Madhavi Prabhakar Karandikar (Now Deceased) Through Lrs vs M/s Vinita Builders

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Nagraj Hoskeri, Advocate, for the complainant, Mr. Ajit Bhasme, Senior Advocate assisted by Mr. Mukesh Kumar Pande, Advocate, for opposite parties-3, 6 & 7, Mr. Keshav Ranjan, Advocate for opposite party-4 and Mr. Abhijeet Swaroop, Advocate for opposite party No.5.

Mrs. Madhavi Prabhakar Karandikar has filed above complaint for directing the opposite parties to (a) handover the possession of flat No.2, 2nd Floor “Vinita Apartment”, S. No.24P and 25/3 corresponding CTS No.33, Tika No.21, Village Naupada, Thane or handover an identical flat in the same locality and/or alternatively pay compensation of Rs.15000/- per sq. ft with 19% interest (b) pay compensation of Rs.5000/- per day from 30.09.2003 till handing over actual vacant and peaceful possession of the flat of the cost of Rs.15580000/-; (c) pay compensation of Rs.100000/- for mental agony, torture and harassment caused to the complainant (d) pay legal charges of Rs.50000/-; (e) pay Rs.50000/- towards cost of complaint; and (f) any other relief as this Commission may deem fit in favour of the complainant.

The complainant stated that opposite party-1 (builder) was a partnership firm and carrying on business of construction in district Thane. Opposite parties 2 & 3 were partners of opposite party-1. Opposite party-4 is a trespasser who has illegally occupied the flat allotted to the complainant. Opposite parties-5 to 7 were also partners of opposite party-1 and have been impleaded later on.

Prabhakar M. Hegde, father of the complainant was an Advocate by profession who has extended his services to the opposite party/builder. In consideration of his services as an Advocate for about 8 years in acquiring the project land, the builder has agreed to sell and transfer a flat of Rs.865800/- in his name. After the death of complainant’s father, the builder agreed to transfer the flat in the name of the complainant and her mother. Therefore, an agreement dated 09.12.2002 was executed between the builder and the complainant & her mother in respect of flat No.2 measuring 444.91 sq. ft., 2nd Floor, “Vinita Apartment” S. No.24P and 25/3 corresponding CTS No.33, Tika No.21, Village Naupada, Thane. Since mother of the complainant also expired and there being no other legal heirs, the complainant became the sole owner of the flats in question. As per agreement, possession of the flat was to be handed over by 30.09.2003, failing which the builder would pay compensation of Rs.5000/- per day for the period of delay. Instead of handing over possession to the complainant, the builder illegally inducted opposite party-4 into the flat. The complainant sent a legal notice dated 22.02.2011 to the opposite parties, which was replied falsely and frivolously. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant filed the consumer complaint on 17.04.2012.

Opposite party-2 filed his written reply stating that his brother Mr. Satish Narayan Joshi was the partner of M/s Vinita Builders. After the death of his brother, the complainant has impleaded opposite party-2 being the legal heir. He was neither partner of Vinita Builders nor related to its affairs in any manner.  As the complainant failed to make payment of the consideration amount for more than 8 years, the builder sold the flat to the opposite party-4. Opposite party-2 is not aware about the transactions between the complainant or her father and the opposite parties. As there is no privity of contract between the complainant and opposite party-2, the complaint is liable to be dismissed.

a. Opposite party-3 filed his separate written reply stating that he is not the partner of M/s Vinita Builders nor connected with the controversy in question. Therefore, the complaint is liable to be dismissed for mis-joinder of parties. The complaint is also barred by time.

b. Opposite party-4 also filed his separate written reply stating that he is a bona fide purchaser of the flat in question by paying the consideration amount of Rs.4218000/-. He is residing in the said flat and also paying property tax to the municipal authority. The cause of action for filing the complaint accrued on 30.09.2003 and the complaint was filed in the year 2012 after expiry of about 9 years. He purchased the flat in the joint name of himself and his wife- Dr. Neha. The complaint is bad for non-joinder of necessary party.

c. Opposite party-5 filed her written reply stating that she was a sleeping partner of M/s Vinita Builders and she retired on 31.03.2011. She is not involved in its affairs. She was not aware about the agreement and the dispute before receiving the notice from this Commission.  It is stated that the complaint relates to performance an agreement and the complaint is triable by the Civil Court. The complainant is not a consumer as she has not purchased any product nor availed service of the opposite party nor has she paid any consideration. The allegations relating to cheating, fraud, breach of trust and misappropriation of fund are triable by the Civil Court. She also raised the issue of limitation. The complainant has inflated the claim to bring the case within the pecuniary jurisdiction of this Commission.  No relief has been sought against opposite party-5.

d. Opposite parties- 6 & 7 who are brothers filed their joint written reply stating that though they are looking after the affairs of M/s Vinita Builders but they are not partners thereof. In their record, there is no debt or liability payable to the father of the complainant nor were his services ever availed by the opposite parties nor the outgoing partner Mr. Satish Joshi intimated that he had engaged the services of Shri Prabhakar Hegde or any dues were payable to him. The complaint is also time barred. As no consideration has been paid by the complainant, she is not a consumer. The complaint involves complicated questions of fact which can be dealt by the Civil Court. The complaint is not maintainable due to lack of pecuniary jurisdiction of this Commission.

The complainant filed rejoinder and affidavit of evidence of Aditya P. Karandikar. Opposite parties-1, 6 & 7 filed affidavit of evidence of Shekhar S. Shinde. Opposite party-3 filed affidavit of evidence of Samparao D. Shinde and opposite party-5 filed affidavit of evidence of Anita Gangadhar Joshi.

We have heard counsel for the parties and perused the record. Counsel for the opposite parties submitted that as complainant has not paid any consideration to the opposite parties, they are not liable either to handover a flat or refund the money. In absence of privity of contract between the parties, no liability can be fastened on the opposite parties. In this regard, agreement dated 09.12.2002 executed between the purchaser (complainant and her mother) as well as opposite party-1 (builder/developer) is relevant, which reads as under:-

“AND WHEREAS in consideration of professional services rendered by late Adv. Shri Prabhakar M. Hegde for the last about 8 years in acquiring the land, the builder has agreed to sell, transfer, assign & convey flats worth of Rs.865800/- [Rs. EIGHT LAKHS SIXTY FIVE THOUSAND EIGHT HUNDRED ONLY] which are more particularly mentioned in Schedule II hereinafter referred to as the said flats to the purchaser.

That the builder hereby assign, transfer and convey the said flats bearing No.2 admeasuring about carpet area 444.91 on the second floor in the building to be constructed on the said property in favour of the purchase.”

From the above, it is clear that that the father of the complainant has rendered services as an advocate for about 8 years and in consideration of said services, opposite party-1 has agreed to sell, transfer and convey flat No.2 admeasuring about carpet area 444.91 on the second floor in the building to the complainant and her late mother. The opposite parties are bound by the above agreement and now at this stage, they cannot backout from the agreement by stating that the complainant has not paid any consideration. Above agreement is very specific about the consideration. Therefore, the opposite parties are liable to handover the flat as per agreement to the complainant.

The above agreement also makes it clear that there is relationship of consumer and service provider between the complainant and the opposite parties. The preliminary objection of the opposite parties that the complainant is not a consumer is rejected.

It is admitted case of the parties that the flat is not available as builder has sold the above flat to opposite party-4. In these circumstances the opposite parties are liable to handover another identical flat of the same dimension in the same locality. As per agreement, possession of the flat was to be handed over by 30.09.2003. The opposite parties are also liable to pay delay compensation to the complainant in view of the judgment of Supreme Court in Fortune Infrastructure & Anr. vs. Trevor D’Lima & Ors. (2018) 5 SCC 442.

As far as question of pecuniary jurisdiction is concerned, Supreme Court in Sujir Keshav Nayak vs. Sujit Ganesh Nayak (1992) 1 SCC 731 held that in the suit filed before the Court of unlimited pecuniary jurisdiction, valuation disclosed by the plaintiff has to be normally accepted unless the valuation of the suit was arbitrary. Regarding limitation, as the opposite parties have failed to handover possession of the flat, the cause of action is still continuing and the complaint is within limitation period.     Regarding maintainability of the complaint, the Opposite Party alleged that the Complaint contained complicated facts and it cannot be adjudicated in a summary proceeding under Consumer Protection Act, 1986. Hon’ble Supreme Court in CCI Chambers Coop. HSG. Society Ltd. v. Development Credit Bank Ltd., Appeal (Civil)  7228 of 2001 observed that involvement of some complicated questions of fact and law cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved.

ORDER

In view of the aforesaid discussion, the complaint is partly allowed, opposite parties are directed to handover another identical flat of the same dimension in the same locality to the complainant The opposite parties shall also pay compensation in the form of interest @ 6% per annum on Rs.865800/- from the due date of possession i.e. 01.10.2004 till the date of actual possession. The directions shall be complied with within two months from the date of the judgment.