PER SHRI.S.M.SHEMBOLE, HON’BLE JUDICIAL MEMBER
This Revision application is directed against the order dated 22/06/2009 passed by District Consumer Forum, Nagpur in CC No.32/09 to 40/09 rejecting the application of the Opponent/revisionist No.1 to 4 raising preliminary objection in respect of tenability of the complaint.
Brief facts giving rise to this Petition are that, Non applicants/complainants had filed consumer complaint against the opponents/Revisionists alleging that Revisionist had agreed to sell plots to them but failed to execute the sale-deed etc. In response to the notice, Opponents/Revisionists appeared before the Consumer Forum and filed application raising preliminary objections challenging the tenability of the complaint 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.
The application came to be resisted by the complainant. On hearing both the sides and considering the documents on record, the District Consumer Forum, vide order dated 22/6/2009 rejected the application holding that the objections raised by the opponents are not tenable.
Feeling aggrieved by the same order, Opponent/revision Petitioner came to this commission in revision.
We heard learned counsel for both the parties at length.
Mr.Dhabe, learned counsel for the Revisionist vehemently argued and pointed out the preliminary objections raised by him before the District Consumer Forum and contended that the District Consumer Forum, without considering the legal aspects committed error in rejection the application To which, it is denied by Shri.Kothari, learned counsel for the Respondents.
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 Revision Petitioner.. At the outset, we may point out here that though the Revisionist 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 manifest that Revisionists 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, in 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 Revisionist 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 Revisionist. 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 Revisionist 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 Revisionist 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 Revisionists 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 Revisionist 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 Revisionist, relying on the terms and conditions of the agreement contended that though the Revisionist 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.
For the forgoing reasons, we find no infirmity or illegality in the impugned order and no interference is warranted. The District Consumer Forum has rightly rejected the application. Hence the Revision Petition is being devoid of any merit, deserves to be dismissed.
Hence the order…
ORDER
1) Revision Petition is dismissed.
2) No order as to cost.
3) Inform the parties accordingly.
Delivered on 04/10/2011.
