Arvind V Sheth vs Renuka Dhairendra Sheth

THIS single order shall dispose of all four appeals detailed in the heading above and a copy of the same shall be placed on each file.

FIRST Appeal No. 254/2008 has been filed by the complainant Dhirendra V. Sheth against the impugned order dated 16.04.2008, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as ''State Commission'') in consumer complaint No. 224/1999, Dhirender V. Sheth vs. Arvind Vasant Lal Sheth, vide which the said complaint has been dismissed. FA No. 255/2008 has been filed by Mrs. Sushila Dhirendra Sheth, w/o Dhirendra V. Sheth against another order passed by the State Commission on the same date, i.e., 16.04.2008 in Consumer Complaint No. 223/1999 vide which the said complaint was also dismissed. FA No. 303/2008 has been filed by Ms. Renuka Dhirendra Sheth, d/o Dhirendra V. Sheth against Arvind V. Sheth and Anr. against the impugned order dated 15.05.2008 passed by the State Commission in CC/223/1997 vide which the said complaint was partly allowed. FA No. 315/2008 is cross appeal to FA No. 303/2008 filed by the opposite party Mr. Arvind V. Sheth against the same impugned order dated 15.05.2008. It may be mentioned here that during the pendency of these appeals, Dhirendra V. Sheth died on 29.04.2009. His wife, Mrs. Sushila Dhirendra Sheth, his son Mr. Jayesh Dhirendra Sheth and his daughters Ms. Renuka Dhirendra Sheth and Ms. Dipika Dhirendra Sheth alias Dipika Lalit Bhandari were impleaded as LRs of Late Mr. Dhirendra V. Sheth. It may be mentioned here that OP -1 in all these cases, i.e., Mr. Arvind V. Sheth is the real brother of Late Mr. Dhirendra V. Sheth.

THE factual matrix of these cases brings out that the complainant, Dhirendra V. Sheth and the OP Arvind V. Sheth are real brothers and they had a family property situated at Geetanjali Nagar, one of the western suburbs in Western Bombay. The OP Arvind V. Sheth, being the co -owner of the property, had undertaken to develop the said property and sell parts of the same to various persons. The complainant Dhirendra V. Sheth and his family members also entered into some agreements with OP Arvind V. Sheth for obtaining certain portions from the property in question and paid different sums of money from time to time. There are four different consumer complaints involved in the present litigation, namely, CC No. 224/1999, CC No. 223/1999, CC No. 223/1997 and CC No. 271/1997. CC No. 224/1999 was filed by Dhirendra V. Sheth and is the subject matter of FA No. 254 of 2008. CC No. 223/1999 was filed by Smt. Sushila Dhirendra Sheth, w/o Dhirendra V. Sheth and is the subject matter of FA No. 255/2008. CC No. 223/1997 was filed by Renuka Dhirendra Sheth d/o Dhirendra V. Sheth and is the subject matter of cross appeals, i.e., FA No. 303 of 2008 and FA No. 315 of 2008. CC No. 271/1997 was filed by Dhirendra V. Sheth and his son Jayesh Dhirendra Sheth and is the subject matter of FA No. 256 of 2008 already dismissed by this Commission vide order dated 26.11.2008, as stated in the succeeding paragraphs. In CC No. 224/1999 and CC No. 223/1999, filed by Dhirendra V. Sheth and his wife Sushila Dhirendra Sheth respectively, it was pleaded that OP -1 Arvind V. Sheth was required to handover shops No. 12A and 12B respectively to them, situated at Geetanjali Nagar, Borivali (West) Bombay in response to agreements dated 15.05.1981 and 21.05.1981, having been entered between the parties and the necessary amounts paid. However, the OP -1 failed to hand over the said properties to them. It was stated by the complainants that they had given some blank papers signed by them on 03.06.1991 to OP -1. However, the OP -1 says that some letter dated 03.06.1991 was given by the complainant to him, saying that OP -1 was authorised to sell the property in question, in the manner he liked and to remit the sale proceeds to the complainants minus the transfer charges or processing fee, if any. Both these complaints were ordered to be dismissed by the State Commission vide order dated 05.2.2004, saying that it was not a consumer dispute. This order of State Commission was challenged by way of appeals before this Commission as FA No. 198/2004 and FA No. 199/2004. This Commission vide order dated 06.09.2005 remanded the matter back to the State Commission saying that copies of agreements dated 15.05.1981 and 25.01.1981 which were not produced by the complainants before the State Commission had then been produced before the National Commission. Vide impugned orders dated 16.04.2008, the State Commission have again dismissed both the complains CC No. 224/1999 and CC No.223/1999 saying that there was no consumer dispute between the parties and also the complaints filed in the year 1999 were barred by limitation. It is against these orders of the State Commission that FA No. 254/2009 and FA No. 255/2009 have been filed.

