National Consumer Disputes Redressal
Taneja Developers And Infrastructure ... vs Devinder Singh on 26 September, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4899 OF 2012
(Against the Order dated 25/10/2012 in R.P. No. 64/2011
of the
Punjab State Consumer Disputes Redressal Commission, Chandigarh)
1. Taneja Developers and Infrastructure Ltd.
&
Ors.
Regd.
Office :9, Kasturba Gandhi Marg
New
Delhi-110001
...........Petitioner(s)
Versus
1. Devinder Singh
S/o Rai Singh, R/o House No.192
Sector-65
Phase
XI
Mohali
2. Prabhjot Singh
S/o Inder Pal Singh,
R/o
H. No.316
Sector-46A
Chandigarh
...........Respondent(s)
BEFORE:
HON'BLE
MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON'BLE
MR. SURESH CHANDRA, MEMBER
For the Petitioners : Mr. Joydip
Bhattacharya, Advocate
For the Respondents : Mr. Ajay Kumar,
Advocate
PRONOUNCED ON : 26th SEPTEMBER, 2013
ORDER
PER SURESH CHANDRA, MEMBER This revision petition is directed against the impugned order dated 25.10.2012 passed by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh in R.P. No.64 of 2011 whereby the State Commission dismissed the revision petition filed by the petitioners against the order dated 7.10.2011 vide which the District Consumer Disputes Redressal Forum, Mohali rejected the petitioners request for impleading one Prabhjot Singh S/o Inder Singh as opposite party in the pending consumer complaint filed by the respondent/complainant, Devinder Singh, before the District Forum. Thus vide its impugned order, the State Commission also rejected the request for impleading the said Prabhjot Singh as additional opposite party in the consumer complaint filed by the respondent against the petitioners before the District Forum.
2. Briefly stated, the facts of this case which are relevant for its disposal are that plot No.1185 measuring 250 sq.yds. in sectors 117-119, Mohali was purchased by one Chandrika Parsad on 17.6.2005 from the petitioners/opposite parties by paying Rs.3 lakhs. This plot was thereafter re-sold firstly to one Jatinder Singh and thereafter to aforesaid Prabhjot Singh from whom it was repurchased by the respondent/complainant. Before purchasing the plot from Prabhjot Singh, the complainant/respondent approached the petitioners who gave him statement of accounts dated 14.7.2010 in which it was shown that a balance amount of Rs.1,68,750/- was due in respect of the plot in question. This amount was deposited by the complainant with the OP Builders on 15.7.2010 for which he was issued a receipt. Thereafter on receipt of transfer fee of Rs.25,000/- vide receipt dated 15.7.2010, the petitioners/OP Builders transferred the plot in question in favour of the complainant vide transfer document dated 15.10.2010. Another due amount of Rs.1,62,500/- was demanded by the petitioners from the complainant vide their letter dated 3.3.2011 which the complainant could not pay due to financial difficulty and hence sought time for depositing it with interest. For non-payment of this amount, it is alleged that the OPs/petitioners vide their letter dated 20.6.2011 cancelled the allotment in favour of the complainant. The complainant, therefore, knocked the door of the District Forum by filing the consumer complaint in question seeking directions to the OPs/petitioners inter alia to withdraw the cancellation letter dated 20.6.2011.
3. During the pendency of the complaint against them in the District Forum, the petitioners filed an application dated29.9.2011 in which it was stated that in the statement of accounts given to the complainant by the petitioners, there is an entry showing credit of amount of Rs.6,87,500/- to the account of the Prabhjot Singh, predecessor in interest of the complainant which actually credited to the statement of accounts as a result of a clerical error in their office. It was stated by the petitioners in their application before the District Forum that Cheque No.189560 for Rs.6,87,500/- was received by the petitioners from one Ashish Bhalla qua plot No.1309 and was duly credited to the account of said Ashish Bhalla on 25.8.2008. In view of this, it was alleged by the petitioners that this amount was wrongly reflected to the credit of Prabhjot Singh in the statement of accounts supplied to the respondent although this amount was never paid by Prabhjot Singh and no receipt was ever issued by the petitioners to Prabhjot Singh qua this amount. It was, therefore, requested by the petitioners/opposite parties in their application that for proper and effective adjudication of the complaint, said Prabhjot Singh, be made a party. The complainant opposed this application by filing a reply thereto stating that for their right, if any, against the said Prabhjot Singh, the OP Builders should file a separate case against him (Prabhjot Singh). The District Forum after hearing the parties dismissed the application vide its order dated 7.10.2011. Aggrieved of this order, the petitioners challenged the same by filing revision petition before the State Commission which was dismissed by the State Commission by its impugned order which is now under challenge before us.
4. We have heard Shri Joydip Bhattacharya, Advocate for the petitioners and Shri Ajay Kumar, Advocate for the respondents.
