Here is a case where complainant claims for a flat in Lieu of services rendered to the builder by his late father who was an advocate by profession
Builder refuses to accept the claim for non-payment against the flat and also refuses to have any privity of contract with the complainant
Case Law : Madhavi Prabhakar Karandikar (Now … vs M/S. Vinita Builders (NC)
Decided on 4 January, 2024
Dr Prem Lata
Facts of the case:
Prabhakar M. Hegde, father of the complainant was an Advocate by profession who has extended his services to the opposite party/builder. In consideration of his services as an Advocate for about 8 years in acquiring the project land, the builder has agreed to sell and transfer a flat of Rs.865800/- in his name. After the death of complainant’s father, the builder agreed to transfer the flat in the name of the complainant and her mother.
Therefore, an agreement dated 09.12.2002 was executed between the builder and the complainant & her mother in respect of flat No.2 measuring 444.91 sq. ft., 2nd Floor, “Vinita Apartment” S. No.24P and 25/3 corresponding CTS No.33, Tika No.21, Village Naupada, Thane. Since mother of the complainant also expired and there being no other legal heirs, the complainant became the sole owner of the flats in question.
As per agreement, possession of the flat was to be handed over by 30.09.2003, failing which the builder would pay compensation of Rs.5000/- per day for the period of delay.
Instead of handing over possession to the complainant, the builder illegally inducted opposite party-4 into the flat
complainant filed the consumer complaint on 17.04.2012.against OP no 1 to 4 and later made OP No 5 to 7 also parties
Opposite Party-1 (builder) was a partnership firm and carrying on business of construction in district Thane. Opposite parties 2 & 3 were partners of opposite party-1. Opposite party-4 is a trespasser who has illegally occupied the flat allotted to the complainant. Opposite parties-5 to 7 were also partners of opposite party-1 and have been impleaded later on.
Reply by OP’S
Opposite party-2 filed his written reply stating that his brother Mr. Satish Narayan Joshi was the partner of M/s Vinita Builders. After the death of his brother, the complainant has impleaded opposite party-2 being the legal heir. He was neither partner of Vinita Builders nor related to its affairs in any manner.
Opposite party-3 filed his separate written reply stating that he is not the partner of M/s Vinita Builders nor connected with the controversy in question.
Opposite party-4 replied stating that he is a bona fide purchaser of the flat in question on 30.09.2003 by paying the consideration amount of Rs.4218000.
Opposite party-5 replied stating that she was a sleeping partner of M/s Vinita Builders and she retired on 31.03.2011. She is not involved in its affairs
Opposite parties- 6 & 7 who are brothers filed their joint written reply stating that though they are looking after the affairs of M/s Vinita Builders but they are not partners thereof.
Observation and Order by the National Commission :
- On the Issue of consideration for the flat agreement dated 09.12.2002 duly signed between the builder/OP No 1 and complainant reads as hereunder-
“AND WHEREAS in consideration of professional services rendered by late Adv. Shri Prabhakar M. Hegde for the last about 8 years in acquiring the land, the builder has agreed to sell, transfer, assign & convey flats worth of Rs.865800/- [Rs. EIGHT LAKHS SIXTY-FIVE THOUSAND EIGHT HUNDRED ONLY] which are more particularly mentioned in Schedule II hereinafter referred to as the said flats to the purchaser.
That the builder hereby assigns, transfer and convey the said flats bearing No.2 admeasuring about carpet area 444.91 on the second floor in the building to be constructed on the said property in favour of the purchase.”
Above agreement is very specific about the consideration. Therefore, the opposite parties are liable to handover the flat as per agreement to the complainant.
- It is admitted case of the parties that the flat is not available as builder has sold the above flat to opposite party-4. In these circumstances the opposite parties are liable to handover another identical flat of the same dimension in the same locality. As per agreement, possession of the flat was to be handed over by 30.09.2003. The opposite parties are also liable to pay delay compensation to the complainant
- As far as question of pecuniary jurisdiction is concerned, Supreme Court in Sujir Keshav Nayak vs. Sujit Ganesh Nayak(1992) 1 SCC 731 held that in the suit filed before the Court of unlimited pecuniary jurisdiction, valuation disclosed by the plaintiff has to be normally accepted unless the valuation of the suit was arbitrary.
- Regarding limitation, as the opposite parties have failed to handover possession of the flat, the cause of action is still continuing and the complaint is within limitation period.
National commission held –
- Services rendered as an advocate by the late father of complainant constitute consideration for the flat
- Since flat has already been sold circumstances, the opposite parties are liable to handover another identical flat of the same dimension in the same locality.
- Case not barred by limitation as cause of action continues since flat has not been given as per agreement
- Regarding Pecuniary jurisdiction, unlimited pecuniary jurisdiction, valuation disclosed by the plaintiff has to be normally accepted unless the valuation of the suit was arbitrary.
Dr Prem Lata
