DARISA BUILDERS PVT. LTD. vs PACOAL JOSE CORDO

THIS revision is directed against the order dated 13.9.2005 of Consumer Disputes Redressal Commission, Panaji-Goa allowing appeal against the order dated 5.3.2002 of a District Forum whereby complaint was dismissed and respondent/complainants were relegated to Civil Court for grant of the reliefs claimed. The State Commission allowed the appeal with direction to the petitioner/opposite parties: (a) to deliver possession of 15 studio apartments each of 350 sq. ft. builtup area; (b) to pay as damages amount of Rs. 6,000 per month for each of the 15 studio apartments from 8.7.1999 till delivery of their possession and; (c) to pay cost of Rs. 5,000.

FACTS giving rise to this revision lie in a narrow compass. Father of the respondens had entered into an agreement dated 4.7.1995 with petitioner No. 1-builder and on his death on 22.9.1995 this agreement came to be cancelled and replaced by another agreement dated 8.7.1996 between the respondents and petitioner No. 1. In terms of this agreement, the petitioners were allowed to develop property known as ''CURNALEM'' bearing survey No. 28 sub-divisions 2, 5, 6 and 8 admeasuring 5000 sq. mts. situated in Arpora, Bardez, Goa and respondents were to be given 15 studio apartments each at 350 sq. ft. built up area in the said property. Stipulated period for handing over the apartments was three years from the date of execution of agreement failing which the petitioner No. 1 was to pay as damages Rs. 6,000 per month per unit. On possession of apartments not being handed over, the respondents filed complaint seeking certain reliefs which was contested by filing joint written version by the petitioners. One of the pleas taken was that the respondents are not the consumers as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 (for short the Act) and the dispute raised was not triable under the Act and only a suit for specific performance of agreement would lie in a Civil Court. The State Commission answered this plea against the petitioners and passed the order under challenge. On 24.4.2007, interim direction was made to the petitioners to hand over possession of 15 studio apartments to the respondents and/or their representatives on 10.5.2007 and case was postponed to 23.7.2007 for further proceedings. On that date the respondents were represented by Ms. Shakun Sharma, Advocate. On 23.7.2007, Mr. O.P. Dua, Sr. Advocate for the petitioners made the statement that pursuant to the said interim direction the possession of 15 studio apartments have been handed over on 10.5.2007. In addition, occupancy certificate(s) issued by Arpora Village of Bardez Taluka, Goa have been given to the respondents. On this date, no one was present on behalf of the respondents. Even on adjourned dates of 10.8.2007 and 19.10.2007, nobody put in appearance on behalf of the respondents.

Relying on the decision in Rameshwaran and Others v. Sujit Kumar Banerjee and Others, IV (2005) CPJ 53 (NC)=2006 CTJ 42 (CP) (NCDRC), as also the terms of agreement dated 8.7.1996, the submission advanced by Mr. Dua, Sr. Advocate was that the said document, in fact, is a collaboration/joint venture agreement with no element of hiring of ''service'' of the petitioner and respondents being the ''Consumers'' under the Act and the State Commission had, thus, acted erroneously in passing the impugned order. He pressed this revision only in regard to grant of relief (b) above by the State Commission. Copy of the agreement dated 8.7.1996 between the parties is at pages 35 to 47 on the paper book. Bare reading of various clauses of this agreement would show that in consideration of grant of development rights to petitioners of the property known as ''Curnalem'' admeasuring 5000 sq. mts. at Arpora Village, Bardez, Goa by the respondent/owners, the petitioner No. 1 -Builder Company was to obtain approvals of plan, conversion of the property from Town and Country Planning Authorities, Village Panchayat or any other Licensing Authority at its own expenses and hand over possession of 15 studio apartments each admeasuring 350 sq. ft. builtup area after construction free of cost with right of use of swimming pool, club house and gardens. Clause (k) of para 22 of this agreement provides that in case the petitioner No. 1 failed to hand over the apartments fully completed within the a period of 3 years, it was liable to pay as damages Rs. 6,000 per apartment per month to the respondents. That being the position, we are in agreement with the said submission advanced on behalf of the petitioners that the document dated 8.7.1996 is a collaboration/joint venture agreement with no element of hiring of ''service'' or respondents being the ''Consumers''. Case is, therefore, squarely covered by Rameshwaran''s case (supra). Order as regards grant of relief (b) above by the State Commission thus deserves to be set aside not being legally sustainable.

ACCORDINGLY, revision is allowed and part of aforesaid order dated 13.9.2005 directing the petitioners to pay as damages amount of Rs. 6,000 p.m. for each of the 15 apartments from 8.7.1995 till delivery of possession of apartments is set aside. No order as to cost. R.P. allowed.