Per Mr.B.S.Wasekar, Hon’ble President

1)                The present complaint has been filed by the complainants u/s 12 of the Consumer Protection Act, 1986. According to the complainants, the O.P.No.1 is the Builder.  They were introduced by the O.P.No.2 to O.P.No.1.  The complainant No.1 booked the flat No.7  and Garage No.4 with the O.P.No.1 in the building known as Worli Koli Samaj Community Centre situated at Plot No.307, Scheme No.52 Worli(Estate) for total consideration of Rs.9,56,160/-.  The complainant No.1 paid Rs.1 Lakh by cheque dated 13^th January, 2001and cash of Rs.5 Lakhs.  The O.P.No.1 issued common receipt dated 7^th January, 2002 on his letterhead.   The O.P.No.1 has neither executed agreement till today nor handed over the possession of flat and garage to the complainant No.1. 

2)                The complainant No.2 booked the flat No.3 with the O.P.No.1 in the same building for total consideration of Rs.9,57,820/-.  The complainant No.2 paid Rs.7,50,000/- Lakhs by three cheques and cash amount of Rs.3 Lakhs. The O.P.No.1 has neither executed agreement till today nor handed over the possession of flat to the complainant No.2. 

3)                The complainant No.3 booked the flat No.9 and Garage No.6 with the O.P.No.1 in the same building for total consideration of Rs.10,65,720/- and paid amount of Rs.1 Lakh by cheque and Rs.5 Lakhs by cash. The O.P.No.1 has neither executed agreement till today nor handed over the possession of flat and garage to the complainant No.3.  The O.P.No.1 issued common receipt dated 7^th January, 2002 on his letterhead.   The O.P.No.1 was giving assurance to hand over the possession on or before December-2004.  In the month of June-2010, the complainant No.1 visited the said building but the guards restrained him from entering the premises.  The O.P.No.1 failed to complete the construction work and violated the provisions of Maharashtra Ownership Flat Act, 1976. Therefore, the complainants have filed this complaint to direct the opponents to handover the possession of the flat and garage to the complainants after completing the construction work.   In the alternative, the complainants be allowed to complete the incomplete work of their flats at their own costs and to deduct the cost from the consideration amount.  They have also prayed to restrain the O.P.No.1 from creating third party interest and to appoint the Commissioner to verify the construction work.  They have also prayed for rent at the rate of Rs.5,000/- per month from 7^th January, 2002.  They have also prayed for compensation of Rs.2 Lakhs for mental agony and cost of Rs.50,000/-. 

4)                The complaint of Complainant No.1 and 3 only is registered vide order dated 3^rd September, 2010.  The complaint of complainant No.2 is not registered as it was not signed by him.

5)                The O.P.No.1 appeared and filed written statement. It is submitted that the complaint is bad for non joinder and misjoinder of parties.  The alleged flats have been already allotted in the year-2002 to the members of the Society therefore the complaint is infructuous.  The said premises are in possession of the members of the Worli Koli Samaj Vividh Karyakari Sahakari Society Limited.  There is no privity of contract in between the complainants and the opponents.  Therefore the complaint is not maintainable. The complaint is filed with connivance of the O.P.No.2.  The Vakalatnama is signed by the various parties including the O.P.No.2 and later on whitener is applied.  The complaint is not signed by the complainant No.2 therefore it is not maintainable.  All the averments in the complaint are denied.  The O.P.No.2 is not known to the O.P.No.1.  The documents produced by the complainants are vague documents.  The letter produced by the complainants is fabricated and tempered.  The prudent man will not acknowledge the post dated payment.  The alleged receipt on letterhead is not signed by the O.P.No.1. The documents produced by the complainants are not admitted. The O.P.No.1 has filed police complainant dated 20^th October, 2005 for fabricating and forging documents against the O.P.No.2.  The name of the father of O.P.No.1 is Dalichand and not Dulchand.  One Naresh Dilip Khawale filed Civil Suit No.5018 of 2005 before the City Civil Court.  In that Suit, Notice of Motion No.13041 of 2006 was filed.  In that Suit, the alleged common receipt dated 7^th January, 2002 was filed. The Hon’ble City Civil Court passed the order dated 6^th June, 2006 and dismissed the Notice of Motion.  The complaint is barred by limitation.  The O.P.No.2 has filed dispute before the Co-operative Court No.3 bearing No.CC III/126 of 2003 and the same is pending.  In that dispute, interim relief was rejected vide order dated 8^th January, 2007.  As there is no privity of contract, the complainants are not entitled for the relief’s prayed.

