IMPORTANT POINT
Agreement for development of land comes within ambit of consumer dispute.

Vinay Kumar, Member—This appeal has been filed against the order of the Maharashtra State Consumer Disputes Redressal Commission in Complaint No.207 of 2003. The facts of the case, as seen from the record, are that there was an agreement between the Complainants on the one side and M/s. Virendra Tiwari and Chandershekhar Rane, on the other. In this agreement, executed on 26.11.1987, the first party i.e. the Toraskars, are described as the “vendors” and second party, M/s. Tiwari and Rane were described as “purchasers”. Under the agreement, the plot in question was to be transferred to the purchasers free from all encumbrances for a price of Rs.1 lakh to be paid in the manner detailed in the agreement. The agreement also required the purchasers to provide the vendors free of cost three flats and a shop to be built on the site. All approvals required for the construction, as well as occupation certificate on completion, were required to be obtained by the purchasers. The agreement required the vendors to deliver all title deeds to the purchasers and to assist the purchasers in obtaining no objection certification from the competent authorities.

2. The builders (purchasers in the above mentioned agreement) took possession of the property and assigned the development rights to their sister concern M/s. Krishna Developers. The latter, in turn assigned the development rights in favour of the OP/Shreeji Builders. The three flats were not delivered to the original Complainants as per the agreement and hence, the consumer complaint.

3. The State Commission examined the contents of the agreement of 26.11.1987 in detail and came to the conclusion that the Complainants cannot be said to be “consumer” within the meaning of Section 2 (1) (d) of Consumer Protection Act, 1986. It also held that the agreement between the parties is a fully commercial joint venture agreement with no element of hiring of service. The collaboration between the two parties required land to be provided by the Complainants for being commercially developed by the other party, at his own costs and investment. The State Commission held that there was no hiring of service involved in this transaction and accordingly dismissed the complaint. The Commission also reserved the liberty to the complainants to approach the proper Court for relief.

4. Aggrieved by the above decision of the State Commission, the Complainants have filed the present appeal. The delay of 22 days in filing the same has been condoned, considering the explanation for the delay tendered by the appellants. At one stage, the appeal had been dismissed in default, but was subsequently restored on 17.1.2007. The respondent/OP has remained unrepresented. On one occasion, the notice sent to the respondent/OP had come back with postal endorsement “not known” and on another with “refused”. Notices were eventually served on the respondent in February 2011 and January 2012 but he remained unrepresented. The respondent was therefore, declared ex-parte by this Commission on 3.1.2012. Similarly, we find from the proceedings of the State Commission that the respondent/OP had not filed their written response and had to be considered ex-parte by the State Commission as well.

5. We have perused the records and heard Shri Anand Patwardhan, Advocate for the appellants/Complainants. Learned counsel argued that it is not the case of a joint venture for commercial purpose and that it is a case where the consideration to the vendor for the concerned plot of land was to come in kind i.e. in the form of three flats and a shop.

6. The case of the Complainant as seen from the Complaint petition filed before the State Commission was that subsequent to the agreement of 27.11.1991 between the OP and the Complainant the terms and conditions of all the previous agreements bind the OP. The OP was accordingly required to provide to the Complainants three residential flats on the second floor of the building and one shop for runnin