Shivaji Tukaram Dongale vs Arun Dattatraya Wadekar

IN this revision petition, there is a challenge to order dated 2.6.2009, passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai(for short, ''State Commission '')

BRIEF facts are that Petitioner No.2/Opposite Party No. 2 is the owner of property. This property was taken for development by Petitioner No.1/Opposite Party No.1 where he is constructing ''''Dongale Apartments ''''. Respondents/ Complainants had purchased shops on the lower ground floor bearing nos.1 to 3 and basement bearing nos. B -1, B -2 and B -3 in this apartment.Petitioner No.1 is a builder/ developer. He had agreed to sell a hospital area having area about 400 sq. ft. and shop no. 1 on the lower ground floor having area 150 sq. ft. and basement no.1 having area of 752.24 sq. ft. as per sanctioned plans respectively dated 10.5.2001 and 14.1.2000 to respondent no.1. Similarly, respondent no.2 agreed to purchase basement no. 2 having area 853.88 sq. ft. while respondent no.3 agreed to purchase basement no.3 having area 853.88 sq. ft. from the petitioner no.2 as per their respective separate agreements dated 25.5.1999 and 23.3.1998. Entire construction of ''Dongale Apartment '' was completed on 30.4.2001. However, petitioner no.1 did not execute the deed of declaration as well as did not complete the work of plastering, doors, windows, flooring, colour painting, light fitting, water fitting, and water connections as per specification. Therefore, respondents could not start their hospital at the said place and in turn suffered loss in hospital business. It is further stated that petitioner no. 2 received some flats and area from the builder as per the development agreement. He separately agreed to sell from those areas basement no.2&3 and basement no.1 to respondent no.1 as per separate agreements. It is further alleged by the respondents that they have paid Rs.38,000/ - more than the agreed price to petitioner no.1,which is claimed back by them.

PETITIONER No.1 in its written statement has stated, that the complaint is for commercial purposes and as such same is not maintainable. Further, he is not a necessary party in the complaint. Moreover, he had not executed any agreement in respect of the complete property.

ON the other hand, petitioner no.2 in its written statement took the plea, that he is not a developer. Dispute, if any between the answering petitioner and the respondents are to be sorted out under the Indian Contract Act. The present dispute is like a specific performance and the same cannot be decided in these proceedings. Further, it is stated that the answering petitioner had not constructed any construction in the property in question and has no concern with the ''Dongale Apartments ''. District Consumer Disputes Redressal Forum, Kolhapur(for short, ''District Forum '') partly allowed the claim of the respondents. It directed the respective respondents to deposit their unpaid purchase price within the specified period. Thereafter, petitioners were to execute the sale deeds and to hand over the possession of the property. It further directed that if the amounts are not paid as directed, then petitioners '' right to terminate the agreements/contracts remains undisturbed.

AGGRIEVED by the order of District Forum, respondents filed appeal before the State Commission. The State Commission, vide its impugned order set aside the order of the District Forum and remitted the matter back to the District Forum, for fresh hearing according to the law.

BEING aggrieved, petitioners have filed this revision. We have heard the learned counsel for the parties and gone through the record as well as written arguments submitted by them.

AS per petitioners '' defence, the dispute between the parties is for specific performance of contract. Thus, the consumer complaint is not maintainable.

ON the other hand, it has been contended by the learned counsel for the respondents that State Commission had rightly remanded back the matter, to the District Forum. State Commission in the impugned order observed; '''' In the instant case at the first instance we find that Forum below did not address to the important and relevant issues while arriving at conclusion reflected in the impugned order. Firstly, they did not consider the fact that respondent/opposite party no.2 is not the Builder. As per development agreement respondent/opposite party no.2 had received certain property as the original owner of the property and thereafter, he sold it to the complainants and therefore, question as to whether these transactions could be covered under the consumer complaint since, complainants are not consumers as far as these transactions are concerned ought to have been addressed and answered. At the second instance, respondents/opposite parties nos.1&2 are different legal entities and respondent no.1 sold the property being the developer while respondent/ opposite party no.2 effected resale the properties being the owner. These transactions cannot be clubbed together since they represent different causes of action; there is misjoinder of parties and causes of action. Forum below ought to have asked complainants to elect as to in respect of which consumer complaint should be entertained and proceeded further. The appreciation of evidence confined to the evidence led in the proceedings is not properly done by the Forum below and the Forum below did not address itself in a legal and objective manner to these aspects. All this resulted in to miscarriage of justice. Therefore, we find it proper to remand the case and thereafter, both the parties shall take appropriate legal actions in the light of observations made, supra, and then Forum below shall settle the dispute within their empowerment as per the law ''''.

THE District Forum had erred on facts and in law by allowing the complaint in the above manner and the State Commission did well in allowing the appeal and remanding the matter back to the District Forum.

WE see no illegality, material irregularity, much less any jurisdictional error in the impugned order passed by the State Commission, which warrants interference of this Commission. Accordingly, the present revision petition stand dismissed. No order as to cost.