State Consumer Disputes Redressal Commission
Smt. Sunita Chanda vs Arindam Mondal on 20 December, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/872/2016 (Arisen out of Order Dated 18/08/2016 in Case No. EA/77/2014 of District South 24 Parganas) 1. Smt. Sunita Chanda 35/24C, Purbachal Kalitala Road, Kolkata - 700 078. 2. Sanjay Biswas 334, Bangur Avenue, Block - A, Kolkata - 700 055. 3. Dibyendu Dutta 140/2, Swamiji Sarani, Kolkata - 700 048. 4. Biplab Majumdar 21/3, Purbachal Canal South Road, P.S. - Garfa, Kolkata - 700 078. 5. Khokan Chatterjee 127/1, Green Park, Jessore Road, Block- A, Kolkata - 700 055. ...........Appellant(s) Versus 1. Arindam Mondal S/o Rupnarayan Mondal, 24, Santoshpur Avenue, P.S. Kasba, Kolkata - 700 075. 2. Jayanta Kr. Biswas 20/3, New Santoshpur Main Road, P.S. Kasba, Kolkata - 700 075. 3. Gouranga Kar S/o Lt. Haripada Kar, 1A, Kedarnath Das Lane, P.S. Sinthi, Kolkata - 700 030. 4. Tarak Das 454, P. Majumdar Road, P.S. - Garfa, Kolkata - 700 078. 5. Arnab Das 454, P. Majumdar Road, P.S. - Garfa, Kolkata - 700 078. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. N.R. Mukherjee, Mr. Sourya Mukherjee, Advocate For the Respondent: S.S. Chowdhury, Advocate Dated : 20 Dec 2017 Final Order / Judgement
Date of Filing - 15.09.2016 Date of Hearing - 30.11.2017 The instant appeal under Section 27A of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Opposite Party Nos. 2(a) to 2(e) to assail the Order No.20 dated 18.08.2016 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (for short, Ld. District Forum) in Execution Application No. 77/2014 stems from Consumer Complaint No.77/2013. By the impugned order, the Application filed by the OP No.2 series/Judgement Debtor No.2 series being MA/145/2016 was rejected.
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
Having heard the Ld. Advocates for the Appellants and Respondent No.1 and on perusal of the materials on record, it would reveal that the respondent no.1 herein Sri Arindam Mondal lodged one complaint under Section 12 of the Act before the Ld. District Forum against the developer and the landowners on the allegation of deficiency in services on the part of them on 19.02.2013. The said complaint was allowed on contest against the developer/respondent nos. 2 to 4 but exparte against the appellants with the direction upon the opposite parties to execute and register the Deed of Conveyance in respect of the property as per terms of the Agreement within one month from date, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/-. Due to non-execution of the said order, EA/77/2014 has been filed and by the impugned order, the prayer of the J.Dr. Nos. 2(d)/appellant no.4 for challenging the jurisdiction of the Ld. District Forum was rejected. Being aggrieved, the opposite party nos.2(a) to 2(e) have come up in this Commission with the instant appeal.
Ld. Advocate for the appellants has submitted that the Ld. District Forum has passed an order directing the opposite parties to execute the Sale Deed but did not pass any order for delivery of possession and when the appellants have purchased the entire land of 8 cottahs together with 100 ft. more or less R.T. structure thereon and in possession of the same, the order is not an executable one. He has further submitted that the respondent no.1 has obtained the order by practising fraud upon the Ld. District Forum and as such the impugned order cannot be sustained in the eye of law and the order under challenge must be set aside. To fortify his submission, Ld. Advocate for the appellant has placed reliance to two decisions of Hon'ble Supreme Court reported in -(1) AIR 1972 SC 1371[Bhavan Vaja & Ors. - Vs. - Solanki Hanuji Khodaji Mansang & Anr.]; (2) AIR 2009 SC (Supp) 986 [Ganpatbhai Mahijibhai Solanki - Vs. - State of Gujarat & Ors.] and (3) a decision of Gujarat High Court reported in AIR 1993 Guj 168 [Marwadi Punamji Motiji - Vs. - Md. Siddique Musabhai Sk. & Ors.].
Per contra, Ld. Advocate for the respondent no.1 has urged that challenging the basic order passed in CC/77/2013 the appellant no.4 being one of the landowners preferred an appeal being FA/975/2014 and when the said appeal was dismissed being barred by limitation, the present appellants have no right to agitate the same by filing an execution appeal and as such the referred decisions will not be applicable in the instant case and the appeal should be dismissed.
