SHEELA DEVI Vs. CONSOLIDATED CONSTRUCTION CO

JUDGEMENT

(1.) Mr. Divyankar Pratap Singh and late Ms. Chandra Prabha Devi of Kasmanda Estates were the owners of some land in the city of Lucknow. They entered into an agreement dated 29.12.1995 with M/s Consolidated Construction Company (hereinafter referred to as the builder) whereunder the builder was to construct a residential multi-storied complex on the afore-said land and the construction was to be shared between the owners and the builder in the ratio of 40% and 60% of the built-up area.

(2.) The builder executed an agreement dated 31.07.2002 with Sh. Manoj Tahalani for sale of two residential flats in the above-referred complex to him for a consideration of Rs. 18,16,000/-. As per the agreement flats No. 220 and 221 were to be sold to Mr. Manoj Tahalani and in case land owners wanted to retain these flats, flats No. 320 and 321 were to be made available to him. It is an admitted position before me that flats No. 220 and 221 were not available for being provided to Mr. Manoj Tahalani and the builders later on agreed to provide flat No. 320 B in place of flat No. 321 which had been taken over by fire department. As per the agreement dated 31.07.2002 payment of Rs. 4,50,000/- was made by Mr. Manoj Tahalani to the builders. The builder also admitted a payment of Rs. 3,36,000/- made on 01.10.2002. Some cash payments in addition to the above-referred payments are alleged by Mr. Manoj Tahalani to the builder, which have been disputed by the builder. The allotment in favour of Mr. Manoj Tahalani, however, is alleged to have been cancelled by the builder on 05.12.2003. This is also the case of the builder that after cancelling the allotment made to Manoj Tahalani, they entered into an agreement with Mrs. Prabha Singh on 06.02.2004 and had later delivered possession of flat No. 320-B to her.

(3.) A civil suit was instituted by Mr. Manoj Tahalani against the builder. That suit was dismissed on the ground that the appropriate relief to be claimed would be for seeking specific performance of the agreement. Mrs. Prabha Singh was not impleaded as a party even to the civil suit and instead of filing a fresh civil suit for specific performance of the agreement Mr. Manoj Tahalani filed a consumer complaint without impleading Mrs. Prabha Singh as a party to the consumer complaint. In the consumer complaint an application was filed by Mrs. Prabha Singh seeking impleadment on the ground that she was the allottee and was in possession of flat No. 320-B. That application was dismissed by the District Forum which later on allowed the consumer complaint in favour of Mr. Manoj Tahalani in respect of both the flats i.e. flats No. 320 and 320-B. Being aggrieved from the order passed by the District Forum, Mrs. Prabha Singh approached the concerned State Commission by way of an appeal. The owners and builder also challenged the order passed by the District Forum. Vide impugned order dated 25.02.2011 the State Commission set aside the order passed by the District Forum and directed possession of flat No. 320-B to be given to Mrs. Prabha Singh. The possession of flat No. 320 was directed to be given to the complainant Mr. Manoj Tahalani, as was directed by the District Forum. Being aggrieved from the order so passed by the State Commission the complainant Mr. Manoj Tahalani, the builder and the owner M/s Kasmanda Estates are before this Commission.