Calcutta High Court (Appellete Side)
Sri Ranjit Kumar Chakraborty And ... vs Smt. Sandhya Modak And Others on 14 December, 2017
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S/L. 7.
December 14, 2017.
MNS.
C. O. No. 3357 of 2016
Sri Ranjit Kumar Chakraborty and another
Vs.
Smt. Sandhya Modak and others
Mr. Amal Krishan Saha,
Mr. Sankar Biswas
...for the petitioners.
Mr. Santanu Mukherjee
...for the opposite party no. 1.
Mr. Aniruddha Bhattacharya
...for the opposite party no. 3.
This revisional application is at the instance of a respondent in a complaint before
the District Consumer Disputes Redressal Forum, Barasat.
The gamut of the present dispute is that the present petitioners sold a property to the complainant/opposite party no. 1. Subsequently, the opposite party no. 1 allegedly discovered that there was a prior mortgage by which the vendors had encumbered the suit property. Consequently the complainant/ opposite party no. 1 suffered as a proceeding was undertaken by the bank before which the property was mortgaged. Ultimately steps were taken under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act and the property was even sold pursuant to the provisions of the said Act.
Being thus allegedly duped by the vendors/petitioners, the opposite party no. 1 lodged a complaint before the District Forum. Upon a challenge being taken by the present 2 petitioners as to maintainability of such complaint before the Consumer Forum, such challenge was turned down by the District Forum. Being thus aggrieved, the petitioners took out a revision before the State Consumer Disputes Redressal Commission in Revision Petition No. RP/139/2015, which was also dismissed, holding that the District Forum had jurisdiction to take up the matter.
The petitioners submit that since the opposite party no. 1 does not fall within the definition of "consumer" as defined in Section 2(1)(d) of the Consumer Protection Act, 1986, the District Forum had no jurisdiction to take up the matter at all. The petitioners cite a judgement reported at (2014) 14 Supreme Court Cases 773 (Ganeshlal Versus Shyam), where it was held that when the dispute is relating to a sale of an immovable property, such dispute does not come within the definition of "deficiency" as contemplated in Section 2(1)(g) of the Consumer Protection Act, 1986, and as such, the consumer forum had no jurisdiction to resolve such dispute.
In controverting such submissions of the petitioners, it is argued on behalf of the opposite party no. 1 that the consumer forum definitely had jurisdiction to take up the matter since the dispute in question falls squarely under the 1986 Act. In this context, the opposite party no. 1 cites a judgement reported at 2016(3) ICC 392 (Cal.) (Ravi Kant Srivastava Versus Ashok Kumar Chakraborty and Anr.). In the said reported decision, a co-ordinate Bench of this Court had held that this Court should not entertain an application under Article 227 of the Constitution of India against the order of State Commission in view of the dispute therein being in respect of installation and operation of a lift. Since such dispute related to a lift, it is the argument of the opposite party no. 1 that even disputes as to immovable property are covered by the Consumer Protection Act, 1986.
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It is submitted on behalf of the proforma opposite party no. 3 that since the property in dispute was already the subject matter of a proceeding under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, no Court and/or Consumer Forum could decide any dispute relating to such property. Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act is relied on in this context.
The proforma opposite party no. 3 also cites the server copy of a judgement rendered in the case of Yashwant G. Ghaisas & Ors. Vs. Bank of Maharashtra, where it was specifically held by the Supreme Court that the National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of Debts Recovery Tribunal. As such, it is submitted that on that score also the District Forum did not have any jurisdiction to take up the mater under the provisions of the Consumer Protection Act, 1986.
It is well-settled that where there is an equally efficacious alternative remedy, this Court does not generally exercise its superintending jurisdiction or power of review unless there is a gross jurisdictional error which is evident from the face of the impugned order. The restriction contemplated in such proposition, although a self-imposed one, is not an absolute fetter on the power of judicial review exercised by a Constitutional Court. This Court has ample jurisdiction to set aside the wrong committed by any order of a subordinate Court, Tribunal or judicial/quasi judicial Forum if the impugned order is wholly without jurisdiction.
In the present case, as is evident from the definition of "consumer" as given in Section 2(1)(d) of the Consumer Protection Act, 1986 itself, the parties to a sale of an 4 immovable property simpliciter cannot by any stretch of imagination be 0"consumer"s as contemplated in the 1986 Act.
The District Forum lacked inherent jurisdiction to take up the dispute even at the stage of its inception in view of the parties not falling within the definition of "consumer" and as such, the jurisdictional error in the orders impugned herein is evident on the face of such orders.
The judgement cited by the opposite party no. 1 was rendered in respect of certain alleged deficiency of services relating to providing for and upkeep of elevator services in respect of a building. In the said case of Ravi Kant Srivastava(supra), the developer had taken a stand that there was no deficiency in providing service, which was the entire ambit of such dispute. In such context, a co-ordinate Bench of this Court held that this Court ought not to entertain an application under Article 227 of the Constitution of India since an appeal lay before the National Commission. As such, it is evident that there was no question of any palpable jurisdictional error or inherent lack of jurisdiction, as is involved in the present case. The dispute to be adjudicated in the said referred decision fell squarely within the scope of the Consumer Protection Act, 1986, in which factual backdrop it was held by this Court that there ought not to be any interference under Article 227 of the Constitution of India. Such is not the case here. Hence, the ratio laid down in such judgment is not applicable to the present case at all.
On the contrary, the argument advanced by the petitioners as well as the pro-forma opposite party no. 3 are much more acceptable.
As discussed above, since the opposite party no. 1 does not satisfy the definition of a "consumer" within the contemplation of the 1986 Act, the consumer fora had no 5 jurisdiction even to entertain the dispute, let alone holding it to be maintainable and proceed with an adjudication of the same.
Even on the aspect of the bar contemplated in Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, the consumer fora did not have jurisdiction to take up the matter. Although the bar under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act refers to a Civil Court not having jurisdiction to entertain any suit or proceeding in respect of a matter which the Debts Recovery Tribunal or Appellate Tribunal is empowered to determine, where the complainant takes a dispute inherently civil in nature before the Consumer Forum, the bar to Civil Court can be deemed to apply even to a consumer forum. The present dispute, which was sought to be carried before the Consumer Forum, is purely of a civil nature. The claim in damages arising from a sale of an immovable property has to be urged before a Civil Court and not before a Consumer Forum.
In the result, C. O. No. 3357 of 2016 is allowed, thereby setting aside the orders of both the fora below and holding that Case No. CC/606/2014 of the District Consumer Dispute Redressal Forum at Barasat, District North - 24 Parganas, is not maintainable before the said forum. This order, however, will not preclude the opposite party no. 1 from agitating her grievance, which she took before Consumer Forum, before a regular civil court having jurisdiction to hear the matter. If such an action is taken out, the concerned Court will entertain and decide the matter in accordance with law without being prejudiced in any manner on the merits of such case in the light of the observations made herein. 6 There will be no order as to costs.
(Sabyasachi Bhattacharyya, J.)