Judgment:
Per Shri S.R. Khanzode, Honble Presiding Judicial Member
This appeal arises out of order/award dated 25/08/2006 passed in consumer complaint No.570/2001 Shri Madhukar Sudhir Parkar and Anr. V/s. State Bank Employees Housing Scheme, Chairman, Punyanagari Co-op. Housing Society and Ors. by Addl. District Consumer Forum Pune (âForum below in short).
Appellants/org. complainants (hereinafter referred as âcomplainants) agreed to purchase a flat No.4 situated in first floor in Wing-E having area of 560 sq.ft. at the cost of Rs.2,13,360/- from State Bank Employees Housing Scheme known as âPunyanagari Co-op. Housing Society (Proposed). Respondents/O.P.Nos.2and3 Mr.Vilas Madhukar Gupte and Mr.Abhijit Prabhakar mahajani were the promoters of the said society. They entered into an agreement accordingly with the complainants on 10/06/1992. Complainants made payment of Rs.2,09,305.40 plus registration charges of Rs.2,140/- in between period 20/11/1991 to 15/11/1994 and for which receipts were issued by O.P.Nos.2and3 for and on behalf of O.P.No.1. Possession was agreed to be given in October 1999. Possession was not accordingly given. Subsequently, respondent/O.P.No.4-Shri Rajendra Oswal has caused trespass in the complainants right and title, interest and benefits in above referred flat No.4 and thereby aiding and abetting the unlawful acts, deeds and things of O.P.Nos.2and3 with common intention to deprive of the complainants fruit of their investment and the agreement in question. These O.Ps. are holding possession of flat No.4 illegally and without any authority. Therefore, consumer complaint was filed on 22/06/1999 inter alia claiming relief of possession of the flat, cost of proceeding of Rs.20,000/-, compensation for delayed possession @ Rs.1,500/- per month and in the alternative, refund consideration paid of Rs.2,09,305.40 plus registration charges Rs.2,140/- totaling to Rs.2,11,445.40 with interest @ 24% p.a. from the date of payment till the date of realization. Cost of proceeding was also claimed and Rs.25,000/- by way of compensation for mental pain and suffering caused.
O.P.Nos.1,3and4 preferred to remain absent in spite of notice and were proceeded ex-parte. O.P.No.2/Mr.Vilas Madhukar Gupte only put his appearance and submitted that since he was retired from the scheme as promoter, he was no more a promoter in the said scheme with effect from 05/10/1997. He further admitted having received consideration from the complainants as alleged but submitted that he had passed on the entire consideration to O.P.No.3/Shri Abhijit Prabhakar Mahajani who was acting as promoter and controlling the affairs.
Forum below accepted the contention of O.P.No.2 and exonerated him from the liability and against others granted alternative relief claimed by the complainants with interest @ 10% p.a. Feeling aggrieved thereby, org. complainants preferred this appeal.
We heard Mr.S.V. Palsuledesai, Advocate for the appellants/org. complainants, Mr.H.S. Rajeshirke, Advocate for the respondent No.2 @ respondent No.2 in person. None present for rest of the respondents. Perused the record.
In the instant case, complainants did not adduce any evidence as required under Section 13 of Consumer Protection Act, 1986. However, he placed copies of documents on record though not legally tendered in evidence. However, considering the admitted position with reference to written statement filed by O.P.No.2 and the fact that other O.Ps. failed to appear and file their written statement, case was tried to be developed that O.P.No.4 is a subsequent purchaser of flat No.4 in question and which he purchased from O.P.No.3. The case of the complainants is that O.P.No.4 is a trespasser and all the O.Ps. have gloves hands with each other in that respect. However, there is no proof to prove such statement. Considering the fact that O.P.No.2 admitted receipt of total consideration and registration charges paid by the complainants total amounting to Rs.2,11,445.40 and in absence of any other evidence to contrary, it can be safely accepted that complainants have paid Rs.2,11,445.40 towards part of consideration and registration charges to the promoters.
O.P.No.2 came with a case that he was retired from the scheme as a promoter with effect from 05/10/1997 and further claimed that he himself is a victim at the hands of O.P.No.3. At the first instance, his liability towards transaction of the complainants would not be over since he is the one who actually received payment from the complainant as a promoter. There is no evidence except his bare words to show that O.P.No.2 had passed on the consideration received to O.P.No.3. O.P.No.2 also failed to show that he was retired from the scheme as a promoter. Under the circumstances, Forum below was in error exonerating O.P.No.2 from the liability in question.
Complainants made a grievance that at the first instance, they ought to have been granted relief of possession of the flat and not the alternative relief of refund of consideration. Considering the fact that O.P.No.4, as revealed from the record is in possession of the flat in question and most probably as a purchaser from O.P.No.3/promoter, civil issues such as his rights as a bonafide purchaser for value and balance of equity between first purchaser i.e. complainants and second purchaser i.e. O.P.No.4, certainly, involves complicated questions of facts and law, not within the purview of Consumer Fora. Besides that in the totality of the circumstances, we find the Forum below rightly granted the alternative relief rather than relief of possession.
Complainants have also made a grievance about the interest awarded @ 10% p.a. and for not awarding separate compensation. We find this submission devoid of any substance. Awarding interest @ 10% p.a. is quite sufficient, just and proper in the given circumstances of the case and particularly when the complainants failed to establish any special circumstances to award more compensation. Since, interest is awarded, it takes the care for demand of additional compensation on other counts and separate compensation is not warranted.
For the reasons stated above, we find no reason to interfere with the impugned order/award except that along with other O.Ps, O.P.No.2 shall also be held jointly and severally responsible to pay the decreetal dues. Considering the fact that there is no privity of contract between O.P.No.4 and the complainants, there exists no relationship as a consumer and service provider between them, to fasten joint and several liability on O.P.No.4 is not proper. Forum below erred accordingly. Subject to these modifications, we pass the following order:-
Order:
1. Appeal is partly allowed.
2. Direction as against O.P.No.2, âcomplaint against O.P.No.2 stands dismissedâ stands set aside.
3. In clause No. 3 of the operative part of the order/award, figure 4 shall be deleted and in its place substitute figure 2. This change would make O.P.Nos.1,2and3 liable to pay decreetal dues jointly and severally and will exonerate O.P.No.4. Rest of the order stands confirmed.
4. Appeal stands disposed of accordingly.
5. Copies of the order be furnished to the parties.