GUNVATIBEN KANTILAL SHAH & Ors vs SHUBHAM BUILDERS & Ors

These revision petitions, 23 in number, have been filed against the impugned order dated 4.11.2015, passed by the Gujarat State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in Appeal No. 293/2014 and allied matters, vide which, while dismissing the appeals, the order passed by the District Forum, Valsad, dismissing the consumer complaints filed by the present petitioners, were upheld.

In the consumer complaints filed by the petitioners against the OP builder, it was alleged that although the total sale consideration for the property in question had been paid to the builder and in turn, the possession was also delivered a long time back already, the OPs had failed to execute the registered sale-deeds in favour of the complainants. The OP-1, Shubham Builders is a partnership firm and OP-2 Sureshbhai M. Desai, is one of their partners. OP-3 & 4 are real brothers and co-owners of the land, upon which the construction/development was made by OP-1 & 2. The title of the property is not being transferred in the name of the complainants on account of the fact that there was some dispute between the OPs 3 and 4, and hence, the sale deeds could not be executed. The complainant stated that OPs1&2 and also OP-4 had admitted their legal obligations qua the complainants in their letter dated 10.01.2012, whereby they mentioned that they had some internal dispute with OP-3, resulting in delay in the execution and the registration of the sale-deeds. The complainants sought directions to the OPs to execute the registered sale-deeds of the property in question and also to pay compensation to them for their alleged lapse.

Before the District Forum, reply was filed by OP-1&2 builders and OP-4 jointly in which they stated that they had always shown readiness to get the sale-deeds executed, but the same could not be done due to dispute with OP-3. OP-1 & 4 stated that they had received the full price of the disputed property and they were bound by law to execute the sale-deeds but it was necessary to have the presence and signatures of OP-3 for doing the same. OP-1, 2 & 4 stated that there was no deficiency in service on their part and hence, the complaints against them should be dismissed.

Before the District Forum, OP-3 was proceeded against exparte as he did not put in appearance before them. The District Forum vide their order dated 21.09.2013 dismissed the complaint. Being aggrieved against this order, the complainant challenged the same before the State Commission by way of appeals and the said appeals having been dismissed by that Commission, the complainants are before this Commission by way of present revision petitions.

It was submitted by the Learned counsel for the petitioners in his oral as well as written arguments that the complainants had paid full sale-price of the property in question in the year 1993 and the possession was also delivered as early as in the year 1994. However, the OPs failed to get the sale-deeds executed in their favour. The Ld. Counsel has drawn attention to a letter dated 10.01.2012 sent by OP-1, 2 & 4 to the complainant, saying that they were legally bound to get the sale-deeds done in their favour, but it was necessary to have the signatures of OP-3 for executing the sale-deeds. According to the ld. counsel, the cause of action has arisen to the complainants on 10.01.2012, the date of issue of the letter referred above. The complaints were, therefore, very much within limitation. Further, the internal dispute of the OPs should not come in the way of the execution of the sale-deeds in favour of the complainants. The learned counsel further stated that OP-3 had already executed an "irrevocable and non-cancellable general power of attorney" in favour of his brother OP-4 and hence, there should be no difficulty in getting the sale-deeds executed.

The notice of the revision petitions were issued to the respondents/OPs. However, respondents/OP-1, 2 & 4 did not put an appearance, despite service of notice upon them. The OP-3 refused to accept the service of the notice.

The main issue that arises for our consideration is whether the OPs should be directed to get the sale-deeds executed in favour of the complainants, keeping in view the fact that they had already made full payment to the OP Builder and they were given possession of the property, a long time ago. It has been admitted by the OP-1 & 2 builders as well as by OP-4 land owner in their letter dated 10.01.2012 sent to the complainant that they had received the whole amount of consideration for the sale of the property and they were obliged to have the sale-deeds executed in their favour. It has been stated in the said letter as follows:- "1. We have received the whole amount of consideration for the sale of flat No. 101, Building-A, Kesarji Park from you and we are abide to do a sale deed in your favour. But on the land which the Kesarji Park is built is in the name of one co-owner HIRABHAI JINABHAI RANA, resi. Samir Apartment, B-211, S.V. Road, Andheri (West), Mumbai, Maharashtra, and due to the wrongful and illegal demands of him, the Sale Deed of the said Property is not made. Because the signature of Hirabhai Jinabhai Rana is also necessary with the Signatures of we both in the Sale Deed of the House which you have purchased.

We both the undersigned hereby give the binding of the fact that, we are ready to do a sale deed of the above said property at your cost.

Date : 10.01.2012. "

It is made out from the above letter that OP-1&2 as well as co-owner of the property OP-4, have given an undertaking that they were prepared to get the sale-deeds executed, but they could not do so, because the signatures of OP-3, i.e., the other co-owner were also necessary for executing the same. However, the net outcome of the whole episode is that the complainants have been suffering till today for non-execution of the sale-deeds. Evidently, the complainants cannot be made to suffer, if there is dispute of any kind between the owners of the property. It is the duty of the builders as well as the co-owners to sort out their dispute, if any, with OP-3 and then to ensure that the sale-deeds are executed as early as possible. On record, is a copy of General Power of Attorney executed by OP-3 in favour of his real brother OP-4. It has not been made clear by the OPs as to why the sale-deed could not be executed, based on the General Power of Attorney. In any case, the OPs 1 & 2 and OP-4 are equally to blame as OP-3, as the sale deeds have not been executed so far. The orders passed by the Consumer Fora below are, therefore, perverse in the eyes of law, as they are based on technicalities alone, which cannot be made to stand in the way of execution of the sale-deeds. Once full payment for the property has been admittedly received by the builders and the possession delivered, it was the duty of all the 4 OPs to ensure that the sale-deeds should have been executed forthwith. For their failure to do so, the OPs are jointly and severally responsible for deficiency in service towards the complainants. The orders passed by the State Commission as well as the District Forum are, therefore, ordered to be set aside.

As per the foregoing discussion, these revision petitions are allowed and a direction is given to the OPs jointly and severally to get the sale-deeds executed within a period of four months from today. For their failure to execute sale-deeds for more than 20 years, the OPs shall be jointly and severally liable to pay compensation of 50,000/- in lump-sum to each of the complainants. It is further directed that in case, the sale-deeds are not executed within four months from today, an interest @ 12% p.a. on the amount of compensation shall be payable after the expiry of the said period of four months from today. The revision petitions stand disposed off accordingly. There shall be no order as to costs.