Learned counsel for the petitioners has contended that the State Commission failed to appreciate the fact that the plot in question came to be transferred in the name of the complainant/respondent based on a wrong entry in the statement of accounts in favour of the said Prabhjot Singh. He submitted that since the complainant, while filing the complaint before the District Forum, has neither impleaded the said Prabhjot Singh as party/respondent nor produced any receipt against the instalment amount of Rs.6,87,500/-, it became necessary for the petitioners to make a request before the District Forum for making Prabhjot Singh as party/respondent for proper and effective adjudication of the case. Citing the judgement of Honble Supreme Court in the case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Ors. (Civil Appeal No.4900 of 2010 decided on 6.7.2010), learned counsel submitted that the State Commission has failed to appreciate the well settled principle of law that the court may implead a party in a lis on its impleadment application moved by either of the parties. He further submitted that the State Commission also failed to consider the provision of Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908 which is a substantive law wherein either party in the proceedings has the right to move an application for impleadment of a necessary party and while dismissing the revision petition the State Commission heavily relied on the principle of dominus litis while returning its finding which is in flagrant disregard to the specific provisions of Code of Civil Procedures. Keeping these aspects in view, learned counsel submitted that the impugned order cannot be sustained in the eye of law and hence liable to be set aside. He summed up by saying that no prejudice would be caused to the complainant/respondent if Prabhjot Singh is also impleaded as an opposite party in the complaint. Per contra, learned counsel for the respondent has submitted that the impugned order passed by the State Commission upholding the order of the District Forum is perfectly in order and has been passed after duly considering the provisions of law relied by learned counsel for the petitioners.
5. We have considered rival contentions and perused the record. The District Forum vide its detailed order has recorded the following reasons while rejecting the request of the petitioners to implead Prabhjot Singh as an opposite party:-
One cannot loose sight of the fact that the complainant is dominus litis. There is no dispute about the proposition of law that sound principles of the CPC are applicable to the proceedings before the Consumer Fora. However, the question is whether the complainant can be forced to implead an OP with which he has no dispute and who is not his service provider. The jurisdiction of the Consumer Fora is primarily and mainly to decide the disputes between the consumer and the seller or service provider and that too on a complaint which can be filed only by the consumer. The seller or service provider in respect of his rights against the consumer cannot approach the Consumer Fora by filing a complaint but has to seek his remedy elsewhere. In the present case, admittedly on the representation given by the OP in the statement of accounts Annexure C-3 to the effect that it had received an amount of Rs.6,87,500/- from Prabhjot Singh on 25.8.2008 and that at that time only a sum of Rs.1,62,500/- was due to it from Prabhjot Singh, it allowed the complainant to purchase the plot from Prabhjot Singh. Not only this, it also transferred the plot in favour of the complainant vide transfer certificate dated 15.7.2010 Annexure C-2 after receiving from him the then due amount of Rs.1,68,750/- vide receipt dated 15.7.2010 Annexure C-4. If Prabhjot Singh got the benefit of a wrong entry of credit to the tune of Rs.6,87,500/- from the OP, that should not be a ground to force the complainant to implead Prabhjot Singh in these proceedings because the complainant acted upon the representation of the OP. He was not privy to the circumstances leading to the credit of Rs.6,87,500/- in favour Prabhjot Singh. Remedy of the OP against Prabhjot Singh is by way of filing a suit for recovery against him or any other remedy under the law. By filing the present application the OP cannot be allowed to contrive to implead Prabhjot Singh and then to seek adjudication of its rights against Prabhjot Singh. Therefore, for the purpose of decision of this complaint, we do not find presence of Prabhjot Singh as necessary before this Forum. As such without prejudice to the rights of the parties on merits, the present application of the OP is dismissed. Nothing said in this order shall have any bearing on the decision of the complaint on merits.
6. Upholding the order of the District Forum rejecting the application of the petitioners, the State Commission has observed thus:-
8.
In proceedings under the Consumer Protection Act, the complaint would lie against the service provider. In the present case, the service provider is the petitioner and not Prabhjot Singh. In fact Devinder Singh is the successor in interest of Prabhjot Singh and not the service provider. Moreover Prabhjot Singh can be joined as a party only if there is any deficiency in service on his part. According to the complainant if there is no deficiency in service on his part and the complainant is not claiming any relief against him, Prabhjot Singh cannot be joined as a party. The Act rather punishes under section 26 joining such persons as a party if the complaint is frivolous against any of the O.Ps.
9. As regards the fact whether Prabhjot Singh deposited Rs. 6,87,500/- with the O.Ps or not, it can be decided even in the absence of Prabhjot Singh. At the most Prabhjot Singh can be a witness to the said transaction and it would be open to the O.Ps to produce him in the witness box if they so desire. In any case he cannot be considered to be a service provider for impleading him as O.P in this case.
10. Needless to mention that the complaint can be decided in the absence of Prabhjot Singh. Whether the District Forum comes to the conclusion that the Prabhjot Singh deposited such amount or not, the same no doubt would be binding on the complainant he being his successor in interest.
7. We agree with the view taken by the Fora below. The contentions raised by the learned counsel for the petitioners are fully covered by para 8 of the judgement of the Apex Court (supra) on which learned counsel has placed heavy reliance. However, in our considered view, it does not provide any comfort to the petitioners with reference to their request. In this context, it would be fair and just to reproduce the observations of the Apex Court made in para 8 as under:-
8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"Court may strike out or add parties.(2)
The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.
8. We may note that the discretion given to the Court under the provision of Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908 has to be exercised keeping in view the facts and circumstances of each case. Fora below have considered the request in the light of the facts and circumstances of the present case and have recorded reasons for rejecting the request of the petitioners. Bare perusal of the orders of the District Forum and the State Commission vide which they have returned their concurrent finding rejecting the request of the petitioners, leaves us in no doubt that the view taken by them is in line with the observations of the Apex Court. We, therefore, do not find any illegality, infirmity or jurisdictional error which would call for our interference with the impugned order while exercising our revisional jurisdiction under section 21 (b) of the consumer Protection Act, 1986. The revision petition, therefore, is dismissed and the impugned order of the State Commission is upheld. There shall be no separate order as to costs at this stage of the litigation.
Sd/-....
(AJIT BHARIHOKE, J.) PRESIDING MEMBER Sd/-.
(SURESH CHANDRA) MEMBER SS/