TAHERALI NAZIRALI SAIYED Vs. ALLABAKSH N SHAIKH

JUDGEMENT

(1.) The complainants have prayed for the allotment of the flats in Sahara Flats Scheme as originally registered and for which the complainants had paid money and/or other split units of the opposite parties' first published project viz. , "a1-Ahbab Apartments" etc. contending that the opposite parties 1 to 5, the partners of M/s. Sahara Land Corporation had floated the housing scheme viz. Sahara Apartments at Juhapura, Sarkhej Road, Ahmedabad which was registered as a Co-operative Society. Initially, the scheme was only one but subsequently it was divided into split projects in three stagewise parts viz. (1) Darul Ahbab, (2) A1-Ahbab and (3) A1-Sagar, all registered as cooperative societies on the same date 9.6.80. The complainants served notice to the opposite parties but the flats were not handed over but false promises were given. Ultimately, notices were served in December 1989 but, however, possession of the flats was not handed over and, therefore, the complaints were compelled to file the complaint. During the proceedings, some of the opposite parties agreed to hand over the possession of the flats to complainant Nos.1 and 2 but ultimately backed out. The complainants being tired of pursuing the matter in dealing with the opposite party ultimately stated in the evidence of Taherali Nazirali Saiyed that they are prepared to accept the flats and if the opposite parties may not be in a position to hand over the possession of the flats, then they are prepared to accept the deposit money given by them with 18% interest.

(2.) The Opposite Parties Nos.1, 3 and 4 A1 labaksh N. Shaikh, M. I. Mansuri and Amiruddin S. Shaikh by written reply (Ex.13) contended that they have no connection with M/s. Sahara Land Corporation either as partners or proprietors and, therefore, the complaint against them is not tenable. The Opposite Party No.5 Yasinmiya M. Saiyad on his behalf and also as the partner of Opposite Party No.6 M/s. Sahara Land Corporation contended that the joint application by all the complainants is not tenable and this Commission has no pecuniary jurisdiction and the complaint is barred by limitation. He admitted that Sahara Land Corporation is a partnership firm and the Opposite Party No.5 Yasinmiya M. Saiyad is the partner. After the evidence of Opposite Party No.4, Amiruddin S. Shaikh was recorded before this Commission Opposite Parties Nos.4 and 5 filed the written statement contending that the joint application by 4 complainants is not tenable and the application was filed in the Court of Board of Nominees and the complaint is barred by limitation. They also contended that Opposite Parties Nos.1, 2 and 3 are not the partners of Sahara Land Corporation. However, they admitted that the contents of Para 1 of the complaint upto i. e. regarding the partnership and of the Opposite Party No.6 and splitting into three co-op. societies. The other facts are also admitted which we will discuss at the later stage. They admitted that notices were served in June 86 but according to them they have replied to the notices. It is admitted that the complainants had paid Rs.60,800/- to them but contended that the complainants had not paid the instalments regularly.

(3.) It appears that the complainants are now tired in pursuing for the possession of the flats from the Opposite Parties and, therefore, they are willing to accept the amount deposited by them with 18% interest. The complainant No.1 Taherali Nazirali Saiyed stated that all the 4 complainants had booked the flats and the complainant No.1 Taherali paid Rs.18,000/-, complainant No.2 Smt. Sofia Munshi Saiyad paid Rs.13,300/-, complainant No.3 Liyakatali Mohmadsaidkhan paid Rs.14,500/- and complainant No.4 Smt. Nurunnisa Abdulkarim Maniar paid Rs.15,000/- and accordingly the amount of Rs.60,800/- was deposited by them from 1978 to 1991, the receipts of which are produced by them are on the record. The Opposite Parties have sold away the building No.4 and constructed tenaments and flats are constructed in blocks 5, 6 and 7. The Opposite Parties are not prepared to hand over the flats. If the flats in those blocks are prepared and then handed over, then the complainants are prepared to accept those flats and if the Opposite Parties may not be in a position to hand over the flats then the amount deposited with 18% interest may be given and they are prepared to accept that amount. In cross-examination they have stated that they have not received any letter from the Opposite Parties to take away money. The reply to the notice was received by them. In a pointed question as to whether he was prepared to accept flat No.7, he agreed but he stated that if the flat after complete construction is handed over then he is prepared to accept 4 but was not prepared to accept incomplete flats. He showed ignorance about the order of the f Board of Nominee to sell off the flats. The Opposite Party No.4 Amiruddin Shaikh admitted that the amount as stated by the complainant was deposited by all the 4 complainants and the receipts were issued which are produced by the complainants. He agreed that the compromise was entered into with complainant No.1 on 24.7.92 and as per the terms of the compromise the flat was to be purchased and was to be handed over but the Opposite Parties could not manage for the money and, therefore, that compromise is not now acceptable to him. He stated that the three buildings in which the flats are to be constructed are lying incomplete for want of money. According to him he himself and Opposite Party No.5 Yasinmiya are the partners and he denied that the reply dated 4.1.90 was given by him. He admitted that the partnership deed is executed by the parties but he had not brought it. He also agreed that in the last compromise the Opposite Party No.1 Allabaksh Shaikh had signed it. The Peoples' Co-op. Bank has filed the suit as building Nos.5, 6 and 7 are incomplete and the Board of Nominees has issued the stay order and the stay order can be vacated only if the amount is paid but they had no money.