Judgment:
Per Shri S.R. Khanzode, Honble Presiding Judicial Member.
Both these appeals are heard together and decided by this common judgment since they arise out of the same order/award and involve common questions on law and facts.
Both these appeals arise out of order/award dated 16.09.2008/23.09.2008, passed by District Forum, Pune in Complainant between, Smt. Nirmala Arvind Sane and Ors. V/s. Vishwas Vinayak Paranjape, since deceased by his legal heirs, Smt. Pramila Vinayak Paranjape and 4 Ors. and Opposite Party No.6 â Resilient Cosmeceuticals P. Ltd. From the certified copy of the impugned order, it appears that two members out of three members Bench have signed the said order/award on 16.09.2008 and thereafter third Member signed the said order on 23.09.2008 and as such impugned order, effectively, is of dated 23.09.2008, since mere signing by two members out of three members would not complete impugned order.
Original Opposite Party No.6, Appellant in First Appeal No. 1459/2008 and Respondent No.3 in First Appeal No. 1458/2008 was added as a party after allowing the amendment Application by order dated 14.07.2004 passed by Forum below, in his capacity as a subsequent purchaser of disputed flat No.4. Respondent Nos. 1 and 2 in both the appeals were original Complainants, viz. Smt. Nirmala Arvind Sane and Shri Vivekanand Arvind Sane (hereinafter referred to as the Complainants). They agreed to purchase Flat No.4, admeasuring 836.04 sq.ft., situated at Anagha Apartments, as more particularly described in Complaint Paragraph No.1, for a consideration of Rs.2,70,000/- as per registered agreement dated 19.02.1992 from M/s. Jayesh Enterprises, which was a Proprietary concern of late Vishwal Vinayak Paranjape. Out of the total agreed consideration, it is alleged by the Complainants that late Vishwas Vinayak Paranjape, the developer had received and acknowledged the receipt of Rs.2,70,000/- towards agreed price. However, since the construction was not completed and possession was not given by December 1992, as agreed, the Complainants filed the consumer complaint on 19th June, 1995, claiming compensation of Rs.3,24,648/-, simpliciter, which includes refund of the price paid with interest @ 18% per annum. During the pendancy of the consumer complaint, original Opposite Party - late Vishwas Vinayak Paranjape died, his wife and children, i.e. Original Opposite Party Nos. 1 to 5 were brought on record as his legal heirs. The consumer complaint stood dismissed on 16.01.2002 by Forum below. The Complainants successfully challenged said order before this commission and as per this Commission order dated 22.01.2003 passed in First Appeal No. 829/2002, the matter was remitted back. Thereafter an amendment application was moved to claim possession of the flat by way of alternate relief and also Opposite Party No.6 was added as one of the Opposite Parties, supra.
It is alleged by the Complainants that disputed Flat No.4 came to be sold to Opposite Party No.6 (hereinafter referred to as the subsequent purchaser) for a consideration of Rs.11,13,580/- and handed over possession thereof to it on 11.03.2004. It also alleged that said transaction is hit by doctrine of lis- pendens.
As per impugned order/award Forum below passed a composite order declaring that transaction between Opposite Party No.2 Meena Vishwas Paranjape and Opposite Party No.6, the Subsequent Purchaser witnessed by registered agreement of sale dated 24.05.2004, is hit by doctrine of lis-pendens and the Complainants were further directed to deposit with the Forum below balance consideration of Rs.60,000/- within a period of 15 days and thereafter Opposite Party Nos. 1 to 6 were directed to hand over vacant possession of the disputed Flat No.4 to the Complainants and after handing over of the possession, amount of Rs.60,000/- deposited with the Forum below, supra, was also directed to be released in favour of Opposite Party Nos. 1 to 5 and in case of complainants fail to deposit the amount of Rs.60,000/- within a stipulated period, Opposite Party Nos. 1 to 5 are jointly and severally held responsible and directed to refund amount of Rs.2,10,000/- together with interest @ 9% per annum with effect from 12.04.1993 till its realisation to the Complainants.
Feeling aggrieved by such award Opposite Party Nos. 1 to 5, i.e. legal heirs of late Vishwas Vinayak Paranjape, preferred First Appeal No. 1458/2008 while Opposite Party No.6, subsequent Purchaser has preferred First Appeal No. 1459/2008.
We heard Advocate, Shri Ajay Joshi, learned Counsel appearing for Appellants in both the appeals (and also Respondent No.3 in First Appeal No. 1458/2008) and Advocate Shri G.R. Dillikar, learned Counsel appearing for Respondent Nos.1 and 2/Original Complainants. Perused and considered the material placed on record.
In First Appeal No. 1458/2008, there is a delay of 30 days in filing the appeal and therefore, Misc. Application No. 2061/2008 is filed to get condoned the delay. It is submitted as per paragraph 2 of the application that Appellant no.1 Mrs. Pramila Vinayak Paranjape is aged 82 years and bed ridden, Appellant no.2 â Mrs. Meena Paranjape had to take care of this old lady. Other Appellants are not available and it is Appellant no.2 â Meena paranjape has to take care of everything. Due to domestic problems referred above, she could not prefer the appeal in time. We find the delay is neither intentional nor malafide and hence, we find it appropriate to condone the delay in filing the appeal. Misc. Application No. 2061/2008 stands accordingly allowed.
In filing First Appeal No. 1459/2008, there is a delay of 30 days in filing the appeal and it sought to be condoned by the Appellant by filing Misc. Application No. 2062/2008 on the ground that due to his illness for the period 01.10.2008 to 14.11.2008, wherein he was suffering from acute attack of lungs fibrosis and advised complete rest and further, his Advocate was not available during the Diwali holiday, it caused delay in filing the appeal. In this case also, the delay cause is sufficiently explained. The delay neither intentional nor malafide, hence, we find it proper to condone the delay in this appeal also. Misc. Application No. 2062/2008 stands accordingly allowed.
At the outset, it may be pointed out that the Complainants, instead of seeking remedy by way of specific performance of contract or otherwise in the Civil Court, preferred to file the consumer complaint. Obviously, therefore, this consumer complaint and the proceeding related thereof, i.e. these appeals need to be confined to the Provisions of Consumer Protection Act, 1986 (hereinafter referred to as the Act of previty). The jurisdiction of Consumer Forums and the reliefs which can be granted by way of passing an award are well spelled out under section 14 of the Act. The reliefs claimed in the background of the instant case, spring through the alleged deficiency in service relating to the housing construction activity witnessed by Agreement dated 19.02.1992 and as per the original consumer complaint (before amendment) the cause of action was confined to alleged deficiency in service on part of the developer/builder only to claim refund of consideration paid along with interest, since the builder/developer failed to construct and handover the possession of the agreed flat.
Though it may be said that the amendment carried out in the year 1992 relates back to the date of filing of this complaint, we find, in view of the circumstances and considering over all situation, infra, and keeping in mind the scope of Section 14 of the Act, it would be erroneous to grant relief of declaration that transaction between Opposite Party No.2 â Maeena Vishwas Paranjape and Opposite Party No.6, Subsequent Purchaser and which is witnessed agreement dated 24.05.2004 is hit by doctrine of lis-pendens and further granting the reliefs as if passing a decree under the Specific Relief Act, 1963 and directing the Complainants to deposit alleged balance of consideration of Rs.60,000/- and also directing to hand over possession of the disputed flat on payment thereof, are erroneous and passed exceeding the jurisdiction. National Consumer Disputes Redressal Commission, New Delhi, in the matter of Kongara Ananth Ram V/s. Telecom District Engineer, 1986-94 Consumer 274 (NCSC), also emphasis on the fact that Consumer Forums would strictly go by the Provisions of Section 14 of the Act while granting reliefs including compensation to Consumers whenever justified. It may not be out of place to mention that at the time when the transaction with the subsequent purchaser had taken place the pending matter before the consumer fora was related only to the failure of the builder/developer i.e. late Vishwas Paranjape through his legal heirs to refund of consideration with interest. Obviously seeing the failure of contract, the complainants filed the consumer complaint and restricting his relief, claimed only to the refund of consideration with interest. Thus, in other words, the Complainants were treating their agreement with late Vishwas Paranjape as not alive to claim sustaining interest in disputed flat and did not claim performance of the contract, to claim conveyance to get the title and possession of the flat.
