Per Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member

By this common judgement we are disposing of two appeals being nos.A/10/165 & A/10/241, one filed by the original complainant and the other filed by original O.P. against the judgement and award passed by District Consumer Disputes Redressal Forum, Thane in consumer complaint no.297/2007 decided on 30/12/2009.  While allowing the complaint partly, forum below directed O.P.nos.1&2 to accept remaining amount of `91,000/- from the complainant and to hand over possession of Gala to the complainant and if possession of suit premises is not given, then by way of compensation complainant should be refunded amount of `4 lakhs.  O.P.nos.1&2 were also directed to pay `5000/- towards mental harassment and `5000/- towards cost, as such original complainant filed Appeal no.165/10 seeking enhancement of compensation, whereas original O.P.nos.1&2 have filed appeal no.241/10 seeking dismissal of the complaint. 

Facts to the extent material may be stated as under:-

Arifkhan Gafar Khan Pathan had filed consumer complaint no.297/2007 against O.P.nos.1&2 i.e. Mr.Nayab Mithailal Gupta –partner of M/s.Kaveri Construction of Kalyan and also against Dr.S.S.Patil and Dr.Shweta Patil, who were occupying shop premises no.10 in building no.A-1, Kaveri park, Netivali, Kalyan(E), District Thane.  According to complainant, he is in the business of selling books.  He had approached O.P.no.2 who was constructing Kaveri park to book shop premises no.10 on ground floor admeasuring 204 sq.ft. built up area in building no.1-A, Netivali, Kalyan, District Thane and agreed to purchase the said gala for `3,51,000/-.  Accordingly an agreement to that effect was executed and registered between the parties on 24/6/2005 with Sub-Registrar of Assurances at Kalyan. The complainant pleaded that from time to time he had paid an amount of `2,60,000/- and on 09/10/2005 he tendered `91,000/- to O.P.nos.1&2 and insisted that shop no.10 should be given in his possession.  As per agreement, O.P.nos.1&2 did not bother to give possession on receipt of `91,000/-.  On the other hand, he has sold the said Gala by agreement of sale to O.P.nos.3&4 and the possession of Gala was already given to O.P.nos.3&4 by O.P.nos.1&2.  According to complainant, when he had paid more than `2,60,000/- out of total consideration of `3,51,000/-,  O.P.nos.1&2 were guilty of deficiency in service and O.P.nos.1&2 had illegally transferred the said shop premises by registered Agreement of sale in favour of respondent nos.3&4.  He pleaded that O.Ps should be directed to accept an amount of `91,000/- and to give possession of the shop to him and for not giving shop since November 2005 in lieu of possession O.P. should be directed to pay to the complainant an amount of `15,000/- per month.  He also claimed an amount of `10,000/- towards mental harassment and besides cost of the proceedings.

O.P.nos.1&2 filed written statement and pleaded that complainant had not paid amount of `30,000/- besides main amount as per agreement. He has filed mischievous complaint just to harass them.  As per Agreement of sale he has not tendered the amount and, therefore, he is responsible for cancellation of the agreement.  They had requested the complainant in writing as well as orally to make payment of the remaining balance amount but complainant did not bother to pay remaining balance amount and, therefore, they had sold the shop premises to O.P.nos.3&4, who were doctors by profession.  They therefore pleaded that complaint should be dismissed with compensatory cost of `20,000/-.

          O.P.nos.3&4 also filed written statement and pleaded that complainant cannot file consumer complaint against them.  Complainant had filed this complaint against them just to extract monies. They pleaded that there is no relationship of ‘consumer’ and ‘service provider’ between complainant on one hand and O.P.nos.3 & 4 on the other.  There was no privity of contract between them.  Complainant is not entitled to get anything from O.P.nos.3&4. They pleaded that by giving cash amount they had purchased said shop premises from O.P.nos.1&2 and they are running ‘Sanjivani Clinic’ in the said shop premises.  They therefore pleaded that complaint should be dismissed with compensatory cost of `10,000/-.

Considering affidavits and documents filed on record, forum below held O.P. nos.1&2 were guilty of deficiency in service.  Forum below observed that out of total consideration of `3,51,000/- complainant had already paid `2,60,000/- and he was willing to pay remaining amount of `91,000/- and by selling of the said shop premises to respondent nos.3&4 in supersession of the legal claim of the complainant, O.P.nos.1&2 were guilty of deficiency in service and unfair trade practice within the meaning of section 2(1)(g) and 2(1)(o) of Consumer Protection Act, 1986 and, therefore, complaint was allowed and O.P.nos.1 and 2 were directed to give possession of the Gala after receipt of `91,000/- from the complainant or alternatively, if possession is not given, then complainant should be paid an amount of `4 lakhs inclusive of interest and compensation. No order was passed against O.P.nos.3&4.  O.P.nos.1&2 were further directed to pay `5,000/- for mental harassment and, further, `5,000/- towards cost of the proceeding.  Aggrieved by this award, original complainant has filed appeal bearing No.A/10/165 for enhancement in the relief and original O.P.nos.1&2 have filed appeal bearing no.A/10/241 challenging award passed by District Consumer Disputes Redressal Forum.

We heard submissions of Mr.Nagraj Hoskeri –Advocate for the original complainant and Mr.Rajendra Chaudhary-Advocate for original O.P.nos.3&4.

We are finding that there was duly concluded Agreement of sale between complainant and O.P.nos.1&2.  Total consideration of shop premises agreed to be sold to the complainant was `3,51,000/-, out of which according to original complainant, he had paid total `2,60,000/- and only remaining amount of `91,000/- was to be paid by him.  But according to complainant, said shop premises was sold by O.P.nos.1&2 to O.P.nos.3&4 and possession has been given to them. In this view of the matter, it was contended by Advocate Hoskeri for the original complainant - Arifkhan Gafar Khan Pathan that compensation of `4 lakhs inclusive of interest is inappropriate and negligible because he had booked shop premises on 24/6/2005 and from time to time he had paid total amount of `2,60,000/- and by resorting to unfair trade practice, said shop was illegally sold by O.P.nos.1&2 to O.P.nos.3&4 and possession of the shop premises was also given to them and, therefore, Mr.Hoskeri contended that the compensation awarded should be enhanced considerably because now if his client wishes to purchase another gala for his business purpose, then he would be required to pay at least `10 lakhs for purchasing shop premises at Netavali, Taluka Kalyan, District Thane. 

Admittedly, there was an Agreement of sale between Mr.Arifkhan Gafar Khan Pathan and Mr.Nayab Mithailal Gupta and opponent no.2.  Admittedly, Mr.Arifkhan Gafar Khan Pathan had paid total amount of `2,60,000/- out of total consideration of `3,51,000/-.  So Mr.Arifkhan Gafar Khan Pathan was required to pay `91,000/- and to take possession of flat from respondent nos.1&2 in A/10/165.  Ignoring his Agreement of sale admittedly, respondent nos.1&2 have sold the said shop premises to respondent nos.3&4 in A/10/165 and, thereby, deprived complainant/appellant- Mr.Arifkhan Gafar Khan Pathan of his rightful claim to get shop no.10 from M/s.Kaveri Constructions.  Since now the said shop is not available for giving possession to Mr.Arifkhan Gafar Khan Pathan, we are of the view that amount of compensation awarded is too meager and same is required to be enhanced from `4 lakhs to `10 lakhs in lump sum inclusive of interest and compensation for mental harassment subjected to by respondent nos.1&2 (Builders) for that much amount is required to purchase new shop premises in that town.  To this extent A/10/165 will have to be allowed to pass suitable order of enhancement of compensation.

At the same time, we are finding that appeal preferred by original O.Ps - Mr.Nayab Mithailal Gupta and M/s.Kaveri Constructions is devoid of any substance.  In fact O.P.nos.1&2 are guilty of deficiency in service and unfair trade practice.  They must have sold the shop premises no.10 of Kaveri Park to Dr.S.S.Patil and Dr.Shweta Patil on higher premium and must have earned good amount of profit.  Therefore, we are of the view that they have no case in appeal.  Their appeal will have to be dismissed.  In the circumstances, we pass following order:-                             

ORDER

A/10/165

A/10/165 filed by Mr.Arifkhan Gafar Khan Pathan is allowed.

Consumer complaint no.297/2007 is partly allowed.

In place of compensation of `4 lakhs granted by the District Consumer Disputes Redressal Forum  as per award, we direct that amount of compensation of `10 lakhs shall be paid to Mr.Arifkhan Gafar Khan Pathan by respondent nos.1&2 i.e. Mr.Nayab Mithailal Gupta and M/s.Kaveri Constructions in A/10/165. 

Rest of the order passed by the District Consumer Disputes Redressal Forum  is also confirmed.

Additionally, we direct respondent nos.1&2 - Mr.Nayab Mithailal Gupta and M/s.Kaveri Constructions to pay cost of `20,000/- to the appellant - Mr.Arifkhan Gafar Khan Pathan.

A/10/241

          A/10/241 filed by original O.Ps- Mr.Nayab Mithailal Gupta and M/s.Kaveri Constructions stands dismissed with cost.

          Copies of this order be furnished to the parties free of cost.