S.M. Kantikar ORDER
Dr. B.C. Gupta, (Presiding Member)
1. This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 19.11.2013, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in consumer complaint No. 480/2000, filed by the present respondent and others, vide which, the said complaint was allowed.
2. Briefly stated, the facts of the case are that the respondent/complainant Mrs. Hermonie Mary Salazar and others, filed the consumer complaint No. 480/2000 before the State Commission, saying that she alongwith her siblings were absolute owners of agricultural land measuring 4972.9 sq. mtr. alongwith structures standing thereon, at village Kondivata, Taluka Andheri East at Bombay suburban. The exact details, including the survey numbers of the said land have been detailed in the consumer complaint. The Opposite Party (OP) builder/appellant Anthony H. Silva, approached them with a proposal to take over the said land on "as is where is" basis and develop the same, by settling with the persons in occupation of the structure on the said land at his own cost and expenses and after obtaining necessary permissions and sanctions from the concerned authorities. On 07.11.87, an agreement was entered between the complainant and four others on one side and the OP Builder on the other side, according to which, the developer was supposed to provide flats to the 5 owners, including the complainant for a total area of 8500 sq. ft. and sell the rest of the flats to various other persons and appropriate the sale proceeds thereof. The flats were to be provided to the complainants on ownership basis. It was also stipulated that if the flats allotted by the developer to the owners do not cover up the entire area agreed to be allotted, the developer shall pay the cost of such deficient area at the then prevailing market price. It is alleged that the developer completed the construction of the building, but failed to put the complainant in possession of the flat, to which she was entitled as per the terms and conditions of the agreement. He had, however, sold the flats so constructed to various purchasers and earned enormous profits. The complainant filed the consumer complaint in question, seeking directions to the OP to allot and give possession of a flat to her of area, measuring 1700 sq. ft. and also to provide compensation of 20 lakhs for deficiency in service and further damages of 20,000/- per month, till the complainant was put in possession. It was also prayed that interest @ 18% p.a. on the amount so worked out, should also be granted to her.
3. The complaint was resisted by the OP Builder by filing a written version before the State Commission, in which he stated that the agreement between the complainant and the builder was a commercial transaction and hence, the matter did not fall within the jurisdiction of the consumer fora. The only remedy available to the complainant was to file a civil suit. The OP stated that he had satisfied the claims of four co-owners by allotting them flats at various places. He had also called upon the complainant to take possession of a flat in or around 1995, but she was reluctant to take possession of the same. He was, therefore, left with no alternative, but to sell the flat to some other parties.
4. After taking into account the evidence produced by both the parties, the State Commission vide impugned order dated 19.11.2013, ordered as follows:-
"1. Complaint is allowed.
2. Opponent/developer is directed to hand over possession of the flat or flats having aggregate area of 1700 sq. ft. to the complainant in terms of agreement dated 07/11/1987 within one month from the date of receipt of copy of this order.
3. Opponent is directed to pay a sum of 50,000/- to the complainant as compensation for mental agony.
4. Opponent is directed to pay 10,000/- as cost of litigation to the complainant and shall bear his own costs."
5. Being aggrieved against the order of the State Commission, the OP Builder is before this Commission by way of the present first appeal.
6. During proceedings before this Commission, the last appearance of the counsel for the appellant was made on 14.02.2017. On the next date of hearing on 17.08.2017, none was present on behalf of the appellant. The case was fixed for hearing before the Circuit Bench at Mumbai on 06.11.2017. Due notice for the said hearing was sent to the appellant as well as their counsel. Despite the delivery of the notice to the learned counsel for the appellant, none appeared on their behalf for hearing made on 06.11.2017. However, the learned counsel for the respondent was present and was heard.
7. The learned counsel for the respondent argued during hearing that in accordance with the agreement arrived at between the parties, the OP Builder was directed to provide a flat measuring 1700 sq. ft. of area. The order passed by the State Commission reflected a correct appreciation of the facts and circumstances on record and the said order had been passed in accordance with the terms and conditions of the agreement. The present first appeal should therefore be dismissed and the impugned order be upheld. In support of his arguments, the learned counsel has invited attention to an order passed by the Hon'ble Supreme Court in "Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ld. and Anr., [MANU/SC/3133/2008 : 2008 (10) SCC 345]", according to which, it has been clearly laid down that the complainant does fall within the definition of 'consumer'.
8. Since the learned counsel for the appellant did not put in appearance during hearing, he could not be heard, but the grounds of appeal filed by them have been carefully studied.
9. The main contention taken by the appellant in the grounds of appeal is that the complaint was barred by limitation under section 24A of the Act, as the same should have been filed within two years of the cause of action, according to section 24A of the Consumer Protection Act, 1986. The cause of action had accrued to the complainant in the year 1994, when the possession of the flat had been offered to her by the complainant. It is further stated that as per the agreement entered in the year 1987, the appellant/OP was under an obligation to provide a house within a period of three years of the agreement. However, the complaint filed after a period of 10 years was not maintainable. Attention has been invited to the orders passed by the Hon'ble Supreme Court on the issue of limitation in "State Bank of India v. B.S. Agriculture Industries (I) [MANU/SC/0420/2009 : (2009) 5 SCC 121] ". It has further been stated in the grounds of appeal that the agreement between the parties was commercial in nature and hence, the provisions of the Consumer Protection Act, 1986 were not applicable. The issue should have been agitated before a civil court of competent jurisdiction.
10. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
11. The main issue that arises for our consideration is whether the consumer fora had the jurisdiction to deal with the consumer complaint in question. The issue has been discussed in detail in a number of judgments passed by the Hon'ble Supreme Court from time to time. In "Bunga Daniel Babu versus M/s. Sri Vasudeva Constructions & Ors." [Civil Appeal No. 944/2016 decided on 22.07.2016], the Hon'ble Apex Court brought out clearly that in cases where development is made by a developer on the property provided by the land owner, and in lieu of that a certain portion of the developed property is to be provided to the land owner, the Builder does come under the definition of 'service provider' vis--vis the land owner and hence, the land-owner does come under the definition of consumer. There is only one rider provided in the matter that the land-owner should not be an active participant in managing the affairs of the builder. In the present case, it is made out that the complainant alongwith her siblings made her property available to the OP and she had no role in the management of the affairs of the Builder. Relying upon the judgment of the Hon'ble Apex court in "Bunga Daniel Babu versus M/s. Sri Vasudeva Constructions & Ors." (supra), therefore, the complainant does fall under the definition of 'consumer' vis--vis the OP Builder. A similar view was earlier expressed in the case, "Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ld. and Anr." (supra) as well, as quoted by the learned counsel for the complainant during his arguments. It is held, therefore, that the complainant is a consumer vis--vis OP Builder and hence, the consumer fora had the jurisdiction to handle the consumer complaint in question.
12. The next issue for consideration is whether the consumer complaint was barred by limitation under section 24A of the Consumer Protection Act, 1986. The appellant/OP has stated that the agreement between the parties was entered in the year 1987 and according to the same, the property was to be provided to the complainant within a period of 3 years. However, it is their own version that they offered the possession of the property to the complainant in or around the year 1994 only, meaning thereby that they failed to take action in accordance with the terms and conditions of the agreement. It is also the case of the OP that they provided flats having built-up area of 950 sq. ft. each to the land owners at a different locality in lieu of built-up area of 1700 sq. ft. each to be provided under the agreement dated 07.11.87. The allegations levelled by the complainant, therefore, that the OP failed to provide her a flat, having area of 1700 sq. ft. as promised, is true. This would, therefore, be a case of continuing cause of action till the flat is provided to the complainant as per the agreement between the parties. Even if the complainant failed to file the consumer complaint within a period of 2 years as prescribed under section 24A of the Act, she cannot be debarred from filing the same after the expiry of the said period, as she cannot be denied the offer of flat in terms of the agreement. We, therefore, do not agree with the contention of the OP that the complaint was barred by limitation, as it is a case of continuing cause of action.
13. Vide impugned order, the State Commission directed the OP to handover the possession of the flat or flats having aggregate area of 1700 sq. ft. to the complainant in terms of the agreement dated 07.11.1987 and also to provide compensation of 50,000/- for mental agony and 10,000/- as cost of litigation. We do not find any infirmity or illegality in the said order, which may call for any interference in the exercise of the appellate jurisdiction. The present appeal is, therefore, ordered to be dismissed and the order passed by the State Commission upheld. There shall be no order as to costs.
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