The issues to the applicability of doctrine of lis-pendens, as to whether subsequent Purchaser is a bonafide Purchaser for value or not, balancing the equities between the first purchaser and the subsequent purchaser are the one, necessarily, required to be considered and adjudicated upon in a suit under Specific Relief Act for specific performance of contract. The disputed facts covering these issues also cannot be gone into and considered in a summary nature proceeding before Consumer Fora and Consumer Fora is not expected to adjudicate on them. Such issues will be beyond the scope of reliefs which could be granted by the consumer fora. Apex Court in the matter of Oriental Insurance Co. Ltd. V/s. Munimahesh Patel, 2006 CTJ 173 (Supreme Court) (CP), also held that the proceedings before Consumer Fora are essentially summary in nature and adjudication of issues which involve disputed complex factual situations, should not be adjudicated upon by them.
By way of evidence led by the parties under sec. 13 of the Act, we have before us Affidavits of Complainants â Nirmala Arvind Sane of her husband Capt. Arvind Sane of Opposite Party No.2 - Meena Vishwas Paranjape and of Mr. Sharad Purohit, Director of Opposite Party No.6, the Second Purchaser and also two documents, viz. copy of Agreement dated 19.02.1992 and the letter-cum-acknowledgement dated 06.04.1992 executed by late â Vishwas Vinayak Paranajape, Proprietor of M/s. Jayesh Enerprises. Opposite Parties (brought on record as legal heirs of late Vishwas Paranjape) pleaded ignorance about the transaction in question and transactions in the business carried out by late Vishwas Paranjape. Complainant No.1 - Mrs. Nirmala Sane, referred to the agreement in question and so also her husband â Capt. Arvind Sane speaks about the same. Capt. Arvind Sane, also identified the signature and stated referring to the correctness of the contents of the letter dated 06.04.1992, supra, as to how he was associated with late Vishwas Paranjape and in consideration of the service rendered by him, late Vishwas Paranjape agreed to give adjustment of Rs.2,00,000/- against the price of disputed Flat No.4. There being no contrary evidence forthcoming to contradict this version, one can safely rely upon the letter dated 06.04.1992 and also upon the agreement dated 19.02.1992.
The Complainants tried to suggest that even before the Agreement dated 19.02.1992, Rs.2,00,000/- towards service rendered by Capt. Arvind Sane were agreed to be adjusted against the purchase price of disputed Flat No.4. If it is so, then there is no satisfactory answer as to why said consideration was not shown in the agreement itself. Merely saying that only general format of agreement was used and the agreement was executed accordingly, holds no good, particularly, when details as to the payment schedule are mentioned and incorporated in the agreement. However, the version on affidavit of only living person speaking about the subsequent events witnessed by letter dated 06.04.1992, supra, of Capt. Arvind Sane, in the circumstances mentioned earlier, could be safely accepted. Hence, Complainants have proved payment of consideration of Rs.2,00,000/- towards the agreed purchase price as part payment towards agreed purchase price of Rs.2,70,000/- and showing Rs.70,000/- as a balance left at that time.
Complainants also allege additional payment of Rs.10,000/- by cheque towards payment of the purchase price which alleged to have been paid on 09.04.1993. This payment is disputed and not accepted by Opposite Parties. There is no proof showing that Complainants have actually made payment of Rs.10,000/- besides their bear word and hence, it cannot be accepted. Had there been a payment by cheque, the documentary proof thereof could have been easily placed on record. Thus, the complainants could prove the payment towards part consideration only of Rs.2,00,000/- and not Rs.2,10,000/-
As per the pleadings of the Complainants, it is simply mentioned that Opposite Party Nos. 1 to 5 are liable as legal representatives of late Vishwas Vinayak Paranjape. There is no pleading that Opposite Party Nos. 1 to 5 continued the proprietary business of building construction or as a Builder of Jayesh Enterprises. However, in his Affidavit, Capt. Arun Sane, in paragraph 17 stated that Opposite Party No.2 â Meena Vishwas Paranjape, wife of late Vishwas Paranjape continued the business of M/s. Jayesh Enterprises and completed the scheme of Anagha Apartment, wherein disputed Flat No.4 is situated. This fact is not disputed, nay, even admitted by Opposite Party No.2 â Smt. Meena Paranjape in her Affidavit. There being no evidence to show that Opposite Party Nos. 1 to 5 are liable to make good to the Complainants for compensation for deficiency in service or otherwise to the Complainants as a legal heirs of late Vishwas Vinayak Paranjape, since Opposite Party No.2 â Smt. Meena Vishwas Paranjape, only carries business of construction of late Vishwas Paranjape and even entered into agreements relating to the flats situated at Anagha Apartment, she alone can be held responsible for deficiency in service as relevant under this consumer complaint.
