State Consumer Disputes Redressal Commission
Smt. Lakshmi Roy vs Sri Achintya Kumar Kundu on 13 March, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/180/2016 (Arisen out of Order Dated 11/01/2016 in Case No. EA/155/2013 of District South 24 Parganas) 1. Smt. Lakshmi Roy W/o, Sri Sushil Kumar Roy, D/73, Baghajatin Colony, P.S - Jadavpur, Kol - 700 032. ...........Appellant(s) Versus 1. Sri Achintya Kumar Kundu S/o, Lt. Jasasekhar Kundu, SC/B - 12, Hijli High School, IIt Campus, P.O & P.S - Kharagpur, Pin - 721 302, Dist - Paschim Medinipur. 2. Provasini Construction, A Proprietorship fim rep. by its Proprietor Sr. Amalendu Bikash Dey 16, Ashok Road, P.S - Jadavpur, Kol - 700 084. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Amit Ghosh, Md. Liakat Ali, Advocate For the Respondent: Mr. Abhijeet Majumdar, Advocate Dated : 13 Mar 2018 Final Order / Judgement
Date of filing - 04.03.2016 Date of hearing - 22.02.2018 Challenge in this Appeal u/s 27A of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the Order No. 16 dated 11.01.2016 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (for short, Ld. District Forum) in Execution Application No. 155/2013 arising out of CC/164/2012.
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocate for the Appellant/landowner as well as Respondent No. 1/intending purchaser. None appears for Respondent No.2/developer to contest.
Having heard the Ld. Advocates appearing for the contesting parties and on going through the materials on record it would reveal that the Respondent No. 1 herein being Complainant initiated a consumer complaint under Section 12 of the Act being CC/164/2012 against the Appellant/landowner as well as Respondent No.2/Developer before the Ld. District Forum with an allegation for deficiency in services on the part of them in executing and registering the Deed of Conveyance in respect of a self-contained flat measuring about 950 sq. ft. being Flat no.1A on the 1st Floor at premises No.219, Baghajatin 'D' Block, P.S.- Jadavpur, Kolkata - 700032 within Ward No.102 of Kolkata Municipal Corporation. The said complaint was allowed ex-parte on 24.04.2013 by the Ld. District Forum with the direction upon the developer as well as land owner to execute and register the Deed of Conveyance in respect of the subject flat, to pay compensation of Rs.5,00,000/- etc. Since the said order has not been complied with, the Complainant/intending purchaser put the decree/order in execution being EA/155/2013. Meanwhile, an appeal has been preferred by the Appellant before this Commission challenging the order dated 24.04.2013 passed by the Ld. District Forum being FA/534/2013 and the said appeal was dismissed on 30.01.2015 on merit. Therefore, the order passed by the Ld. District Forum in CC/164/2012 being affirmed by this Commission in appeal has attained finality because no revision petition was preferred in the Hon'ble National Consumer Commission challenging the order passed by this Commission in the appeal.
By the impugned order, the Ld. District Forum issued WA against the landowner/J.Dr. and others for non-compliance of the judgement/final order fixing 04.03.2016 for E.R. Ld. Advocate appearing for the Appellant/landowner has submitted that in order to develop the plot of land, she entered into a Development Agreement with Respondent No.2 on 22.02.2006. However, the developer has failed to construct the building within the stipulated period for which she instituted a civil suit before the Ld. Civil Judge (Junior Division) 1st Court at Alipore being T.S. No.3265/2009 and the Ld. Civil Judge by Order No.35 dated 21.08.2017 decreed the suit ex-parte directing the defendants i.e. developer and their associates by an order of permanent injunction from taking forceful possession of the suit property or any part thereof and from causing change in the nature and character of the suit property in any manner whatsoever and as such the order passed by the Ld. District Forum cannot be executed. In support of his contention, Ld. Advocate for the Appellant has placed reliance to several decisions reported in - 1) (2016) 3 WBLR (CPSC) 280 (Shri Amit Hait & Anr. - Vs. - Smt. Sarmistha Mukhopadhyay & Ors.); 2) the order of the National Consumer Commission dated 04.09.2014 in RP No.2858 of 2014 (M/s. Novous Abasan Pvt. Ltd. - Vs. - Dakshineswar Saptarshi Welfare Society & Anr.) and 3) also a decision of the Supreme Court dated 06.02.2003 in Appeal (Civil) 1058 of 2003 (Sarwan Kumar & Anr. - Vs.- Madan Lal Aggarwal).
Mr. Prasanta Banerjee, Ld. Advocate appearing for the Respondent No. 1/Decree Holder, on the other hand, has contended that since the order of the Ld. District Forum has attained finality, an Executing Court cannot go beyond its own order and it is an obligation on the part of the Executing Court to see that its order is being carried out in its letter and spirit. He has also submitted that the referred decisions have no manner of application in this case because by Order No.35 dated 21.08.2017 in T.S. No.3265/2009, the Ld. Civil Judge did not pass any order to restrain the Respondent No.1 from taking lawful possession of the property and the said order is not binding upon respondent no.1 as respondent no.1 was not a party to that suit.
Admittedly, the order passed by the Ld. District Forum on 24.04.2013 in CC/164/2012 has attained finality and for enforcement of the said order, the impugned order has been passed and as such the Ld. District Forum sitting in an executing Court cannot go beyond its own order and it is incumbent upon the Ld. District Forum to implement the said order.
The decision referred by the Ld. Advocate for the Appellant in connection with the case of Shri Amit Hait & Anr. (Supra) has no application in our case because in that case, the proceeding of District Forum was stayed as there was an order passed by the Hon'ble High Court, Calcutta directing the parties to maintain status quo with regard to the construction of the building and the developer was restrained from raising any further construction in the said premises until further order. In the case of M/s. Novous Abasan Pvt. Ltd. (Supra) it has been held that if the civil suit as well as complaint filed before the State Commission are allowed to proceed simultaneously, there is a likelihood of conflicting findings of facts being rendered by the aforesaid two Forums and as such the proceedings pending before the State Commission was being stayed. In the case of Sarwan Kumar & Anr. (Supra) the question came for determination before the Hon'ble Apex Court whether a decree for ejectment passed by a Civil Court qua a commercial tenancy in the state of Delhi before the declaration of law by the Supreme Court in Gian Devi Anand - Vs.- Jeevan kumar, 1985 Suppl. (1) SCR 1, that such a tenancy is heritable, is executable or the Judgement Debtors can successfully object to the execution of the decree on the ground that same was passed by a Court lacking inherent jurisdiction and therefore, in executable?
The question as to whether the pendency of a civil suit comes in the way of filing or continuance of a complaint before a Consumer Forum came for consideration of a Division Bench of Delhi High Court in Hindusthan Motors Ltd. - Vs. - Amardeep Singh Wirk & Ors. reported in III (2009) CPJ 417. In the aforesaid case, Respondent no.1 purchased a vehicle manufactured by the Appellant Hindusthan Motors Ltd. The Said vehicle met with an accident in which the brother of Respondent no.1, who was driving the vehicle, died. Alleging manufacturing defects in the vehicle, Respondent no.1 claimed compensation from the Appellant. The wife of the deceased filed a civil suit for damages, alleging negligence on the part of the Appellant. It was contended by the Appellant that since the issues involved were common in the civil suit as well as in the complaint, continuation of both the proceedings would have deleterious effect and could result in conflicting orders. The Hon'ble Single Judge took the view that the right created under the Act could not be curtailed on the ground of pendency of other proceedings and existence of parallel or other adjudicatory Forums could take away or exclude the jurisdiction created under the Consumer Protection Act. Being aggrieved from the order passed by the Hon'ble Single Judge, the Appellant company filed an appeal before the Division Bench of the High Court. Referring to the decision of the Hon'ble Supreme Court in Satpal Mohindra - Vs. - Surindera Timber Stores reported in (1999) 5 SCC 696, the Division Bench dismissed the appeal, holding inter alia as under:
"16. In the light of the judgements discussed hereinabove, there is no room for any doubt that proceedings under the Consumer Protection Act and a Civil Court can simultaneously go on, even if the issues involved in the two proceedings are substantially similar. The remedies are independent of each other. The existence of parallel or other adjudicatory Forums cannot take away or exclude the jurisdiction created under the Consumer Protection Act".
In another case, relying upon the decision of the Hon'ble Apex Court in Guru Granth Saheb Meerghat, Vanaras - Vs. - Ved Prakash & Ors. reported in (2013) 7 SCC 622, the National Consumer Commission by order dated 07.11.2014 in CC/383/2013 and other connected complaints has laid down as follows :
"We are, therefore, of the view that the trial in criminal cases against the Opposite Party, is no ground for stay of proceedings before the Consumer Fora. As a matter of fact, having regard to the object and intend of the Act, summary trial of Consumer Complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise on facts, at hand. Accordingly, the first preliminary objection fails".
We must not be obsessed with the object behind the legislation of the Act. The Act being a social beneficial legislation should receive a liberal construction. In Lucknow Development Authority - Vs. - M.K. Gupta, (1994) 1 SCC 243, it has been observed as under:-
"To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of interests of consumers. Use of the word 'protection' furnishes key to the minds of makers of the Act". It means and indicates that the legislature in its wisdom left the matter for consideration to a consumer to choose the Forum for his convenience and in any case, the proceeding before a Consumer Forum cannot be stayed simply on the reason is that one civil suit is pending. The trend of the decision of the Hon'ble Supreme Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other Forum as established under some enactment. The Hon'ble Apex Court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated".
It is well settled that the inter se dispute between the developer and the landowner cannot take away the right of a 'consumer' to protect his interest before a Consumer Forum. In the decision of the Hon'ble Supreme Court reported in (2008) 10 SCC 435 (Faqir Chand Gulati - Vs. - Uppal Agencies Pvt. Ltd. & Anr.) - it has been observed that where the developer commits breach of its obligation, the land owner has two options viz.- a) either to enforce a specific performance or b) claim damages by approaching the Civil Court. It clearly mandates that the right of a purchaser cannot be curtailed by a landowner without exercising the right prescribed by the High Court of Land. Moreover, the order of Civil Suit does not debar the Decree Holder to take lawful possession in the subject property.
Therefore, after giving due consideration to the submission advanced by the Ld. advocates of the parties and on going through materials on record, I do not find any reason to interfere with the order impugned. In other words, the impugned order does not suffer from any infirmity and as such it should be upheld. However, the appellant/J.Dr. has gained a lot by keeping the appeal pending in this Commission for long two years without showing any courage to file revision petition in the Hon'ble National Commission challenging the findings of two concurrent Fora. The acts and conducts of the appellant is totally malafide and its only object was to harass a 'consumer' and further wastage of valuable public time and as such the appeal deserves dismissal with cost of Rs.20,000/- out of which Rs.10,000/- to be paid by the appellant to respondent no.1 and the balance amount of Rs.10,000/- to the State Consumer Welfare Fund.
Consequently, the appeal is dismissed on contest with cost of Rs.20,000/- out of which Rs.10,000/- to be paid by the appellant to respondent no.1 and the balance amount of Rs.10,000/- to the State Consumer Welfare Fund within two weeks from date.
The Order No.16 dated 11.01.2016 passed by the Ld. District Forum in EA/115/2013 arising out of CC/164/2012is hereby affirmed.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas, at Baruipur for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER