Nitin Chandrakan Murbalkar vs Laxman Abaji Bendre

Present Revision Petition has been filed against the order dated 12.9.2018, passed by the State Consumer Disputes Redressal Commission, Maharashtra at Mumbai (hereinafter referred to as "the State Commission"), whereby the Appeal No.A/17/149 preferred by the Petitioner herein has been dismissed and the order dated 10.11.2016 passed by the District Consumer Disputes Redressal Forum, Thane (hereinafter referred to as "the District Forum") in Complaint Case No.245/2003 has been affirmed.

We have heard Mr.Shinde, learned Counsel for the Petitioner and perused the impugned order. Learned Counsel for the Petitioner submitted that the agreement for construction was commercial in nature and therefore, no Complaint under the provisions of the Consumer Protection Act, 1986 (for short "the Act") was maintainable. His further submission is that the Complaint filed by the Respondent herein was barred by limitation, as it was not filed within a period of two years from the date when the cause of action arose. Both the submissions are wholly misconceived. It is not in dispute that the Complainant/Respondent was a tenant of one shop in the premises, which the Petitioner had undertaken to construct. An agreement was entered into for reconstruction and handing over possession of the shop, which was under the tenancy of the Complainant. The Complainant handed over the possession of the said shop on the hope that the newly constructed shop would be given to him as per the agreement, which was not done. The State Commission has recorded a categorical finding that the Complainant/Respondent was always ready and willing to pay the amount agreed between the parties and also produced before the State Commission a copy of the Pay Orders drawn for that purpose. Relevant Para-9 of the State Commission order is reproduced below for ready reference :

"It is the contention of the opponent that complainant has not paid amount towards sale consideration to him and hence he is not liable to give possession of the shop in re-developed building. On perusal of agreement, it appears that at the time of agreement, complainant was required to pay Rs.5,000/- to the appellant and further he had to pay amount on different dates. However, it appears that complainant has not given amount of sale consideration to the opponent uptill now. However, it is the contention of the complainant that he was always ready and willing to pay amount of sale consideration to the opponent, but on one ground or other, opponent had not accepted the same from him. For that purpose, he has filed copies of bank pay orders drawn in the name of opponent on record of different amounts. We are of the opinion that it will go to show that the complainant was ready and willing to pay amount of sale consideration to the opponent. However, opponent had not accepted the same from the complainant. It is the contention of the opponent that as complainant has not given amount of sale consideration to him, agreement which was executed in between him and complainant is terminated. Hence, he is not liable to give possession of the shop to the complainant.

However, the contention of the opponent in this respect cannot be accepted. In this case, it is admitted that complainant was having his tenanted shop in the building. He was running tailoring shop in that building. At the time of re-development of the building, complainant had given possession of his shop to the opponent. After taking possession of the shop, opponent has re-developed the building. However, opponent has not given possession of shop in re-developed building to the complainant. He cannot say that the agreement which he had taken place in between him and complainant is terminated, as agreement which had taken place in between opponent and complainant has become irrevocable as the opponent had already taken possession of shop of the complainant, he has to give one shop to the complainant in redeveloped building. He cannot escape from this liability. Moreover, in this case, there is evidence on record that complainant was ready and willing to pay the amount of sale consideration to the opponent and opponent was not ready to accept the same. It goes to show that opponent did not give possession of the shop to the complainant and had not accepted the amount from the complainant as he was intending to sell the said shop to the third person. We are of the opinion that considering all the facts, learned District Forum had rightly come to conclusion that opponent by not giving possession of shop to the complainant has given deficiency in service to the complainant and directed opponent to give possession of the shop to complainant along with compensation. Hence, we are of the opinion that the order passed by the learned District Forum is to be confirmed by dismissing the appeal. Hence, we proceed to pass the following order."

On a perusal of the aforesaid order, we find that the State Commission has recorded a clear finding of fact that there is deficiency in service on the part of the Petitioner herein and the Complainant/Respondent is entitled to possession of the shop along with compensation. It is based on appreciation of all the material and findings on record and does not suffer from any illegality or irregularity, which requires interference in our Revisional jurisdiction.

The Revision Petition fails and is dismissed.