IN Consumer Complaint No. 223/1997 filed by Renuka D. Sheth d/o Dhirendra V. Sheth, it was alleged that under agreement dated 01.02.1998, she had decided to purchase shop No. 27 in the said complex and had made payment of full consideration for the said shop. However, OP No. 1 had sold the said shop to OP No. 2, Jasuben Harish Mistry in violation of the said agreement. She pleaded that shop No. 27 should be handed over to her or in the alternative, some other shop in the same area in the same project should be given to her alongwith compensation for mental agony, harassment, etc. The said complaint was dismissed vide order of the State Commission dated 12.08.1999, saying that the claim was barred by limitation. However, in FA No. 407/1999, decided by this Commission on 06.09.2005, the matter was remanded to the State Commission for deciding the complaint on merits. The State Commission vide impugned order dated 15.05.2008, partly allowed the complaint and directed OP No. 1 to refund the amount of ?1,32,251/ - to the complainant with interest @15% p.a. from the date of the filing of the complaint till realisation and also to pay ? 1 lakh as compensation and ? 10,000/ - as cost of litigation. It is against this order that two cross appeals No. 303/2008 and 315/2008 have been filed by the parties. The complainant has stated that relief should have been given as demanded in the complaint and the same shop or some different shop along with necessary compensation should have been allowed, whereas the OP No. 1 has pleaded that the complaint should be dismissed. Interestingly, it has been pleaded in both the cross -appeals that the hearing on the complaint was made by a two -Member Bench of the State Commission on 18.01.2007, consisting of Hon''ble Mr. Justice B.B. Wagyani, President and Smt. S.P. Lele, Hon''ble Member. However, the impugned order dated 15.05.2008 has been signed by three Members, namely, Justice B.B. Wagyani, President, Mr. P.N. Kashalkar, Judicial Member and Smt. S.P. Lele, Member. The appeals deserve to be allowed on this ground alone. During hearing before us, the learned counsel for the complainants / appellants pleaded that it was the duty of the OP No. 1 to provide the property in question to them in accordance with the agreements entered between the parties. The State Commission was not right in coming to the conclusion that the matter in question, was a family dispute and not a consumer dispute. The conclusion of the State Commission that the matter was barred by limitation was also not in accordance with law because in all these cases, there was continuing cause of action. The appeal should, therefore, be accepted and the relief claimed by the complainants should be provided to them. On the other hand, it was pleaded by OP No. 1 that the State Commission had reached the right conclusion that the matter was essentially a family dispute and hence, the provisions of Consumer Protection Act, were not applicable in the case.

AS stated earlier, CC No. 271/1997 was filed by Dhirendra V. Sheth and his son Jayesh Sheth. It was pleaded therein that the ground floor with front open space in C -9 building wing ''C'' of the same complex, was to be transferred to the complainants. The said complaint was also decided by order dated 16.04.2008 of the State Commission and was dismissed. FA No. 256/2008 was filed before this Commission against that order but the same has already been dismissed vide order dated 26.11.2008 passed by this Commission. During arguments in the appeal before us, OP -1 pleaded that the National Commission had rightly observed in their decision in FA No. 256/2008 that it was a matter concerning family dispute and the parties should agitate their rights before appropriate court. The said view of the National Commission had been upheld by the Hon''ble Apex Court as well in appeal filed before them. OP -1 stated that all the consumer complaints in question should be dismissed based on the view taken by this Commission on 26.11.2008 and duly confirmed by the Apex Court.

WE have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. FA No. 254/2008 and 255/2008 are being decided together, as the facts in these two cases are almost similar, whereas cross appeals FA No. 303 / 2008 and 315/2008 are being disposed off together. FA No. 254/2008 and FA No. 255/2008

THE State Commission vide impugned order dated 16.04.2008 dismissed the consumer complaints, in question, namely, CC No. 224/1999 and CC No. 223/1999 saying that the two complaints were barred by limitation, having been filed 17 years after the alleged agreement between the parties and also holding that there was no consumer dispute between the parties as the matter was essentially a family dispute between them. From the facts and circumstances on record, it is abundantly clear that the complainant Dhirendra V. Sheth and the OP Arvind V. Sheth were real brothers and they had a family property situated at Geetanjali Nagar in Western Bombay. As per some family understanding between them, the OP Arvind V. Sheth undertook to develop the said property and sell portions of the same to various persons. Dhirendra V. Sheth and his family members are also stated to have booked certain parts of the said property, developed by the OP Arvind V. Sheth. In so far as CC No. 224/1999 and CC No. 223/1999, which are the subject matter of the two appeals stated above, are concerned, it is stated that as per some agreements dated 15.05.81 and 21.05.81, the OP was supposed to hand over shops No. 12A and 12B to Dhirendra V. Sheth and his wife Sushila, but he failed to do so. The State Commission has brought out that the original agreements of sale have not been produced before them. No satisfactory explanation is forthcoming from the complainants/appellants as to why the said original agreements were not produced before the State Commission. Further, it is also stated by the complainants that they sent some blank papers duly signed by them to the OP on 03.06.1991. However, the OP has taken the stand that the complainants had given a letter of no objection to him for selling the shop premises in question and had agreed to take market value of the same minus the transfer charges or process fee, if any. The State Commission has, therefore, held that there was no consumer dispute between the parties and it was essentially a family dispute between them. There is no material on record to disbelieve the assertion made by the State Commission in the impugned order.

