Bhima Developers and Builders Through Its Partner Shri Abhijeet M. Magdum, Kolhapur and Another Vs. Smt. Yashoda Madhukar Padalkar and Others - Court Judgment

Oral Order:

Per Justice Mr. S.B. Mhase, Honble President

1. Heard Mr. S.R. Ganbavale-Advocate for the appellants.

2. First point which was raised by Ld. counsel that the order has been passed by the District Consumer Forum, ex-parte. Ld. counsel accepts that he was served with the matter and he has also filed reply to the complaint. He also states that on the date when the matter was closed for judgment, matter was fixed for arguments. Only grievance is that the matter was fixed in the afternoon/second session. He further states that Advocate Mr.Ramesh Hirve attended the District Consumer Forum on that day in the afternoon session, but he came to know that the Forum has heard the matter in the first session and closed the matter for orders. It is also an admitted fact that when the advocate appeared before the District Consumer Forum, he did not give an application to the District Consumer Forum making grievance that the matter was fixed for hearing in the afternoon session and accordingly, he is present and he should be heard. Reasonable lawyer is expected to make such an application in order to protect his client. Therefore, under these circumstances, it is not possible for this Commission to find out whether really advocate attended on that day or not. Therefore, the submission that the matter proceeded ex-parte has no substance. We find that the matter was fixed for hearing and party remained absent and, therefore, District Consumer Forum proceeded to hear the matter ex-parte.

3. What is to be noted in the present matter is that, only arguments were heard but the reply and other documents which were produced on record by the appellants were not considered by the District Consumer Forum and, thereafter, order has been passed and therefore, it cannot be stated that the District Consumer Forum has ignored any material and in fact as per Regulation no.13 of Consumer Protection Regulations, 2005, when the matter is posted for arguments and where the party is represented by counsel, it shall be mandatory to file brief of written arguments two days before the matter is fixed for arguments. This obligation has not been discharged by the appellants. Above all, sub regulation no.(3) of 13 permits to file adjournment application to file brief. Such an application was never made even though grievance is made that advocate appeared on the date fixed for arguments. Therefore, advocate who appeared on that date, ought to have first stated that the court has not maintained the schedule and secondly, he could have also made application under regulation (3) seeking time to file brief of the arguments by them. These things he has not done and, thereafter, making grievance before this Commission that the order has been passed ex-parte has no substance and, therefore, said contention is rejected.

4. Second contention raised by the Ld.counsel is that the agreement in between the parties is without any consideration and, therefore, it is void in law. In order to substantiate his contention, Ld.counsel has taken us through the registered agreement dated 17/9/2007. He pointed out that as per Ready recknor, value for registration was Rs.1,75,000/-. However, it is stated below the value as per ready recknor, that “consideration---nothing”. Therefore, we have gone through the said agreement. Party no.1 in this agreement is appellant no.1, party no.2 is appellant no.2 and party no.3 are respondents. It appears that CTS no.321/1 to 7 admeasures 668.80 sq.meters and out of that in 180 sq.meters area the party no.3 is the tenant. We further clarify that the area as specified in the complaint is to be taken as tenement in the possession of complainant. What we find is that it is to be noted that party nos.1 and 2 practically are the same person. Party no.1 is shown to be a builder and developer, while party no.2 is shown to be the owner of the said vacant land and the party no.1 is power of attorney holder for party no.2. Therefore, ultimately Mr.Abhijit Mahaveer Magdum is a person representing party nos.1 and 2. Party no.3 is the tenant complainant. It appears that the owner wanted to develop this property and therefore, they have entered into this agreement in order go get possession from the tenants/original complainants. In view of this agreement, after the construction of the building, family unit no.3 was to be given to the respondents/complainants in Appeal nos.1272/2009 to 1281/2009. What is to be noted that for the construction of the building, respondents/ complainants were to surrender the vacant possession of the land of their tenements and after construction, they will be given a family unit as agreed. As per the agreement, possession of family units were not given to the complainants. Therefore, the complainants Ld.counsel tried to persuade us that it is an agreement or contract without any consideration and, therefore, it is void agreement which cannot be enforced. We are not in agreement with the Ld.counsel. In the present matter the tenements which were surrendered by the respondents/tenants for the purpose of the development of the property to the appellants in lieu of getting a family units as agreed is a complete consideration of the contract and, therefore, to interpret definition of consideration, to say that it only includes a money as consideration is not a correct and legal approach. Consideration can be an act, omission or abstinence to do a particular act as we find in the definition of consideration in Contract Act. Here positively tenements were handed over for consideration on a promise that tenants/complainants would get family unit as allotted/specified after the construction. Therefore, ultimate finding we record that the contention raised by appellant that the contract is void for want of consideration, is hereby rejected.

5. Third contention which the Ld.counsel tried to raise that the respondents are not consumers and for that purpose counsel invited our attention to the definition of ‘Consumer. He submitted that the case of the respondents cannot be considered as consumer under section 2(1)(d)(i). He submitted that clause who hired the service is not applicable. In the present matter, there is no agreement to hire the services. But we note that partial reading of the definition is not permissible. While reading the definition it is to be read as a whole and no part of definition shall be ignored so as to make part of provision redundant. We notice that clause says “hires or avails of the service for consideration”. Here in the present matter service has been availed of construction of the building and delivery of specified family units was availed for consideration, that is, possession of the property has been surrendered in favour of developer and the said property was residential premises which respondents were using for residential purpose and, therefore, respondent is covered by definition as ‘Consumer and the submissions made is without any substance and is hereby rejected.

6. Ld.counsel invited our attention to the definition of service under section 2(1)(o) and submitted that the present agreement is not a service agreement as contemplated in the definition. Because rendering of any service free of charge or under the contract of personal service is not a service. But we note that here is an agreement for construction of housing development as we have already observed that it is for a consideration and therefore, construction which appellants carried out was not free service as contemplated under the said clause, because complainant had not surrendered the possession of the property, the appellant could not have developed the land and could not have constructed the tenements as per the agreement and therefore, in lieu of that flat is to be provided to the respondent and therefore, we do not find any substance that it is free service rendered by him.

7. Fourth contention is that contract of personal service is not included in definition of service. Personal service contract contemplated the service, which is of the personal skill of the person. Here there is a development agreement with the company and it is business of the said company to carry out development. Even if such an agreement is entered individually, it is business agreement and does not fall into category of personal service, where personal learning is a subject matter of the service. Such is not the present case and therefore, we reject the said contention.

8. Last attempt made by the Ld.counsel is to say that he desires to lead evidence because according to him, agreement is ambiguous one. We wanted to know which clause of the agreement is ambiguous one. He invited to our attention to para 5 clause (f). By this clause it has been agreed by the respondent that he will make a temporary arrangement of his residence and the premises which he will take on rent. 50% of the rent of the said premises for a period of 12 months will be given by the appellant. It is submitted that the amount of monthly rental has not been stated in clause and therefore, this clause is ambiguous. We are not in agreement with Learned Counsel. At the time when the agreement was entered into, respondent has not entered into other temporary tenanted premises and, therefore, the rent of the proposed premises was not known and, therefore, clause provides 50% of the amount of temporary rental premises shall be paid by the appellant and we do not find any ambiguity in the said clause of agreement. It is well settled law that the agreement is a primary document which should be interpreted only by itself. However, after going through the agreement we do not find that there is any ambiguity in the said agreement. On the contrary, it is a feeble attempt to seek remand of the matter. We find that there is no substance in the appeal. We find that the order which has been passed by the District Consumer Forum is proper one and requires no interference at the end of State Commission. Except this no other point was argued by appellants before us. Hence the order:-