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.1  and Garage No.10 with the O.P.No.1 on first floor 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.25,000/- by cheque and cash of Rs.5,35,000/-. 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.2 and Garage No.1 with the O.P.No.1 in the same building for total consideration of Rs.8,51,580/-. The complainant No.2 paid Rs.1,50,000/- by cheque and cash amount of Rs.4 Lakhs. Thereafter, further paid Rs.2,12,209/- by cheque. The O.P.No.1 has neither executed agreement till today nor handed over the possession of flat and garage to the complainant No.2.

3)                The complainant No.3 booked the Shop No.3 with the O.P.No.1 in the same building for total consideration of Rs.10,03,460/- and paid amount of Rs.8 Lakhs by cheque and Rs.2 Lakhs by cash. The O.P.No.1 has neither executed agreement till today nor handed over the possession of shop 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 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.  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.

5)                It is submitted that there was no payment by the complainant No.1 therefore notice was issued to him on 9^th January, 2002 for payment within stipulated time.  But, there was no payment.  Therefore, the booking was terminated.  Notice dated 10^th July, 2002 was issued under U.C.P. After reasonable time, booking was terminated and termination notice was issued through Advocate. The cost of the flat was Rs.25,92,000/- and the complainant No.1 paid only Rs.25,000/-. Notice under R.P.A.D. was issued but it was not claimed by the Complainant No.1.  He accepted the notice sent by U.C.P. 

6)                The payment by complainant No.2 is denied.  He failed to pay the further amount therefore notice dated 9^th January, 2002 was issued asking him to pay within stipulated time.  The same was served on him.  After waiting for reasonable time, booking was terminated. Termination notice was issued to the complainant No.2 by R.P.A.D. The complainant No.2 had not claimed that notice.  But, notice sent by U.C.P. was accepted.  It is denied that name of Smt. Ujwala K.Bapardekar is changed as Anuja Vikas Keluskar.  She has not produced any proof for it. The payment from Smt.Ujwala Bapardekar was denied.  As there was no further payment, notice was issued on 10^th January, 2002.  In spite of service of notice, she failed to make the payment. Therefore, termination notice was issued through advocate.  Notice by R.P.A.D. was deliberately not accepted by her but she accepted the notice under U.C.P.   Thus, there is no privity of contract therefore the complaint is liable to be dismissed with cost.

7)                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.

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

POINTS

REASONS

9) 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 13, 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. 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. 

10)              As per notes of argument filed by the complainant and the tri party agreement produced by one of the complainant alongwith the affidavit of evidence 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. 

11) 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. Termination of booking notice was issued in the year-2002 still there was no action.  The complaint is filed in the year-2010 therefore the complaint is apparently barred by limitation.

12) As to Point No.3 & 4:- According to the complainants, the Complainant No.1 booked the Flat No.1 and Garage No.10 for total consideration of Rs.9,56,160/-.  He paid Rs.25,000/- by cheque and Rs.5,35,000/- by cash.  Common receipt dated 7^th January, 2002 was issued on letterhead.  The complainant No.2 booked Flat No.2 and Garage No.1 for total consideration of Rs.8,51,580/-.  He paid Rs.1,50,000/- by cheque and cash amount of Rs.4 Lakhs.  The complainant No.3 booked the shop No.3 for total consideration of Rs.10,03,460/- and paid amount of Rs.8 Lakhs by cheque and Rs.2 Lakhs by cash. Common receipt dated 7^th January, 2002 was issued on letterhead.  The O.P.No.1 has admitted the payment by cheque but denied the payment by cash.  According to the O.P.No.1, the complainant No.1 booked the flat for Rs.25,92,000/- and paid only Rs.25,000/-.  The complainant No.2 booked the flat for Rs.24,08,000/- and paid only Rs.1,50,000/-. The complainant No.3 booked the shop for Rs.36,41,000/- and paid only Rs.8 Lakhs.  As they failed to pay the amount, in spite of notice, their booking was terminated by notice through advocate. The O.P.No.1 has produced copy of notice alongwith the acknowledgment of U.C.P. He has also produced the acknowledgment of U.K.Bapardekar  (present complainant No.3).

13)              The O.P.No.1 denied the cash payment and common receipt dated 7^th January, 2002 on letterhead.  According to him, it is forged document therefore police complaint was lodged.  He has produced copy of police complaint on record.  As the payment and receipt is denied it was necessary for the complainant to prove the payment.  Except filing of affidavit of complainant No.1, no other evidence is produced on record to prove the payment.  The complainant No.2 and 3 have not filed their affidavit of evidence.  They have not challenged the termination notice by filing their affidavit. The complainant No.1 has filed affidavit of evidence on her behalf as well as on behalf of complainant No.2 & 3.  The fact of cash payment and service of notice is the personal knowledge of the complainant No.2 & 3.  Therefore, third person can not prove it. 

14)              As discussed above, the building is constructed on the plot of the society.  According to the O.P.No.1, flats are already sold and are in possession of the society members. Termination notice was already issued.  The society is not the party. Therefore, the claim of the complainants can not be adjudicated in the absence of the society. 

15)              The complainant No.1 has produced the copy of agreement dated 1^st February, 2001 executed in between Worli Koli Samaj Vividh Karyakari Sahakari Society Limited –First Party, the O.P.No.1-Second Party and U.K.Bapardekar-Third Party.  It shows that there was tri partie agreement in which society is one of the party.  The said society is not party before this Forum.  According to the O.P.No.1, the said agreement is terminated for non payment.  U.K.Bapardekar has not filed affidavit on record disclosing the facts.  Therefore, in the absence of the society the complainants are not entitled for the relief’s as prayed.  

16)              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.

17)              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