DHIRENDRA V SHETH Vs. ARVIND VASANTLAL SHETH

JUDGEMENT

(1.) This appeal is directed against the order dated 16.8.1999 of Consumer Disputes Redressal Commission Maharashtra State, Mumbai relegating the appellants/complainants to Civil Court for redressal of the dispute holding that it was a family dispute.

(2.) Respondent No. 1/opposite party No. 1 is the brother of appellant No. 1 while respondent No. 3/opposite party No. 3 is the wife of respondent No. 1. Respondent No. 4/opposite party No. 4 is the cousin of complainants who are inter se father and son. Appellants and respondent Nos. 3 and 4 entered into an agreement of sale dated 16.1.1988 with respondent No. 1 for purchase of entire ground floor premises with front open space in special building, Wing C situated at Gitanjali Nagar, Mumbai. Out of the sale consideration of Rs. 8 lakhs, amount of Rs. 4 lakhs was to be paid by way of earnest money. Remaining amount was to be paid on or before the date of possession. It was alleged that appellant No. 1 paid Rs. 1 lakh on 11.8.1988 while appellant No. 2 Rs. 1 lakh on 16.1.1988 to respondent No. 1. Since respondent Nos. 3 and 4 expressed their inability to pay the money of their share, sum of Rs. 2 lakhs was further paid by the appellants to respondent No. 1 on 22.4.1988. Though possession of the ground floor premises was to be given by the end of 1989 but respondent No. 1 postponed the handing over of possession on the ground that construction was under progress and completion certificate not obtained from respondent No. 5/opposite party No. 5. It was stated that in the month of August 1991, the respondent No. 1. approached the appellants stating that he required original documents of the said property for being produced before the appropriate authority. In good faith the appellants gave the original documents along with some blank papers duly signed by them to respondent No. 1. It was further alleged that appellants came across a brochure issued by respondent No. 2/opposite party No. 2 and therein the address mentioned was that of the said ground floor premises. Thereafter on visiting the premises, the appellants found one signboard of respondent No. 2 placed in the still premises. Appellants sent a notice dated 24.7.1997 by registered post to respondent No. 1 which was received back unserved. Copy of that notice was forwarded along with letter dated 1.9.1997 to respondent No. 1 by registered A.D. post as also under certificate of posting at his residential address. In the complaint, direction was sought to respondent No. 1 to hand over possession of the premises in question and also to pay compensation under several heads. Respondent Nos. 1, 3 and 4 contested the complaint by filing joint written version. Purchaser whom the premises in question was sold by respondent No. 1 for Rs. 25 lakhs on an application filed by appellant, was impleaded as respondent No. 6/opposite party No. 6. Respondent No. 6 also filed a separate written version. In the joint written version filed by respondent Nos. 1, 3 and 4, it was not denied that premises in question was jointly purchased by the appellants and respondent Nos. 3 and 4. It was stated that in April 1991, in the joint meeting of the entire family held in the presence of mother, as per wish of appellant No. 1, respondent No. 1 handed over his office at Bazargate Street and in return appellant No. 1 surrendered complete rights, title and interest in all the properties at Gitanjali Nagar standing in his name or in the name of his family members and he also agreed that he will extend his full cooperation for all necessary changes. In the writing dated 16.7.1991, appellant No. 1 gave authority to respondent No. 1 to deal with the premises in question. On basis of that authority, respondent No. 1 sold the premises in question in December 1992 for Rs. 8 lakhs. It was denied that any signed blank papers were given to respondent No. 1 as alleged. It was also alleged that as the appellants knew about the sale of the premises in question as early as in the year 1991-92, the complaint was barred by limitation. It was denied that respondent Nos. 3 and 4 surrendered their right in the premises in favour of appellants as alleged. It was claimed that the transaction complained of was in the nature of family arrangement and complaint was, thus, not maintainable. In the written version, respondent No. 6 alleged of having purchased the premises in question for valuable consideration.

(3.) As noticed above, in terms of impugned order the appellants have been relegated to Civil Court for redressal of their grievances on ground of controversy being a family dispute. It is settled law that it is only when the dispute arising for adjudication is such as would require recording at length evidence not permissible within the scope of summary inquiry, that a Forum may relegate the complainants to Civil Court [See CCI Chambers Cooperative Housing Society Ltd. v. Development Credit Bank Ltd., III (2003) CPJ 9 (SC)=V (2003) SLT 185=2003 CTJ 849 (SC), and Dr. J.J. Merchant and Others v. Srinath Chaturvedi, III (2002) CPJ 8 (SC)=IV (2002) SLT 714=2002 CTJ 757 (SC)]. On being confronted that appellants could not have been legally relegated to Civil Court on ground of controversy being a family dispute, the submission advanced by Shri Vijay Hansaria, Senior Advocate for respondent Nos. 1, 3 and 4 was that the remand of case is not called for in view of premises in question having been sold to respondent No. 6 and there being no prayer made in complaint for setting aside that sale and also complaint being barred by limitation. In our view, sale of premises in question to respondent No. 6 can be set aside only by a Civil Court. However, at the same time, the appellants may be compensated in terms of money for premises in question having been sold by respondent No. 1 to respondent No. 6 in violation of the said agreement of sale by a Consumer Forum. Plea of limitation has been taken with reference to knowledge to the appellants to the sale of premises as back as in the year 1991-92. Obviously, this plea has to be substantiated by adducing evidence by the respondents. In view of the ratio of said two decisions, the case deserves to be remanded to the State Commission for complaint being decided afresh.