CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE





FIRST APPEAL NO.1569/2008 Date of Filing:-12/12/2008

@ M.A.No.2210/2008 & 2211/2008

IN CONSUMER COMPLAINT NO.174/2005 Date of Order:-08/06/2009

DISTRICT CONSUMER FORUM, MUMBAI SUBURBAN





1) Mrs.Shantiben Popatlal Shah,

Flat No.D-501, 1st Floor,

Golden Square, Near Sunder Nagar,

Kalina, Santacruz (East),

Mumbai-400 098 ... Appellant No.1 (Org.O.P.No.3)



2) Mr.Kamlesh Popatlal Shah,

Flat No.D-501, 1st Floor,

Golden Square, Near Sunder Nagar,

Kalina, Santacruz (East),

Mumbai-400 098 ... Appellant No.2 (Org.O.P.No.2)

-Versus -



1) Amar Deep Co-operative Housing Society Limited,

Sunder Nagar, Kole Kalyan,

Kalina, Santacruz (East),

Mumbai-400 098 ... Respondent No.1(Org.Complainant)



2) M/s.Ambika Construction Company

Bhatia Glass Compound,

Vakola, Santacruz (East),

Mumbai-400 055 ... Respondent No.2(Org.O.P.No.1)





Corum:-Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member,

Smt.S.P.Lale,Hon’ble Member.



Present :- Mr.J.N.Dubey, Adv. for the Appellants

Mr.S.B.Prabhavalkar, Adv. for the Respondents.



O R D E R



Per Mr.P.N.Kashalkar,Hon’ble Presiding Judicial Member

1) This is an appeal filed by Org.O.P.No.2 & 3 against the judgment and award passed by Mumbai Suburban District Consumer Forum in Consumer Complaint No.174/2005 decided on 13/10/2006 whereby, the Forum below allowed the complaint against O.P.No.1 to 3 and directed them to execute conveyance in favour of the complainant society within one month from the receipt of order failing which it directed O.P.No.1 to 3 to pay penalty of Rs.1,000/- per month. It also restrained O.P.NO.1 to 3 from creating any third party interest in the common open space and common utility space of the construction.



2) Briefly facts to the extent material may be stated as under :



3) Complainant Amardeep Co-operative Housing Society filed consumer complaint against M/s.Ambika Constructioin Company, Vakola, Santacruz(East)Mumbai. It also impleaded Mr.Kamlesh Popatlal Shah and Mrs.Shantiben Popatlal Shah and Mr.Prakash P.Gala as O.P.No.2 to 4, r/o Flat No.D/501, First Floor, Golden Square, Near Surendra Nagar, Kalina, Santrcruz(East)Mumbai. The society pleaded that the construction of their building was made by M/s.Ambika Construction Company on the land belonging to O.P.No.2 and 3 and O.P.No.4 appears to have no connection with the present dispute. The O.P.No.1 to 3 did not form the society of flat purchasers and did not execute conveyance deed in favour of society in respect of land and building as per Maharashtra Ownership Flat Act. The society apprehended that since no conveyance deed was executed, O.Ps were intending to use common utility space and construction for their gain and therefore they filed consumer complaint for conveyance and for injection for restraining O.Ps from creating any third party interest on the said property and injunction from interference in the affairs of the society.



4) The O.P.No.1 did not file written statement. It was proceeded ex parte. The O.P.No.2 and 3 put in appearance on 26/7/2005 and sought time to file written statement but ultimately failed to file written statement. Hence, complaint was proceeded against them on 28/4/2006. Against O.P.No.4 there was no prayer made by the complainant society. Hence, complaint was dismissed as against O.P.No.4.



5) After hearing counsels for complainant and opponents on the point of law, the Forum below held that since relief sought was about conveyance the dispute involved in the complaint was consumer dispute and complaint was tenable in law. The Forum found that since there was no defence and complaint being on affidavit non execution of conveyance amounts to deficiency in service and therefore it found that complaint was liable to be allowed and accordingly it allowed the complaint and directed O.P.No.1 to 3 to execute conveyance deed in favour of complainant society within one month from the date of receipt of order. It also restrained O.P. No. 1to 3 from creating any third party interest in the common open space and common utility space of the building of the society. Aggrieved by this order, the O.P.No.2 and 3 have filed this appeal.



6) We heard submissions of Mr.J.N.Dubey, Adv. for the appellants and Mr.S.B.Prabhavalkar, Adv. for the respondents.



7) There is a delay of 30 days in filing appeal. For condonation of delay M.A.No.2210/2008 has been filed. In condonation of application just and sufficient ground has been made out. Delay is not deliberate or intentional. It is supported by affidavit sworn before Notary. So, we are inclined to condone the delay subject to cost of Rs.500/- payable by the appellants to the respondent society.



8) We are finding that the Forum below clearly erred in law in passing ex parte award and directing O.P.No.1 to 3 to execute conveyance deed of the land and building in favour of the respondent society without bothering to see who were the legal heirs of deceased Shri Popatlal Shah who was the owner of the property. According to the appellants, order passed by the Forum below is illegal because owner of the property was Shri Popatlal Shah. He expired in 1996 leaving behind 6 legal heirs including Mrs.Shantiben Popatlal Shah and Kamlesh Popatlal Shah who are the appellants herein. The other legal heirs are Mr.Paresh Popatlal Shah, Mr.Nanji Popatlal Shah, Mr.Devji Popatlal Shah and Mr.Hansraj Popatlal Shah. According to the appellants Mr.Devji Shah alias Gala and Mr.Hansraj Popatlal Shah alias Gala are residing in the respondent society. So, out of six legal heirs only two legal heirs were impleaded in the complaint filed by respondent society before the Forum below and since matter was ex parte, the Forum below decided complaint solely on the basis of averment made in the complaint and passed award and directed appellants to execute conveyance deed in favour of respondent society. What it pertinent to note is that fact that the property on which building was constructed was belonging to Mr.Popatlal Shah who died in 1996 and who left behind six legal heirs. All of them should have been made party to the complaint and then only effective order for executing conveyance deed could have been passed by the District Forum. In the absence of all legal heirs of deceased Popatlal Shah, the award of execution of conveyance can not be complied with effectively and legally. Only two out of six legal heirs of deceased Popatlal Shah can not be asked to execute conveyance of whole property in favour of respondent society. So, there is on the face of it a legal hurdle in execution of this award. For this purpose the appeal will have to be allowed quashing the order passed by the District Forum and remanding the complaint back to District Forum. We also want to give second inning to the appellants to contest the matter by filing written statement and affidavits and of course documents if any. We also suggest respondent society that after remand it may think of impleading all legal heirs of deceased Popatlal Shah as O.Ps and for the purpose they may move application for amendment of the complaint in the Forum below so that ultimately binding order, legal order can be passed for executing conveyance deed by all the legal heirs of deceased Popatlal Shah. In the circumstance, we pass following order.

O R D E R

1) M.A.No.2210/2008 for condonation of delay is allowed. Delay is condoned subject to cost of Rs.500/- to be paid by the appellants to the respondent No.1 Society.



2) Appeal is allowed.



3) Impugned judgment and order passed by the Forum below is quashed and set aside subject to cost of Rs.2,000/- payable by appellants to the respondent No.1 Society.



4) Complaint No.174/2005 is remitted back to the District Forum for fresh disposal in accordance with law.



5) The Forum below shall permit the complainant society to make necessary amendment in the complaint to implead all the legal heirs of deceased Popatlal Shah.



6) M.A.No.2211/2008 which is for stay stands disposed of.



7) Inform the parties accordingly.





( Smt.S.P.Lale ) (P.N.Kashalkar )

Member Presiding Judicial Member