deem it just and proper to direct the O.Ps to execute the registered sale deed in respect of the apartment in pursuance of the sale agreement dated:25.6.1994 and also we deem it just and proper to direct both the parties if any additional charges required for registration and both parties equally bear the registration of sale deed expenses and it will meet the ends of justice. Accordingly we answered this point partly in the affirmative.
POINT (C):
18. On the basis of findings given while answering the Points (A) & (B) and in the result, we proceed to pass the following:-
ORDER
- The complaint is allowed in part with cost.
- The O.Ps are hereby directed to execute the register sale deed in respect of apartment bearing No.212 on the 2nd floor of the building Block Maple in Raheja Residency as per agreement dated 25.6.1994 in favour of the complainant.
- Further complainant and the O.Ps are directed to bear the additional charges if any for registration of the apartment shown in the Sl.No.(2) of the order equally.
- Further O.Ps are directed to pay cost of Rs.3,000/- towards cost of the litigation expenses.
- The O.Ps are hereby directed to comply the order of this Forum within 60 days from the date of receipt of this order and submit the compliance report to this forum within 75 days from the date of receipt of this order.
- Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 23rd Day of November 2016)
MEMBER MEMBER PRESIDENT
*Rak
