Rajeev Herpresad Jaiswal vs Bharati Pursnani & 8 Ors

V.K.Jain, J

The complainant/respondent no.1 & 2 alongwith Late Ms. Mohini K. Pursnani, entered into an agreement with respondent no.3 M/s Shubham Builders & Developers, where-under a bungalow in a project namely 'Serene County' which respondent no.3 was to construct, was to be constructed and sold to them for a consideration of Rs.48,96,000/-. An agreement between the above referred persons was executed in this regard on 13.03.2009. Since the bungalow was not constructed in terms of the said agreement, the appellant and respondent no.4 came into picture and executed an MOU on 29.06.2013, whereby they undertook to execute the work and complete the construction at their cost, in accordance with the sanctioned plan, within six months from the date of commencement certificate to be obtained and/or from the date of construction. The MOU was executed between the complainants and Ms. Mohini K. Pursnani acting through their Attorney Sh. Ashok Chotrani as the first party and the appellant and Mr. Bharat Babulal Jain as the second party. Ms. Mohini Pursnani had died before the said MOU came to be executed. Therefore, the Power of Attorney in favour of Mr. Ashok Chotrani was valid only to the extent he was authorized to act on behalf of the complainants. Clause 6, 9 & 12 of the MOU to the extent they are relevant, read as under:

The PARTY OF THE SECOND PART hereby agree and undertake to execute, carry out and complete the construction work of the existing respective Row Hoses/Twin Bungalows is to be provided to them at the entire cost of The PARTY OF THE SECOND PART in accordance with the plan as may be approved and sanctioned by concerned Authorities within 6 (six) months from the date of commencement certificate to be obtained and/or from the date of Construction.

It is agreed by the Developers that the project should be completed within 6 months from the date of commencement certificate to be obtained and/or from the date of Construction and acquiring all the rights, title and interest of said partnership firm i.e. M/s Shubham Builders and Developers.

The PARTY OF THE SECOND PART is hereby expressly agreed, declared and confirmed that the PARTY OF THE SECOND PART is entitled to enter into agreement with the other purchaser for the sale in respect of the unsold and balance Row Hoses/Twin Bungalows/Units (whose name is not in the list at Exhibit - A hereof) to be constructed by the PARTY OF THE SECOND PART in the said property as per the terms and conditions between them.

The PARTY OF THE SECOND PART is hereby expressly agreed, declared and confirmed that they shall pay the Escalation Charges of Rs.250/- per sq. ft. i.e. amount of Rs.6,40,000/- to the PARTY OF THE SECOND PART on execution of these presents.

Admittedly, a sum of Rs.6,40,000/- over and above the amount paid to M/s Shubham Builders & Developers was paid to respondent no.4 Mr. Bharat Babulal Jain. The said payment is stated to have been made from the joint account of complainant no.2 Ms. Bharti Pursnani and Late Ms. Mohini Pursnani. The construction of the bungalow having not been completed, the complainants approached the concerned State Commission by way of a Consumer Complaint, impleading the appellant, Mr. Bharat Babulal Jain, M/s Shubham Builders & Developers and its partners as the OPs in the complaint, and seeking completion of the construction and refund of the amount of Rs.6,40,000/- alongwith compensation etc.

The complaint was resisted by the appellant as well as by OPs No.6 to 8 in the original complaint.

The State Commission, vide its order dated 16.08.2018, directed as under:

It is hereby declared that the opponents are guilty of deficiency in service and unfair trade practice.

Opponents are hereby directed to complete the construction of unit /bungalow no.28 (I) booked by the complainants having carpet area 1920 sq.ft. constructed in project named "SERENE COUNTY" on a plot of land bearing Gat no.113/2 admeasuring totally about 4 Hectares being and situated at village Varsoli, Taluka Maval, District Pune and hand over possession of said unit/bungalow to the complainants with Occupation Certificate with all amenities as mentioned in Schedule V of the Agreement of sale within three 28 months from the date of receipt of free copy of order.

Opponents do pay jointly and severally an amount of Rs.6,40,000/- with interest @ 9% p.a. from the date of Memorandum of Understanding (MOU) i.e.29/06/2013 till realization of amount.

Opponents do pay jointly and severally an amount of Rs.2,00,000/- to the complainants towards compensation for mental pain and agony.

Opponents do pay jointly and severally an amount of Rs.50,000/- to the complainants towards costs of litigation and shall bear their own costs.

All the opponents do jointly and severally comply the above mentioned order within a period of three months from the date of receipt of free copy of order.

Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of this appeal. No appeal has been preferred either by Mr. Bharat Babulal Jain or by M/s Shubham Builders & Developers and its partners.

The contentions of the learned counsel for the appellant are that (i) No consideration passed to the appellant from the complainants, (ii) The Power of Attorney in favour of Mr. Ashok Chotrani was invalid on the date the MOU was executed, Ms. Mohini Pursnani having died much earlier, (iii) The appellant is not in a position to complete the construction, the site being in possession of M/s Shubham Builders & Developers and (iv) The appellant is ready to refund the amount of Rs.6,40,000/- which the complainants had paid alongwith appropriate interest on that amount, (v) The appellant never became a partner of M/s Shubham Builders & Developers.

I find no merit in any of the contentions advanced by the learned counsel for the appellant. The Power of Attorney in favour of Mr. Ashok Chotrani, was valid to the extent it had been executed by the complainants and therefore, the Attorney was competent to execute the MOU on their behalf.

It would be seen from a perusal of the terms of the MOU as extracted hereinabove that the appellant and Mr. Bharat Babulal Jain had expressly agreed and undertaken to complete the construction work of the bungalow at their own cost, within six months from the date of the commencement certificate to be obtained and/or from the date of construction and acquiring of the rights, title and interest of M/s Shubham Builders & Developers. In view of the said MOU, the complainants became their consumer as well. They cannot avoid their contractual obligation towards the complainants on account of their inability to acquire such right, title and interest. The acquisition of the right, title and interest of M/s Shubham Builders & Developers by the appellant and Mr. Bharat Babulal Jain was a matter solely between them and M/s Shubham Builders & Developers, the complainants being stranger to such acquisition. As far as their contractual obligation towards the complainants is concerned, the appellant and Mr. Bharat Babulal Jain cannot get away with such obligations on the ground that they had not acquired the right, title and interest of M/s Shubham Builders & Developers. It was for them to visualize and keep the consequences in mind before they executed the MOU with the complainants thereby agreeing and undertaking to complete the construction of the bungalow on receipt of an additional consideration of Rs.6,40,000/- from the complainants. In view of the MOU executed by them, they alongwith M/s Shubham Builders & Developers and its partners are jointly liable to complete the construction of the bungalow as per the MOU. It would be immaterial if the payment was made only in the name of Mr. Bharat Babulal Jain since, both the appellant as well as Mr. Bharat Babulal Jain were beneficiary of the said payment, they being the parties to the MOU executed by them.

For the reasons stated hereinabove, I have no hesitation in holding that the order of the State Commission to the extent the appellant and Mr. Bharat Babulal Jain have been directed to complete the construction of the bungalow and do other consequential acts besides paying compensation and cost of litigation to the complainants, cannot be faulted with. However, as far as the direction of refund of Rs.6,40,000/- with interest is concerned, the same cannot be sustained, the complainants themselves having agreed to pay and later, having actually paid that amount and the said payment being the consideration for the appellant and Mr. Bharat Babulal Jain executing the MOU with them. For the reasons stated hereinabove, the appeal is partially allowed by deleting the direction of refund of Rs.6,40,000/- with interest while maintaining rest of the directions issued by the State Commission. The appeal stands disposed of.