RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 2455 OF 2015
(Against judgment and order dated 30-10-2015 in Complaint
Case No.78 of 2010 of the District Consumer Forum-I, Lucknow )
- Sanjay Kesarwani
S/o Sri K C Kesarwani
R/o 2-A, Sarvapalli
Mall Avenue, Lucknow
- Rohit Kesarwani
S/o Sri Ashok Kesarwani
R/o 784/46, W-1, Saket Nagar
Kanpur
..Appellants/Complainants
Vs.
- Shivgarh Resorts Limited
Regd. Office, Celebrity Club
Village Kankha, Raibareilly Road
Lucknow Through its Managing Director
- Shivgarh Resorts Limited
5, Saran Chamber, Park Road
Opposite Civil Hospital, Lucknow
Through its Managing Director
- Sri Rakesh Pratap Singh
Managing Director
Shivgarh Resorts Limited
28(Sneh) Park Road
Opposite Golf Club, Lucknow
- Sri Satyendra Singh
So called Managing Director
M/s. Shivgarh Resorts Limited
6th Floor, 1 Saran Chamber
5 Park Road, Lucknow
...Respondents/Opposite Parties
AND
APPEAL NO. 2528 OF 2015
(Against judgment and order dated 30-10-2015 in Complaint
Case No.78 of 2010 of the District Consumer Forum-I, Lucknow )
01.M/s. Shivgarh Resorts Limited
Village & Post Kankha, Mohanlalganj
Lucknow. Through its Managing Director
02.M/s. Shivgarh Resorts Limited
5, Saran Chamber, Park Road
Opposite Civil Hospital, Lucknow
Through its Managing Director
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- Sri Rakesh Pratap Singh
M/s. Shivgarh Resorts Limited
28(Sneh) Park Road
Opposite Golf Club, Lucknow
- Sri Satyendra Singh
M/s. Shivgarh Resorts Limited
6th Floor, Saran Chamber
5 Park Road, Lucknow
… Appellants/Opposite Parties
Vs
01.Sanjay Kesarwani
S/o Sri K C Kesarwani
R/o 2-A, Sarvapalli
Mall Avenue, Lucknow
02.Rohit Kesarwani
S/o Sri Ashok Kesarwani
R/o 784/46, W-1, Saket Nagar
Kanpur
…Respondents/Complainants
BEFORE:
HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
For the Appellant : Mr. Muzeeb Effendi, Advocate.
For the Respondent : Mr. Prateek Saxena, Advocate.
Dated : 21-12-2017
JUDGMENT
PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
Above two appeals have been filed under Section-15 of the Consumer Protection Act 1986 against judgment and order dated 30-10-2015 passed by District Consumer Forum-I, Lucknow in Complaint Case No. 78 of 2010 Sri Sanjay Kesarwani and another V/s Shivgarh Resorts Limited and three others whereby the District Consumer Forum has passed following order.
“The complaint is partly allowed. The Ops are jointly and severally directed to complete the promised developmental work in the scheme in question. They are also directed to pay compensation to the tune of Rs.1.00 (One Lakh Only) for not being able to utilise the plot because of lack of developmental work in the area. In case they are not able to do
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developmental work then they shall pay additional Rs.1.00 (One Lakh Only) as compensation to the Complainant.
The Ops are also directed to pay Rs.3,000.00 (Rupees Three Thousand Only) as cost of the litigation.
The compliance of the order is to be made within a month otherwise the Ops shall pay 9% interest on the entire amount due till the final payment is made to the Complainant.”
Feeling aggrieved with the judgment and order passed by District Consumer Forum the complainants have filed above Appeal No. 2455 of 2015 Sanjay Kesarwani and another V/s Shivgarh Resorts Limited and three others whereas opposite parties of the complaint have filed above Appeal No. 2528 of 2015 M/s. Shivgarh Resorts Limited and three others V/s Sanjay Kesarwani and another.
Both appeals have been filed against same judgment and order, therefore, both appeals are decided together.
Learned Counsel Sri Muzeeb Effendi appeared for complainants and learned Counsel Sri Prateek Saxena appeared for opposite parties of the complaint.
I have heard learned Counsel for the parties and perused impugned judgment and order as well as records.
In brief relevant facts for determination of both appeals are that the complainants Sanjay Kesarwani and Rohit Kesarwani have filed complaint before District Consumer Forum-I, Lucknow wherein it has been stated that on 17-07-2003 the complainants have purchased Plot No. 171-A having area of 252 square meters from opposite parties for total price of Rs.1,52,000/-. The sale deed has been executed by the opposite parties in favour of complainants on 17-07-2003 and has been got registered in the Office of Sub Registrar, Lucknow.
It has been contended in the complaint that opposite parties who are sellers of said plot had assured that the developmental works like power lines, telephone lines, drainage lines, sewer lines and roads, water lines etc. shall be completed within five years from the date of execution of sale deed but neither the said developmental works were done nor possession
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of the plot in question was given to the complainants. The time stipulated for developmental works has expired but the opposite parties failed to perform developmental work as promised. Even till date of filing complaint they have failed to perform developmental work as promised by them. Even the plot has not been demarcated and earmarked nor there is any road nor any facility of parks, power, lights, sewage, drainage line, water line and telephone line etc. at the site. The complainants made several representations to opposite parties to complete developmental works as promised but nothing was done. As such opposite parties have committed deficiency in service as well as unfair trade practice.
Opposite parties N0. 1, 2 and 3 have filed joint written statement before District Consumer Forum wherein it has been stated that due to some reasons the developmental work of the scheme could not be completed within five years.
In written statement it has been stated that the possession of land has been given to the complainants at the time of registration of sale deed and development work was started thereafter.
In written statement it has been stated that the complainants are in possession.
In written statement it has been further stated that the complainants are not the consumers as defined in Consumer Protection Act 1986.
It has been further stated in the written statement that the complaint filed by complainants is time barred as they have been delivered possession of plot in question in year 2003.
Opposite party No.4 of complaint has filed affidavit before District Consumer Forum wherein he has accepted the written statement filed by above opposite parties.
The District Consumer Forum has issued Commission to an Advocate Commissioner to inspect the spot and to submit report. Thereafter the Commissioner visited the spot and submitted report alongwith photographs of spot before District Consumer Forum.
After having gone through pleadings of parties as well as evidence
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on record the District Consumer Forum has held that complainants are consumers defined in Consumer Protection Act 1986.
After having considered pleadings of the parties as well as evidence on record and report of Commissioner the District Consumer Forum is of the view that the opposite parties have failed to fulfil their promise of doing developmental work. As such they have committed deficiency in service. The District Consumer Forum is of the view that the complainants are entitled to get promised developmental work as well as compensation for non utilization of the plot.
In view of above the District Consumer Forum has allowed complaint and passed order as mentioned above.
In Appeal No. 2455 of 2015 filed by complainants learned Counsel for the complainants has contended that the appellants should be awarded interest at the rate of 24% per annum till providing of complete developmental work.
Learned Counsel for the complainants has further contended that Rs.1,52,000/- plus registration expenses alongwith stamp charges should be refunded to the complainants/appellants with interest at the rate of 24% per annum from 17-07-2003 till the date of actual payment.
Learned Counsel for the complainants/appellants has further contended that compensation of Rs.2,00,000/- should be granted to the complainants for increased price of land and cost of construction.
Learned Counsel for the complainants/appellants has demanded Rs.11,000/- as cost of litigation.
In Appeal No. 2528 of 2015 learned Counsel for the appellants/opposite parties has contended that the impugned judgment and order passed by District Consumer Forum is against law as well as evidence. The complainants are not consumers defined under the Consumer Protection Act 1986. Therefore, the impugned judgment and order passed by the District Consumer Forum is without jurisdiction and against law.
Learned Counsel for the appellants/opposite parties has further
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contended that the complaint filed by complainants is barred by limitation prescribed in Section 24A of the Consumer Protection Act 1986. The impugned judgment and order passed by the District Consumer Forum is erroneous on this score also.
Learned Counsel for the appellants/opposite parties has further contended that appellant No.3 has no concern with the appellant/opposite party no.1 at present and he does not hold any post in the Company. The District Consumer Forum has wrongly passed order against him.
Learned Counsel for the appellants/opposite parties has further contended that the sale deed has been executed in favour of complainants by Sri Sanjai Tripathi but he has not been impleaded in the complaint. As such the complaint is bad for non-joinder of necessary party but the District Consumer Forum has failed to consider this aspect of the case.
Learned Counsel for the respondents/complainants has contended that the impugned judgment and order passed by District Consumer Forum is in accordance with law and it is wrong to say that the complaint is bad for non-joinder of necessary party.
I have considered the submissions made by learned Counsel for the parties.
Indisputably sale deed dated 17-07-2003 has been executed in favour of complainants on behalf of appellant/opposite party No.1 Shivgarh Resorts Limited. Relevant parts of sale deed are extracted below.
“AND WHEREAS the Seller-Company has undertaken development of the above said Khasra plots for the residential house sites, in the name and style of CELEBRITY RESIDENCY, comprising of plots of different sizes with all-round extensive greenery and all facility like power line, telephone line, sewer/drainage line, water pipe line and roads and whereas it is assured that the proposed development shall be completed within 5 (Five) years.
That the Purchasers has inspected the site however the seller assured and undertakes that developmental work, like power lines, telephones lines, drainage lines, sewer lines and roads, water lines etc.
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shall be completed within 5 (Five) years from the date of execution of present sale deed.”
Provisions of sale deed mentioned above clearly says that the opposite party No.1 has promised to make developmental works on the site of plot transferred within five years from the date of sale deed. As such complainants are consumers of services of opposite party No.1 for assured development work. Therefore, the District Consumer Forum has rightly held that the complainants are consumers defined in the Consumer Protection Act 1986. I find no sufficient ground to disturb finding recorded by District Consumer Forum in this respect.
Indisputably the sale deed has been executed on 17-07-2003 wherein appellant/opposite party Company has undertaken to complete developmental work within 5 years. Therefore cause of action for complaint has arisen after expiry of five years on 16-07-2008 and complaint has been filed in year 2010 within limitation prescribed by Section 24A of the Consumer Protection Act 1986. As such it is wrong to say that complaint is time barred.
Sale deed has been executed in favour of complainants by Mr. Sanjai Tripathi authorized signatory of opposite party No.1 Shivgarh Restorts Limited which is a Public Limited Company duly incorporated and constituted under the Companies Act. The Company has undertaken to complete developmental work within five years but has failed to perform its promise. Therefore the complaint has been filed against Company through Managing Director. Authorized signatory Mr. Sanjai Tripathi is not a necessary party for the complaint. The argument raised by learned Counsel for the opposite parties in this respect is unacceptable.
After having gone through pleadings of parties as well as evidence on record and report commission the District Consumer Forum has rightly held that opposite parties have failed to perform promised developmental work within stipulated period and have thereby committed deficiency in service.
The District Consumer Forum has made judicious analysis of evidence. The District Consumer Forum has granted compensation of
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Rs.1,00,000/- to complainants for the delay in developmental work. The District Consumer Forum has further granted compensation of Rs.1,00,000/- to complainants if opposite parties are unable to make developmental works. But the District Consumer Forum has not fixed time limit within which developmental work shall be completed. Therefore the judgment and order passed by District Consumer Forum should be modified to prescribe time limit within which developmental work should be completed.
Considering the sale price of plot compensation awarded by District Consumer Forum appears appropriate. Nine percent rate of interest awarded by District Consumer Forum is also reasonable and proper.
Registered sale deed has been executed. Relief of cancellation of sale deed may be granted by Civil Court only. As such no order may be passed to direct opposite parties to refund sale price of plot in question with interest.
In view of discussion made above considering all facts and circumstances of the case I am of the view that the relief granted by District Consumer Forum is proper and appropriate. No interference is justified.
In view of conclusion drawn above Appeal No. 2528 of 2015 Shivgarh Resorts Limited and others V/s Sanjai Kesharwani and another is dismissed.
Appeal No. 2455 of 2015 Sanjai Kesharwani and another V/s Shivgarh Resorts Limited and others is allowed partially and impugned judgment and order of District Consumer Forum is modified. Respondents/opposite parties are ordered to complete developmental works promised within six months from the date of this judgment failing which they shall pay to appellant/complainant additional compensation of Rs.1,00,000/- awarded by District Consumer Forum.
Remaining part of judgment and order passed by District Consumer Forum shall remain intact.
Rs.25,000/- deposited by appellants/opposite parties under Section 15 of the Consumer Protection Act 1986 in Appeal No. 2528 of 2015 shall be
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remitted to the District Consumer Forum alongwith interest accrued for disposal in accordance with this judgment.
Let copy of this order be made available to the parties within 15 days positively as per rules.
This judgment shall be placed on the record of Appeal No. 2455 of 2015 with its copy to be laid on the record of other Appeal No. 2528 of 2015.
JUSTICE A H KHAN )
PRESIDENT
Pnt.
