ORDER
Per Mr. K. B. Gujarathi, President
This consumer complaint has been filed by the complainants, as per the provision of Section 12 of the Consumer Protection Act, 1986, against the opponents, land owner, builder and developer, with the case that,
1. The opponent no.1, Vallabhbhai Bababhai Patel, was the owner of non-agricultural piece of land of Mauje Kochrab Taluka Ahmedabad City, having T.P.Scheme no.20, Final Plot No.233 and sub plot no. 9 and 13 having area of 753 Sq.Mtrs. means 882 Sq.Yards. The opponent no.1 had made an agreement with opponent no.2, for developing that piece of land and making construction of 16 flats of a scheme of flats having name Aman Apartment.
2. It is also case of the complainants (shall be referred to as complainant) that, the opponents after launching the scheme of Aman Apartment, have also registered Aman Apartment Owners' Association, under the Bombay Non- trading Corporation Act, vide no N.T.C.G 5404 Dtd.24/09/1992. Thereafter, the opponents have taken permission of construction and development of flats in the name of Aman Apartments having permission no.95 Dtd.15/12/1992.
3. It is also case of the complainant that, on completion of the construction of the scheme, the complainant had booked a flat no.1 in block-B and also paid necessary cost of flat and development charges etc.to the opponent and they have
2
also issued to complainant letter of allotment, share certificate, possession letter and also handed over the possession of flat.
4. It is also case of the complainant that, when the complainant asked for execution of Sale deed, it was stated to him that, there is no need of execution of sale deed as the scheme has been registered under the Non Trading Corporation Act, and if, a need be of registered sale deed then, they will execute the same. However, opponent have executed sale deed to the members, who have taken bank loan for the flat and also their names have been mutated in revenue records.
5. It is also case of the complainant that, when the complainant had got information that, registered sale deed is necessary, he had requested to opponents for the same. But, opponent no.1 stated that, a dispute has been arisen with opponent no.2, the developer and on getting the solution of dispute, they will execute sale deed of flat.
6. It is also case of the complainant that, though the complainant had repeatedly requested for execution of the sale deed, opponents were avoiding for that with different reasons. Thereafter, in 2014-15, the Act regarding impact fee has come in force, the complainant had applied for regularizing extra construction made by opponent regarding one balcony and in parking area. But, opponent have had opposed to that application and objected that the complainant is in unauthorized possession of flat.
3
7. With this type of case, the complainant has filed this consumer complaint against opponents, for getting sale deed of his flat and also for removing inflammable things and articles kept and put in underground parking.
8. The complainant has produced his documentary evidence, vide a list at Exh.4 in support of the complaint. The documents are copies of share certificate, possession letter, possession receipt, Notice issued to opponents and plaint of suit filed by opponent.
9. On admitting the complaint for consideration, notices were issued to the opponents. On notice, opponent Nos. 1 appeared through advocate, and filed his written statement / reply vide Exh. 8. While notice to opponent no.2 has not been served due to want of proper address therefore, complainant has deleted him as opponent, subsequently.
10. After denying the allegations made by the complainant against him, opponent no.1 has also contended that, the consumer complaint of complainant is not maintainable as it is time barred. A Civil Suit No.126/2015, is also pending in City Civil Court Ahmedabad regarding same property. The complainant has concealed, so many material facts from the Hon'ble forum. It is further contended that, no privity of contract exists between the complainant and opponent no.1. There is also no agreement of sale in favour of complainant despite that, the complainant has illegally occupied the property in question and filed baseless complaint against the opponent no.1 to pressurize him.
4
With these types of pleas and defense the opponent has submitted to dismiss the complaint with costs.
11. The opponent no.1 has not produced any documentary evidence.
12. After giving sufficient opportunities to both the parties, to prove respective case, on the basis of affidavit and documentary evidence, complaint was taken up for final hearing.
13. When the complaint came before the commission for final hearing, we have heard LA. Mr. K.J.Acharya for the complainant, while the LA. for opponent was absent. The complainant has also filed written argument, vide Exh.13.
14. The LA. for complainant, has submitted as per the contains of the consumer complaint and submitted that, complainant is an actual possession of flat, as a member of Aman Apartment Owners' Association, the register non trading corporation. The opponent has issued allotment letter as well as share certificate of the corporation and initially he had stated that, there is no need of execution of sale deed in favour of the complainant, due to the provision of Non Trading Corporation Act. But, afterwards complainant came to know that, sale deed is necessary so, he had requested for the same but, the opponent avoided to execute the sale deed. So, complainant has filed this complaint for getting the reliefs asked by him. The opponent has not taken any legal plea and defense so, complaint may be allowed with costs.
5
15. Considering submissions made by the LA. for the complainant, in the light of pleading of the parties and documentary evidence produced by the complainant, we are of the view that, the consumer complaint filed by the complainant is not maintainable and liable to be dismissed for the following reasons;
a. That, the consumer complaint has been filed by complainant as a Owner and possessor of B-1, Flat of Aman Apartment. He has produced share
certificate, possession letter and possession receipt of flat B-1.
b. That, the complainant has produced copy of the plaint of Civil Suit No.126/2015, filed in the City Civil Court of the Ahmedabad, by the opponent no.1 Vallabhbhai Bababhai Patel and Others against Municipal Corporation, Anil Manohar Munshi, Dineshbhai Nagindas, Balvantsinh U. Parmar and others total 14 Defendants. The suit filed by the opponent no.1 and others is regarding same property of Aman Apartment and thereby, the opponent no.1 has asked relief of permanent injunction against Defendants with the allegations that, they are in illegal possession, they have no any agreement to sell, sale deed and also to restrain them from regularizing the construction of Aman Apartment. So, in that suit, complainant could have made countersuit for getting the relief which they have asked by way of this consumer
6
complaint. The suit has been filed in the year of 2015 while, consumer complaint was filed by complainant in 2017.
c. That, as per the consumer complaint of the complainant, they have taken flat as a member of the Non Trading Corporation with readymade construction without executing any agreement for getting services of housing construction. In a possession receipt Dtd.Nil there is no signature of the complainant and of M/s. Aakash builders but, that receipt has been signed by President and Member of Aman Apartment Owners' Association. So, in our view, there is also no relation between the complainant and opponent as a consumer and service provider.
d. There is no relation of consumer and service provider between the parties, there is also no pleading and evidence regarding payment of consideration of flat to opponent except the amount of share certificate.
e. The consumer complaint, otherwise also time barred and not within period of limitation of two years from the date of cause of action. As per the case of the complainant, the whole transaction of registration of N.T. Corporation and allotment of the flat etc. were made in the year of 1992 to 1995. So, the cause of action for filing any type of case including consumer complaint was arisen, in that
7
period but, complainant has filed consumer complaint in the year of 2017 about 20 to 22 years from the date of cause of action.
16. In view of the aforesaid facts and circumstances and reasoning, the consumer complaint of the complainant, is not maintainable and liable to be dismissed with costs.
17. Hence, we pass the following final order.
FINAL ORDER
The consumer complaint, filed by the complainant, vide CC No. 595 of 2017, is hereby dismissed with costs. Registry is directed to provide the copy of this judgment to both parties free of cost.
Pronounced in open court today on 22/07/2024. (Ms. Y. T. Mehta) (Mr. K. B. Gujarathi)
Member President
District Consumer Disputes Redressal Commission, Ahmedabad(Main)
8