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Sidharth & Others v/s Gharkul Co.Op. Housing Society Ltd.


Company & Directors' Information:- R SIDHARTH & COMPANY (INDIA) PVT LTD [Strike Off] CIN = U17111WB1991PTC051089

    First Appeal No. 276 & 277 of 2013

    Decided On, 10 December 2015

    At, Maharshtra State Consumer Disputes Redressal Commission Nagpur

    By, THE HONOURABLE MR. B.A. SHAIKH
    By, PRESIDING MEMBER & THE HONOURABLE MRS. JAYSHREE YENGAL
    By, MEMBER

    For the Appellant: S.V. Satpute, Advocate. For the Respondent: ---------



Judgment Text

1. These two appeals are preferred by the respective original complainants against the two identical orders dated 7/10/2013 passed in consumer complaints bearing CC No.250/12 and CC No.251/12 by the District Forum, Nagpur by which both the complaints have been partly allowed.

2. Facts, in brief, giving rise to both these appeals are as under:

The original complainants in both the complaints entered into agreement of sale with opposite party (for short OP) Housing Society to purchase four plots described in detail in the said complaints. They also paid full price of the said four plots to the OP as per agreement. The OP also handed over possession of the said four plots to the complainants. However, the OP did not execute the sale deed of the said four plots on the ground that the process for regularization of the plots is pending before the Nagpur Improvement Trust (for short NIT). Therefore, alleging deficiency in service on the part of OP, the two complaints were filed as above by the complainants against the OP praying that direction be given to OP to execute sale deeds of those four plots bearing No.112, 117,163 and 164 in favour of the complainants and to pay them compensation of Rs.10000/- and Rs.5000/- in the respective complaints towards loss and harassment.

3. The Forum issued notice of the complaints to the Op. The OP appeared in both the complaints in pursuance of that notice through its advocate and sought time to file reply, but the reply was not filed by the OP. The OP also failed to appear on next date of hearing. Therefore, the Forum proceeded exparte against the OP in both complaints as per identical exparte order dated 21/2/2013 passed in both the complaints.

4. The District Forum below then heard complainants advocate and perused the documents and came to the conclusion that the complainants are the consumers and OP rendered deficient service to them as alleged in the complaints. However, the Forum also observed that as all the four plots are not regularized, the complainants are entitled to refund of price with interest and compensation as claimed by them and they are also entitled to the cost.

5. The Forum, as per impugned order passed in complaint No.250/2012 directed the OP to refund Rs.50000/- and Rs.30000/- to the complainants towards price of two plots having Nos.112 & 117 with interest @9% p.a. from 26/4/2004 till its realization by the complainants and also to pay complainant Nos.1 & 2 compensation of Rs.10000/- and Rs.5000/- respectively towards physical and mental harassment and cost of Rs.2000/- to them.

6. The Forum as per impugned order passed in complaint No.251/2012 directed the OP to refund Rs.30000/- to the complainant towards price of two plots having Nos.163 & 164 with interest @9% p.a. from 20/11/2003 till its realization by him and also to pay complainant compensation of Rs.5000/- towards physical and mental harassment and cost of Rs.2000/- to him.

7. Feeling aggrieved by that order, the original complainants have preferred these two appeals.

8. Notice was issued in both appeals by this Commission to the OP/respondent on 2/8/2014 and the same notice was given hamdast to the complainant’s advocate. The complainant’s advocate served that notice personally to the OP at its office as seen from the acknowledgment dated 20/9/2014 obtained on the copy of that notice and as seen from the rubber stamp of the OP put below signature of OP about receipt of the notice. Complainant’s advocate also filed a pursis stating that the said notice has been duly received by the OP. Considering the said endorsement made on the copy of notice in both the appeals, we hold that notice has been duly served to the OP/respondent as issued in both appeals by this Commission. The OP failed to appear despite service of notice. Therefore, this Commission proceeded exparte against OP in both the appeals, as per order dated 6/1/2015.

9. We have heard Advocate Mr. Satpute appearing for the appellants/complainants and perused the copies of the record of original complaints and the written notes of arguments and the other documents produced in both appeals by the appellants.

10. The learned advocate of the appellants/complainants mainly argued that the complainants did not pray for refund of the price of the plots but they had prayed for sale deeds as in pursuance of the agreements, full price of the plots has been paid and possession of the plots has been also received by the complainant. He argued that the Forum erred in giving direction for refund of price. He prayed that direction be given to the OP to execute the sale deeds by modifying the impugned order. He has also drawn our attention to the registered sale deeds of the other plots of the same layout filed in the appeal, as executed by the OP in favour purchasers of those other plots. He also argued that since there was no defence raised before the Forum by the OP, the relief sought for in the complaints, ought to have been granted by the Forum.

11. Thus, it is clear that the OP/respondent neither filed reply before the Forum not it appeared before this Commission in these two appeals despite service of notice. Thus, the complaints and the documents filed by the complainant went unchallenged. Moreover, it is also not disputed that the complainants had issued notice to the OP requesting for execution of sale deeds. The OP sent its reply to the complainants of which copies are filed on record of appeal. In the said reply dated 25/4/2010, the OP has shown its readiness to execute sale deeds. The OP also admitted in the reply that possession of the plots has been taken by the complainants on paying their full price to the OP. However, OP expressed that there are some difficulties in execution of sale deeds and hence the sale deeds would be executed as early as possible.

12. We find that the Forum erred in directing the OP to refund the price when the OP admitted its liability of execution of sale deeds as per the reply given by it to notice of complainants as above. Moreover, it is not disputed that the OP received full price of the plots and the complainants also received possession of the plots from OP.

13. The Forum found that there was no regularization of the plots for execution of sale deeds. In our view, if plots are not regularized then direction for regularization of the plots ought to have been given to the OP. However, the learned advocate of the complainants submitted as the plots are situated in rural area no such regularization is required. However, we find that when nothing is disputed in the both the present cases by the OP, both the complaints ought to have been allowed by the Forum with direction to obtain regularization of the plots if necessary and then to execute the sale deeds in favour of both the complainants. Hence both these appeals deserve to be allowed.

ORDER

i. Both these appeals are allowed as under..

ii. The impugned orders passed in both the complaints are modified and substituted to the effect that the OP/respondent in both the complaints shall execute registered sale deeds of the respective plots described in the respectiv

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e complaints in favour of respective complainants. The complainants shall bear the expenses of registration of those sale deeds. If the regularization of the said plots through the NIT is required for execution of the sale deeds, then the OP/respondent shall get the said plots regularized through NIT by taking necessary steps and then to execute the sale deeds in favour of complainants within a period of three months from the date of receipt of this order. iii. The OP/respondent shall also pay compensation of Rs.5000/- to the complainants in each of the complaint towards mental harassment and cost of Rs.5000/- to the complainants in each of the complaint. iv. No orders as to cost in these two appeals. v. Copy of the order be furnished to both the parties free of cost.
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