After giving due consideration to the submission of the Ld. Advocate for the appellants as well as respondent no.1, it would reveal that on 10.02.2004 the respondent no.1 herein being an intending purchaser entered into an unregistered agreement for Sale with the original landowner Sri Ram Chandra Sharma as confirming party and the respondent no.2 as the developer. According to respondent no.1/complainant, he has paid the entire consideration amount of Rs.10,58,000/- by 20.02.2007 to purchase of a flat measuring about 1075 sq. ft. on the 2nd floor at Premises No.454, P Majumdar Road, P.S.- Kasba (now Garfa), Kolkata - 700078. Surprisingly enough, despite payment of entire consideration amount, the respondent no.1 was waited for long six years and ultimately only on 19.02.2013 he lodged the complaint before the Ld. District Forum. It is true on 15.10.2001 the landowner Ram Chandra Sharma entered into Development Agreement with the respondent no.2/developer for raising construction over the premises in question. However, by way of registered Deed of gift dated 21.08.2007 the said Ram Ch. Sharma bequeathed the entire land along with structure lying and situated at Premises No.454, P. Majumdar Road, P.S.- Kasba (now Garfa), Kolkata - 700078 in favour of his grand-son Sri Arnab Das i.e. respondent no.5 of this case. Subsequently, by way of a registered Deed of Conveyance dated 12.08.2009 the respondent no.5 Sri Arnab Das sold away the entire land along with structure thereon to the appellants on a valuable consideration of Rs.33,00,000/-.
Perhaps, finding precarious situation, the respondent no.1/complainant did not prefer any appeal under Section 15 of the Act for refusal of order of non-delivery of possession by the Ld. District Forum. It is well settled that a Consumer Forum constituted under the Act has no authority to cancel a registered Deed of Conveyance. Therefore, it can be safely be said that the order is not an executable one.
The appeal under Section 15 of the Act preferred by the landowner being FA/975/2014 was dismissed simply on technical ground on the point of limitation and no merits of the case was considered in the appeal. In this connection, it would be pertinent to record that the landowners preferred another appeal being A/1188/2014 against the judgement/final order dated 27.06.2014 made by the Ld. District Forum against another intending purchaser and the same was allowed. In fact, the Ld. District Forum has passed the basic order in a short circuited manner without assigning any reason whatsoever.
In the case of Bhavan Baja & Ors. (supra) the Hon'ble Supreme Court has observed that it is true that an executing Court cannot go behind the decree under execution but that does not mean that it has no duty to find out the true effect of that decree. For construing a decree, it can an in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. Therefore, it cannot be said in a exceptional circumstances, an executing Court has no scope to consider the merits of the case. In the instant case, it is quite apparent that the appellants are bonafide purchasers for value and they are in possession of the subject property. Since, a Consumer Forum is meant for determination of a dispute in a summary way for a limited purpose, it has hardly any scope to enter into disputed questions of facts. In other words, when no privity of contact exists between the respondent no.1/complainant/decree holder and the appellants/OP Nos. 2(a) to 2(e) i.e. the subsequent purchasers through a registered instrument, a consumer complaint does not stand. In view of the decision of the Hon'ble Supreme Court reported in AIR 1996 SC 2508 [Bharthi Knitting Company - Vs. - DHL Worldwide Express Courier Airfreight Ltd.], when there are disputed questions of fact and law are involved, the Ld. District Forum should have relegated the matter for determination by a competent Civil Court, keeping in view of the fact that it has got no jurisdiction to declare a registered Deed of Conveyance as void ab initio.
In such a situation, it can be safely said that the order has been passed by the Ld. District Forum was without jurisdiction and as such it is a nullity and it can be challenged even in an execution proceeding. In a decision reported in AIR 1954 SC 340 [Kiran Singh - Vs. - Chaman Paswan] and in another decision reported in AIR 1998 SC 1531 [ A.R. Antulay - Vs. - R.S. Nayak], the Hon'ble Supreme Court has observed that a decree passed by the Court without jurisdiction is nullity and its validity could be challenged whenever and wherever it is sought to be enforced or relied upon including the stage of execution proceedings. Therefore, when the Ld. District Forum has passed the order which has no inherent jurisdiction to make it, it can be objected to at the execution proceedings.
Considering all the above, the appeal is allowed on contest. However, there will be no order as to costs.
The impugned order is hereby set aside and the execution proceeding filed by the respondent no.1 being EA/77/2014 stands dismissed.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER