Jitendra D. Sheth vs Abhinav Engineers

THIS revision petition has been filed by the petitioner against order dated 31.1.2012 in common judgment Appeal No. 716/2010 - Abhinav Engineers Vs. Jitendra R. Shah & Anr. and Appeal No. 729/2010 - Saujanya Coop. Housing Society Vs. Jitendra R. Shah & Anr.; by which while allowing appeal of opposite party, appeal of complainant was dismissed and order of District Forum allowing complaint was set aside.

BRIEF facts of the case are that complainant/petitioner - Jitendra D. Sheth was allotted unit No. 708 in the building to be constructed by opposite party No. 1/respondent No. 1 on the land of opposite party No. 2/respondent No. 2. Complainant made down payment of Rs. 5,47,470/ - and other charges were to be paid at the time of handing over possession. It was, further, alleged that an agreement was executed between complainant and opposite party No. 1 on 15.4.2000 and possession of the property was to be handed over in August, 2005. In spite of making full payment of unit, possession of the property was not handed over to the complainant in spite of repeated requests and opposite party wants to sell the flat for higher price. Alleging deficiency on the part of opposite party, complainant filed complaint before District Forum with a prayer to direct opposite party to hand over possession or refund the amount with interest and compensation. Opposite party No. 1 resisted complaint and submitted that as per agreement, principle amount with interest was to be returned to the complainant and aforesaid unit No. 708 was allotted to the complainant as security against investment made by complainant for earning interest. It was, further, submitted that complainant was not entitled to possession of the property and prayed for dismissal of complaint. Opposite Party No. 2 appeared before District Forum but did not file written statement. Learned District Forum after hearing both the parties allowed complaint and directed opposite parties to refund Rs. 5,47,470/ - with 6% p.a. interest and to pay Rs. 1,250/ - as costs. Both the parties filed appeal before State Commission and Learned State Commission vide impugned order dismissed appeal of complainant but allowed appeals of opposite parties and dismissed complaint against which this revision petition has been filed.

HEARD Learned Counsel for the parties finally at admission stage and perused record. Learned Counsel for the petitioner submitted that as unit was allotted to the petitioner after receiving full payment, Learned District Forum rightly allowed complaint but Learned State Commission committed error in allowing appeals of opposite parties and dismissing complaint, hence, revision petition be allowed and impugned order be set aside and order of the District Forum be affirmed. On the other hand, Learned Counsel for respondents submitted that order passed by Learned State Commission is in accordance with law, hence, revision petition be dismissed.

PERUSAL of record reveals that development agreement was executed between opposite parties and opposite party No. 1 was to develop commercial complex as per agreement. It, further, transpires that an Agreement of Understanding was executed on 27.4.2000 between one of the partners of opposite party No. 1 and complainant and as per that agreement, complainant advanced Rs. 6,00,000/ - (Rupees Six Lacs) to opposite party No. 1 as loan and opposite party No. 1 allotted office No. 708 in favour of complainants against security of the aforesaid loan. It was further agreed that office was allotted in the form of security and complainants were entitled to recover the loan amount, by selling office at market price. If, further, transpires that allotment letter dated 15.5.2001 for aforesaid office was issued by opposite party No. 1 in favour of both the complainants. Opposite party No. 1, further, admitted that he has received Rs. 5,47,470/ - - as basic cost of unit from complainan

ALL these documents clearly reveal that complainants advanced money to opposite party No. 1 and as security of the refund of amount, the aforesaid office was allotted to the complainants, meaning thereby, there was no agreement for sale and purchase of office unit by opposite party No. 1 in favour of the complainant. Perusal of Development Agreement between opposite party No. 1 & 2, further reveals that opposite party No. 1 was only to develop land of opposite party No. 2. By this agreement, opposite party No. 1 was not authorized to allot or sale any portion of the building to be developed. Learned Counsel for the petitioner could not place any document to substantiate his argument that opposite party No. 1 had any right to allot or sell any part of the property to be developed. Even if opposite party No. 1 entered into an agreement with complainants and allotted office, that was apparently without any right and authority and in such circumstances, complainant was not entitled to possession of aforesaid units from opposite party No. 1 who had no right to sell or allot office units.

LEARNED Counsel for petitioner has not placed any documents on record to prove that any amount was paid by complainant to opposite party No. 2 who was owner of the property. In such circumstances, complainant was not entitled to get possession of any unit from opposite parties. Learned District Forum committed error in allowing complaint and Learned State Commission rightly allowed appeal and dismissed complaint.

I do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed.

CONSEQUENT LY , revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.