TAHERALI NAZIRALI SAIYED vs ALLABAKSH N. SHAIKH

THE complainants have prayed for the allotment of the flats in Sahara Flats Scheme as originally registered and for which the complainants had paid money and/or other split units of the opposite parties'' first published project viz., "A1-Ahbab Apartments" etc. contending that the opposite parties 1 to 5, the partners of M/s. Sahara Land Corporation had floated the housing scheme viz. Sahara Apartments at Juhapura, Sarkhej Road, Ahmedabad which was registered as a Co-operative Society. Initially, the scheme was only one but subsequently it was divided into split projects in three stagewise parts viz. (1) Darul Ahbab, (2) A1-Ahbab and (3) A1-Sagar, all registered as cooperative societies on the same date 9.6.80. THE complainants served notice to the opposite parties but the flats were not handed over but false promises were given. Ultimately, notices were served in December 1989 but, however, possession of the flats was not handed over and, therefore, the complaints were compelled to file the complaint. During the proceedings, some of the opposite parties agreed to hand over the possession of the flats to complainant Nos. 1 and 2 but ultimately backed out. THE complainants being tired of pursuing the matter in dealing with the opposite party ultimately stated in the evidence of Taherali Nazirali Saiyed that they are prepared to accept the flats and if the opposite parties may not be in a position to hand over the possession of the flats, then they are prepared to accept the deposit money given by them with 18% interest.

THE Opposite Parties Nos. 1, 3 and 4 A1 labaksh N. Shaikh, M.I. Mansuri and Amiruddin S. Shaikh by written reply (Ex. 13) contended that they have no connection with M/s. Sahara Land Corporation either as partners or proprietors and, therefore, the complaint against them is not tenable. THE Opposite Party No. 5 Yasinmiya M. Saiyad on his behalf and also as the partner of Opposite Party No. 6 M/s. Sahara Land Corporation contended that the joint application by all the complainants is not tenable and this Commission has no pecuniary jurisdiction and the complaint is barred by limitation. He admitted that Sahara Land Corporation is a partnership firm and the Opposite Party No. 5 Yasinmiya M. Saiyad is the partner. After the evidence of Opposite Party No. 4, Amiruddin S. Shaikh was recorded before this Commission Opposite Parties Nos. 4 and 5 filed the written statement contending that the joint application by 4 complainants is not tenable and the application was filed in the Court of Board of Nominees and the complaint is barred by limitation. THEy also contended that Opposite Parties Nos. 1, 2 and 3 are not the partners of Sahara Land Corporation. However, they admitted that the contents of Para 1 of the complaint upto i.e. regarding the partnership and of the Opposite Party No. 6 and splitting into three co-op. societies. THE other facts are also admitted which we will discuss at the later stage. THEy admitted that notices were served in June 86 but according to them they have replied to the notices. It is admitted that the complainants had paid Rs. 60,800/- to them but contended that the complainants had not paid the instalments regularly. It appears that the complainants are now tired in pursuing for the possession of the flats from the Opposite Parties and, therefore, they are willing to accept the amount deposited by them with 18% interest. The complainant No. 1 Taherali Nazirali Saiyed stated that all the 4 complainants had booked the flats and the complainant No. 1 Taherali paid Rs. 18,000/-, complainant No. 2 Smt. Sofia Munshi Saiyad paid Rs. 13,300/-, complainant No. 3 Liyakatali Mohmadsaidkhan paid Rs. 14,500/- and complainant No. 4 Smt. Nurunnisa Abdulkarim Maniar paid Rs. 15,000/- and accordingly the amount of Rs. 60,800/- was deposited by them from 1978 to 1991, the receipts of which are produced by them are on the record. The Opposite Parties have sold away the building No. 4 and constructed tenaments and flats are constructed in blocks 5, 6 and 7. The Opposite Parties are not prepared to hand over the flats. If the flats in those blocks are prepared and then handed over, then the complainants are prepared to accept those flats and if the Opposite Parties may not be in a position to hand over the flats then the amount deposited with 18% interest may be given and they are prepared to accept that amount. In cross-examination they have stated that they have not received any letter from the Opposite Parties to take away money. The reply to the notice was received by them. In a pointed question as to whether he was prepared to accept flat No. 7, he agreed but he stated that if the flat after complete construction is handed over then he is prepared to accept 4 but was not prepared to accept incomplete flats. He showed ignorance about the order of the f Board of Nominee to sell off the flats. The Opposite Party No. 4 Amiruddin Shaikh admitted that the amount as stated by the complainant was deposited by all the 4 complainants and the receipts were issued which are produced by the complainants. He agreed that the compromise was entered into with complainant No. 1 on 24.7.92 and as per the terms of the compromise the flat was to be purchased and was to be handed over but the Opposite Parties could not manage for the money and, therefore, that compromise is not now acceptable to him. He stated that the three buildings in which the flats are to be constructed are lying incomplete for want of money. According to him he himself and Opposite Party No. 5 Yasinmiya are the partners and he denied that the reply dated 4.1.90 was given by him. He admitted that the partnership deed is executed by the parties but he had not brought it. He also agreed that in the last compromise the Opposite Party No. 1 Allabaksh Shaikh had signed it. The Peoples'' Co-op. Bank has filed the suit as building Nos. 5, 6 and 7 are incomplete and the Board of Nominees has issued the stay order and the stay order can be vacated only if the amount is paid but they had no money.

From the evidence of Shri Taherali as well as the Opposite Party No. 4 Amiruddin it is clear that the amount was deposited by the complainants as stated by them for the flats and they were registered members but the flats were not handed over and now the Opposite Parties are not in a position to hand over the flats. The complainants therefore should be awarded atleast the money deposited by them with reasonable interest.

THE contention that the joint complaint by all the four complainants is not tenable and, therefore, should be dismissed cannot be accepted as the complainants have common interest and there is no legal bar in filing a joint complaint or granting the reliefs. THE provisions of Code of Civil Procedure are not applicable and, therefore, the complaint cannot be dismissed on the ground of misjoinder of the parties. Apart from that, now, by the amendment in the definition of complainant in Section 2(1)(b) of the Consumer Protection Act by Ordinance of 1993 the definition of complainant provides that one or more consumers where there are numerous consumers having the same interest can file the complaint. THE definition of complainant is now comprehensive and enables one or more complainants having the same interest to file the complaint. THE complaint, therefore, cannot be dismissed on the ground of joint complaint by the four complainants. It is contended that Opposite Parties Nos. 1,3 and 4 are not partners but Amiruddin iri his evidence admitted that himself and Opposite Party No. 5 Yasinmiya are the partners. He also admitted that booklet was issued by 4 persons but two of them are not partners. The evidence of Amiruddin cannot be accepted as in the reply to the notice given by the Advocate Mehboob J. Shaikh to the notice given by the complainants it is admitted that the Opposite Party No. 1 Allabaksh N. Shaikh, Opposite Party No. 3 M.I. Mansuri, Opposite Party No. 4 Amiruddin S. Shaikh and No. 5 Yasinmiya M. Saiyad are partners of Sahara Land Corporation. If at all they would not have been partners, such admission would not have been made in the reply to the notice. The Opposite Parties published the booklet of Sahara Apartments in the name of Allabaksh M. Shaikh, M.I. Mansuri, Amiruddin S. Shaikh and Yasinmiya M. Saiyad. The advertisement for A1-Ahbab Apartments co-op. Housing Society is in the name of the Opposite Party No. 2 Sultanbhai Rasulbhai Mansuri. It is also stated in the booklet that A1-Ahbab Apartment Co-op. Housing Society is adjacent to Sahara Apartments. As discussed above, A1Ahbab Apartments is part of the activity of M/ Sahara Land Corporation. Admittedly, the partnership deed is executed but it is not produced for the reasons best known to the Opposite Parties. For all these reasons it should be held that the Opposite Parties Nos. 1 to 5 are partners of Opposite Party No. 6 M/s. Sahara Land Corporation and they had entered into transaction and had accepted the deposit money from the complainants.

