RAM KEDIA & ANR. vs J.N. AMBALKAR & 2 ORS.

This case will decide both the cases, which are against the same Opposite Parties but the Complainants are different. In one case. Mr. G.N.Ambalkar is the complainant and in another case Smt. Nalini J. Chati is the complainant. The facts are similar. We will take up the case in Revision Petition No. 615 of 2016, which will be applicable to both the cases.

Mr. G.N. Ambalkar, the complainant entered into an agreement with the Opposite Parties, Mr. Ratnesh Jaiswal-OP-1, Mr. Ram Khediya-OP-2 and Mr. Kailash Kushalani-OP-3, who are the partners of Gajanan Estate (Firm)- OP4, on 01.07.2007 for purchase of flat No. A-208 measuring 1080 sq.ft. for a consideration of Rs.10,80,000/- within a period of 24 months.

The grievance of the complainant is that the OPs did not construct the flat, but kept assuring that he would construct the flat, citing reason of their internal dispute. The complainant filed a complaint before the District Form with the following prayers:-

"A. That, the opposite parties should give the contractual flat to the applicant. Or in alternate, in case if the flat is not given then opposite parties shall jointly and separately pay the advance money of Rs. 1,51,000/- along with 20 percent interest to the applicant, bank expenditure Rs.4500/-, difference of amount of house Rs.7,20,000/- and for the mental agony suffered by the applicant Rs.5,00,000/-, total Rs.13,75,500/-.

B. Any other relief as this Hon''ble Court deem fit and necessary".

According to the OP-1, the complainant had deposited an amount in the sum of Rs.1,51,000/-. It was also admitted that the construction of the flat could not be completed due to non-cooperation of the other partners of the firm. Mr. Ratnesh Jaiswal-OP-1 submitted that he has got partnership of only 10% in the firm and he is liable for the payment on the basis of his partnership in the firm, if deficiency in service is proved.

Sh. Ram Khediya and Kailash Kushalani-OPs 2 & 3 filed a joint written statement. They admitted that, although, initially they had signed the Registration of partnership deed of Gajanan Estate (Firm), yet, subsequently, due to not having any co-ordination between the partners, no action was taken on that partnership deed. It was considered as non-effective and void on 09.10.2006, on the basis of mutual consent. It is alleged that by playing fraud, OP-1 collected money from the complainant and other persons in the name of booking of flat for which OP-1is personally responsible. They prayed that the complaint should be dismissed against them.

The District Forum rendered the following order:-

"(a) Opposite Parties, jointly and severally shall make payment of Rs.1,51,000/- (Rupees one lakh fifty one thousand only) to the complainant within one month and the Opposite parties shall also make payment of interest at the rate of 9% per annum accrued thereon to the complainant from the date of 12.12.2011 till the payment is made;

(b) Opposite parties shall also make payment of Rs. 1,00,000/- (Rupees one lakh) as compensation to the complainant; and

(c) Opposite parties shall also make payment of Rs.3,000/- (Rupees three thousand) as litigation cost to the complainant".

Aggrieved by this order, First Appeal was preferred by Sh. Ram Khediya-OP-2 and Kailash Kushalani-OP-3 against the complainant, OP-1 & OP-4. The State Commission dismissed the appeal. This Revision Petition was filed by Sh. Ram Khediya-OP-2 and Kailash Kushalani-OP-3 against the remaining parties. We have heard the counsel for the petitioners, at the time of admission of this case. Counsel for the petitioners submitted that the case is barred by time. It was argued that the cause of action arose on 02.07.2009, the cause of action came to end on 02.07.2009 when the OP-1 did not hand over the possession. The present complaint was filed after the expiry of two years, in the month of December 2011, therefore the complaint was barred by time. Counsel for the petitioners argued that this case is squarely covered by the judgement of this Commission reported in HCL Ltd. Versus Bureau of Indian Standards I (2015)CPJ691(NC). He has invited our attention towards para No. 13 of the above said judgment.

We are of the considered view that the above said judgment hardly dovetails with the facts of this case. The petitioners have tried to mis-lead us by citing a far-fetched authority. The cause of action will continue till the possession is given and the conveyance deed is executed, this is a continuous cause of action. This Commission in the case "Bhagyalaxmi Construction versus Monoranjan Basal & Ors. in Revision Petition No. 668 of 2013 decided on 31 May 2013 st observed:-

"5. Coming to the issue of limitation, raised before the fora below on behalf of RP/OP. The State Commission has agreed with the finding of the District Forum that it was a case of continuing cause of action. The question of the complaint being barred by limitation did not arise. From a perusal of the records and from the arguments of the counsel for the revision petitioner, I find that it is a case where existence of an agreement between the parties for the purchase of a flat is not denied. Receipt of consideration for the same is also not denied. I therefore, find myself in agreement with the fora below that the cause of action had continued to exist because neither the possession was delivered nor the conveyance was executed in favour of the complainant."

The Supreme Court dismissed the SLP vide order passed in Petition(s) for Special Leave to Appeal (Civil) No(s). 28910/2013 decided on 11.11.2013.

Similar view was taken in Rajubhai Tank & Ors. Versus Bindra Ben Bharatkumar Mavani & Anr. decided by this Bench, wherein the Supreme Court dismissed the Special Leave petition Nos. 12293, 12925, 12942, 12944, 12945, 12945 and 13019 of 2014 dated 09.04.2014. Again, in Raghav Estates Ltd. Vs. Vishnupuram Colony Welfare Association, Revision Petition No. 3097 of 2012, decided by the Bench consisting of Justice J.M. Malik and Mr. Vinay Kumar, wherein it was held:-

"9. The learned State Commission brushed aside the argument regarding delay in filing the complaint by placing reliance on the judgment in B.Venu Madhav Vs. National Consumer Disputes Redressal Commission, Represented by its Registrar, New Delhi & Ors, in W.P. No. 30394 of 2011, dated 18.01.2012 reported in CDJ 2012 APHC 421, wherein it was held that then there is immovable property and the amenities promised by the opposite party were not provided, the National Commission held that it can be construed as continuing cause of action and it cannot be said to be barred by time

This discussion tips the scale in favour of the complainant and, as such, the revision petition filed by the OP, is dismissed".

Special Leave to Appeal (Civil) No. 35805 of 2012 filed against this order was dismissed vide order dated 07.12.2012.

All OPs are enjoying the hard earned money deposited by the complainants. The OPs have feathered their nest, i.e., they have made profit for themselves often at the expenses of others. The have played fast and loose with the complainants. The ''Fabian policy'' adopted by the OPs, clearly goes to benefit them.

It must be mentioned here that there is a dispute between the OPs, inter-se, which has got, no relevance, so far as the complainants are concerned. There is a delay of about nine years and the complainants have not got the house nor the amount in this respect. It is well said that Justice delayed is not only Justice denied, it is also Justice circumvented, Justice mocked and the system of Justice undermined.

The interest granted by the Fora below is on the lower side. It should have been at least 18% as per Law laid down in K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012. Since the complainants have not filed the Revision Petition, therefore, we cannot enhance the rate of interest. The Revision Petitions are, therefore, dismissed with further costs in the sum of Rs.1,00,000/-, in each case. As already stated by the State Commission, all the OPs are jointly and severally liable to make the payment. The further costs in the sum of Rs.1,00,000/- each, be paid to the complainants within 90 days from the date of receipt of this order otherwise, it will carry interest @ 9% per annum, till realization. The orders of the District Forum as well as the State Commission be complied with by all the Opposite Parties, jointly and severally.