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As per Hon’ble President Mr. Atul Alshi.
1. The complainant has filed complaint case against OP for non execution of sale deed of plot since last 30 years and thereby claiming compensation and cost of litigation.
2. The complaint in short as under –
The complainant being legal heir of deceased her mother Mousami Tapan Sarkar has filed the present complaint for the execution of sale deed of plot no. 19 at Mouza-Chikhali (khurd), P.H.No. 39, Kh.No. 23, area of 2400 Sq.ft. as per agreement of sale dtd.02.01.1990 by the deceased mother with OP. The possession of plot was given to the complainant’s mother since 1990. The OP No. 1 had executed power of attorney in favour of complainant’s mother on 24.05.1996. The complainant’s mother had paid the corporation tax and electricity bills from 1990 to 1996. The complainant’s mother requested to OP No. 1 for execution of sale deed, but OP No. 1 told that the said lay out has been transferred to OP No. 2 society and the OP No. 2 is the president of OP No. 2 society therefore assured the complainant’s mother for execution of the sale deed within short time. The complainant’s mother allotted the ownership of plot in favour of complainant as per will deed dtd.20.07.2013. The complainant’s mother had deposited Rs.1000/- for regularisation of plot with NIT on 30.07.2002. The complainant has also deposited Rs.1,36,047/- with NIT as per demand note issued by NIT on 17.08.2016. The NIT was unable to issue the regularisation certificate of plot due to non execution of sale deed in favour of complainant. OP No. 1 has handed ownership of plot in favour of OP No. 2 therefore complainant prayed for execution of sale deed in favour of complainant through OP No. 1 & 2. Hence, present complaint for continuous cause of action is filed.
3. The OP No. 1 duly served by paper publication notice, but OP No. 1 absent. Hence complaint is proceed exparte against OP No.1.
4. The OP N0. 2 filed reply and denied allegations against it and submitted that the agreement of sale was executed on 02.01.1990 between the deceased complainant’s mother and OP No. 1 and complaint has filed the present case after long delay of 30 years without condonation of delay application hence it is not maintainable. OP No. 1 & 2 are different co-operative societies and there is no nexus with each other. On 09.02.1984 OP No. 1 Vijay Trading Company had purchased 1 Acre land from Shri Anantram Madhav Bagale vide sale deed No. 364 and 1 Acre land from Shri Tejram Madhav Bagale vide sale deed No. 365 and on the same day the entire land of 2 Acre was purchased by Shri Sant Dhnyaneshwar Co-operative Housing Society vide sale deed No. 366 from OP No. 1 society. Hence the right over the property has been transferred to OP No. 2 Society. The OP No. 2 has already filed several litigation for removal of encroachment on disputed plot before Civil and Co-operative Court. Therefore, for the same cause of action the present complaint is res judicata and hence not tenable. The complainant and her mother was not a member of society but illegally encroached on the plot No. 19 by fabricated documents. Therefore, the complainant and her mother could not be consumer of OP hence complaint deserved to be dismissed with cost.
5. The counsel for complainant argued that the complainant is being the legal heir of deceased mother Mosami Tapan Sarkar who executed agreement of sale in a year 1990 and was being in possession of plot till date and therefore the complainant is in continuous possession of plot and legal heir as per will deed executed by deceased mother in favour of complainant. The OP failed to execute sale deed from last 30 years being continuous cause of action. Therefore, the cause of action continuous and non execution of sale deed in favour of complainant does amounts deficiency in service.
6. The counsel for OP No. 2 argued that there is no nexus and relation as a consumer between complainant and OP No. 2. OP No. 2 was not part of agreement of sale, there is no nexus between the two societies. Both societies are different legal entities and OP No. 2 is not partner of OP No. 1. OP No. 1 sold the entire layout to OP No. 2 in which the complainant’s mother plot is situated and OP No. 2 has filed several litigations for removal of encroachment against complainant and her mother and therefore case may be dismissed with cost.
7. After hearing of case the following points arose for consideration.
POINTS
- Whether the complainant is consumer? Yes.
- Whether there is deficiency in service on the part of OP? Yes.
- What order? As per final order.
REASONING
8. Point No. 1 to 3 – The OP No. 1 has executed agreement of sale of plot bearing no. 19 at Mouza-Chikhali (khurd), P.H.No. 39, Kh.No. 23, area of 2400 Sq.ft. on dtd.02.01.1990 in favour of complainant’s deceased mother against price Rs.38,000/- and received Rs.10,000/- on 02.01.1990 vide cheque no. 456065 of Bank of Maharashtra dtd.02.01.1990 and agreed to pay the balance amount of Rs.28,000/- at the time of execution of sale deed. Thereafter, the complainant’s mother was in possession of the plot till death and thereafter the complainant is in possession of plot. The complainant’s mother has paid the amount of Rs.1000/- towards plot no. 19 for regularisation of plot through Union Bank of India, receipt was filed on pg.no.23 (Doc.No.7) dtd.30.07.2002 as per list of documents. The complainant’s mother had paid the Municipal Corporation Tax to NMC as a possessor of plot for the period of 01.04.2009 to 31.03.2011 Rs.434/- on 03.08.2010 for plot No. 19 for the House No. 4820/19 as per copy of receipt bearing no. 000383 as Doc. No. 8. The complainant’s mother has paid Rs.495/- for the non agriculture tax as per demand notice issued by the Office of the Tahsildar, Nagpur (Doc.No.7) for the plot No. 19.
9. The president of OP No.1 society and OP No. 2 society was the same person and the OP No. 1 society at the time of executing sale deed of 2 acre land by OP No. 1 in favour of OP No. 2 including disputed plot bearing no. 19 without calling any objection to sale by public notice circulating in the area of executed sale deed without issuing legal notice of cancellation of agreement to sale executed between complainant’s mother and OP No. 1 society. Therefore, the execution of sale deed by OP No. 1 in favour of OP No. 2 is voidable at the option of complainant and of mother and not binding upon the complainant and deceased mother. The complainant mother was continuous, peaceful possession of plot since 1989 and paid the plot regularisation fees, electric bills, non agriculture tax. Therefore, execution of sale deed by OP No. 1 & 2 without publishing public notice or cancellation of agreement to sale which has been executed in favour of complainant mother or non refund of amount by cancelling agreement of sale does amounts to deficiency of service. Therefore, OP No. 1 & 2 are jointly and severally liable to execute the sale deed in favour of legal heir of deceased mother i.e. in favour of complaint within two months from the date of judgement with compensation for mental, physical torture Rs.25,000/- and cost of litigation Rs.15,000/-. The expenses of execution of sale deed will be borne by the complainant as per agreement of sale. Therefore, the complaint is partly allowed. Hence, we passed following order.
ORDER
- The complaint is partly allowed.
2. The OP No. 1 & 2 is hereby directed to execute the sale deed of Mouza-Chikhali (khurd), P.H.No. 39, Kh.No. 23, area of 2400 Sq.ft., Plot no. 19 to the complainant within two months from the date of judgement. The expenses of execution of sale deed shall be paid by complainant.
3. The OP No. 1 & 2 is further directed to pay jointly and severally compensation of Rs.25,000/- for mental agony and Rs.15,000/- towards cost of litigation to the complainant.
4. Copy of the order shall be supplied to all the parties free of cost.