FURTHER , it may be stated that CC No. 271/1997 which was based on similar facts (only the portion of the property involved was different) was dismissed by the State Commission by order passed on 16.04.2008 itself. FA No. 256/2008 filed against the said order of the State Commission has already been dismissed by this Commission vide order dated 26.11.2008 and it was held that it was not for the consumer fora to go into the disputed question of facts as per law laid down by the Hon''ble Supreme Court in the case of Oriental Insurance Company Limited vs. Munimahesh Patel, 2006 CTJ 1073 ]. The Hon''ble Apex Court stated in the judgment in the said case that the State Commission was right in its view that complex factual position requires that the matter should be examined by an appropriate court of law and not by the Consumer Fora. It has been stated by the OP during arguments that an appeal filed against the order dated 26.11.2008 passed by this Commission has also been dismissed by the Hon''ble Apex Court and the said view has been upheld. Since the facts involved in the present appeals are also similar, it shall be appropriate to take similar view in these two cases as well.

IN so far as the finding of the State Commission that the complaints were barred by limitation having been filed after 17 years of the alleged agreements between the parties, it is stated that it was for the complainants to provide adequate explanation as to why they waited for such a long time for filing the present complaints. They were also required to explain as to what prompted them to provide blank documents to the OP on 03.06.1991 as per their own version. However, even if a view is taken that it was a case of continuing cause of action because the OP failed to provide them the property in accordance with the agreements entered between the two parties, it shall not be justified to provide them any relief at this stage in view of the finding that the matter was essentially a family dispute between the parties and a complaint based on similar facts has already been dismissed by the State Commission and the order upheld in appeal by this Commission and also by the Hon''ble Apex Court, as stated by the OP.

BASED on the discussion above, we do not find any merit in the two appeals and the same are ordered to be dismissed. It is, however, made clear that as held by this Commission in order dated 26.11.2008 in FA No. 256/2008, the appellants/complainants shall be free to seek remedy elsewhere if so advised under any law and they can take advantage by way of getting a set -off for the period spent before the Consumer Fora under section 14 of the Limitation Act. There shall be no order as to costs. FA No. 303/2008 and FA No. 315/2008

IN so far as the cross appeals, i.e., FA No. 303/2008 filed by complainant Renuka D. Sheth and FA No. 315/2008 filed by OP No. 1 Arvind V. Sheth, are concerned, it has been contended in the memo of appeal in both the cases that the impugned order of the State Commission dated 15.05.2008 had been signed by the President and two Members of the State Commission, namely, Justice Sh. B.B. Vagyani, Hon''ble President and Sh. P.N. Kashalkar and Smt. S.P. Lele, Members, but the hearing in this case was held on 18.01.2007 by a two -Member Bench consisting of Justice Sh. B.B. Vagyani, Hon''ble President and Smt. S.P. Lele, Member only. It has been categorically mentioned in the memo of appeal that Sh. P.N. Kashalkar, Member was not present at the time of final hearing on 18.01.2007, but the final order, made by the State Commission on 15.05.2008 bears the signatures of three Members including Sh. P.N. Kashalkar.

SINCE the version given by the two contesting parties in their memo of appeal is the same, there is nothing to disbelieve the fact that the hearing was conducted by a two -member Bench but the final order was signed by three Members of the State Commission including the President. Such an order cannot be held to be valid in the eyes of law by any stretch of imagination and there is no alternative but to set aside the same and we order accordingly. Both the cross -appeals are, therefore, accepted and the impugned order dated 15.05.2008 of the State Commission is set aside on this ground alone. The matter is remitted back to the State Commission for hearing the parties again and take a decision based on the facts and circumstances of the case. The parties are directed to appear before the State Commission on 28.04.2015 for further hearing. There shall be no order as to costs.

THE Registry is directed to refund the statutory amount alongwith accrued interest, if any, to the respective appellants.