6)                The O.P.No.2 filed written statement.  It is submitted that he introduced complainants with the O.P.No.1.  The Worli Koli Samaj Vividh Karyakari Sahakari Society Limited executed Power of Attorney dated 12^th November, 1999 in his favour for discharging functions on behalf of the Society.  The complainants booked the flats and garage with the O.P.No.1 and paid the amount as alleged.  The O.P.No.1 issued common receipt dated 7^th January, 2002 and gave various assurances.  The O.P.No.1 cheated the various purchasers   therefore they filed criminal complaints against the O.P.No.1. This O.P. has supported the complainants.

7)                After hearing all the parties and after going through the record, following points arise for our consideration

POINTS

REASONS

8) As to Point No.1 :- As per the complaint and affidavit of evidence, the complainants booked the flats and garages in the building known as Worli Koli Samaj Community Centre situated at Plot No.307, Scheme No.52 Worli(Estate).  In the written notes of argument filed by the complainants dated 19^th July, 2013 para 12, the complainants have stated that Worli Koli Samaj Vividh Karyakari Sahakari Society Limited is the owner of the said plot No.307, Scheme No.52. Consumer Complaint No.CC/10/94 filed against the present opponents is also pending and fixed for judgment.  Shri Balasaheb Deshmukh, Adv is representing the complainants in both the complaints.  In Consumer Complaint No.CC/10/94, the complainant No.1 Madhuri Baburao Adhav has filed affidavit of evidence.  Alongwith her affidavit of evidence dated 30^th August, 2011, she has produced one agreement executed in between Worli Koli Samaj Vividh Karyakari Sahakari Society Limited – First Party, the present O.P.No.1 as Second Party and one Ujwala K.Bapardekar as the Third Party.  As per this agreement, Society is the owner and the O.P.No.1 is the Developer.  The society and the developer agreed to allot the shop to Ujwala K. Bapardekar.  Thus, there is tri parte agreement.  The Society and the Developer i.e. the O.P.No.1 agreed to allot the shop/flat to the purchasers.  As the Society is the owner, Society is the necessary party to this complaint.  The said society is not the party to this complaint.  According to the O.P.No.1, the said flats and garages are already sold to the members of the said society in the year-2002 and those purchasers are in possession of the said flats.  If the society is the owner then the society is the necessary party to this complaint.  In the absence of the society, the relief claimed in the complaint can not be adjudicated. Therefore, the complaint is bad for non joinder of necessary party i.e. the society. 

9)                As per notes of argument filed by the complainant and the tri party agreement produced by one of the complainant in CC/10/94, society is the land owner.  This fact is the material fact for the decision of the complaint.  This material fact is suppressed by the complainants therefore the complaint is liable to be dismissed for suppression of material fact from the Forum. 

10) As to Point No.2 :- It is submitted by the learned advocate for the O.P.No.1 that the complaint is barred by limitation as the alleged payment was made in the year-2001.  The possession was to be delivered in the year-2004.  The complaint is filed on 3^rd September, 2010 i.e. beyond the period of two years therefore the complaint is apparently barred by limitation. On the other hand, it is submitted by the learned advocate for the complainants that till today possession is not handed over therefore the cause of action is continue. For this purpose he has placed reliance on the judgment reported in (2012) 4 CPR (NC) 221, (2012) 1 CPR 396, (2011) 4 CPR (NC) 235, (2009) 4 CPR (NC) 323, (2008) 2 CPR (NC) 45, (2006) 3 CPJ (NC) 277. In all these judgments it is held that if the possession is not delivered cause of action will continue.  In all the abovecited judgments there were agreements in favour of the complainants but in the instant complaint before us, there is no agreement in favour of the complainants.   There is also no proof of alleged payment.  The so called payment was in the year-2001.  The complainants have not taken any action till 2010 therefore the complaint is apparently barred by limitation.

