State Consumer Disputes Redressal Commission
Smt. Lakshmi Roy vs Sri Chandi Charan Kar on 13 September, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/171/2016 (Arisen out of Order Dated 15/01/2016 in Case No. EA/82/2013 of District South 24 Parganas) 1. Smt. Lakshmi Roy W/o, Sri Sushil Kumar oy, D/73, Baghajatin Colony, P.S - Jadavpur, Kol - 700 032. ...........Appellant(s) Versus 1. Sri Chandi Charan Kar S/o, Gobindapada Kar, G/101, Gouranga Mandir Road, Kol - 700 086. 2. Smt. Sumana Kar W/o, Sri Chandi Charan Kar, G/101, Gouranga Mandir Road, Kol - 700 086. 3. Provasini Construction, A Proprietorship firm Rep. by its Proprietor Sr. Amalendu Bikash Dey 16, Ashok Road, P.S - Jadavpur, Kol - 700 084. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Md. Liakat Ali, Mr. Amit Ghosh, Advocate For the Respondent: Mr. Prasanta Banerjee, Advocate Mr. Prasanta Banerjee, Advocate Dated : 13 Sep 2016 Final Order / Judgement Date of filing - 01.03.2016 Date of hearing - 01.09.2016 Date of Order - 14.09.2016 PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
Challenge in this Appeal u/s 27A of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the order no. 23 dated 15.01.2016 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (for short, Ld. District Forum) in Execution Application no. 82/2013 arising out of CC/30/2011.
We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocate for the Appellant as well as Respondent nos. 1 & 2. Respondent no.3/developer did not contest.
Having heard the Ld. Advocates appearing for the contesting parties and on going through the materials on record it would reveal that the Respondent nos. 1 & 2 herein being Complainants initiated a consumer complaint under Section 12 of the Act being CC/30/2011 against the Appellant/landowner as well as Respondent no.3/Developer before the Ld. District Forum with an allegation for deficiency in services on the part of them in executing and registering the Deed of Conveyance in respect of a self-content flat measuring about 900 sq. ft. being Flat no.2A on the 2nd Floor at premises no.219, Baghajatin 'B' Block, P.S.- Jadavpur, Kolkata - 700032 within Ward no.102 of Kolkata Municipal Corporation. The said complaint was allowed ex-parte on 19.12.2012 by the Ld. District Forum with direction upon the developer as well as land owner to execute and register the Deed of Conveyance in respect of the subject flat.
Since the said order has not been complied with, the Complainant/Purchaser put the decree/order in execution being EA/82/2013. Meanwhile, an appeal has been preferred by the Appellant before this Commission challenging the order dated 19.12.2012 passed by the Ld. District Forum being FA/494/2013 and the said appeal was dismissed on 29.05.2014 as it was time barred. Challenging the said order, a revision petition was filed before the Hon'ble National Consumer Commission and the said revision petition was also dismissed on the ground of limitation. Therefore, the order passed by the Ld. District Forum in CC/30/2011 attained finality.
By the impugned order, the Ld. District Forum appointed an Advocate to execute and register the Deed of Conveyance and also directed the police to hand over the possession of the subject flat at the cost of the decree holder for execution of the order.
Ld. Advocate appearing for the Appellant/land owner has submitted that in order to develop the plot of land, she entered into a Development Agreement with Respondent no.3 on 22.02.2006. However, the developer has failed to construct the building within the stipulated period for which she instituted a civil suit before the Ld. Civil Judge (Junior Division) 1st Court at Alipore being T.S. no.3265/2009 and in that suit the Ld. District Judge, South 24 Parganas at Alipore by an order being Order no.37 dated 27.03.2015 passed an order directing the Respondent nos. 1 & 2 from taking possession of the property till the disposal of application of temporary injunction by the Ld. Trial Court and as such the order passed by the Ld. District Forum cannot be executed. In support of his contention, Ld. Advocate for the Appellant has placed reliance to several decisions reported in - 1) (2016) 3 WBLR (CPSC) 280 (Shri Amit Hait & Anr. - Vs. - Smt. Sarmistha Mukhopadhyay & Ors.); 2) the order of the National Consumer Commission dated 04.09.2014 in RP No.2858 of 2014 (M/s. Novous Abasan Pvt. Ltd. - Vs. - Dakshineswar Saptarshi Welfare Society & Anr.) and 3) also a decision of the Supreme Court dated 06.02.2003 in Appeal (Civil) 1058 of 2003 (Sarwan Kumar & Anr. - Vs.- Madan Lal Aggarwal).
Mr. Prasanta Banerjee, Ld. Advocate appearing for the Respondent nos. 1 & 2, on the other hand, has contended that since the order of the Ld. District Forum has attained finality, an Executing Court cannot go beyond its own order and it is an obligation on the part of the Executing Court to see that its order is being carried out in its letter and spirit. He has also submitted that the referred decisions have no manner of application in this case because by order no.37 dated 27.03.2015 in Misc. Appeal no.651/2009, the Ld. District Judge did not pass any order to restrain the Respondents from taking lawful possession of the property.
We have considered the rival contention of the parties. Admittedly, the order passed by the Ld. District Forum on 19.12.2012 in CC/30/2011 has attained finality and for enforcement of the said order, the impugned order has been passed and as such the Ld. District Forum sitting in an executing Court cannot go beyond its own order and it is incumbent upon the Ld. District Forum to implement the said order.
For proper appreciation of the matter, it would be proper to reproduce the relevant portion of the operative part of the order passed by the Ld. District Judge, South 24 Parganas at Alipore by order no.37 dated 27.03.2015 in Misc. Appeal no. 651/2009 which is as follows -
"The Respondent nos. 1 & 2 are directed by an order of ad-interim injunction to restrain themselves from taking forceful possession of the scheduled property or any part thereof till the disposal of application of temporary injunction by the learned Trial Court".
The decision referred by the Ld. Advocate for the Appellant in connection with the case of Shri Amit Hait & Anr. (Supra) has no application in our case because on that case, the proceeding of District Forum was stayed as there was an order passed by the Hon'ble High Court, Calcutta directing the parties to maintain status quo with regard to the construction of the building and the developer was restrained from raising any further construction in the said premises until further order. In the case of M/s. Novous Abasan Pvt. Ltd. (Supra) it has been held that if the civil suit as well as complaint, filed before the State Commission are allowed to proceed simultaneously, there is a likelihood of conflicting findings of facts being rendered by the aforesaid two Forums and as such the proceedings pending before the State Commission was being stayed. In the case of Sarwan Kumar & Anr. (Supra) the question came for determination before the Hon'ble Apex Court whether a decree for ejectment passed by a Civil Court qua a commercial tenancy in the state of Delhi before the declaration of law by the Supreme Court in Gian Devi Anand - Vs.- Jeevan kumar, 1985 Suppl. (1) SCR 1, that such a tenancy is heritable, is executable or the Judgement Debtors can successfully object to the execution of the decree on the ground that same was passed by a Court lacking inherent jurisdiction and therefore, in executable?
The question as to whether the pendency of a civil suit comes in the way of filing or continuance of a complaint before a Consumer Forum came for consideration of a Division Bench of Delhi High Court in Hindusthan Motors Ltd. - Vs. - Amardeep Singh Wirk & Ors. reported in III (2009) CPJ 417. In the aforesaid case, Respondent no.1 purchased a vehicle manufactured by the Appellant Hindusthan Motors Ltd. The Said vehicle met with an accident in which the brother of Respondent no.1, who was driving the vehicle, died. Alleging manufacturing defects in the vehicle, Respondent no.1 claimed compensation from the Appellant. The wife of the deceased filed a civil suit for damages, alleging negligence on the part of the Appellant. It was contended by the Appellant that since the issues involved were common in the civil suit as well as in the complaint, continuation of both the proceedings would have deleterious effect and could result in conflicting orders. The Hon'ble Single Judge took the view that the right created under the Act could not be curtailed on the ground of pendency of other proceedings and existence of parallel or other adjudicatory Forums could take away or exclude the jurisdiction created under the Consumer Protection Act. Being aggrieved from the order passed by the Hon'ble Single Judge, the Appellant company filed an appeal before the Division Bench of the High Court. Referring to the decision of the Hon'ble Supreme Court in Satpal Mohindra - Vs. - Surindera Timber Stores reported in (1999) 5 SCC 696, the Division Bench dismissed the appeal, holding inter alia as under:
"16. In the light of the judgements discussed hereinabove, there is no room for any doubt that proceedings under the Consumer Protection Act and a Civil Court can simultaneously go on, even if the issues involved in the two proceedings are substantially similar. The remedies are independent of each other. The existence of parallel or other adjudicatory Forums cannot take away or exclude the jurisdiction created under the Consumer Protection Act".
In another case, relying upon the decision of the Hon'ble Apex Court in Guru Granth Saheb Meerghat, Vanaras - Vs. - Ved Prakash & Ors. reported in (2013) 7 SCC 622, the National Consumer Commission by order dated 07.11.2014 in CC/383/2013 and other connected complaints has laid down as follows :
"We are, therefore, of the view that the trial in criminal cases against the Opposite Party, is no ground for stay of proceedings before the Consumer Fora. As a matter of fact, having regard to the object and intend of the Act, summary trial of Consumer Complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise on facts, at hand. Accordingly, the first preliminary objection fails".
We must not be obsessed with the object behind the legislation of the Act. The Act being a social beneficial legislation should receive a liberal construction. In Lucknow Development Authority - Vs. - M.K. Gupta, (1994) 1 SCC 243, it has been observed as under:-
"To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of interests of consumers. Use of the word 'protection' furnishes key to the minds of makers of the Act". It means and indicates that the legislature in its wisdom left the matter for consideration to a consumer to choose the Forum for his convenience and in any case, the proceeding before a Consumer Forum cannot be stayed simply on the reason is that one civil suit is pending. The trend of the decision of the Hon'ble Supreme Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other Forum as established under some enactment. The Hon'ble Apex Court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated".
It is well settled that the inter se dispute between the developer and the landowner cannot take away the right of a 'consumer' to protect his interest before a Consumer Forum. In the decision of the Hon'ble Supreme Court reported in 2008 (4) ICC 595 (Faqir Chand Gulati - Vs. - Uppal Agencies Pvt. Ltd. & Anr.) - it has been observed that where the developer commits breach of its obligation, the land owner has two options viz.- a) either to enforce a specific performance or b) claim damages by approaching the Civil Court. It clearly mandates that the right of a purchaser cannot be curtailed by a landowner without exercising the right prescribed by the Highest Court of Land. Moreover, the order of Civil Suit does not debar the Decree Holder to take lawful possession in the subject property.
Therefore, after giving due consideration to the submission advanced by the Ld. advocates of the parties and on going through materials on record, we do not find any reason to interfere with the order impugned. In other words, the impugned order does not suffer from any infirmity and as such it should be upheld.
Consequently, the appeal is dismissed on contest. Considering the facts and circumstances of the case, however, we do not make any order as to costs.
The Order no.23 dated 15.01.2016 passed by the Ld. District Forum in Ea/82/2013 arising out of CC/30/2011is hereby affirmed.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas, Alipore (now at Baruipur) for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER