Selling of flats - No privity of contract - no deficiency of service- contract between Res. No. 2 and Complainant - Complainant paid amount to Res. 2 - there is no direct contract between Res.1 and complainant - in absence of privity of contract - in the absence of consideration - Res.1 is not liable to refund the amount as the memorandum of agreement was terminated between Res. 2 and Res.1 and as per the termination , the Res.2 has to refund the amount taken from complainants - Res. No.2 not filed any appeal , Res. 1 directed to recover the same from Res. 2 - all revisions are allowed =
Memorandum of Understanding was executed between petitioner and Respondent No. 2 and petitioner appointed Respondent No. 2 as promoter/consultant/sole selling agent for selling the flats, etc.
In paragraph 12 of the MOU, petitioner agreed and assured not to increase the rate of Rs.565/- per sq. ft. built up area.
8. Paragraph 14 of the MOU runs as under:
“14. It is agreed between the parties that the Promoters/Agents are entitled and free to book the said flats as per their sweet will and wish, and at the rate which they may deem fit/desire and in such cases, the Developers are not entitled for any increase etc. on such flats booked by the Promoters/Agents either directly and/or through any other agents. It is further agreed between the parties that the Developers are not entitled to sell/resale the said flats to any other Promoters/Agents/Company/Persons.”
9. Paragraph 14 thus makes it clear that all built up area was to be sold by Respondent No. 2 at any rate which they deem fit and petitioner had no right to sell/resale constructed flats to any other party, meaning thereby, petitioner sold built up area to Respondent No. 2 and in pursuance of this MOU, Respondent No. 2 entered into MOU with Respondent No. 1 for sale of the flat.
Proviso at page 5 of the MOU entered between Respondent No. 1 & Respondent No. 2 runs as under:
“Provided further that upon termination of this Agreement as aforesaid the promoter shall refund to the flat purchaser the inslalments of sale price of the said flat which may till then have been paid by the Flat Purchaser to the Promoter. The promoter shall not be liable to pay to the flat purchaser any interest on the amount so refunded and upon termination of this Agreement and refund of such amount by the promoter, the promoter shall be at liberty to dispose and at such price and on such conditions as the promoter may in their absolute discretion think fit”.
10. Thus, proviso makes it crystal clear that on the termination of the agreement, Respondent No. 2 was liable to refund the amount received from Respondent No. 1 without interest and nowhere liability has been fastened on the petitioner to refund the amount received by Respondent No. 2 from Respondent No. 1.
In such circumstances, it cannot be presumed that Respondent No. 2 sold the flats to Respondent no. 1 as agent of petitioner, but it appears that petitioner sold the constructed built up area to Respondent No. 2 who in turn entered into MOU with Respondent No. 1 for sale of flats and in pursuance to that MOU, Respondent No. 2 received money.
Liability to refund the money on termination of the MOU was only of Respondent No. 2 and petitioner was not liable to refund the amount firstly, there was no privity of contract between the petitioner and Respondent No. 1 and secondly, petitioner has not received any amount from the Respondent No. 2, which was collected by him from Respondent No.1.
11. Thus, it becomes clear that Respondent No. 2 has not received money from Respondent no. 1 as agent of petitioner and learned District Forum has committed error in holding petitioner also liable for refund of money and learned State Commission has committed error in dismissing appeal of the petitioner.
12. Respondent No. 2 has not filed any appeal against the order of District Forum and Respondent No. 1 is free to recover the whole amount from Respondent No. 2.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2259 OF 2008
(From the order dated 09.01.2008 in First Appeal No. 268 of 2007 @ Misc. Appl. No. 371/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
M/s. Shree Construction
C/o Bharati Industries
Sonapur, LBS Marg,
Mumbai – 400 078 … Petitioner/Opp.Party (OP)
Versus
1. Mr. Suryakanth Parshuram Sawant
D-233, Surya Darshan,
G.D. Ambedkar Marg
Parle, Mumbai – 400 012
2. M/s. Vastu Promoters & Consultants
8/17, Sahyadri Nagar, Charkop
Kandivali (W),
Mumbai – 400 067 … Respondents/Complainants
REVISION PETITION NO. 2447 OF 2008
(From the order dated 09.01.2008 in First Appeal No. 274 of 2007 @ Misc. Appl. No. 377/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
M/s. Shree Construction
C/o Bharati Industries
Sonapur, LBS Marg,
Mumbai – 400 012 … Petitioner/Opp.Party (OP)
Versus
1. Smt. Yogeeta Yashpal Vijan
Building No. 20, Flat No. 318,
M.H. Road, Sardar Nagar – 4,
Antup Hill,
Mumbai – 400 012
2. M/s. Vastu Promoters & Consultants
8/17, Sahyadri Nagar, Charkop
Kandivali (W),
Mumbai – 400 067 … Respondents/Complainants
REVISION PETITION NO. 2448 OF 2008
(From the order dated 09.01.2008 in First Appeal No. 273 of 2007 @ Misc. Appl. No. 376/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
M/s. Shree Construction
C/o Bharati Industries
Sonapur, LBS Marg,
Mumbai– 400 012 … Petitioner/Opp.Party (OP)
Versus
1. Mr. Kantilal Ambalal Thakr
24/402, Telang Road
Agarwal Niwas, 2nd Floor,
Matunga, Mumbai – 400 019
2. M/s. Vastu Promoters & Consultants
8/17, Sahyadri Nagar, Charkop
Kandivali (W),
Mumbai – 400 067 … Respondents/Complainants
REVISION PETITION NO. 2449 OF 2008
(From the order dated 09.01.2008 in First Appeal No. 272 of 2007 @ Misc. Appl. No. 375/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
M/s. Shree Construction
C/o Bharati Industries
Sonapur, LBS Marg,
Mumbai– 400 012 … Petitioner/Opp.Party (OP)
Versus
1. Smt. Rekha Ramesh Gawad
B-305, Sudha Palace,
Near Chate Classes,
Viratnagar, Virar,
Mumbai – 401 303
2. M/s. Vastu Promoters & Consultants
8/17, Sahyadri Nagar, Charkop
Kandivali (W),
Mumbai – 400 067 … Respondents/Complainants
REVISION PETITION NO. 2581 OF 2008
(From the order dated 09.01.2008 in First Appeal No. 267 of 2007 @ Misc. Appl. No. 370/2007of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
M/s. Shree Construction
C/o Bharati Industries
Sonapur, LBS Marg,
Mumbai – 400 012 … Petitioner/Opp.Party (OP)
Versus
1. Mr. Milind N. Deshmukh
Shivkrupa
C/o Deshmukh Oil Mills,
Ketan Nagar, Margarule Road
Mumbai – 400 012
2. M/s. Vastu Promoters & Consultants
8/17, Sahyadri Nagar, Charkop
Kandivali (W),
Mumbai – 400 067 … Respondents/Complainants
REVISION PETITION NO. 2582 OF 2008
(From the order dated 09.01.2008 in First Appeal No. 269 of 2007 @ Misc. Appl. No. 372/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
M/s. Shree Construction
C/o Bharati Industries
Sonapur, LBS Marg,
Mumbai– 400 012 … Petitioner/Opp.Party (OP)
Versus
1. Mr. Arun Balkrishna Narvankar
9A, Narmada Niwas, First Floor,
J.K. Sawant Road, Dadar (W),
Mumbai – 400 028
2. M/s. Vastu Promoters & Consultants
8/17, Sahyadri Nagar, Charkop
Kandivali (W),
Mumbai – 400 067 … Respondents/Complainants
REVISION PETITION NO. 2583 OF 2008
(From the order dated 09.01.2008 in First Appeal No. 270 of 2007 @ Misc. Appl. No. 373/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
M/s. Shree Construction
C/o Bharati Industries
Sonapur, LBS Marg,
Mumbai– 400 012 … Petitioner/Opp.Party (OP)
Versus
1. Mr. Arun Sitaram Kushe
111, 2/5, MESB Quarters (Staff)
Inside National Park, Borivali (E)
Mumbai – 400 066
2. M/s. Vastu Promoters & Consultants
8/17, Sahyadri Nagar, Charkop
Kandivali (W),
Mumbai – 400 067 … Respondents/Complainants
REVISION PETITION NO. 2584 OF 2008
(From the order dated 09.01.2008 in First Appeal No. 271 of 2007 @ Misc. Appl. No. 374/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
M/s. Shree Construction
C/o Bharati Industries
Sonapur, LBS Marg,
Mumbai– 400 012 … Petitioner/Opp.Party (OP)
Versus
1. Mr. Rajen Chandulal Shah
217/A, I – Karol , 27th Road
TPS (E), Bandra (E)
Mumbai – 400 050
2. M/s. Vastu Promoters & Consultants
8/17, Sahyadri Nagar, Charkop
Kandivali (W),
Mumbai – 400 067 … Respondents/Complainants
BEFORE:
HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B C. GUPTA, MEMBER
For the Petitioner : MR. Anand Padmanabhan &
Mr. Mohd. Wasay Khan, Advocates
For the Respondents No. 1 : Mr. Arun S. Kushe, in person in RP
No. 2583/2008 and AR of other
Respondents No. 1
For the Respondents No. 2 : Ex parte
PRONOUNCED ON 2nd December, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
All these revisions arise out of separate judgments dated 9.1.2008 in appeals filed against judgments of the District Forum. Accordingly, the revisions were heard together and are being disposed of by common order.
These revision petitions have been filed by the petitioner against the orders dated 9.1.2008 passed by Maharashtra State Consumer Disputes RedressalCommission, Circuit Bench at Aurangabad (in short, ‘the State Commission’) in Appeal Nos. 2259/08, 2447-2449/08 & 2581/08 to 2584/08 – M/s. Shree Construction Vs. Suryakant Parshuruam Sawant & Anr., M/s. Shree Construction Vs. Smt. Yogeeta Yashpal Vijan & Anr., M/s. Shree Construction Vs. KantilalAmbalal Thakur & Anr., M/s. Shree Construction Vs. Smt. Rekha Ramesh Gawad & Anr., M/s. Shree Construction Vs. Milind N. Deshmukh & Anr., M/s. Shree Construction Vs. Arun Balkrishna Narvankar & Anr., M/s. Shree Construction Vs. Arun Sitaram Kushe & Anr. & M/s. Shree Construction Vs. Rajen ChandulalShah & Anr. by which, while dismissing appeals, order of District Forum allowing complaints were upheld.
2. Brief facts of the case are that complainant/Respondent entered into an agreement with OP No. 1/Respondent No. 2 for purchase of residential accommodation in proposed “Grahashanti Apartment” for which, OP No. 1 had paid Rs.6,64,600/- to OP No. 2. Complainant was informed that construction will start on 10.6.1992 and will be ready for possession before 31.12.1993. It was further alleged that OP Nos. 1 & 2 entered into Memorandum of Understanding (MOU) in June, 1992 and OP No. 1 was referred as sole selling agent for selling flats, shops, etc. to be constructed on the property. It was further alleged that till today, no construction has been made. Alleging deficiency on the part of OP, complainants filed separate complaints before District Forum. OP No. 1 resisted complaint and submitted that Mr. Balu Sadashiv Narkhede was one of the partners of OP No. 1, who illegally entered into transaction which is not binding on OP No. 1. It was further submitted that OP No. 1 paid Rs.6,64,600/- to OP No. 2 and in such circumstances, onus was entirely on the OP No. 2 to carry out construction or to give compensation to the purchasers and prayed for dismissal of complaints. OP No. 2 also filed written statement, denied receipt of Rs.6,64,600/- from OP No. 1 and denied other allegations and further submitted that complaint was barred by limitation and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OPs to refund the amount jointly and severally with interest @ 12% p.a. and further imposed cost and compensation. Appeals filed by the appellant were dismissed by learned State Commission vide impugned orders against which, these revision petitions have been filed.
3. None appeared for the Respondent No. 2 even after service.
4. Heard learned Counsel for the petitioner and respondent No. 1 and his representative and perused record.
5. Learned Counsel for the petitioner submitted that there was no privity of contract between the petitioner and Respondent No. 1 and petitioner has not received any amount from respondent even then learned District Forum has committed error in allowing refund of the amount and learned State Commission further committed error in dismissing appeals; hence, revision petitions be allowed. On the other hand, authorized representative of the respondents submitted that order passed by the State Commission is in accordance with law; hence, revision petition be dismissed.
6. Perusal of impugned order reveals that order of District Forum was upheld as Respondent No. 2 was sole selling agent of the petitioner and respondent No. 2 received payment from Respondent No. 1; so, petitioner was bound to refund the money. It was further observed that ‘The Site Worship Ceremony’ invitation was extended jointly by petitioner and Respondent No. 2; so, both are liable to refund the amount.
7. Perusal of record reveals that Memorandum of Understanding was executed between petitioner and Respondent No. 2 and petitioner appointed Respondent No. 2 as promoter/consultant/sole selling agent for selling the flats, etc.
In paragraph 12 of the MOU, petitioner agreed and assured not to increase the rate of Rs.565/- per sq. ft. built up area.
8. Paragraph 14 of the MOU runs as under:
“14. It is agreed between the parties that the Promoters/Agents are entitled and free to book the said flats as per their sweet will and wish, and at the rate which they may deem fit/desire and in such cases, the Developers are not entitled for any increase etc. on such flats booked by the Promoters/Agents either directly and/or through any other agents. It is further agreed between the parties that the Developers are not entitled to sell/resale the said flats to any other Promoters/Agents/Company/Persons.”
9. Paragraph 14 thus makes it clear that all built up area was to be sold by Respondent No. 2 at any rate which they deem fit and petitioner had no right to sell/resale constructed flats to any other party, meaning thereby, petitioner sold built up area to Respondent No. 2 and in pursuance of this MOU, Respondent No. 2 entered into MOU with Respondent No. 1 for sale of the flat.
Proviso at page 5 of the MOU entered between Respondent No. 1 & Respondent No. 2 runs as under:
“Provided further that upon termination of this Agreement as aforesaid the promoter shall refund to the flat purchaser the inslalments of sale price of the said flat which may till then have been paid by the Flat Purchaser to the Promoter. The promoter shall not be liable to pay to the flat purchaser any interest on the amount so refunded and upon termination of this Agreement and refund of such amount by the promoter, the promoter shall be at liberty to dispose and at such price and on such conditions as the promoter may in their absolute discretion think fit”.
10. Thus, proviso makes it crystal clear that on the termination of the agreement, Respondent No. 2 was liable to refund the amount received from Respondent No. 1 without interest and nowhere liability has been fastened on the petitioner to refund the amount received by Respondent No. 2 from Respondent No. 1.
In such circumstances, it cannot be presumed that Respondent No. 2 sold the flats to Respondent no. 1 as agent of petitioner, but it appears that petitioner sold the constructed built up area to Respondent No. 2 who in turn entered into MOU with Respondent No. 1 for sale of flats and in pursuance to that MOU, Respondent No. 2 received money.
Liability to refund the money on termination of the MOU was only of Respondent No. 2 and petitioner was not liable to refund the amount firstly, there was no privity of contract between the petitioner and Respondent No. 1 and secondly, petitioner has not received any amount from the Respondent No. 2, which was collected by him from Respondent No.1.
11. Thus, it becomes clear that Respondent No. 2 has not received money from Respondent no. 1 as agent of petitioner and learned District Forum has committed error in holding petitioner also liable for refund of money and learned State Commission has committed error in dismissing appeal of the petitioner.
12. Respondent No. 2 has not filed any appeal against the order of District Forum and Respondent No. 1 is free to recover the whole amount from Respondent No. 2.
13. Consequently, revision petitions filed by the petitioner are allowed and impugned orders dated 9.1.2008 passed by learned State Commission in Appeal Nos. 2259/08, 2447-2449/08 & 2581/08 to 2584/08 – M/s. Shree Construction Vs. Suryakant Parshuruam Sawant & Anr., M/s. Shree Construction Vs. Smt. Yogeeta Yashpal Vijan & Anr., M/s. Shree Construction Vs. Kantilal Ambalal Thakur & Anr., M/s. Shree Construction Vs. Smt. Rekha Ramesh Gawad &Anr., M/s. Shree Construction Vs. Milind N. Deshmukh & Anr., M/s. Shree Construction Vs. Arun Balkrishna Narvankar & Anr., M/s. Shree Construction Vs. ArunSitaram Kushe & Anr. & M/s. Shree Construction Vs. Rajen Chandulal Shah & Anr. and order of District Forum to the extent allowing complaints against petitioner are set aside. There shall be no order as to costs.
..……………Sd/-……..………
(K. S. CHAUDHARI, J)
PRESIDING MEMBER
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(DR. B. C. GUPTA)
MEMBER
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