IT is contended that the suit was filed in the Court of Board of Nominees of the Registrar of Co-op. Societies but it is clear from the copy of the Case No. 564/88 that the case before Board of Nominees of Co-op. Societies was filed by Ahmedabad Peoples'' Co-op. Bank Ltd. for the purpose of injunction restraining from disposing of the properties etc. The present complainants have not filed the said application. The Opposite Parties have not produced any documentary evidence to establish that the present applicants have filed the application for the recovery of the amount due from the Opposite Parties. One criminal complaint was filed in the Court of the J.M.F.C. but the Opposite Parties have not produced the copy of the complaint to establish that it contains similar facts as contended in the present complaint. For that reason the complaint should not be dismissed. The contention that the complaint is barred by limitation deserves to be repelled as the Opposite Parties had taken the deposits for the allotment of the flats and the demand for the flats by the complainants still continue. The Opposite Parties gave assurance for the flats. Initially the complainants served notice in June 1986 and some of the Opposite Parties replied to the notice in which it was stated that 75% of the 48 members did not pay the instalments regularly and, therefore, the scheme could not be materialised and the scheme for building Nos. 1, 2, 3 and 4 was given up but they were prepared to accommodate the complainants in other schemes. In the reply to the notice of Liyakatali it was stated that he had joined the scheme Nos. 5,6 and 7 and that scheme can be completed only if the members pay the instalments and, therefore, it was delayed. However, they were prepared to accommodate him in another scheme. In the reply to the notice of complainant No. 4 Nurunnisa it was stated that she had registred a flat in the scheme Nos. 1, 2, 3, 4 but the members had not paid the instalments regularly and, therefore, it was given up but they are prepared to accommodate her in other scheme. It is, therefore, clear that they were promised the flats. In the reply to the notice it was stated that some of the members were returned the amount deposited by them but the complainants were not returned their amount and that means that the membership of th complainants were continued and Opposite Parties were prepared to accommodate them in other schemes. As stated in the complaint other schemes are part of the main scheme. It should therefore be held that the Opposite Parties continued the complainants as a members of the other schemes for which the flats were being constructed. The limitation, therefore, does not start from the date of the notice i.e. 20.6.86. The complainants, therefore, waited for the flats but were not given. Therefore, notices were again served and in reply to the notice dated. 4.1.90 also the Opposite Parties stated the same fact and stated that the Opposite Parties were prepared to accommodate the complainants in other flats in scheme Nos. 5, 6 and 7 if the flats are vacant. As such, therefore, till January, 1990 the right of the complainants to get the flats was recognised acknowledged and accepted and was not flatly denied. The limitation had, therefore, not started even in January, 1990. During the course of the proceedings the Opposite Party No. 4Amiruddin and Opposite Party No. 5 Yasinmiya Saiyad submitted a pursis (Exh. 26) stating that parties had settled the dispute through private arbitrators and as per the settlement possession of two flats was to be handed over out of which one on 5.5.92 and second on 22.5.92. That also indicates that the right of the complainant was recognised and continued and acknowledged. On 24.7.92 the Opposite Parties Nos. 1,4 and 5 and the agent of Opposite Party No. 2 and Advocate of the Opposite Parties Nos. 1 and 2 entered into compromise with complainant Nos. 1 and 2 and submitted consent terms before the commission which was recorded by the Commission. It is stated in the consent terms and most of the flats constructed by the Opposite Parties were sold away and the Bank has secured the stay order on some of the buildings. The flats at first floor in building No. 3 would be completed and would be handed over within 2 months to the complainant Nos. 1 and 2 and the documents would be executed for that. By that consent terms also the right of atleast two complainants was recognised. Unfortunately, that compromise did not materialise and Amiruddin in his evidence stated that the flats could not he completed as per compromise and, therefore, that consent terms are not admissible to him. Apart from the fact that the Opposite Parties backed out from that consent terms, it is, however, clear that the Opposite Parties have admitted the right of the complainants Nos. 1 and 2 to get the flats, the Opposite Parties, therefore, continued, acknowledged and accepted the right of the complainants to get the flats even during the proceedings of this complaint. The amount was deposited with the Opposite Parties for the flats. As the Opposite Parties have shown their inability to hand over the possession of the flats, they are bound to return the amount due. The complaint is, therefore, not barred by limitation. In view of the discussion above the Opposite Parties should be directed to return the amount collected by them from the complainants with interest atleast from the date of reply of the first notice i.e. from 21.6.1986. We, therefore, pass the following order : ORDER The Opposite Parties Nos. 1, 2, 3, 4, 5 and 6 shall pay Rs. 18,000/- to complainant No. 1 Taherali Nazirali Saiyed, Rs. 13,300/- to complainant No. 2 Smt. Sofia Munshi Saiyad, Rs. 14,500/- to complainant No. 3 Liyakatali Mohmadsaidkhan, and Rs. 15,000/- to complainant No. 4 Smt. Nurunnisa Abdulkarim Maniar with 15% interest p.a. from 21.6.1986 till realisation within three months from the date of order and shall pay Rs. 1,000/-cost of the complaint to each of the complainants and shall bear their own cost. Complaint allowed. __________________