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Judgment
Heard Mr. Mahesh Kumar, Advocate, for the applicants/ the heirs of the complainants flat owners and Mr. P.K. Agrawal, Advocate, for the opposite parties, the builders.
Ms. Prairna Dhar has filed MA/181/2022, for correction of the order dated 20.07.2020 passed in IA/6780/2016 and recording her name in place Hitesh Jain (complainant-24) and directing the opposite parties to pay the compensation and cost as awarded in original complaint by order dated 19.03.2014 to her. Ms. Prairna Dhar stated that Mrs. Shanta Munshi booked Flat No.102, block-H, in the project “Lagoon” at village Nathupur, NH-8, Gurgaon, constructed by opposite parties-1 to 3 and paid consideration. OP-1 to 3 executed sale deed of the Flat No.102, in her favour on 16.04.2004. OP/93/2004 was filed by her but as at that time Hitesh Jain was tenant in Flat No.102, his name was cited as complainant-24. Mrs. Shanta Munshi executed a registered will dated 27.09.2007, in favour of Ms. Prairna Dhar (the applicant) in respect of Flat No.102. Mrs. Shanta Munshi died on 27.11.2008. On the basis of her registered will dated 27.09.2007, OP-1 to 3 endorsed the name of Ms. Prairna Dhar as the owner of Flat No.102 on 14.03.2009, in their record and she is paying maintenance charges of Flat No.102. As such, she was entitled to the benefit of the decree dated 19.03.2014 passed in OP/93/2004. Ms. Prairna Dhar filed IA/6780/2016, for substituting her name as an heir of Mrs. Shanta Munshi, which was allowed on 20.07.2020 but as the name of Hitesh Jain was mentioned as complainant-24, the OPs are not giving benefit of the decree to her.
Ms. Karishma Panchal filed MA/122/2022, for substituting herself as an heir of Mr. A.C. Gupta (complainant-18), who was owner of Flat No.H-601, in the project “Lagoon”. She stated that Mr. A.C. Gupta (complainant-18) had died on 11.04.2006, leaving behind him his widow Smt. Indu Gupta, the son Mr. Deepak Gupta and the daughters Mrs. Poonam Kothari and Mrs. Kavita Mahtani. Mr. Deepak Gupta was declared as the sole owner of the Apartment No. H-601, in the project “Lagoon” allotted to Mr. A.C. Gupta in Civil Suit No. 186 of 2014, by order dated 30.01.2015. Mr. Deepak Gupta filed IA/6780/2016, for substituting his name as an heir of Mr. A.C. Gupta, which was allowed by the order dated 20.07.2020. Mr. Deepak Gupta was diagnosed with 3rd stage cancer as such he transferred Flat No.H-601, in the project “Lagoon” in favour of his daughter Ms. Karishma Panchal through deed dated 29.01.2001. As such her name is liable to be substituted in place of Mr. Deepak Gupta and the OPs be directed to pay the compensation and cost as awarded by order dated 19.03.2014 in OP/93/2004 to her. MA/122/2022 was allowed vide order dated 02.05.2023. The OPs have filed MA/205/2023 for recalling the order dated 02.05.2023.
Ambience Island Apartment Owners filed OP/93/2004 for directing the opposite parties to (a) install two additional express elevators of recognised and reputed brand in the Apartment Blocks C, E, F and H in the project “Lagoon” and replace the existing elevators; (b) pay interest on Rs.8800000/- @21% per annum from April, 2001 till the date of filing of the complaint; (c) pay adequate compensation to the flat buyers for mental agony and harassment; (d) pay litigation costs; and (e) Any other relief, which is deemed fit and proper in the facts of the case.
