Smt. Shakuntalamma vs Suryanarayana (D) Thr. Lrs. & Ors

V.K. Jain, J

RA/179/2014, RA/180/2014 & RA/181/2014

These are the applications seeking review of the order of this Commission dated 16.05.2013 whereby the delay of 3469 days in preferring these appeals was condoned. I have heard the learned counsel for the parties. While condoning the aforesaid delay in filing the appeals, this Commission observed that the appeal preferred by the appellant before the High Court of Andhra Pradesh had been dismissed reserving liberty with the appellant to avail the alternative remedy of filing the appeal provided under the Consumer Protection Act. In fact, no such liberty was expressly granted to the appellant though it was specifically held by the Hon'ble High Court that the questions raised in the Writ Petitions were to be raised only in appeal before National Commission and hence there was an alternative, effective and efficacious remedy available to the Writ Petitioner by way of approaching the National Commission under Section 19 of the Consumer Protection Act. For this reason, the High Court held that there was no ground to invoke Article 226 of the Constitution and accordingly dismissed the Writ Petitions.

Thus, though the remedy to approach this Commission by way of an appeal was not expressly granted to the appellant, the High Court clearly felt that considering the remedy of appeal under Section 19 of the consumer Protection being available to the Writ Petitioner, no ground for invoking Article 226 of the Constitution was made out. It is pointed out by the learned counsel for the complainant that the benefit of Section 14 of the Limitation Act was also not granted to the appellant by the High Court. The said benefit, in my view, would not have been granted by the High Court since it is for this Commission to consider and decide whether in the facts and circumstances of the case, the said benefits should be granted to the appellant in terms of Section 14 of the Limitation Act. Since the appellant was bonafidely prosecuting a Writ Petition before the High Court and the said Writ Petition came to be dismissed without adjudication on merit, solely on the ground that the alternative remedy of preferring an appeal to this Commission u/s 19 of the Consumer Protection Act was available to the Writ Petitioner, the view taken by this Commission when it said that the appellant had been pursuing his remedy in a wrong Court, cannot be said to be a wrong view in law. I therefore, find no ground to review and recall the order dated 16.05.2013 after a gap of almost 5½ years. The review applications are therefore, dismissed. It would also be pertinent to mention here that the order dated 16.05.2013 was passed after hearing the learned counsel for the parties and not in Chamber. That is yet another ground for not recalling the said order at the behest of the complainant, who was represented by a counsel at the time the said order was passed and who apparently did not point out to this Commission that no liberty to approach this Commission had been expressly granted by the High Court while dismissing the Writ Petition filed by the appellant herein.

FA/539/2012, FA/540/2012 & FA/541/2012

The appellant Smt. Shakuntalamma owned a premises bearing number 2-2-1167/8/14 at Tilak Nagar, Hyderabad, admeasuring 650 sq. yds. She entered into a Development Agreement to the extent of 469 sq. yds. of the said property with respondent Adharshila Builders through its Partners Mr. Rajesh Singh and Mr. Abhas Chandra. Under the said agreements, 40% of the constructed area was to be made available to the appellant, whereas the remaining 60% of the constructed area was to go to the builder. In terms of the said agreement, the builder entered into separate agreements with the complainants, agreeing to sell one flat each to them for the consideration stipulated in the said agreements. The appellant however, was not a party to the said bilateral agreements between the builder and the complainants. Disputes having arisen between the appellant and the builder, the flats agreed to be sold by the builder to the complainants were not made available to them. The case of the appellant is that since the builder cancelled the agreement between her and them, she herself constructed seven flats. Being aggrieved from the flats not being made available to them, the complainants approached the concerned State Commission by way of three separate consumer complaints seeking construction and possession of the said flats with compensation or in the alternative, refund of the amount paid by them to the builders alongwith interest, compensation etc.

The complaints were resisted by the appellant as well as by the builders. The builders took the plea that the construction was delayed because of the attitude of the land owner who had failed to execute GPA in their favour and had stopped the construction work. They also denied having cancelled the Development Agreement with the appellant. The appellant contested the consumer complaints on the ground that the builders had failed to deliver her share of the flats and had also not paid the balance amount of Rs.2 lacs which they were required to pay to her in terms of the Development Agreement.

The State Commission, vide impugned order dated 31.01.2003, directed the builders to complete the construction and deliver possession to the complainants through a registered Sale Deed. It was also directed that in the event of delay of construction, all the opposite parties including the appellant shall pay a sum of Rs.1 lac to the complainant in CD No. 24 of 98. It was also directed that the appellant shall not object in the completion of the flat and any dispute between the appellant and the builders shall be settled through a Civil Court but shall not come in the way of completion of the flat. It was further directed that if the builders were not able to complete the balance work, the complainant would be entitled to refund of the amount paid by him from all the OPs including the appellant alongwith interest @ 20% per annum, compensation amounting to Rs.25,000/- towards loss of rent and Rs.15,000/- towards mental agony. In the other two complaints, it was directed that if the main relief was opted by the complainants, they have to pay the balance sale consideration or in the alternative, the amount paid by them shall be refunded by all the OPs alongwith interest @ 20% per annum. Rs.25,000/- each towards loss of rent and Rs.15,000/- each towards mental agony. Rs.5,000/- each was allowed as cost of litigation. Being aggrieved from the aforesaid order of the State Commission, the appellant who was OP No.1 before the State Commission is before this Commission by way of these appeals.

Admittedly, the appellant was not a party to the agreement between the complainant and the developers. Admittedly, no Power of Attorney in favour of the builders was executed by the appellant authorizing them to execute the Sale Agreement on her behalf. Admittedly, the agreements between the complainant and the builders were never ratified by the appellant. No payment was made by the complainants to the appellant. Therefore, neither there was any privity of contract between the appellant and the complainants nor can the complainants be said to be the consumers of the appellant. Consequently, the order of the State Commission to the extent it directed the appellant as well to refund the amount paid by the complainants with interest as also the amount of Rs.1 lac to them in the event of delay in construction cannot be sustained and is liable to be set aside on this ground alone.

It would also be pertinent to note here that the builders had also separately challenged the impugned order before this Commission by filing appeals in terms of Section 21 of the Consumer Protection Act. The said appeals however, were dismissed for want of prosecution on 14.10.2008. Neither the order dismissing those appeals was challenged by the builders before the Hon'ble Supreme Court nor did they, at any point of time, apply for the restoration of the said appeals. Therefore, the order passed by the State Commission, to the extent it is directed against the builders has become final and binding and it is open to the complainants to execute the said orders against the builders. In fact, execution applications are stated to be already pending before the State Commission.

For the reasons stated hereinabove, the appeals are allowed and the impugned order only to the extent it is directed against the appellant is set aside. It is, however, made clear that the impugned order stands to the extent it is directed against the OPs other than the appellant. It is made clear that any view taken in this order shall not influence in any manner the second appeal preferred by the appellant and stated to be pending before the Hon'ble High Court of Telangana.