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Judgment
Subhash Chandra, Presiding Member
This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench Nagpur (in short, ‘State Commission’) in Appeal No. 1463 of 2004 dated 01.04.2016 arising out of order dated 21.06.2004 of the District Consumer Disputes Redressal Forum, Nagpur (in short, ‘District Forum’) in Complaint No. CPA-449 of 2000.
Briefly stated, the facts of the case are that the petitioner/builder had allotted Flat No E2-5 South in its project ‘Diprini Enclave’ to the respondent for a sale consideration of Rs.3,30,000/-. The project’s completion date was 31.12.1992. A sum of Rs.3,15,000/- was paid to the petitioner. Possession letter was issued vide letter dated 15.01.1994 with demand for the balance amount to be paid by 22.01.1994. The respondent failed to make the payment and instead sent a letter dated 29.01.1994 seeking rectification of certain defects in the flat followed by a consumer complaint no. 365 of 1995 before the District Forum. The District Forum allowed the complaint and directed, on 19.09.1997, to deliver possession within a month on payment of the balance consideration. The respondent again failed to deposit the required amount and the possession was not handed over. An Execution Application (EA) No. 109/1997 was then filed before the District Forum. The EA came to be disposed of on 15.01.1998 with the direction to the respondent to pay the balance amount as on 15.01.1997. The respondent filed consumer complaint no. 494 of 2000 after about 2 years before the District Forum which was dismissed on 21.06.2004 on the ground that the Civil Court had cancelled the Power of Attorney given by the land owners to the petitioner/builder and hence directions as prayed to execute the sale deed could not be issued. The respondent’s appeal no. 1463 of 2004 before the State Commission was partly allowed on 01.04.2016 with the direction to execute the sale deed within 4 months. This order is impugned before us on the ground that the petitioner lacks the authority to execute the sale deed and that the respondent did not array the land owners in the Civil Court which amounts to mis-joinder of parties. It is also argued that consumer complaint No. 494 of 2000 was barred by the principle of Res Judicata in view of the same issue having been decided between the parties vide order in consumer complaint no. 365 of 1995. It is also averred that the complaint was filed after a delay of nearly 2 ½ years without seeking any condonation of the delay and hence was barred under Section 24 A of the Act. The revision petitioner seeks setting aside of the order of the State Commission dated 01.04.2016 and affirmation of the District Forum’s order in consumer complaint no. 494 of 2000 with compensation and costs.
The respondent in his written arguments states that the possession of the flat in question was not accepted by him in view of the various defects in construction which he had sought to be rectified before handing over of possession. Consumer complaint no. 365 of 1995 was ordered in his favour. However, as it was not complied with by the petitioner, an Execution Application had to be filed after which possession was handed over on the payment of the balance amount. Despite making full payment, the defects were not rectified by the petitioner and the sale deed was not executed. As a consequence, consumer complaint no. 494 of 2000 was filed by him seeking directions to execute the registered sale deed, remove defects and deficiencies and pay Rs.3,19,000/- as compensation with interest @18% apart from litigation costs. It is contended that the District Forum erroneously dismissed this complaint on the ground that the Civil Court in the civil suit had cancelled the Power of Attorney given by the land owners to the petitioner builder. It also held that the respondent was not entitled to compensation for the delay of 34 months in the delivery of the flat as that issue already stood decided.
Order dated 21.06.2004 of the District Forum reads as under:
“The complainant is claiming that there is deficiency in X construction but what are the defects is not proved by him neither he applied for appointment of commissioner who can go and inspect the premises nor there is any documentary evidence to show the flat was defective. Therefore forum in the earlier order held that "We are in agreement with learned counsel for opposite party that the photographs produced by complainant does not help him to prove that his flat was not ready because in the photograph there are many flats which appears ready and people residing in it. In this matter also the complainant has filed some photographs by these photographs are placed by him to show that the opposite party is running the school in parking area.
The opposite party further submits that petition is already pending before Joint Civil Judge at Nagpur. Order of Civil Judge is placed on record by opposite party. The civil court has observed that the dispute pending between landowner and builder. Civil Court has directed flat purchasers who were party before them to handover the vacant possession to builder so that the builder will be able to return the land to the landowner. Anyhow the complainant is residing in excluded building from this order. The complaint is for execution of sale deed.
Civil court has also observed that the Power of Attorney which was given by the landowner to the builder is cancelled and revoked and the flat purchaser has challenged the order of civil court. Matter is pending before the Hon’ble High Court. Hon’ble High Court have taken some different view. Thus, we are not in a position to direct the builder to execute sale deed in favour of the complainant.
Complainant has also claimed rent from the period of 34 months for the delay of 34 months in handing over the possession. The forum has already decided this issue in the earlier order.
Complainant is also claiming expenses which he has incurred to make the flat habitable for his residential purpose. Anyhow he has not placed on record any document to show that he has incurred the expenses to rectify the defects in the flat. Therefore, complainant is not entitled for any relief which he has claimed.”
In C.A. No. 6856/2008 in FA No. 167/2000 had, vide order dated 24.07.2009 the Hon’ble High Court of Nagpur, observed that:
The appeal is filed against the order passed by the lower Court dismissing the suit for specific performance. The intervenors, who are not parties to the suit are seeking declaration that the developers can execute sale deed in their favour.
The learned counsel argues that the orders passed from time to time clearly show that there is no impediment in developers executing such sale deed in favour of the intervenors. If that be the position, we fail to understand why a further certificate of this Court to that effect is required. If the suit of developers for specific performance is dismissed, we are not in a position to understand how a direction can be issued to them to transfer title in favour of anybody. If the intervenors have got any other remedy against the present petitioners, they are free to invoke it.
Order dated 01.04.2016 of the State Commission in Appeal No. 1463 of 2004 reads as under:
It is also pertinent to note that in a decision by the Civil Court in the Civil Suits Nos.801/1993 and 848/1989, the building No.1 of complex of the present flat, is excluded by the Civil Court as regards the relief granted in the said suit by the Civil court. Moreover, the Hon'ble High Court also observed in C.A.6856/ 2008 in F.A/No.167/2000 under order dtd.24.07.2009 that if the interveners have got any other relief against the present petitioners / respondents they are free to invoke it. Therefore, we find that as the building of the present flat has been excluded in a decree passed by the Civil Suit by the Civil Court, the respondents can execute the sale-deed of the flat in dispute in favour of the appellant.
This Commission under identical facts & circumstances in appeal Nos. A/02/768 to A/02/771 in common order dtd. 19.12.2012 also observed that, "On perusal of the judgement of the Civil Court, it cannot be accepted that power of attorney is invalidated. When undisputedly, the Opponent No.1 received the entire amount of consideration of the flats from the complainants they cannot avoid to execute the sale deeds in favour of the complainants though the agreement between land owners and the Opponents is rescinded. As per the judgement of Civil Court, since the land pertaining to the building in which the complainants are having flats is excluded, in our view, there is no impediment for the Opponents in executing the sale deeds of the flats in favour of the complainants."
This Commission, in those appeals, directed the respondents herein to execute the registered sale-deed of the flats in favour of the complainants within four months from the date of that order i.e. from 19.12.2012.
We find that the aforesaid observations made by this Commission in those appeals are equally applicable to the facts & circumstances of the present case as they are identical. We thus hold that the Forum erred in not giving direction to the respondents to execute the sale-deed of the flat in favour of the complainant/appellant herein. Hence, the appeal deserves to be partly allowed.
ORDER
i. The appeal is partly allowed.
ii. Impugned order dtd. 21.06.2004 passed by District Consumer Forum, Nagpur in Consumer Complaint No.494/2000 is set aside.
iii. The Complaint is partly allowed.
iv. Opposite parties / respondents are hereby directed to execute the sale-deed of the flat as described in the complaint in favour of the complainant / appellant within four months from today.
v. The complainant / appellant shall bear expenses of registration of the sale-deed.
vi. No order as to costs in this appeal.
vii. Copy of the order be furnished to both parties free of cost.
It is submitted by the petitioner that the State Commission in appeal against the order of the District Forum dated 21.06.2004 had ordered on 01.04.2016 setting aside of the order of the District Forum and directed the petitioner to execute the registered sale deed. It is averred that the State Commission’s order be upheld since the dispute relating to the Power of Attorney between the land owners and the petitioner has been settled by the learned District Judge, Nagpur in Regular Civil Appeals 564-565/2015 through a common judgment dated 28.09.2017 holding that there is no impediment to execute the sale deeds of the flat owners.
I have heard the learned counsels for both the parties and carefully perused the material on record.
From the order dated 27.03.2000 in Spl. C.C. No. 801 of 1993 of the Second Joint Civil Judge, Senior Division, Nagpur, it is evident that defendants/ purchasers were directed to deliver the vacant and peaceful possession of the suit property to the plaintiffs/ land owners except the plot on which the building no.1 is situated. Pertinently, the Agreement dated 29.07.1989 and the Power of Attorney dated 25.07.1989 included lands other than the land on which the building was constructed as part of the Agreement between the parties. The Civil Court’s order dated 27.03.2000 imposing restrictions on the petitioners in perpetuity from transferring, alienating, creating any charge or interest of any third person or carrying out any construction on the suit property except building No. 1 excludes the land on which the building in question stands. However, this order was challenged in FA no. 167 of 2000 before the High Court of Judicature at Bombay, Nagpur Bench, Nagpur. The order in Special Civil Suit no. 801 of 1993 was stayed vide order dated 27.03.2000 in F.A. No. 167 of 2000. Civil Appeal no. 6856 of 2000 filed by intervenors, who were not party to the original suit, seeking directions that developers execute Sale Deeds, was dismissed. CA no. 2385 of 2000 is reported to be pending before the High Court in FA no. 167 of 2000.
A consumer complaint under the Act can be considered if deficiency in service or unfair trade practice is established. In the present case, the petitioner has not been able to establish either of these. The issue before us is petitioner’s inability to execute sale deeds in favour of the allottees of the flats constructed. From the facts of the case, it is manifest that there are outstanding legal issues with regard to the petitioner’s right to the land over which building no.1 has been constructed. The issue of title is for the appropriate Civil Court to adjudicate upon and is beyond the purview of this Commission or any other consumer fora. The District Forum had correctly held that the land issue needed to be resolved by the Civil Court. The impugned order of the State Commission, however, relied upon the order of the Special Civil Suit no. 801/93 of Second Joint Civil Judge, Senior Division, Nagpur which excluded the plot of 15500 sq ft on which building no.1 was situated and directed handing over of vacant and peaceful possession. This order was, however, stayed in FA no. 167 of 2000 filed against order in Special Civil Suit no. 801 of 1993. Civil Appeal no. 6856 of 2008 contesting was also dismissed. Therefore, it is manifest that the State Commission acted in error in arriving at its finding in the impugned order. The order of the State Commission does not bring out the manner in which there has been any deficiency in service or any unfair trade practice. It is apparent that no sale deed can be executed by the petitioner in view of the order staying the operation of order in Spl CC no. 801 of 1993 which was ordered in FA no. 167 of 2000 before the Hon’ble High Court, Mumbai. The order of the State Commission dated 19.12.2012 is therefore, liable to be set aside and the revision petition to fail.
For the reasons stated above, the revision petition is dismissed with no order as to costs.