State Consumer Disputes Redressal Commission
Shri.Shrikant Ramesh Pande. vs Shri.Prakash Govindrao Mandore on 16 October, 2012
1 F.A. No. :12/243
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI.
CIRCUIT BENCH AT AURANGABAD.
First Appeal No. FA/12/243
(Arisen out of Order Dated 15/05/2012 in Case No. CC/376/2011 of District
Aurangabad)
1. Shri.Shrikant Ramesh Pande.
R/o.H.No.5-7- ...........Appellant(s)
24,Bhimpura,Osmanpura,Aurangabad.
Versus
1. Shri.Prakash Govindrao Mandore.
R/o.Plot No.8,Rushikesh,Rohini Nagar,Behind
Nawab Apartment,Sahakar Nagar,Aurangabad. ...........Respondent(s)
BEFORE:
HON'ABLE MR. B.A.SHAIKH PRESIDING MEMBER
HON'ABLE MR. K.B.GAWALI MEMBER
PRESENT:Shri.P.R.Adkine., Advocate for the Appellant 1
Adv.Shri.R.H.Jobanputra, Advocate for the Respondent 1
ORDER
Date : 16.10.2012.
Per Mr.K.B.Gawali, Hon`ble Member.
1. Appellant Shri.Shrikant S/o Ramesh Pande who is original complainant has filed the present appeal which is directed against the judgment and order dated 15.5.2012 passed by District Forum, Aurangabad in C.C.No.376/2011. Present respondent is original opponent, who is a builder.
2. Appellant/complainant`s case before the Forum in a nutshell is that, he had decided to purchase shop bearing No.C.R.7 admeasuring 201 sq.ft. on the first floor in "Deep Apartment" at Bhimpura(Osmanpura),Aurangabad developed by the respondent. It was 2 F.A. No. :12/243 contended by the appellant that total cost of the said shop was agreed at Rs.4,42,200/- and the respondent has also executed the agreement to that effect as on 12.12.2008. It was further contended that out of the total consideration of Rs.4,42,200/- he had paid Rs.2,42,200/- at the time of agreement and balance amount was to be paid at the time of execution of sale deed. It was further averred by the appellant that he requested to respondent from time to time to execute sale deed of the said shop and hand over the possession by accepting remaining amount of Rs.2 lakhs. However respondent avoided to execute sale deed as well as handing over the possession on one or other pretext. He therefore filed complaint before the Dist.Forum seeking direction to the respondent i.e. original opponent to hand over the possession of said shop and also to execute sale deed in his favour. In addition, it was also sought to pay him an amount of Rs.78,000/- as compensation towards financial loss due to delay in possession, Rs.50,000/- towards deficiency in service and unfair trade practice and also Rs.10,000/- as cost of the complaint.
3. Respondent appeared before the Forum and submitted his written version dated 28.2.2012 and denied in toto to have executed any such agreement in favour of appellant. He also submitted that he does not even know the appellant. It was further contended that appellant`s brother is an advocate namely Shri.S.R.Pande who was appointed by him in his matter relating to District Court, Revenue Authority etc. wherein he paid him Rs.2,50,000/- as the professional fees. However he had demanded Rs.5 lakh for his professional fees and hence there was dispute with him. He contended that out of the said dispute the appellant misused his signature made by him on the blank papers which the advocate brother of the appellant had obtained in connection with his above said litigated matters and prepared the said bogus agreement.
3 F.A. No. :12/243Respondent therefore flatly refused the execution of any such agreement and also sale of said shop as alleged by the appellant/complainant. It was also contended by the respondent that prayer made by the appellant in his complaint regarding execution of sale deed, the question of which is to be dealt with under the special statute and hence the Dist.Forum has no jurisdiction to decide such issue under the Consumer Protection Act. It was also averred by him that the complaint involves recording of evidence and hence proper forum for appellant/complainant was the Civil Court.
4. District Forum after the perusal of the record as well as hearing the parties has dismissed the complaint. Dist.Forum has observed that since the agreement to sale is denied by the respondent and there are allegations regarding misusing of sign on blank papers by the respondent it requires recording of detail evidence and hence has concluded that the Civil Court is the right and proper forum to decide the complaint.
5. Aggrieved by the said judgment and order the original complainant has filed this appeal.
6. We have finally heard the same on 12.9.2012.
Adv.Shri.P.R.Adkine was present for appellant whereas Adv.R.H.Jobpuntra was present for respondent. We heard both the counsels at length and appeal was reserved for judgment.
7. Adv.Shri.P.R.Adkine submitted that District Forum has failed to appreciate the present documentary evidence i.e. agreement to sale deed dated 12.12.2008 as executed by respondent in favour of appellant, affidavit given by stamp vendor from whom the stamp paper was 4 F.A. No. :12/243 purchased and also affidavit in the form of evidence given by the notary. He further submitted that on the basis of said evidence Dist.Forum instead of deciding the complaint has concluded that said complaint can not be decided under provision of Consumer Protection Act and the said complaint would be properly decided by the Civil Court. He therefore requested to quash and set aside the said judgment and order and grant relief as per original complaint by allowing appeal.
8. Whereas Adv.Shri.R.H.Jobanputra present for the respondent submitted that no agreement regarding shop of C.R.7 has been executed by the respondent and hence the question of execution of sale deed or handing over the possession of the same does not arise. He therefore contended that to prove the said agreement and also alleged the payment of amount of Rs.2,02,000/- etc. cannot be decided by way of summary proceeding under the 'Consumer Protection Act' and hence contended that District Forum has rightly passed the impugned judgment and order dismissing the complaint.
9. We have carefully gone through the papers as well as have considered the oral submissions as put forth by the learned counsels of both the parties. It is held by the Dist.Forum that to prove the authenticity of the dispute about agreement to sale deed as per Indian Evidence Act the right forum is the Civil Court and not the Consumer Forum. It is further held by Dist.Forum for the execution of sale deed of the said shop as per "agreement" the matter could be decided under Specific Relief Act through Civil Court. Thus by holding the complaint being not within the scope of Consumer Protection Act, the same came to be dismissed by way of it`s impugned judgment and order.
10. In fact the provisions under Section 13 of Consumer Protection Act 5 F.A. No. :12/243 1986 are quite sufficient to deal effectively with the consumer complaint. The provision U/s 13(2)(b) provide that if opposite party denies or dispute allegations contained in the complaint, Dist.Forum shall proceed to settle the consumer dispute-
(i) On the basis of evidence brought to its notice by the complainant and opposite party,
(ii) Ex parte on the basis of evidence brought to its notice by the complainant.
That, as per Section 13(4) the Dist.Forum is armed with the same power as are vested in the Civil Court under the Code of Civil Procedure 1908 in following matters.
(i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath,
(ii) The discovery and production of any document or other material object producible as evidence,
(iii) The reception of evidence on affidavits,
(iv) The requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source,
(v) Issuing of any commission for the examination of any witness, and
(vi) Any other matter which may be prescribed.
11. In addition to the effective dealing with the consumer complaint the provision of Consumer Protection Act as given U/s 13(3)(A) provides for efficacious and speedy disposal of consumer complaint.
6 F.A. No. :12/24312. In this respect we rely on judgment in "Dr.J.J.Meher and others - Vs- Shrinath Chaturvedi" , in which Hon`ble Supreme court in respect of the contention that complicated questions of fact cannot be decided in summary proceedings. It has expressed the view that the above said contention requires to be rejected for the reasons that for summary and speedy trial, exhaustive procedure in conformity of principle of natural justice is provided under Consumer Protection Act. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the complainant to approach the Civil Court.
13. Taking into consideration the above said provision of Consumer Protection Act and also the ratio as laid down by Hon`ble Apex Court, we are of the considered view that the Dist.Forum below has committed an error in dismissing the complaint on the point of jurisdiction and not deciding the same on the point of merit, considering the evidence placed on record by both the parties. We are therefore inclined to remand the case to Forum below for deciding the complaint afresh on merit. In the circumstances, we pass the following order.
O R D E R 1. Appeal is partly allowed.
2. The judgment and order passed by Dist.Forum is hereby quashed and set aside.
3. Complaint is remanded back to the Dist.Forum with the direction to hear the complaint afresh by giving proper opportunity to both the parties to adduce their evidence and dispose of the same as expeditiously as possible.
4. Both the parties are directed to appear before the Dist.Forum on 7 F.A. No. :12/243 26.11.2012.Till then both the parties shall maintain " status quo"
in respect of disputed shop.
5. No order as to cost.
6. Copies of the judgment be issued to both the parties.
Pronounced on 16.10.2012.
[HON'ABLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'ABLE MR. K.B.GAWALI] MEMBER Mane