Complainants, as earlier pointed out, after remand of the case from the State Commission, got amended their pleadings and incorporated a plea by way of alternate relief claiming possession of the disputed flat. As earlier pointed out, when the Consumer complaint was filed on 19th June, 1995, only refund of consideration paid along with interest was claimed by way of compensation by the Complainants. Thus, the cause of action on the basis of which the consumer complaint was filed, confined to such relief and not of possession (which could be presumed as abandoned). When in the year 2004, for the first time claim for alternate relief was added, it was as if a fresh action to claim possession of the flat based upon alleged deficiency of service treating afresh the agreement dated 19.02.1992 as alive. We find it is a stale action and also barred by limitation as per provisions of Section 24A of the Act and as such cannot be granted.
Further more, when consumer complaint was filed, construction of the disputed flat of the building itself was not at all completed. It was followed by death of late Vishwas Vinayak Paranjape which occurred on 23.01.1997. As per the Affidavit of Opposite Party No.2 â Mrs. Meena Vishwas Paranjape, till 2004 they were totally baffled and nothing could be done though the flat purchasers were demanding to complete the scheme. There was a litigation in the High Court also. The issues were settled with the original land owners and thereafter with the help of others the scheme could be completed. Disputed Flat No.4 was agreed to be sold and accordingly, placed in possession of Subsequent Purchaser on 11.03.2004, i.e. before by way of amendment and by way of alternate relief, possession of the flat was claimed by the Complainant. As earlier pointed out, the issues as to balancing the equities between the complainants and subsequent purchaser, as to whether subsequent purchasers are bonafide purchasers for value etc. are complex disputed facts and beyond the purview in a summary proceedings before the consumer fora. As such reliefs granted per impugned award of declaration and possession which have direct nexus with the above referred issues ought not to have been dealt with and cannot be granted by forum below by way of alternate relief or even as a substantial relief to the Complainant.
Since the Complainants originally skipped over the relief to claim possession of the disputed flat based upon the alleged deficiency in service on the part of the builder, it is synonimous to relief not claimed at the time when consumer complaint was filed. Therefore also alternate relief for grant of possession which was once abandoned cannot be considered afresh. In this background and for the various reasons stated herein before, the submission that the amendment relates back to the date of filing the complaint, will not hold good.
As earlier pointed out, Complainants could prove only the payment of Rs.2,00,000/- as the part of consideration. They are entitled to get it as a refund by way of compensation. Except for this relief, the other reliefs granted as per impugned order/award, deserves to be set aside for the reasons mentioned above. We hold accordingly.
In view of the discussion held above, we pass the following order:
Order:
(1) In First Appeal No. 1458/2008 application for condonation delay (Misc. Application No. 2061/2008) is allowed and the delay in filing the appeal stands condoned.
(2) In Appeal No.1459/2008 application for condonation of delay (Misc. Application No.2062/2008) stands allowed and delay in filing the appeal stands condoned.
(3) First Appeal No. 1459/2008 filed by Opposite Party No.6 â Resilent Constructions Pvt. allowed and impugned order/award as against it, including direction to handover possession of disputed Flat No.4 to the Complainants stands set aside and in effect consumer complaint as against it stands dismissed.
(4) First Appeal No.1458/2008 is partly allowed. Impugned order/award is modified and for existing impugned order/award following be substituted:
âOpposite Party No.2 â Smt. Meena Vishwas Paranjape, shall pay Rs.2,00,000/- to the Complainants along with interest @ 9% per annum with effect from 06.04.1992 till its realization.
(5) In the given circumstances, there is no order as to costs.â
(6) Both the appeals stand disposed of accordingly.
(7) Certified copies of this order be sent to the parties.