Above petition was filed by Ambience Island Apartment Owners, citing 66 flat buyers as the complainants. It has been stated that opposite parties-1 to 3 had constructed group housing project “Lagoon”, at village Nathupur, NH-8, Gurgaon. Opposite party-4 installed the elevators in Blocks C, E, F and H of the project “Lagoon” (each block consist 40 flats). As per brochure, OP-1 to 3 had promised to install 4 elevators of standard brand in each block and realized its costs from the flat buyers but two elevators of sub-standard were installed in each block. By not installing eight elevators, OP-1 to 3 saved Rs.12800000/-, realized from the home buyers, on which, they were liable to pay interest. When possession was handed over to the flat buyers, in the year 2004, then the problems of the elevators came to their knowledge. OP-4 had given one year warranty for the elevators installed by it but had not honoured the warranty in spite of the complaints made by the complainants.
This Commission allowed OP/93/2004 by judgment dated 19.03.2014 and directed OP-4 to pay compensation of Rs.132000/-, to be divided by the complainants in the sum of Rs.2000/- each, for not attending the elevators during warranty period. OP-1 to 3 were directed to maintain the lifts every day, month and year within a period of 90 days, failing which they were directed to pay penalty of Rs.15000/- per month and pay litigation cost of Rs.5000/- to each of the complainant within 90 days, else, it would carry interest @9% per annum till its realization. OP-1 to 3 were directed to pay 70% of maintenance charges from November, 2002. OP-1 to 3 filed RA/74/2014, for review of above order, which was dismissed by the order dated 01.05.2014. OP-1 to 3 filed Civil Appeal Nos. 7171 and 7172 of 2014, which were dismissed on 26.06.2014.
EA/7/2014 was filed on behalf of all the 340 flat owners of the blocks C, E, F and H, which was disposed of vide order dated 03.11.2015, clarifying that benefit of the decree dated 19.03.2014 would be available to 66 flat owners, who were arrayed as the complainants and not to all the allottees of the blocks C, E, F and H. One of the flat buyer namely Amitabha Sen filed Civil Appeal No.661 of 2016, which was dismissed as withdrawn by order dated 25.11.2016.
The flat owners of these towers filed RA/315/2015, for review of the order dated 03.11.2015 and giving benefit of the order dated 19.03.2014 to all the 340 flat owners of the project, which was dismissed, vide order dated 22.07.2021. IA/6780/2016 was filed for substituting the heirs of various deceased complainants, in RA/315/2015, which was allowed by the order dated 20.07.2020. In this review application Raj Singh Gehlot filed an Affidavit, sworn on 01.09.2020, stating that as per order dated 19.03.2014, OP-1 to 3 had paid 70% of the lift maintenance charges with interest to all the 66 complainants on 04.12.2014. In compliance of the order dated 03.11.2015, OP-1 to 3 paid balance 70% maintenance charges with interest on 31.08.2020 to all the 66 complainants.
The OPs filed their reply in MA/181/2022 on 26.05.2023 and stated that Mrs. Shanta Munshi had died on 27.11.2008. The complaint was decided on 19.03.2014. EA/7/2014 for executing the decree was decided on 03.11.2015. By virtue of Section 13 (7) of the Consumer Protection Act, 1986, Order 22 C.P.C. has been applied in the proceeding under the Act. Order 22 Rule 3 C.P.C. provides for substitution of the heir of the plaintiff. Limitation Act, 1963 provides 90 days period from the date of death for filing substitution application. Failing which, the suit abates under Order 22 Rule 3(3) C.P.C. No application for substitution of the heir of Mrs. Shanta Munshi was filed in the complaint till 19.03.2014. The complaint on behalf of Mrs. Shanta Munshi abated and her heirs could not be substituted in RA/315/2015 which was filed for review of the order dated 03.11.2015. The order dated 20.07.2020 allowing IA/6780/2016, filed on 06.07.2016, for substituting the names the heir of the deceased petitioner, is nullity as held by Supreme Court in Gurnam Singh Vs. Gurbachan Kaur, (2017) 13 SCC 414. IA/6780/2016 was filed for impleadment of Hitesh Jain and not for substitution of the heir of Mrs. Shanta Munshi. Prairna Dhar did not obtain Probate/succession certificate on the basis of alleged will dated 27.09.2007. MA/181/2022 is not maintainable and liable to be dismissed.
