National Consumer Disputes Redressal
Neo Build Infrastructure Pvt. Ltd. & ... vs Sushil Ranjan Roy & Anr. on 2 November, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 58 OF 2020 (Against the Order dated 12/09/2019 in Appeal No. 41/2019 of the State Commission West Bengal) 1. NEO BUILD INFRASTRUCTURE PVT. LTD. & ANR. HAVING ITS REGISTERED OFFICE AT 1B, EVEREST 46C, CHOWRINGHEE ROAD, KOLKATA-700071 WEST BENGAL 2. USHA RANJAN SARKAR S/O. LATE KRISHNA KUMAR SARKAR, R/O. 55/3C, BALLYGUNGE CIRCULAR ROAD, KOLKATA-700019 WEST BENGAL ...........Petitioner(s) Versus 1. SUSHIL RANJAN ROY & ANR. S/O. LATE PARESH NATH ROY, R/O. FLAT NO. 1A, 1ST FLOOR, AIRPORT GARDEN, 548, MOTILAL COLONY,(PULIN AVENUE) 2-1/2 NO. AIRPORT GATE, P.S. DUMDUM KOLKATA-700081 DISTRICT-NORTH 24 PARGANAS WEST BENGAL 2. KRISHNA ROY W/O. SUSHIL RANJAN ROY, R/O. FLAT NO. 1A, 1ST FLOOR, AIRPORT GARDEN, 548, MOTILAL COLONY,(PULIN AVENUE) 2-1/2 NO. AIRPORT GATE, P.S. DUMDUM KOLKATA-700081 DISTRICT- NORTH 24 PARGANAS WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,MEMBER HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,MEMBER FOR THE PETITIONER : NEMO FOR THE RESPONDENT : MR. TARUN JYOTI BANERJEE, ADVOCATE Dated : 02 November 2023 ORDER
1. A conflict of view expressed by Benches of this Commission, one in FA/1156/2014 Amit Chawla Vs. Parsvnath Developers (decided on 20.11.2014), Harpal Arya Vs. Housing Board Haryana, II (2016) CPJ 36 (NC) and the other in FA/211/2011 Smita Roy Vs. Excel Construction (decided on 14.02.2012), RP/1915/2015 Dr. Gopal Vs. Deorao Ganpat Kaore (decided on 11.12.2015), RP/1942/2013 T.K.A. Padmanabhan Vs. Adhiyan CGHS Ltd. (decided on 04.01.2016), CC/1055/2015 Rasheed Ahmad Usmani Vs. DLF Ltd. (decided on 02.07.2019), has given rise to the following issue that has been referred for consideration by a larger Bench:-
"Whether an allottee of a residential flat/plot ceases to be a consumer of the builder/developer on taking possession of the flat/plot and/or execution of the conveyance deed of the said flat/plot in his favour without any protest or reservation?"
2. The words "consumer", "consumer complaint" "deficiency" and "service" as defined under Section 2 of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) are quoted below:-
"Section-2 (7)- "consumer" mean any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails such services for any commercial purpose;
Explanation.- For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning livelihood by means of self employment.
Section 2 (6):- "complaint" means any allegation in writing, made by a complainant for obtaining any relief provided by or under this Act, that--
an unfair contract or unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;
the goods bought by him or agreed to be bought by him suffer from one or more defects;
the services hired or availed of or agreed to be hired or availed of by him suffer from any deficiency;
(iv) a trader or a service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price--
(a) fixed by or under any law for the time being in force; or
(b) displayed on the goods or any package containing such goods; or
(c) displayed on the price list exhibited by him by or under any law for the time being in force; or
(d) agreed between the parties;
(v) the goods, which are hazardous to life and safety when used, are being offered for sale to the public--
(a) in contravention of standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;
(b) where the trader knows that the goods so offered are unsafe to the public;
(vi) the services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by a person who provides any service and who knows it to be injurious to life and safety;
(vii) a claim for product liability action lies against the product manufacturer, product seller or product service provider, as the case may be.
Section 2 (11): - "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes--
any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and deliberate withholding of relevant information by such person to the consumer."