11) As to Point No.3 & 4:- According to the complainants, the complainant No.1 booked the flat No.7 and Garage No.4 for total consideration of Rs.9,56,160/-.  He paid Rs.1 Lakh by cheque and Rs.5 Lakhs in cash.  The O.P.No.1 issued common receipt on letterhead dated 7^th January, 2002. The complainant No.3 has booked the flat No.9 and Garage No.6 for total consideration of Rs.10,65,750/- and paid the consideration amount of Rs.1 Lakh by cheque and Rs.5 Lakhs by cash. The O.P.No.1 issued common receipt dated 7^th January, 2002 on letterhead. Copy of it is produced on record.  The O.P.No.1 has denied the booking as well as payment.  He has also denied the common receipt on letterhead produced by the complainants. According to the O.P.No.1, said document is forged.  For this purpose, he had already filed police complaint in the year-2005.  He has produced the copy of the police complaint. Original receipt is not on record.  As the O.P.No.1 has denied the execution of receipt, it was necessary for the complainants to prove the said receipts. Except filing of affidavit of the complainant No.3, the complainants have not produced any other evidence to show the payment.  The complainants have produced the copy of bank passbook alongwith the complaint at Exh.B but it does not bear account number as well as name of the account holder.  Other receipts are in the name of the Complainant No.2 but the complaint is not signed by the complainant No.2 therefore the complaint of complainant No.2 is not registered.  Even the complainant No.2 has not filed his affidavit to support his contention.  The complainant No.3 has produced copy of one bank passbook alongwith his affidavit of evidence dated 30^th August, 2011.  On perusal of it, it is in the name of one Sudhakar Ramchandra More.  The complainants have not explained the concern of Sudhakar More with this complaint or the disputed flats or garage.  There is no affidavit of Sudhakar More showing the payment.  Thus, there is absolutely no evidence about the booking of flats/garages and the payment to the O.P.No.1. 

12)              It is surprising that in the written notes of argument, the learned advocate for the complainants has submitted that the common receipt dated 7^th January, 2002 is not disputed.  He has also submitted that the passbook is not disputed.  It appears that the learned advocate has prepared the notes of argument without reading the written statement as well as affidavit of evidence of the O.P.No.1. The O.P.No.1 has specifically denied the payment, receipt dated 7^th January, 2002 and the copy of passbook on record.  The O.P.No.1 has alleged that it is forged document and police complaint is lodged. As it is denied, it was necessary for the complainants to lead proper evidence. One of the purchaser has also filed Civil Suit in the City Civil Court bearing No.5018 of 2005. In that Suit, Notice of Motion No.13041 of 2006 was filed and the alleged common receipt dated 7^th January, 2002 was filed. The Hon’ble City Civil Court passed the order dated 6^th June, 2006 and dismissed the Notice of Motion.  Copy of it is produced on record by the O.P.No.1. Thus, there is absolutely no evidence on record showing the booking as well as payment to the O.P.No.1 by the complainants.  As discussed above, building is constructed on the plot of the society. According to the O.P.No.1 flats are already sold and possession was handed over to the members of the society in the year-2002. As discussed above, the society is not the party.  Therefore, the complainants are not entitled for the relief’s as prayed. 

13)              The O.P.No.2 has supported the case of the complainants.  As per complaint, the O.P.No.2 introduced the complainants with the O.P.No.1. Besides this, there is no role of the O.P.No.2.  On perusal of common receipt dated 7^th January, 2002, it is clear that most of the purchasers are Bapardekar.  The O.P.No.2 is also Bapardekar. The O.P.No.2 has not clarified his relations with other Bapardekar mentioned in the common receipt. As the plot belongs to the society and the flats and garages are sold to the members of the society, it is not proper to decide this complaint in the absence of the society.  Therefore, the complainants are not entitled for the relief’s prayed. The O.P.No.2 has stated about the other criminal cases against the O.P.No.1. Scope of this complaint is limited to relief’s claimed in the complaint. Therefore, those complaints are not relevant for decision of this complaint.

14)              Thus, there is no privity of contract in between the parties therefore the complainants are not entitled for the relief’s as prayed.  Hence, the following order.

ORDER

1. Complaint stands dismissed.
2. Parties are left to bear their own costs.
3. Inform the parties accordingly.

Pronounced

Dated 6^th May, 2014