APPEARED AT THE TIME OF ARGUMENTS For LRs of Vinayak Purushottam Dube Mr. Adit S. Pujari, Advocate with Ms. Surabhi Dhar, Advocate For Jayashree Padmakar Bhat & Ors. Mr. Braj K. Mishra, Advocate with Mr. Vijay Kumar, Advocate PRONOUNCED ON: 2 May 2018 nd -1- ORDER PER DR. B.C. GUPTA, PRESIDING MEMBER The review applications R.A. No. 26/2017 and R.A. No. 27/2017 have been filed by the legal representatives of the opposite party (OP)/builder Vinayak Purushottam Dube under section 22 of the Consumer Protection Act, seeking review of the order dated 31.05.2016, passed by this Commission in Revision Petition No. 3283/2008 and Revision Petition No. 2794/2008, vide which the two revision petitions were disposed of by upholding the order passed by the State Commission dated 08.04.2008 with the modification that the complainant shall also be entitled to be given the amounts of Rs. 1.65 lakhs and Rs. 1.85 lakhs alongwith interest in accordance with the order passed by the District Forum dated 16.10.2006.

2. Brief facts of the case are that the complainants Jayashree Padmakar and others are owners of property bearing City survey no. Ward C, 1645/1 and 1645/2, Kolhapur and that they entered into an agreement dated 30.07.1996 with the review applicants/opposite parties, vide which they entrusted the right of development of the said property to the opposite parties, subject to certain conditions. It was agreed that a total built-up area of 5600 sq. ft. in the form of eight flats, which were to be constructed by the OPs on their property, was to be provided to them and in addition, a total sum of Rs. 6.50 lakhs was to be given to them. Following dispute between the parties about the non-payment of the amount in question and the construction having not been made as per the terms and conditions of the agreement, a consumer complaint was filed by the complainants against the OP builder, which was partly allowed by the District Forum and directions were given for payment of the balance amount of Rs. 5 lakhs to the complainants alongwith interest etc. Both the parties challenged the order of the District Forum before the State Commission by way of appeals, which were decided by the State Commission vide their order dated 08.04.2008, by which it was directed that completion certificate should be obtained and handed over to the complainants and the conveyance deed should also be executed in their favour. However, the d i r e c t i o n s t o p a y t h e a m o u n t s o f R s .

1.65 lakhs and Rs. 1.85 lakhs were set aside. Being aggrieved against the said order of the State Commission, both the parties challenged the same by way of Revision Petition No. 2794/2008 and Revision Petition No. 3283/2008, which were decided vide order dated 31.05.2016, which is the subject matter of the present review applications. The orders passed by the State Commission were modified vide order dated 31.05.2016, to say that the complainants shall also be entitled to be given the amounts of Rs. 1.65 lakhs and Rs. 1.85 lakhs alongwith interest in accordance with the orders passed by the District Forum. The review applications have been filed in both the revision petitions, seeking review of the said order dated 31.05.2016. The order dated 31.05.2016 was challenged by the review applicant/OP builder before the Honble Supreme Court of India by way of petition(s) for Special Leave to Appeal (C) CC No(s). 24515-24516/2016. The Honble Supreme Court passed the following order on 03.01.2017 in the said petitions:-

Delay condoned. We are not inclined to interfere with the view taken by the National Commission. Counsel for the petitioners contends that the National Commission has not dealt with the points raised by the petitioners on merits. It will be open to the petitioners to resort to remedy of review before the National Commission in this regard, if so advised. The Review Petition be decided in accordance with law. The Special Leave Petitions are disposed of accordingly.

3. The notices of the review applications were given to the complainants. The learned counsel for both the parties were heard in detail.

4. The learned counsel for the review applicant/OP builder has sought review of the order dated 31.05.2016 on various grounds including the limitation issue. The learned counsel argued that the consumer complaint had been filed beyond the period of limitation as prescribed under section 24A of theand hence, the complaint was liable to be dismissed, as it was not a case of continuing cause of action. The learned counsel further stated that there was a deed of declaration entered between the parties, as per which, the complainants had agreed that they had received the premises to their satisfaction. The learned counsel further referred to section 40 of the Indian Contract Act and section 52 of the Civil Procedure Code, 1908, saying that the liability of the o r i g i n a l developer could not be fastened on his legal representatives. The learned counsel further argued that the complainants in the present case did not fall under the category of consumers, because they were to be provided eight flats and some amount after the development of the property owned by them. In this way, it was more appropriate to call them co-sharers rather than consumers under the definition given in the Consumer Protection Act. The learned counsel has drawn attention to various clauses of the development agreement in support of his arguments. As per para 19(A) of the said agreement, it had been agreed between the parties that if any additional FSI is sanctioned or becomes available in respect of the said property within 24 months, the same shall be shared by the land-owners and the developer in the ratio 60:40. This provision showed that the complainants were just co-sharers in the property. In support of his arguments, the learned counsel has drawn attention to an order passed by the Honble Supreme Court in Faqir . The learned counsel Chand Gulati vs. Uppal Agencies Pvt. Ltd. & Anr., (2008) 10 SCC 345 further argued that the consumer fora had granted relief to the complainants which had not even been asked for by them in their prayer clause. The learned counsel has also pointed out certain clerical mistakes in the order under review, which needed to be rectified.

5. Per contra, the learned counsel for the respondents/complainants stated that a plain reading of the order dated 03.01.2017, passed by the Honble Supreme Court in the Special Leave Petition(s) 24515-24516/2016 indicated that the Honble Supreme Court had agreed with the view taken by the National Commission in the order under review dated 31.05.2016. The review applicants had, therefore, no right to raise issues, which had already attained finality in the case. The learned counsel stated that the issue of limitation had already been discussed in the order dated 31.05.2016 and it had been held that this was a case of continuing cause of action, because the amount liable to be paid by the OP builder in pursuance of the agreement entered between the parties, had not been paid. The review applicants had, therefore, no right to raise the limitation issue at this stage. The learned counsel further stated that the complainants did fall within the definition of consumer, as was made out from the orders passed by the Honble Supreme Court in and Faqir Chand Gulati vs. Uppal Agencies Pvt. Ltd. & Anr. (supra) Bunga Daniel Babu vs. , . Moreover, the review applicant was Sri Vasudeva Constructions & Ors. (2016) 8 SCC 429 not justified in taking the plea that the legal representatives of the deceased builder could not inherit their liabilities. The learned counsel further argued that in so far as the handing over of the completion certificate, the execution of the conveyance deed and building of compound wall are concerned, the said issues had not been challenged by the OP developer at the time of hearing before the National Commission. The review applicant had no justification to take up these issues by way of review applications.

6. In reply, the learned counsel for the review applicant stated that in their memo of revision petition before the National Commission, they had challenged all the directions given by the State Commission.

7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

8. In so far as the issue of limitation in filing the consumer complaint is concerned, the same has already been discussed in the order dated 31.05.2016, passed by this Commission. It has been concluded that the agreement between the parties has to be taken as a whole and hence, the payment of instalments of Rs. 1.65 lakhs and Rs. 1.85 lakhs was not barred by limitation and thus, there was continuing cause of action in the matter. The essence of the view taken in the order dated 31.05.2016 is that the OP developer were liable to discharge all their liabilities as per the agreement entered between the parties, including the handing over of the developed property in the shape of eight flats and the extra amounts liable to be paid. On consideration of the points raised in the review application as well as during arguments on the same, we are inclined to confirm our view that there was continuous cause of action available to the complainants to file the consumer complaint and hence, the consumer complaint is not barred under section 24A of the Consumer Protection Act, 1986.

9. The next major issue raised by the applicant says that the complainants do not fall within the definition of consumer under the Consumer Protection Act, 1986. The matter has already been discussed by the Honble Supreme Court in their judgments passed in Faqir Chand Gulati vs. and Uppal Agencies Pvt. Ltd. & Anr. (supra) Bunga Daniel Babu vs. Sri Vasudeva . It has been stated in the said orders that the land owner, who has Constructions & Ors. (supra) made available his premises to the developer for the purpose of re-development of the property, does fall under the definition of consumer. It has been stated by the Honble Supreme Court in as under:- Bunga Daniel Babu vs. Sri Vasudeva Constructions & Ors. (supra)

21. On a studied scrutiny of the aforesaid clauses, it is clear as day that the appellant is neither a partner nor a co-adventurer. He has no say or control over the construction. He does not participate in the business. He is only entitled to, as per the MoU, a certain constructed area. The extent of area, as has been held in Faqir Chand Gulati vs. Uppal Agencies (P) Ltd., (2008) 10 SCC 345 does not make a difference. Therefore, the irresistible conclusion is that the appellant is a consumer under the.

10. Given the facts and circumstances of the present case as well, it is evident that the complainants do fall under the definition of consumer as given in the Consumer Protection Act, 1986.

11. In so far as the ground of relief in excess of payment made by the complainant is concerned, the matter has been discussed in the order dated 31.05.2016, passed by this Commission, and it has been brought out that the relief made by the State Commission regarding the completion certificate, the execution of the conveyance deed etc. were very much as per the agreement between the parties. Moreover, it is a matter of natural course that when a portion of the developed premises is handed over by the OP developer to the complainants, it is the duty of the said developer to ensure that the completion certificate from the concerned authority is obtained and provided to the consumer/complainant. The execution of conveyance deed is also to be made in respect of the said premises and the developer cannot escape its liability. The plea made by the review applicants on this ground is also without any force.

12. Further, we have no reason to agree with the contention raised by the review applicant that after the death of the original owner, the legal representatives are not accountable for the liabilities under the agreement. In the eventuality of death of the developer, it cannot be stated that various clauses of the development agreement between the parties becomes redundant or the complainant is not entitled to seek execution of the provisions of the development agreement. Such execution has to be made by the legal heirs of the developer only.

13. In so far as the clerical errors pointed out by the learned counsel for the review applicants are concerned, the corrections are ordered to be made as follows:- a) in para 2 of the order dated 31.05.2016, the words in the opening sentence Vinayak Purushottam Dube and now his legal representatives shall be substituted by the words Jayashree Padmakar Bhat & Ors. b) in para 6 of the order, the word complainant shall be substituted by the word OP developer.

14. It is further stated that while passing their order dated 03.01.2017 in the Special Leave Petition(s), the Honble Supreme Court of India have stated categorically that they were not inclined to interfere with the view taken by this Commission. It is evident, therefore, that the orders passed by this Commission have already been confirmed by the Honble Supreme Court. As stated in the order of the Honble Apex Court, all the points raised by the OP builder in the review applications have been examined as stated above.

15. Both the review applications, therefore, stand disposed of alongwith the modification as stated in para 11 as above. ...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER