SHIVMUDRA CONSTRUCTIONS Vs. SHAM C. GAIKWAD

JUDGEMENT

(1.) This Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act"), is directed against the order dated 27.08.2010 passed by the State Consumer Disputes Redressal Commission, Maharashtra (for short the 'State Commission'), in Appeal No. 05 of 1952. By the impugned order, the State Commission has dismissed the Appeal, preferred by the Petitioner and concurred with the order of the District Consumer Forum, Kolhapur, which had allowed the Complaint, directing the Revision Petitioner herein to hand over possession of the subject flat or in the alternative refund the amount paid with interest, compensation and costs.

(2.) The brief facts as set out in the Complaint are that the Complainant had entered into an agreement for sale dated 30.5.1989 in respect of a flat in 'Divyaraj Laxmi Apartment', admeasuring 750 sq. ft. for a total consideration of Rs. 1,42,500/- and paid an amount of Rs. 1,28,000/- to M/s. Shivmudara Constructions and obtained an acknowledgment. The Complainant averred that he was serving in Maharashtra State Electricity Board and was transferred to different places and was constantly contacting the partners of M/s. Shivmudara Constructions, namely Shri Sambhajirao Tukaram Ghorpade and Shri Subhash Laxman Rao Sapale requesting them to give possession of the flat. Meanwhile, Shri Sambahjirao had expired and the other partner, at the relevant time, Shri Sapale avoided giving the possession of the subject flat. Thereafter Shri Saple had informed the Complainant that due to some financial problems he had sold the said flat and subsequently obtained a loan of Rs. 65,000/- from the Complainant promising him a flat on the newly constructed terrace. On 6.10.2002 the Complainant had seen an advertisement published in the daily 'Pudhari' Paper for sale of the flat on the terrace, promised to be given to him in lieu of the flat initially booked, and sent a registered notice to the second Opposite Party and other partners on 18.10.2002 seeking possession of the flat and repayment of the hand loan amount. In his reply to the notice, the second Opposite Party denied the very transaction. There was no reply from the third Opposite Party. Hence, the Complainant approached the District Forum seeking direction to the Opposite Parties to hand over possession of flat No. 1 or any other flat in 'Divya Raj Laxmi Apartment' or refund the amount with interest @21% per annum together with compensation and costs.

(3.) The first and second Opposite Parties filed their written versions denying the execution of the agreement and averred that Sambhajirao Ghorpade was never a partner of Shivmudra Constructions and that if any agreement had been executed by him, it is not binding on them. They pleaded that there was no privity of contract with the Complainant and therefore, the question of deficiency of service does not arise. They further pleaded that the complaint was barred by limitation as the said amount was alleged to have been paid in the year 1989 whereas the complaint was filed in the year 2002.