w w w . L a w y e r S e r v i c e s . i n



Dr. Mrs. Shobha w/o Bhaskar Kaore v/s Swastik Builders, Satyam Apartments next to Rowell Continental (Sunny International) & Others

    Writ Petition No.6123 of 2004

    Decided On, 16 October 2009

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE A.B. CHAUDHARI

    For the Petitioner: Mrs. S.S. Wandile, Advocate. For the Respondents: R1, R2, R3, D.L. Dharmadhikari, R4, Anand Parchure, Advocates.



Judgment Text

1. By the present writ petition, the petitioner has put to challenge the order dated 7th July, 2007, passed below Exh. 13 in Special Darkhast No. 190/1996, by which the executing Court dismissed the execution proceedings filed by the petitioner.


2. In support of the writ petition, Mrs. S.S. Wandile, learned counsel for the petitioner made the following submissions.


(i) The Executing Court committed a serious error of law in holding that the decree could not be executed for non performance/obligation on the part of the petitioner-decree holder in terms of the judgment & order dated 3/4/1995 in Complaint Case No. UTP-886/1993, passed by the District Consumer Disputes Redressal Forum, Nagpur.


(ii) Reading of the operative part of the order of the Consumer Forum clearly falsifies the stand taken by the respondent No.1 & 2 -builder and the Court below erred in misreading the said judgment & order in a totally illegal manner.


(iii) Executing Court committed a serious error in holding that the communications allegedly sent by respondent nos.1 & 2 - builder under certificate of posting were deemed to have been received by the petitioner. As a matter of fact, there is a stout denial by the petitioner about non receipt of a single communication in respect of compliance required to be made under order dated 3rd April, 1995, made by Consumer Forum, and in the face of denial, the Court below could not have readily accepted the submissions made by the respondent nos.1 & 2-builder.


(iv) The respondent nos.1 & 2 -builder having accepted the order of the Consumer Forum in entirety and the petitioner admittedly having paid an amount of Rs.85,000/- and the balance only being Rs.10,000/- plus electricity charges of Rs.11,000/-, the normal conduct of the respondent nos.1 & 2-builder would have been to inform the petitioner by registered post A/D, rather than doing so under a certificate of posting, particularly because of the background of litigation. The fact that the respondent nos. 1 & 2 - builder is pleading the case of dispatch of communication under certificate of posting itself discloses the tactful way adopted by the respondent nos. 1 & 2 -builder by showing nonexistent correspondence.


(v) The respondent nos. 1 & 2-builder sold the suit property even before the expiry of limitation for filing civil revision application, to respondent no.4, which clearly shows the malafide intention of the respondent nos. 1 & 2 ?builder and the greed of the respondent nos. 1 & 2- builder.


(vi) The respondent- builder has clearly cheated the petitioner and the net result of his unlawful activities is that the petitioner though had paid Rs.85,000/- out of Rs.95,000/- way back in the year 1985 is still without the suit block. She relied on the following decision of the Supreme Court. (2006) 1 SCC 407, State of Maharashtra vs. Rashid B. Mulani.


3. Mr. D.L.Dharmadhikari, learned counsel for Respondent Nos. 1 & 2 made the following submissions and also filed a brief note of argument styled as Pursis along with the citations. He made the following submissions.


(i) The award made by Consumer Forum is without jurisdiction because dispute was in respect of office/shop which could be utilized only for commercial purpose. The shop in question could not be said to have been agreed to be purchased by the petitioner for earning livelihood as she is employed in Government Medical College and therefore, she is not a consumer.


(ii) The issue regarding jurisdiction can be raised at any stage and therefore, this court ought to consider the said issue, though for the first time in this petition. He relied on the following decisions.


(a) (1996) 9 SCC 422; Rajeev Metal Works and others ..vs. Mineral & Metal Trading Corporation of India Ltd. Para 6 & 7


(b) AIR 1995 SC 1428; Laxmi Engineering Works ..vrs.. P.S.G. Industrial Institute, Paras 2, 12 and 24


(c) (2000) 1 SCC 512; Kalpavruksha Charitable Trust ..vs. Toshniwal Brothers (Bombay) Pvt. Ltd. and another, Para 9


(d) (2004) 8 SCC 706; Balwant N. Viswamitra and others vs. Yadav Sadashiv Mule thr. L.Rs. and others; Para 9 to 12.


(e) AIR 1954 SC 340; Kiran Singh and others vs. Chaman Paswan and others; Para 6


(f) AIR 1973 SC 2391; Chandrika Misir and another vs. Bhaiyalal; para 6.


(iii) The Execution filed by the petitioner was not maintainable for want of compliance of the obligation under the award made by the Consumer Forum and since the petitioner did not perform her part which was required to be performed, the trial Court rightly dismissed the execution. He relied on the following decisions;


(a) AIR 1956 SCC 359; Jai Narain Ram Lundia vs. Kedar Nath Khetan and others; Para 18 & 19.;


(b) AIR 1972 SC 726; Chen Shen Ling vs. Nand Kishore Jhajharia (para 6 & 7);


(c) AIR 1972 SC 1826; Hungerford Investment Trust Ltd vs. Haridas Mundhra and others (para 32)


(iv) The direction of the Consumer Forum was clear inasmuch as the petitioner was required to make the payment of the balance amount of Rs.10,000/- within one month from the date of order and the amount required to be paid to M.S.E.B. which was not done by her and admittedly she deposited the amount of Rs. 10,000/- on 28.11.1996 and on 11.6.1997 she deposited Rs.11,000/- towards M.S.E.B. dues. Therefore, she did not perform her part as per the award and therefore, the execution was rightly dismissed.


(v) The petitioner ought to have deposited an amount of Rs.10,000/- while filing the application for execution and that shows that she had no intention to perform part of her obligation mentioned in the award of the Forum. That is how the executing Court recorded a finding which cannot be faltered.


(vi) Alternatively atleast after the reply was filed by the respondent vide reply dated 4.11.96, she ought to have deposited both the amounts within reasonable time of the filing of reply, but that did not happen and therefore, it cannot be said that she had complied with her part.


(vii) Three letters sent under certificate of posting must have been received by the petitioner and it is wrong on the part of the petitioner now to make such a grievance about non-receipt.


(viii) The petitioner having rejected all the alternate efforts made by the respondent for other premises even before this Court, is not entitled to any relief in this petition. He, therefore, prayed for dismissal of the writ petition.


4. Mr. Parchure, learned counsel appearing for respondent no. 4 submits that he is a bonafide purchaser for a value and should not be put to prejudice and therefore, except the shop block in question, builder should be asked to give some other shop block. He also adopted the submissions made by Mr.D.L. Dharmadhikari, learned counsel for Respondent Nos. 1 & 2 - builder. The counsel therefore prayed for dismissal of the writ petition.


CONSIDERATION


5. I have gone through the impugned order, so also the other relevant record. Heard learned counsel for the rival parties at length. It is not in dispute that the agreement between the petitioner and the builder - Respondent Nos. 1 & 2, was entered into on 12.1.1985 in respect of shop block in question for a total consideration of Rs.95,000/- and that amount of Rs.85,000/- was paid to respondent Nos. 1 & 2 and what remained to be paid was only the balance of Rs.10,000/-. It appears that Respondent Nos. 1 & 2 avoided to give possession to the petitioner after completion of construction of the scheme upon accepting the balance amount of Rs.10,000/-, which led her to file the complaint before the Consumer Forum. The Consumer Forum allowed her complaint. The decree made by the Consumer Forum reads thus ?


?The opposite party is directed to hand over possession of the shop premises complete in all respect agreed to be sold to the complainant within one month of the payment of Rs.10,000/- and the amount deposited by the opposite party with the M.S.E.B for the complainant. The opposite party shall inform the complainant about that amount within 15 days of this order in writing. The opposite party shall pay interest to the complainant @ 18% p.a. on the amount of Rs.85,000/- from 31.1.1988 till possession of the shop is given to the complainant. The opposite party shall pay Rs.200/- as costs of this complaint to the complainant and bear its own costs.?


6. It appears that the only defence that was taken by respondent nos. 1 & 2 before the Consumer Forum was that petitioner did not want to comply with the terms and conditions which she was required to comply with. On the contrary, the petitioner had given a registered notice dated 21.12.1988 to hand over the possession. The balance amount of Rs.10,000/- was to be paid on the date of handing over the possession of the suit property as per the agreement. It appears that respondent Nos. 1 & 2 delayed the completion of project and actually completed it some where in the year 1992 and never before and that is why the balance amount of Rs.10,000/- seem to have not been paid since the possession could not be given by the builder - Respondent nos. 1 & 2 to the petitioner. The Forum, therefore, observed that the defence was absolutely vague and that is why it made the above order.


7. Now, perusal of the above order shows that the petitioner did not know the M.S.E.B. charges and that is why it was the respondent nos. 1 & 2 who were supposed to inform her within 15 days of the order in writing. The award was passed by the Forum on 3.4.1995 and the respondent nos. 1 & 2 claimed to have informed the petitioner under certificate of posting on 10.4.95, followed by reminders dated 11.9.1995 & 17.2.1996. In the execution proceedings, the respondent nos. 1 & 2 filed application Exh.13 for dismissal of the execution proceedings, in which they disclosed for the first time about the issuance of above letters to the petitioner in para 4 of the application. Petitioner filed the reply to the said averments and stoutly denied those allegations about dispatch or receipt of those letters as alleged by Respondent Nos. 1 & 2. The petitioner also pointed out certain important facts in her reply Exh. 15, which, in my opinion, would clearly falsify the case of respondent Nos. 1 & 2 about the said letters. It is better to quote the relevant portion from her reply from paragraph 4, which reads thus?


?4........... At the cost of repetition, it is respectfully submitted that the alleged letter dated 10.4.1995, 11.9.1995 and 17.2.1996 are all fabricated and false documents created by the Judgment debtor. It is pertinent to note that after passing of the judgment in case No. 886/93 decided on 3.4.95, the decree holder has commenced the execution proceedings before the Consumer Dispute Redressal Forum, Nagpur. That, upon initiation of the execution proceedings, the Consumer Forum was pleased to issue notice of the said execution to the Judgment debtor which was received by him on 4.2.1996. However, it is pertinent to note that the judgment debtor inspite of the service of the said notice did not appear, nor they did bring all the aforesaid facts about the alleged letter, notice of the Consumer Forum. It is, therefore, crystal clear that the said letters are fabricated and are created by the judgment debtor. Moreover, it is pertinent to note that an appeal was filed by the judgment debtor bearing No. 889/95 against the Judgment passed by the Consumer Forum, Nagpur. However, neither in the said appeal the said fact about issuance of various letters was mentioned by the judgment debtor. Appeal finally came to be dismissed by the said Commission on 30.5.96?.


Despite this reply, respondent Nos. 1 & 2 did not take any steps to prove the factum about the said letters sent under certificate of posting, and surprisingly enough the trial Court has sought to reply upon the same in a most casual manner. The Hon?ble Supreme Court in the Case of State of Maharashtra ...vs... Rashid B. Mulani; (2006) 1 SCC 407, in para 17, has observed thus ?


?17. A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the post office. But when a mere certificate of posting is sought, no record is maintained by the post office either about the receipt of the letter or the certificate issued. The ease with which such certificates can be procured by affixing antedated seal with the connivance of any employee of the post office is a matter of concern. The Department of Posts may have to evolve some procedure whereby a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, sender?s name and addressee?s name to avoid misuse. In the absence of such a record, a certificate of posting may be of very little assistance, where the dispatch of such communications is disputed or denied as in this case. Be that as it may.?


In the light of above discussion and in the light of the said Supreme Court Judgment, it will have to be held that the defence taken by respondent nos. 1 & 2 about the said letters and in the absence of any explanation for not sending the letters by registered post A/D when a litigation was fought between the parties upto appellate Court and the conduct of respondent nos. 1 & 2 as pointed out in para 4 of the reply Exh.15, it will have to be held that the said defence is false and bogus and the said letters were created by respondent nos. 1 & 2. There is no reason for me to believe that for a paltry amount of Rs.10,000/- which was balance and in the wake of the fact that the petitioner is a salaried Government servant in Medical College working as Professor that she would avoid to pay either the amount of Rs. 10,000/- or the amount of Rs.11,000/-. At any rate, as per the agreement between the parties, the amount of Rs.10,000/- was to be paid on the date of delivery of possession and therefore, to say that she failed to pay Rs.10,000/- would be wrong.


8. The submissions advanced by Mr. Dharmadhikari, learned counsel for Respondent nos. 1 & 2 that it was for the petitioner to pay the amount of Rs.10,000/- within one month from the date of the order of the Consumer Forum and admittedly she did not pay the said amount within that period of one month or the amount of Rs.11,000/- towards M.S.E.B. charges is wholly misconceived. The Consumer Forum had placed the liability on the respondent nos. 1 & 2 to inform her within 15 days of the order in writing, which the respondent nos. 1 & 2 did not do as held by me above and on the contrary, it appears that respondent nos. 1 & 2 having pocketed the amount of Rs.85,000/- unjustifiably did not want to hand over the possession to the petitioner. The Forum made the Respondent Nos. 1 & 2 responsible to inform the petitioner about the M.S.E.B. charges so that she would pay both Rs.10,000/- and M.S.E.B. Charges together and then the Respondent Nos. 1 & 2 would hand over the possession within one month. The attempt of the counsel for Respondent Nos. 1 & 2 to isolate the word ?and? from Rs.10,000/- is misconceived. Shockingly enough, the executing court readily accepted the defence of respondent nos.1 & 2. The decisions cited by Mr. Dharmadhikari before me about the obligation of the petitioner, therefore, in the facts of the case, have no application. Having pocketed the amount of Rs.85,000/- out of Rs.95,000/-, respondent nos. 1 & 2 ought to have handed over the shop to the petitioner instead of selling it to somebody else. But Respondent Nos. 1 & 2 got over-joyed after getting the impugned order in their favour. That itself shows the total dishonesty on the part of respondent nos. l & 2, which is on the rise due to greed for money. The net result of this dishonesty is that the petitioner who had paid Rs.85,000/- in the year 1985 is without shop block since then till this date i.e. over a period of 24 years. A straight forward and honest builder would have immediately after completion of the project delivered the possession of the shop block to the petitioner having utilized her money from 1985 till 1992, but that did not happen in the instant case.


9. The submissions about the award passed by District Consumer Forum being without jurisdiction on the ground that the petitioner was not a consumer is wholly misconceived. In the first place, respondent nos. 1 & 2 having challenged the order of the Consumer Forum in appeal without taking any such ground are estopped from making such submission. At any rate, according to the petiti

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oner, the shop block was agreed to be purchased by her for running her private clinic, which could not be called for commercial purpose, but the same was for earning her livelihood. Other decisions cited by learned counsel that the award could not be enforced being without jurisdiction are not applicable in the instant case. 10. The up shot of the above discussion is that there is a total dishonesty on the part of Respondent nos. 1 & 2 in not abiding by its commitment, so also the orders of the Consumer Forum. The impugned order is wholly illegal. The same will have to be set aside. At the same time, suitable compensatory cost will have to be imposed on respondent nos. 1 & 2 for being dishonest through out in the entire episode against a common citizen. 11. In the result I make the following order. Writ petition is allowed. The impugned order dated 07/07/2007 passed below Exh.13, by Civil Judge, Senior Division, Nagpur, in Special Darkhast No. 190/1996 is quashed and set aside. Proceedings of Special Darkhast No. 190/1996 are allowed and disposed of with a direction to the Respondent Nos. 1 & 2 to deliver the possession of the shop block, agreed to be sold to her, as per the orders dated 30th May, 1996 of the Consumer Disputes Redressal Commission, within a period of eight weeks from today. The interest awarded by Forum shall also be paid within eight weeks from today to the petitioner. The respondent Nos. 1 & 2 shall also pay compensatory costs of Rs.50,000/- to the petitioner within eight weeks from today. Failure on the part of Respondent Nos. 1 & 2 in delivering the possession of the shop block in question within a period prescribed by this Court shall result into making of payment towards damages at the rate of Rs.1000/- per day to the petitioner after lapse of period of eight weeks till the actual delivery of possession.
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