PER SHRI.S.M.SHEMBOLE, HON’BLE JUDICIAL MEMBER
This appeal is directed against the judgment and order dated 19/10/2010 passed by District Consumer Forum, Nagpur in CC No.1/10 partly allowing the claim of the complainant/Respondent directing the appellant/opponent to execute the sale-deed of the plots in favour of the complainant by receiving balance consideration and further to pay compensation of Rs.5000/- and Rs.1000/- towards cost. For the sake of brevity, appellant is hereinafter referred as OP society and Respondent as complainant.
Brief facts giving rise to this appeal are that, OP Pankaj Gruhnirman Society runs a business as developer, contractor and builders. According to complainant Mr.Sheshrao Dhavle is the President of said society. OP society proposed to develop land Kh.No.131/1 and 130/1 of village Ranala, Tah. Kamthee, Distt.Nagpur. On 7/9/2004, Op society agreed to sell plot Nos.71 & 72 to the complainant and the complainant paid Rs.4000/- as earnest money for each plot. OP society agreed to execute sale-deed within 3 years after accepting the balance consideration and executed separate agreements to that effect. Thereafter, opponent society received Rs.6000/- but it failed to develop the land and avoided to perform its part of contract though the complainant was ready and willing to get the sale-deed executed as agreed by making payment of balance consideration. Therefore, the complainant made a police complaint on 19/2/2007 to police station Kamtee and, thereafter on 22/2/2007 OP society gave undertaking before the police to execute sale-deed but even then failed to execute the sale-deed hence the complainant lastly issued notice dated 18/8/2009 to the OP society and asked to execute sale-deed by accepting balance consideration of Rs.58000/- but the OP society failed to comply the notice. Therefore the complainant filed the complaint beforfe the District Consumer Forum, Nagpur.
OP society resisted the complaint by filing written version contending interalia that he is neither the President nor Member of Pankaj Gruhnirman Society but the complainant has filed a false complaint against him. It is further contended that the complaint showing OP society as developer is not tenable as the society is not entitled to lay out plots in agricultural field. If it is so, the transaction is hit by provisions of prevention of fragmentation and consolidation Act,1947. It is further contended that since the alleged deed of agreement is not having requisite stamp duty, the same is not legal and valid. It is also contended that the complaint is hopelessly barred by limitation and is not tenable. On these grounds it is submitted to dismiss the complaint.
On hearing both the sides and considering the documents, the District Consumer Forum, Nagpur negated the preliminary objections raised by the OP society and held that OP Sheshrao Dhawale himself executed the deed of agreement receiving the earnest money paid by the complainant, but failed to perform his part of contract. The Forum partly allowed the complaint directing the OP society to to execute the sale-deed of the plots in favour of the complainant by receiving balance consideration of Rs.58000/- In the alternative the Op society/appellant is directed to pay the amount of present market price of the plot by deducting the amount of balance consideration of Rs.58000/- and further the OP is directed to pay compensation of Rs.5000/- and Rs.1000/- towards cost.
Feeling aggrieved by the said judgment and order, the OP society came to this commission in appeal.
By separate application, the appellant has claimed stay to the execution and operation of impugned order. Respondent/complainant appeared suo motu through his counsel Mr.Kothari and the appeal was listed for hearing before admission on 9/12/2011. However, appellant sought circulation for early hearing on stay application. Therefore, his request was allowed and the matter was listed for hearing on stay application on 3/10/2011 and at the time of hearing on stay application, with the consent of learned counsel for both the sides, we decided to hear the appeal finally on merit.
We heard learned counsel for both the sides. Mr.Dhabe, learned counsel for the appellant society vehemently argued and challenged the tenability of the complaint itself on the following grounds.
- Complaint is barred by limitation.
- Appellant is not concerned with the Pankaj Grihanirman society.
- The Consumer forum has no jurisdiction to entertain the complaint as the society is not a service provider and the complainant is not a consumer.
- OP society is not entitled to lay out the plots in any agricultural land.
- The complainant failed to perform his part of contract by paying the balance consideration within time limit as per agreement.
Per contra, Mr.Kothari, learned counsel for the Respondent/complainant categorically denied the objections raised by Shri Dhabe learned counsel for the appellant.
In view of the rival contentions of the parties, let us proceed to consider the first objection about tenability of the complaint raised by the appellant. At the outset, we may point out here that though the appellant has denied the agreement alleging that he had no concern with the Pankaj Grihanirman society, he has not denied his signature on the alleged deed of agreement. A bare glance at the deed of agreement it manifests that appellant Sheshrao Dhawle had agreed to sell plots to the Complainants and had executed the agreements on receipt of the earnest money of Rs.4000/- for each plot. However, Mr.Dhabe learned counsel for the Appellant contended that this agreement letter is being signed in the individual capacity by Mr.Sheshrao Dhawale, who is neither President nor a member of the Pankaj Grihanirman society and it is the dispute between the complainant and said sanstha, this letter can not be acted upon. But we find no merits in this contention of Mr.Dhabe, when the appellant has not denied his signature on the agreement, it can not be accepted that he has no concern with the Pankaj Grihanirman society. Further it is pertinent to note here that though the agreement is shown in individual capacity of the appellant, the appellant has signed these documents for and on behalf of the Pankaj Grihanirman society. If appellant Sheshrao Dhawale has no concern with the said society, it would have been easy for him to file affidavit of President or Secretary of the society, but he failed to do so. On the contrary, when the complainant made complaint with the police Station Kamptee against the appellant, he admitted the claim of the complainant and gave undertaking to execute the sale-deed by obtaining NA sanction etc. The copy of the undertaking which is produced on record is also not denied by the appellant.
It is further significant to note here that appellant Mr.Sheshrao Dhawale, through his advocate Mr.Vinay Dhabe, by notice dated Nil Jan.2011 had informed one Mr.Shashiji Kothari who is also a purchaser of a plot from the same society that they are ready and willing to perform their part of contract by executing the sale-deed of the plot from the same land. In reply to this notice, Mr.Shashiji Kothari shown his willingness to get the sale-deed executed by making payment of balance consideration. Copies of notice and reply are produced on record of Revision Petition No.51/09 and which are not denied by the appellant. Thus, considering all these undisputed documents, it is abundantly clear that appellant Sheshrao Dhawale is either President or Member of the said society and he had agreed to sell the plots in question to the Respondent/complainant but in order to shun his liability and dupe the complainant, he has cooked up false defense. When he has signed the deed of agreement in question and received the amount of earnest money, he can not be allowed to blow into hot and cold at a time.
As far as objection of the appellant that the complaint is barred by limitation is concerned, when undisputedly, the appellant himself failed to perform his part of contract by executing sale-deed by obtaining NA permission, it would be suffice to hold that the appellant himself avoided to perform his part of contract though the Respondent was ready to perform his part of contract. It is well settled principle of law that under the agreement, builder firm is obliged to make conveyance deed in favour of the purchasers Non execution of conveyance deed continues cause of action as held by this commission in the case of Mr.Raju S.Landge Vs. Sadguru park co.op.society 2008 (1) CPR 108. Therefore, though the agreements in question are dated 7/4/2004, the complaint filed after a lapse of 2 years can not be said as time barred. Hence we are unable to accept the arguments advanced by the appellant.
As far as objection raised by the appellant that the cooperative society is not entitled to develop agricultural land by making layout is concerned, in the absence of any record to show that the provisions of Section 3 of the Prevention of Fragmentation and conciliation Act are applicable to the land in question, such bare averment can not be sustained.
As far as appellants contention that the Consumer Forum has no jurisdiction to entertain the complaint on the basis of agreement to sell is concerned, since Section 3 of the Consumer Protection Act provides that the provisions of this Act are not in derogation of the provisions of any other law for the time being in force, this contention raised by the appellant can not be sustained in view of the authority of National Commission in the case of Zarkhand State Electricity Board and Anr. Vs. Anwarali II (2008) CPJ 284 (NC) wherein it is held that Jurisdiction of Fora not barred even if provisions of other statute provides alternative remedy to the consumer. Therefore, the contention of the learned counsel for the appellant that the Consumer Forum has decided the dispute without jurisdiction can not be sustained.
Further, it is contended by Shri.Dhabe learned counsel for the appellant that there is no relation as Consumer and Service Provider between the complainant and Opponent and, therefore, the complaint filed under Consumer Protection Act is not tenable. But we find no merit in this contention of the appellant/opponent; Since it is obvious from the facts of this case that the Opponent is doing the business as a developer and builder and had entered into agreement to sell plots to the complainant. It is further clear from the facts of this case that that the act of the appellant denying to perform his part of contract amounts to Unfair Trade Practice or Restrictive Trade Practice as per explaination (nnn) U/s 2 of the Consumer Protection Act. Therefore, the contention of the appellant that there is no relation as Consumer and Service Provider between the complainant and the Opponent can not be sustained.
Further Mr.Dhabe learned counsel for the appellant relying on the terms and conditions of the agreement contended that though the appellant was ready and willing to perform his part of contract by executing sale-deed, the complainant himself failed to perform his part of contract by paying the development charges etc. This contention is denied by Mr.Kothari, learned counsel for the complainant and stated that when the opponent has not obtained the NA permission and layout sanction, question of payment of development charges does not arise. Moreover, he has submitted that it was not agreed by the complainant to pay any development charges. Though the complainant agreed it or not, the same can not be considered unless the NA and layout sanction is obtained by the appellant. Therefore, the contention of the appellant that the complainant failed to perform his part of contract can not be sustained.
Thus, on any count, we are unable to accept the arguments advanced by Shri.Dhabe, learned counsel for the appellant.
Apart from merits of the appeal, Mr.Kothari, learned counsel for the Respondent submitted that the appeal is time barred and is not tenable though it is filed about 25 days after the limitation period, no application for condonation of delay is filed, and, therefore, the appeal is not maintainable To which, it is denied by Mr.Dhabe, learned counsel for the appellant and submitted that the appellant has filed appeal within limitation after when the appellant was informed about passing of the judgment. According to him, though he received the copy of the impugned judgment on 28/10/2010, the same was sent to the appellant on 27/11/2010 and, therefore, the appeal was filed within limitation. But he could not explain as to why the copy of the order was sent to the appellant on 27/11/2010 though it was received by him on 28/10/2010. Therefore, it can not be disputed that the limitation started from 28/10/2010 and the appeal was filed after a delay of 25 days. Hence, the appellant should have filed application for condonation of delay, but no such steps are taken by the appellant. Therefore, on this ground itself, the appeal deserves to be rejected summarily.
For the forgoing reasons, we find no infirmity or illegality in the impugned order and therefore no interference is warranted.
In the result, the appeal is being devoid of any merit as well as barred by limitation, deserves to be dismissed.
Hence the order…
ORDER
1) Appeal is dismissed.
2) No order as to cost.
3) Inform the parties accordingly.
Delivered on 04/10/2011.
