ORDER

(Passed this on-30^th November,  2016)

Shri Shekhar P. Muley, President.

01     Both these complaints are being disposed of by a common judgment since the O.P. and facts in both the cases are same.

02.    The O.P.-3 is the widow and O.P.-1 and 2 are sons of late Ravindra Bansod, who was owner of a municipal house no. 502/1, admeasuring 1091.61 Sq.Mt. on plot no.- 1 situated at Rajendra Nagar Layout, Hingna Road, Jaitala, Nagpur. He constructed a flat scheme thereon with sanctioned plan. He died in the yera 2005 leaving behind the O.P’s  as Legal Representatives. During life time of late Ravindra Bansod (hereinafter the deceased), the complainants, who are brothers, booked one shop block each by depositing Rs.50,000/- by each of them.                          On 27.9.1996 both the complainants made agreement of their shop blocks no. 6 and 7 with the deceased. Each shop block was priced at Rs.1,40,000/-. After depositing Rs.50,000/-, another Rs.50,000/- was payable within 03 months from date of the agreement and remaining amount within 06 months from the date of agreement. By 07.11.1997 both the complainants paid entire amount to the deceased and it was duly acknowledged. Possession was delivered   on-07.11.1997. Sale deed was to be executed    on-03.03.1998. But despite reminders the deceased did not execute the same. In the agreement proportionate undivided share of the complainants is not mentioned. The deceased during his life time was repeatedly requested to execute sale deed but he did not do so and after his death the O.P’s were requested  to  execute  sale  deeds  but  they  also  failed to execute the same, though they are liable to to discharge the duty of the deceased. Hence these complaints to direct the O.P’s to execute sale deeds of shop blocks with proportionate undivided share of each complainants and to pay compensation and litigation cost.

03.    All the O.P’s contested the matters by filing written versions. The complaints are said to be barred by limitation. No service was provided or assured by the O.P’s nor is there any contract with them, hence no cause of action has arisen against them. The agreement made with the deceased is not binding on them and the agreement itself is not enforceable in law as it is not a registered document. On these preliminary counts, it is prayed to dismiss the complaints.

          In para wise reply, they have denied that the deceased was the sole owner of the property as described in the complaints. It is also denied that the deceased constructed the flat scheme. The agreement and payment of amount by the complainants to the deceased are also denied. Delivery of possession of the shop blocks is denied. Thus denying each and every averments as to the sale agreement, it         is submitted to dismiss the complaints with cost.

04.    We have heard the counsels for both the parties and perused documents  filed on record. Upon consideration of the same we record our findings and reasons as under:-

FINDINGS  AND  REASONS

05.    The complainants, in order to substantiate their case, have filed copy of the Agreement of Sale of the shop blocks. Said agreement was executed by the deceased and it is also written therein that the deceased had received entire consideration amount of the shop blocks.  The said municipal house was recorded in the name of the deceased in municipal record as per the Tax receipt filed on record. The O.P’s have totally denied the agreement and even ownership of the deceased. Their main emphasis of the O.P’s to defend the case is bar of limitation. We will go into that aspect a little later. Presently, we would first see whether the agreement, as alleged, exists or not. The copy of the Agreement of Sale on record reveals that the complainants had entered into an agreement with the deceased to purchase the shop blocks and the deceased had even acknowledged the receipt of entire amount. The O.P’s, though denied execution of the agreement, have not alleged anything against the copy of agreement produced by the complainants. It is not their case that the copy of agreement is bogus, sham or fabricated document nor have they denied the signature of the deceased thereon.  Some explanation  ought to have been given by the O.P’s about the copy of agreement on record. Under the circumstances, we cannot ignore the agreement. It is also worth to note that the complainants had issued a legal notice to the O.P’s for executing sale deed. According to them it was received by the O.P’s but they did not take its cognizance. The O.P’s in their reply denied having received the notice. The complainants have filed copy of postal acknowledgement, which appears to have signature of the O.P.-2. The O.P’s, however, have said nothing about the acknowledgment nor given any evidence in rebuttal regarding the signature of the O.P.-2.  Thus looking to these facts we are satisfied that there was an agreement of sale between the deceased and the complainants to purchase the shop blocks and entire consideration amount has been paid by both the complainants.

06.    We are not impressed with the objection that in absence of a specific clause in the agreement to bind the LRs of the deceased, the O.P’s cannot be held liable to fulfill the terms of the agreement. A consumer dispute is to be decided on natural justice and documents. When there is enough material to show that the deceased had executed an agreement, but failed to execute sale deed, it the duty of his LRs to execute it. We are not bound by strict rule of procedure and evidence in deciding a consumer complaint. The complainants have submitted that possession of the shop blocks have already been delivered to them. Possession letter is filed on record. The complainants have been paying electricity bills of the shop blocks. It all show their possession. Besides, the O.P’s could not show possession of third person over the shop blocks.

07.    The counsel for the O.P’s has strongly contended the complaints are hopelessly barred by limitation and no cognizance can be taken of them. Both the counsels have placed some judgments in support of their contentions on limitation. It is the contention of the O.P’s´ counsel that the agreement was executed in the year 1996 and the complaints are filed in the year 2013 for execution of sale deed and since the limitation for filing consumer complaint is two years from date of cause of action, the complaints are time barred. It is further contended that the complainants did nothing during these long period to show that they tried to fulfill their part of the contract during life time of the deceased. So far as the complainants´ part to be performed under the contract is concerned, we do not see there was anything remained to be performed on their part. They have paid entire consideration amount. Possession was also delivered to them. So on their part nothing remained to be performed. It was the deceased, who was to execute sale deed. The O.P’s have not been explicit regarding what part remained to be performed by the complainants. The complainants have stated that they many times asked the deceased and the O.P’s  for sale deed, but in vain. Therefore there is no merits in this objection.

08.    The counsel for the O.P’s relied on following

        Judgments-

1. Shashi Kalra v/s Huda I (2011) CPJ 165 (NC)

2. Gunjan v/s Haryana Urban Dev. Auth.-      II (2011) CPJ 67 (NC)

3. Purnima Patnaik v/s Seven Hills Estate Ltd. III(2011) CPJ 431 (NC)

4. V.N. Shrikhande v/s Anita Sena Fernades (2011) (3) Civil LJ 253 (SC)

          We have carefully gone through the judgments. In the first three cases, viz. Shashi Kalra, Gunjan and Purnima Patnaik the facts, so far as limitation is concerned, are similar that a plot was allotted to the complainant. Though possession was offered, it was not taken for some reasons. Then after a gap of long period, consumer complaint came to be filed. The complainant was not in possession of the plot. The cause of action therefore arose when possession was offeredd but not accepted. It is under such circumstances the complaints held to be barred by limitation. In fourth case the dispute was of medical negligence and the complaint was filed beyond the period of two years from cause of action. In medical negligence cases concept of continuing cause of action is not recognised.

09.    The counsel for the complainants relied on following two judgments-

          1. Vivekanand Construction Co. v/s Suraj     Ratan Mundra- III (2013) CPJ 111 (NC)

         2. Foresquare Developers v/s Dahisar Sarswati     Co-op. Hosg. Socty- III (2013) CPJ 59 9NC)

          In the above cases complaints were held within limitation on continuing cause of action.  It has been held that cause of action begins with possession and continued till filing of complaint due to non registration of conveyance deed. These judgments enunciate basic principal that

conveyance is a statutory obligation of the builder-developer and cause of action is a continuous one. Thus the facts of the judgments filed by the counsel for the O.P’s are different for holding the complaints barred by limitation.                         The complainants have established the agreement and payment of entire amount. They have also shown delivery of possession of the shop blocks. Only sale deed remains to be executed, which was boundent duty of the deceased and after his death of his LRs i.e. the O.P’s. The cause of action to get sale deed executed is continuous one and therefore the present complaints are not barred by limitation.

10.    One more point raised by the O.P’s in their reply is that the deceased alone was not the only owner of the property. In argument this point was agitated before us. Nevertheless, it will not make any difference. Because the complainants made the agreement with the deceased only and the agreement does not disclose name of co-owner. The complainants have nothing to do with co-owner if they            were  kept  in  dark  about  other  owners  of  the  property.                          

The co-owner could have come forward to join himself in the complaint if his interest is affected. Therefore we do not see any hurdle in allowing the complaints. Both the complaints are therefore allowed, hence, the following order.

ORDER

1. Both the complaints are partly allowed.
2. The O.P’s are directed to execute registered sale deeds of shop block No. 6 to the complainant Ulhas R. Mhaiskar and shop block No. 7 to the complainant Dilip R. Mhaiskar, situated on the ground floor in Ravindra Business Complex, Ward No. 94, Plot No.1, at Jaitala, Dist. Nagpur, each block admeasuring 14.28 Sq. Mt. and incorporate specific undivided share of each complainants in the sale deeds.
3. The O.P’s shall also pay compensation of   Rs. 10,000/- (In words Rs.Ten Thousand only) for mental and physical harassment and litigation cost Rs.5000/- (In wors Rs.Five Thousand only) to each of the complainants.
4. The order shall be complied within 30 days from receipt of the order.
5. Copy of the order shall be given to both the parties free of cost.

6. Copy of the judgment be kept in RBT/CC/13/694