"Section 2(1) (o):- "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
3. In the Consumer Protection Act, 2019, same definitions are given except the word "complaint", which has been expanded in new Act. In addition, Chapter VI Product Liability, has been added. In the context of "service", Section 85 is relevant, which is quoted below:-
"A product service provider shall be liable in a product liability action, if-- (a) the service provided by him was faulty or imperfect or deficient or inadequate in quality, nature or manner of performance which is required to be provided by or under any law for the time being in force, or pursuant to any contract or otherwise; or (b) there was an act of omission or commission or negligence or conscious withholding any information which caused harm; or (c) the service provider did not issue adequate instructions or warnings to prevent any harm; or (d) the service did not conform to express warranty or the terms and conditions of the contract."
4. The Supreme Court in Raja Druv Dev Chand Vs. Harmohinder Singh, AIR 1968 SC 1024, held that on execution of lease deed, auction is discharged. In Bhagwati Prasad Pawan Kumar Vs. Union of India (2006) 5 SCC 311, it was held that on execution of a discharge voucher, a claim is not maintainable. This proposition has been applied in the matters of insurance contract holding that on execution of discharge voucher as full and final satisfaction, the contract of insurance is discharged as held in National Insurance Company Limited Vs. M/s. Boghara Polyfab Private Limited, AIR 2009 SC 170.
5. The principle of estoppel by election i.e. between two inconsistent choices, intentional exercise of choice for one bars right to opt for the other, or the principle of approbate and reprobate has also been recognised in R.N. Gosain Vs. Yashpal Dhir, (1992) 4 SCC 683, M/s. Cauvery Coffee Vs. M/s. Hornor Resources (2011) 10 SCC 420 and State of Punjab Vs. Dhanjit Singh Sandhwa, (2014) 15 SCC 144.
6. The Supreme Court in Damodar Valley Corporation Vs. K.K. Kar, (1974) 1 SCC 141, Bharat Heavy Electrical Limited Vs. Amar Nath Bhan Prakash, (1982) 1 SCC 625, Jayesh Engineering Works Vs. New India Assurance Company Limited, (2000) 10 SCC 178 and R.L. Kalathia & Company Vs. State of Gujarat, (2011) 2 SCC 400, held that normally an accord and satisfaction by itself would not affect the arbitration clause for even when rights and obligations of the parties are worked out, the contract does not come to an end inter alia for the purpose of determination of a dispute arising thereunder and thus an arbitration agreement can be invoked.
7. Under the Consumer Protection Act, a consumer is authorised to make a complaint, in respect of an unfair contract or unfair trade practice, restrictive trade practice, defect in goods, deficiency in service, excess price taken, sale of hazardous good or providing hazardous service and product liability. Various remedies available under the Act can be availed after purchase of goods or availing services. The question arises as to what is the stage for examining as to whether, the option to execute a discharge voucher as full and final satisfaction or possession and sale was voluntary with a free will and choice or it was due to undue influence, misrepresentation or fraud or the product sold or service availed was free from any defect/deficiency. If a consumer complaint is dismissed at the threshold, relying upon such discharge voucher or possession and sale, holding that it is not maintainable, then if these issues are raised, will remain un-adjudicated. Execution of discharge voucher as full and final satisfaction or possession and sale being voluntary out of free will and choice may be a ground for defence, but on its basis it cannot be said that the consumer complaint is not maintainable. The absence of any expression of protest or of the reservation while taking possession before or after the conveyance or silence does not dissolve the remedy of the consumer fora or foreclose the rights of the purchaser of a residential flat or plot alleging deficiencies as per the agreement/representation or the deficiencies detected post purchase. Supreme Court in Wg, Cdr. Arifur Rehman Vs. DLF Southern Homes Private Limited, (2020) 16 SCC 512, held that execution of a sale deed during pendency of the complaint, does not affect the other rights/remedies claimed in the complaint. In Debashis Sinha Vs. R.N.R. Enterprises (2023) 3 SCC 195, it has been held that any deficiency detected post purchase, opens up an avenue for the aggrieved consumer to seek relief before the consumer fora.
8. In view of the aforesaid discussions, our answer is as follows:-
"An allottee of a residential flat/plot does not cease to be a consumer of the builder/developer on taking possession of the flat/plot and/or execution of the conveyance deed of the said flat/plot in his favour without any protest or reservation. In fact relation of consumer and trader/service provider comes into existence on purchase of the goods and availing service and the consumer can raise a consumer dispute either in respect of any deficiency as per original agreement or any deficiency detected post purchase."
List the revision before the Bench as per roster for hearing on 17.01.2024.
.........................J A. P. SAHI PRESIDENT ..................................................J RAM SURAT RAM MAURYA MEMBER ..................................................J KARUNA NAND BAJPAYEE MEMBER