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Sheela Devi v/s Consolidated Construction Co. & Others


Company & Directors' Information:- DEVI CONSTRUCTION CO PVT LTD [Active] CIN = U45202MH1980PTC022230

Company & Directors' Information:- INDIA CONSOLIDATED PRIVATE LIMITED [Active] CIN = U74899DL1994PTC057633

Company & Directors' Information:- SHEELA CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U45203OR1994PTC003722

Company & Directors' Information:- CONSOLIDATED INDIA PRIVATE LIMITED [Strike Off] CIN = U74900DL1995PTC072986

    Revision Petition Nos. 965, 966, 1567, 1568, 1569, 1974, 1975 of 2011

    Decided On, 06 July 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Appearing Parties: Brijesh Kumar, Yashasvi Virendra Mishra, Vishwas Saraswat, Nikhil Jain, Sanjeev Bahadur Srivastava, Samrat Nigam, Abhishek Atrey, Advocates.



Judgment Text

Mr. Divyankar Pratap Singh and late Ms. Chandra Prabha Devi of Kasmanda Estates were the owners of some land in the city of Lucknow. They entered into an agreement dated 29.12.1995 with M/s Consolidated Construction Company (hereinafter referred to as the builder) whereunder the builder was to construct a residential multi-storied complex on the afore-said land and the construction was to be shared between the owners and the builder in the ratio of 40% and 60% of the built-up area.2. The builder executed an agreement dated 31.07.2002 with Sh. Manoj Tahalani for sale of two residential flats in the above-referred complex to him for a consideration of Rs. 18,16,000/-. As per the agreement flats No. 220 and 221 were to be sold to Mr. Manoj Tahalani and in case land owners wanted to retain these flats, flats No. 320 and 321 were to be made available to him. It is an admitted position before me that flats No. 220 and 221 were not available for being provided to Mr. Manoj Tahalani and the builders later on agreed to provide flat No. 320 B in place of flat No. 321 which had been taken over by fire department. As per the agreement dated 31.07.2002 payment of Rs. 4,50,000/- was made by Mr. Manoj Tahalani to the builders. The builder also admitted a payment of Rs. 3,36,000/- made on 01.10.2002. Some cash payments in addition to the above-referred payments are alleged by Mr. Manoj Tahalani to the builder, which have been disputed by the builder. The allotment in favour of Mr. Manoj Tahalani, however, is alleged to have been cancelled by the builder on 05.12.2003. This is also the case of the builder that after cancelling the allotment made to Manoj Tahalani, they entered into an agreement with Mrs. Prabha Singh on 06.02.2004 and had later delivered possession of flat No. 320-B to her.3. A civil suit was instituted by Mr. Manoj Tahalani against the builder. That suit was dismissed on the ground that the appropriate relief to be claimed would be for seeking specific performance of the agreement. Mrs. Prabha Singh was not impleaded as a party even to the civil suit and instead of filing a fresh civil suit for specific performance of the agreement Mr. Manoj Tahalani filed a consumer complaint without impleading Mrs. Prabha Singh as a party to the consumer complaint. In the consumer complaint an application was filed by Mrs. Prabha Singh seeking impleadment on the ground that she was the allottee and was in possession of flat No. 320-B. That application was dismissed by the District Forum which later on allowed the consumer complaint in favour of Mr. Manoj Tahalani in respect of both the flats i.e. flats No. 320 and 320-B. Being aggrieved from the order passed by the District Forum, Mrs. Prabha Singh approached the concerned State Commission by way of an appeal. The owners and builder also challenged the order passed by the District Forum. Vide impugned order dated 25.02.2011 the State Commission set aside the order passed by the District Forum and directed possession of flat No. 320-B to be given to Mrs. Prabha Singh. The possession of flat No. 320 was directed to be given to the complainant Mr. Manoj Tahalani, as was directed by the District Forum. Being aggrieved from the order so passed by the State Commission the complainant Mr. Manoj Tahalani, the builder and the owner M/s Kasmanda Estates are before this Commission.4. Flat No. 401 in the above-referred project was agreed to be sold to Smt. Sheela Devi by way of agreement to sale dated 30.09.2002 and the same was registered on 07.10.2002. As per the agreement to sale executed between the parties, a sum of Rs. 3,00,000/- had been paid by Smt. Sheela Devi by the time the agreement was executed. Thereafter, an admitted payment of Rs. 6,50,000/- was made by her to the builder and she also claimed to have made some cash payments which the builder has disputed. The allotment in favour of Smt. Sheela Devi was cancelled on 15.12.2003 on the ground that she had not made payment of the allotted flat. Thereafter the above-referred flat No. 401 was allotted by the builder to Sh. Ramesh Chandra Mathur. The possession of the flat, according to the builder, was delivered to Ramesh Chandra Mathur in December, 2004. Of course, it was disputed by the complainant Smt. Sheela Devi. A consumer complaint was then instituted by Smt. Sheela Devi before the concerned District Forum seeking possession of the allotted flat and for execution of the sale deed with possession. Sh. Ramesh Chandra Mathur was not impleaded as party to the consumer complaint despite the fact that before instituting the consumer complaint Smt. Sheela Devi instituted a civil suit for injunction and even in that civil suit Sh. Ramesh Chandra Mathur was not impleaded as a party. That civil suit was also dismissed by the civil court holding that the appropriate remedy would be to file a civil suit for specific performance. Mr. Ramesh Chandra Mathur filed an application seeking impleadment in the consumer complaint filed by Smt. Sheela Devi but the said application was dismissed by the District Forum.5. Mr. Ramesh Chandra Mathur also filed a consumer complaint in which Smt. Sheela Devi was not impleaded as a party. The consumer complaint filed by Mr. Ramesh Chandra Mathur is stated to be still pending. The pendency of the said consumer complaint is noted in the order of the State Commission. The District Forum allowed the consumer complaint filed by Smt. Sheela Devi. Feeling aggrieved Sh. Ramesh Chandra Mathur approached the State Commission