The OPs filed their reply in MA/122/2022 on 28.03.2023 and stated that Mr. A.C. Gupta had died on 11.04.2006. The complaint was decided on 19.03.2014. EA/7/2014 for executing above decree was decided on 03.11.2015. By virtue of Section 13 (7) of the Consumer Protection Act, 1986, Order 22 C.P.C. has been applied in the proceeding under the Act. Order 22 Rule 3 C.P.C. provides for substitution of the heir of the plaintiff. Limitation Act, 1963 provides 90 days period from the date of death for filing substitution application. Failing which, the suit abates under Order 22 Rule 3(3) C.P.C. No application for substitution of the heir of Mr. A.C. Gupta was filed in the complaint till 19.03.2014. The complaint on behalf of Mr. A.C. Gupta abated and his heir could not be substituted in RA/315/2015, which was filed for review of the order dated 03.11.2015. The order dated 20.07.2020 allowing IA/6780/2016, filed on 06.07.2016, for substituting the heirs of the deceased petitioners, is nullity as held by Supreme Court in Gurnam Singh Vs. Gurbachan Kaur, (2017) 13 SCC 414. In compliance of the decree dated 19.03.2014, a cheque of Rs.821499/- was issued by the OPs.
In MA/205/2023, the OP stated that due to mistake, the counsel for the OPs noted the date as 22.05.2023, instead of 02.05.2023 as such could not appear on 02.05.2023. On 17.05.2023, the counsel took print out of the order dated 21.04.2023, then it was discovered that dated was fixed on 02.05.2023 and MA/122/2022 was allowed exparte. Then recall application was filed on 18.05.2023. Cause shown for default is sufficient. The Order dated 02.05.2023 is recalled. MA/122/2022 was heard on merit on 10.11.2023.
We have considered the arguments of the counsel for the parties. OP/93/2004 was filed for directing the opposite parties to (a) install two additional express elevators of recognised and reputed brand in the Apartment Blocks C, E, F and H in the project “Lagoon” and replace the existing elevators; (b) pay interest on Rs.8800000/- @21% per annum from April, 2001 till the date of filing of the complaint; (c) pay adequate compensation to the flat buyers for mental agony and harassment; (d) pay litigation costs; and (e) Any other relief, which is deemed fit and proper in the facts of the case. Main relief was common for all the 68 complainants, whose names were cited in the complaint. Mr. A.C. Gupta was arrayed as complainant no.18 in the original complaint. While Mr. Hitesh Jain was arrayed as complainant no.24 Mr. Hitesh Jain was tenant of Mrs. Shanta Mushi (the owner of Flat No.H-102). Mr. Hitesh Jain was a consumer, being beneficiary, as such, the interest of Mrs. Shanta Mushi was represented in the complaint. Main relief in the complaint was common for all the 68 flat owners as such on the death of Mr. A.C. Gupta, right to sue survives to the surviving complainants and there was no abatement as provided under Order 22 Rule 2 C.P.C. In the order dated 03.05.2015 also it has been held that the decretal amount was payable to 66 complainants. The OPs admit that in compliance of the decree dated 19.03.2014, a cheque of Rs.821499/- was issued by the OPs in the name of Mr. A.C. Gupta. By virtue of Section 146 C.P.C., the representatives of Mr. A.C. Gupta (complainant-18) and Mr. Hitesh Jain (complainant-24) rightly filed IA/6780/2016, on 06.07.2016, which was allowed by the order dated 20.07.2020. The OPs have not challenged the order dated 20.07.2020.
ORDER
In view of aforesaid discussions, MA/181/2022 and MA/122/2022 are allowed. The name of Ms. Prairna Dhar is added in the order dated 20.07.2020 passed in IA/6780/2016 in place Hitesh Jain (complainant-24) and the name of Ms. Karishma Panchal is substituted as an heir of Mr. A.C. Gupta (complainant-18). The opposite parties are directed to pay the compensation and cost as awarded in Original Petition No.93 of 2004 by order dated 19.03.2014 to Ms. Prairna Dhar and Ms. Karishma Panchal, within a period of two months from the date of this order.