State Consumer Disputes Redressal Commission
Debashis Goswami vs State Bank Of India And Another on 28 September, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Revision Petition No.34 of 2022
Date of institution : 11.05.2022
Reserved on : 21.09.2022
Date of decision : 28.09.2022
Debashis Goswami son of Rabindranath Goswami, resident of B-209,
Adesh University Campus, Bhucho Mandi, Barnala Road, Bathinda.
....Petitioner
Versus
1. State Bank of India, through its Manager Adesh Hospital Branch,
Bathinda.
.... Respondent No.1/Opposite Party
2. Monidipa Goswami aged about 49 years W/o Debashis Goswami,
resident of B-209, Barnala Road, Adesh Medical College Campus,
Bhucho Mandi, Bathinda.
..... Respondent No.2/Complainant
Revision Petition under Section 47(b) of the
Consumer Protection Act, 2019 against the
order dated 03.03.2022 passed by the
District Consumer Disputes Redressal
Commission, Bathinda.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Revision Petition No.34 of 2022 2 Present:-
For the petitioner : Sh. Ashish Grover, Advocate
For the respondents : None
JUSTICE DAYA CHAUDHARY, PRESIDENT
The petitioner Debashis Goswami has approached this Commission by way filing the present revision petition under Section 47
(b) of the Consumer Protection Act, 2019 (in short the "Act") to challenge the impugned order dated 03.03.2022 passed by the District Consumer Disputes Redressal Commission, Bathinda (in short, "the District Commission") in C.C. No.3/2021 whereby the application filed by the petitioner for impleading him as party in the complaint was dismissed.
2. Briefly, the facts of the case which are necessary for decision of the issue involved in the present revision petition are that respondent No.2 Monidipa Goswami filed a complaint before the District Commission against respondent No.1 State Bank of India under Section 35 of the Act with the prayer that the original sale deed No.353 dated 09.05.2011 and some other documents be returned and an amount of Rs.50,000/- towards mental tension alongwith litigation expenses to the tune of Rs.22,000/- be awarded.
3. Said complaint is still pending before the District Commission. However, during the pendency of said complaint an application was moved by the petitioner for impleading him as party in the complaint. Said application was opposed by the complainant respondent No.2 by filing Revision Petition No.34 of 2022 3 reply. Ultimately said application was dismissed by the District Commission vide order dated 03.03.2022 which is the subject matter of challenge in the present revision petition.
4. Mr. Ashish Grover, Advocate learned counsel for the petitioner submits that the order dated 03.03.2022 passed by the District Commission is contrary to law and evidence as the application was only for impleading the petitioner as OP No.2 in the complaint but the same was dismissed only on the ground that the complainant being dominus litis cannot be compelled to implead any party in her complaint against whom she does not claim any reliefs. Present of applicant is not necessary in order to enable this Commission effectually and completely to adjudicate upon and settle the issues involved in complaint. Moreover the applicant has also filed a civil suit against the complainant to this effect. Accordingly by considering the facts and circumstances of the case, application was dismissed. Learned counsel also submits that while passing the impugned order the District Commission has not taken into consideration the material facts that the petitioner was borrower of the loan amount and the loan amount was repaid jointly by the petitioner as well as the complainant. The petitioner was having right of being heard before return of the original sale deed and for that purpose also the petitioner was necessary party to be impleaded in the complaint. Learned counsel further submits that for return of original sale deed after clearance of the loan amount the documents were required to be returned. Even in the complaint it has been mentioned that for purchasing the property a joint Revision Petition No.34 of 2022 4 loan of Rs.8,00,000/- was taken from OP No.1 vide loan account and remaining amount of Rs.3,50,000/- was arranged through previous savings. It is not disputed that the plot was purchased with the share/funds of the petitioner and the sale seed was registered in favour of the complainant just to save the stamp duty. Learned counsel further submits that the petitioner has right in the said mortgage property and he would suffer irreparable loss in case the case is decided without impleading him as party or without giving any opportunity of hearing in the case. At the end, learned counsel submits that the District Commission while dismissing the application the District Commission has mentioned that the petitioner had filed a civil suit against the complainant with regard to claim made by her in the complaint. However the District Commission has overlooked this material fact that the civil suit was filed by the petitioner for mandatory injunction and it was filed prior to the present complaint and that too after having knowledge of this fact. The present complaint was the counter blast to the relief prayed by the petitioner in the said suit. The petitioner being necessary party for the reasons recorded in the application is required to be allowed but still the application has been dismissed which is contrary to the relevant provisions of C.P.C. as well as the settled proposition of law.
5. The revision was admitted on 16.05.2022 and notice was issued to the respondents for 06.07.2022. Respondents were served but none appeared on behalf of the respondents despite service. Revision Petition No.34 of 2022 5
6. We have heard the arguments raised by learned counsel for the petitioner and also have gone through the impugned order which is under challenge as well as contents of the application and other documents available on the file. We have also carefully perused the complaint filed before the District Commission by the complainant. Facts relating to filing of complaint thereafter moving of application for impleading the petitioner as a party and order dated 03.03.2022 passed in the complaint whereby the application for impleading party in the complaint was dismissed are not disputed. It is also not in dispute that the civil suit between the parties is still pending.
7. Admitted case of both the parties are that the complainant and petitioner are husband and wife and both decided to build a single story house and took housing loan of Rs.12,00,000/- for the purpose of construction vide housing loan account no.37241999911 from OP Bank.
8. The grievance of the petitioner is that the loan was taken jointly and the sale deed was registered in the name of complainant just to save stamp duty as well as the loan amount was also paid to the bank jointly as such he was entitled to receive the documents from the Bank after clearance of the loan amount.
9. It is necessary to mention here that there is no specific provision in the Act for impleading any person/party in the complaint/appeal during the pendency of the proceedings. However, in absence of such provisions in the Act, the provisions of C.P.C. would be applicable. The District Commission has dismissed the said application by Revision Petition No.34 of 2022 6 observing that complaint is dominus litis and the complainant cannot be compelled to implead any person in her complaint against whom she has not claimed any relief. The District Commission has passed the order on the basis of Order 1 Rule 10 of C.P.C.
10. Order 1 Rule 10 of the C.P.C. enables the Court to add any person as a party at any stage of the proceedings, if such person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate to settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10(2) of the C.P.C. gives wide discretion to the Court to deal with such situation which may result in prejudicing the interests of the affected party if not impleaded in the suit and where the impleadment of the said party is necessary and vital for the just decision of the suit/case.
11. It is pertinent to mention here that 1. Dominus Litis is the person to whom a suit belongs. It means he/she is master of a suit. Such person has real interest in the decision of a case. Such person will be affected by the decision in a case. Such person derives benefits if the judgment is in his/her favour, or suffers the consequences of an adverse decision. 2. A person can be Dominus Litis even if his/her name does not appear in the case proceedings as a petitioner or defendant.
12. In the present case the petitioner and complainant have jointly obtained the loan from the OP Bank and they jointly cleared the amount of loan. However OP Bank had not returned the original sale deed Revision Petition No.34 of 2022 7 and documents after clearance of loan amount. The complainant filed the complaint before the District Commission alleging 'deficiency in service' on the part of OP Bank and prayed for grant of compensation of Rs.50,000/- for causing mental tension and Rs.22,000/- towards litigation expenses with interest @12% p.a. and also to return original sale deed No.353 dated 09.05.2011 and other documents. In case the complaint is allowed by the District Commission by awarding compensation then in that situation the petitioner would be affected indirectly, as the property was purchased with joint funds and he had also paid the installments of loan amount jointly. However the District Commission has not taken into consideration this fact while dismissing the application.
13. The Hon'ble Supreme Court in judgment of case "Mumbai International Airport Pvt. Limited Vs. Regency Convention Centre & Hotels Pvt. Ltd. & Ors." Civil Appeal No.4900/2010, decided on 06.07.2010 has observed as under:-
"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 1 Rule 10(2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties."
14. The Hon'ble Supreme Court in another judgment of case "Baluram Vs. P. Chellathangam & others" Civil Appeal Nos.10940- Revision Petition No.34 of 2022 8 10941 of 2014, decided on 10.12.2014 has also held in paras 15 and 22 as under:-
"15. 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 dispute 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.
22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act Revision Petition No.34 of 2022 9 according to reason and fair play and not according to whims and caprice."
15. The Hon'ble Supreme Court in case "Ramesh Hiranand Kundanmal Vs. Municipal Corporation of Greater Bombay & others" 1992 SCC (2) 524 has held as under:-
"The power of the Court to add parties under Order I Rule 10, C.P.C, came up for consideration before this Court in Razia Begum (supra). In that case it was pointed out that the Courts in India have not treated the matter of addition of parties as raising any question of the initial jurisdiction of the Court and that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject-matter of the litigation whether it be the questions relating to movable or immovable property."
16. In the present case, the complainant has specifically mentioned in her complaint that her husband was also co-borrower in the loan. The mortgaged property was in the name of complainant herself but it was purchased from the joint funds as such the petitioner has direct interest in the subject matter, as the case pertains to clearance of loan amount and returning of documents. In the reply to the application the complainant has not raised any objection that the petitioner had not paid any amount to clear the loan amount.
17. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings. The Revision Petition No.34 of 2022 10 District Commission has overlooked all these facts as discussed above while dismissing the application.
18. In view of facts and the reasons as recorded above and also the ratio of judgments of Hon'ble Supreme Court above, there is merit in the contentions raised by learned counsel for the petitioner and we are of the considered view that the petitioner is a necessary party in the complaint. No prejudice would be caused to the parties if petitioner is impleaded as a party in the case. Accordingly, we allow the revision petition filed by the petitioner and the petitioner is held to be a proper/necessary party in the case as such the application filed by the petitioner before the District Commission for impleading him as opposite party No.2 in the complaint stands allowed and accordingly the impugned order dated 03.03.2022 is set aside. The District Commission is directed to implead petitioner Debashis Goswami as opposite party No.2 in the array of the parties and to proceed further.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER September 28, 2022.
(MM)