by way of an appeal. The builder also challenged the order passed by the District Forum. The State Commission allowed the appeals, set aside the orders of the District Forum and directed delivery of flat No. 401 to Sh. Ramesh Chandra Mathur and also directed execution of the sale deed. Being aggrieved from the order of the State Commission Smt. Sheela Devi as well as land owner and the builder are before this Commission.6. It would thus be seen that one consumer complaint was instituted by Mr. Manoj Tahalani, one by Smt. Sheela Devi and one by Mr. Ramesh Chandra Mathur. Sh. Manoj Tahalani did not implead Mrs. Prabha Singh who claims to be the subsequent allottee of the flat No. 320-B and the District Forum rejected her application for impleadment despite her claim that she was the subsequent allottee and was also in possession of flat No. 320- B. Similarly Smt. Sheela Devi also filed the consumer complaint without impleading Ramesh Chandra Mathur who claimed to be subsequent allottee of the flat No. 401 and who also claimed that the possession of the flat was with him. The District Forum rejected his application for impleadment as well, despite his averment and more importantly, despite the builder also taking the same stand that the above-referred flat No. 401 had been allotted by them to Sh. Ramesh Chandra Mathur. The same stand was taken by the builder as regards the flat No. 320-B which they alleged to have allotted to Smt. Prabha Singh.7. In my opinion, the District forum was wholly unjustified in rejecting the applications filed by Mr. Ramesh Chandra Mathur and Mrs. Prabha Singh seeking impleadment in the consumer complaints. The veracity of the averments made by them ought to have been tested by impleading them as parties and giving them an opportunity to prove those averments. It is not as if they had sought impleadment without any basis at all. The stand taken by them has also been confirmed by the builder. A common stand was taken by the builder as regards the alleged allotment to Mrs. Prabha Singh and Mr. Ramesh Chandra Mathur. The District Forum ought to have impleaded both of them as parties to the consumer complaint. Mrs. Prabha Singh should have been impleaded in the complaint filed by Mr. Manoj Tahalani whereas Mr. Ramesh Chander Mathur should have been impleaded in the complaint filed by Smt. Sheela Devi. In fact, all the counsel appearing before me are in agreement that the consumer complaint should be remitted back to the District Forum for being decided afresh after impleading Mrs. Prabha Singh in the consumer complaint instituted by Mr. Manoj Tahalani and Mr. Ramesh Chandra Mathur in the consumer complaint instituted by Mrs. Sheela Devi. Similarly, if the consumer complaint instituted by Mr. Ramesh Chandra Mathur is pending, Mrs. Sheela Devi ought to be impleaded as a party too in that consumer complaint.8. In the facts and circumstances of these cases the impleadment of the alleged subsequent allottes/purchasers was essential, they being necessary party to the consumer complaint. The State Commission, in my opinion, was not justified in setting aside the order passed by the District Forum and directing delivery of possession to Mrs. Prabha Singh and Mr. Ramesh Chandra Mathur along with execution of the sale deeds without impleading them as parties to the consumer complaints and without testing veracity of their respective averments through the process of the District Forum, after giving opportunity to the contesting parties to lead their respective evidence. The contentious issues involved in these matters could not have been decided by the State Commission without impleading them as party to the consumer complaint and without having benefit of the evidence which the parties could produce in support of their respective case.9. For the reasons stated hereinabove all the final orders passed by the Fora below are set aside and the revision petitions are disposed of with the following directions with which the learned counsel for the parties are also in agreement:-(a) Ms. Prabha Singh will be impleaded as party in the consumer complaint instituted by Mr. Manoj Tahalani. An amended complaint shall be filed by Mr. Manoj Tahalani before the concerned District Forum within four weeks from today and reply by Ms. Prabha Singh to the said consumer complaint will be filed within next 30 days.(b) Similarly, an amended consumer complaint impleading legal representatives of Sh. Ramesh Chandra Mathur shall be filed by Mrs. Sheela Devi before the District Forum within four weeks from today and the legal representatives of Mr. Ramesh Chandra Mathur will be entitled to file their written version within next 30 days.(c) In the consumer complaint instituted by late Sh. Ramesh Chandra Mathur, if the same is still pending, an amended consumer complaint will be filed impleading Smt. Sheela Devi as a party to the said consumer complaint within four weeks from today. Smt. Sheela Devi will be entitled to file her written version to the complaint in next 30 days.(d) The District Forum shall decide all the complaints i.e. the

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complaint instituted by Mr. Manoj Tahalani, complaint instituted by Mrs. Sheela Devi and complaint instituted by Late Ramesh Chandra Mathur, if pending, afresh after giving opportunity to all the parties to lead evidence in support of their respective cases. The consumer complaints shall be decided afresh within six months of the parties appearing before the District Forum.(e) The parties shall maintain status-quo as of today in respect of flat No. 320-B and flat No. 401. They will not sell, assign or otherwise part with possession of the afore-said flats and shall not create any third-party interest therein. No construction in the above-referred flats shall be carried out by them. The final order as regards the possession of the above-referred flats shall be passed by the District Forum while deciding the consumer complaint afresh in terms of this order.(f) The order passed by the Fora below in favour of Mr. Manoj Tahalani as regards the flat No. 320 is confirmed.(g) All pending applications stand disposed of.10. The parties shall appear before the concerned District forum on 28.08.2020. Entire record of the both the Fora below be sent back to the concerned Forum.
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