State Consumer Disputes Redressal Commission
K. Jaipal Reddy S/O. Ramchandra Reddy ... vs Dr. T. Nagaraju S/O. T. Ramdas, Aged Not ... on 3 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. FA/65/2014 (Arisen out of Order Dated 15/01/2014 in Case No. CC/1113/2011 of District Hyderabad-III) 1. K. Jaipal Reddy S/o. Ramchandra Reddy Aged about 68 Years, Occ: Retired Employee, R/o. Kondapur (V), Ghatkesar Mandal, Rangareddy District. ...........Appellant(s) Versus 1. Dr. T. Nagaraju S/o. T. Ramdas, Aged Not known to the appellant, Occ: Professor R/o. Plot No.57, Lalithanagar Colony, Hyderabad. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 03 Feb 2017 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD FA NO.65 OF 2014 AGAINST CC NO.1113 OF 2011 ON THE FILE OF DISTRICT FORUM-III, HYDERABAD Between: K.Jaipal Reddy S/o Ramchandra Reddy, Aged about 68 years, Occ: Retired employee, R/o Kondapur village, Ghatkesar Mandal, Rangareddy district. ...Appellant/Opposite party And Dr.T.Nagaraju S/o T.Ramdas, aged: not known to the 62 years, Occ: Professor, R/o Plot No.57, Lalithanagar Colony, Adikmet, Hyderabad. ...Respondent/Complainant Counsel for the Appellant : Sri Kotha Janardhan Reddy Counsel for the Respondent : Sri M.Venkata Rayudu Coram : Hon'ble Sri Justice B.N.Rao Nalla ... President and Sri Patil Vithal Rao ... Member
Friday, the Third day of February Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is an appeal filed by the Opposite party aggrieved by the orders of District Consumer Forum-III, Hyderabad dated 15.01.2014 made in CC No.1113/2011 in allowing the complaint and directing the Opposite party to refund a sum of Rs.4,50,000/-, Rs.50,000/- towards compensation and Rs.2,000/- towards costs within a period of one month and on failure, to pay interest @ 9% p.a. from 01.03.2014 till realization.
2) For the sake of convenience, the parties are referred to as arrayed in the complaint.
3) The case of the complainant, in brief, is that he is a Professor in Zoology Department, Osmania University, Hyderabad. In April, 1989 the Opposite party visited his house and represented that he is engaged in selling residential plots in Kondapur village and its neighbourhood and that the plots had potential value in the market. Accordingly, persuaded the Complainant to agree to purchase the plot even through his two GPAs viz., G.Maruthi and P.V.Ramana and received the sale consideration of Rs.2,200/- and got executed the sale deed through said general power of attorney holders at the office of Sub-Registrar, Uppal on 17.05.1989. Even they delivered the vacant and peaceful possession of the plot to the complainant on the same day.
4) In as much as there were no houses in the vicinity of the plot. In the last week of June 2011 when the Complainant visited the locality, to his shock and surprise, a college building has come-up in his plot and the surrounding plots. On enquiry, he learnt that the Opposite party sold the plot in question to the college authorities by suppressing the prior sale to the complainant. He also learnt that there is no lay-out to the plot in question. On protest as to the illegal and fraudulent acts of the Opposite party, he promised to refund the present market value of Rs.5,00,000/- but in vain.
5) Left with no other option, complainant got issued a notice dated 27.07.2011, to which, got issued a reply on 07.09.2011 with absolutely false allegations that he never sold the plot to the Complainant and nor executed the sale deed dated 17.05.1989. These acts of the opposite party tantamount to gross deficiency in rendering service to complainant and unfair trade practice. The opposite party had played colossal fraud on the complainant by selling the plot to third party to make unlawful gain. Hence the complaint with a prayer to allow the complaint and direct the Opposite party to pay Rs.5,00,000/- towards the present cost of the plot in question; to pay compensation of Rs.50,000/- and costs of the complaint.
6) The Opposite party resisted the claim by way of written version denying his visit to the house of complainant in April 1989 twice and representing to have engaged himself in selling residential plots in Kondapur village and its neighbourhood. He also denied to have persuaded the Complainant to purchase the plot through his two GPAs viz., G.Maruthi and P.V.Ramana for a consideration of Rs.2,200/-. Only for the first time, he was aware of the complainant when he received the notice and prior to it, he has no intimacy. In fact, he executed a GPA in favour of K.Maruthi and P.V.Ramana in respect of land to the extent of Ac.2-00 guntas in Sy.No.244 of Kondapur village and the said GPA holders, without converting the land as residential plots, without obtaining the sanctioned lay-out have created false and fictitious documents in favour of third parties and as on date, there are no plots existing on the site.
7) As a matter of fact, Opposite party is the absolute owner of land measuring Ac.7-08 guntas in Sy.No.244 has executed a sale deed in favour of Vincent Educational Society, who in turn have constructed a college building and running their college and as such, there no plots existing at the site. It appears, in collusion with Murthy and another, complainant appears to have created the sale deed dated 17.05.1989 and the Opposite party is no way concerned with the same. Hence, question of playing fraud as also the promise to refund the present market value does not arise at all. The present market value of land within the vicinity of Kondapur is Rs.5 to 10 lakhs per acre. The forum has no jurisdiction and there is no deficiency of service or consumer relationship between the complainant and Opposite party. Even otherwise, the complaint is bad for non-joinder of necessary parties. However, the complaint is barred by limitation. Even otherwise, in the GPA executed by him, Opposite party had not authorized to convert the agricultural land into residential plots and to execute the sale deed in favour of the purchasers. Hence, prayed to dismiss the complaint with costs.
8) During the course of enquiry before the District Forum, in order to prove his case, the Complainant filed his evidence affidavit and the documents Exs.A1 to A32 and on behalf of the Opposite party, got filed his evidence affidavit and the documents Ex.B1 to Ex.B10.
9) The District Forum after considering the material available on record, allowed the complaint bearing CC No.1113/2011 by orders dated 15.01.2014 granting the reliefs, as stated in paragraph No.1, supra.
10) Aggrieved by the above orders, the Appellant/Opposite party preferred the above appeal contending that the forum below (a) erroneously passed orders without giving any finding whether complainant is a 'consumer' as defined under the Act; (b) failed to see that the dispute in respect of title and possession of a plot do not fall within the ambit of Consumer Protection Act; (c) failed to consider that the complaint is hopelessly barred by limitation; (d) erred in ordering refund of Rs.4,50,000/- and Rs.50,000/- towards compensation against the settled tenets of law; (e) failed to see that the Appellant resides at Kondapur village, the registration took place at the office of Sub-Registrar, Uppal and the property is located at Kondapur village, hence, it ought not to have entertained the complaint as it has no territorial jurisdiction. The orders passed without jurisdiction is nullity under law. Hence, prayed to allow the appeal by setting aside the orders, which are impugned.
11) The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
12) There is no quarrel that the Respondent had purchased the property bearing plot No.75 measuring 200 square yards in Sy.No.244 of Kondapur village, Ghatkesar mandal, Ranga Reddy district, for a consideration of Rs.2,200/- through a sale deed dated 17.05.1989 registered as document No.4538/1989. It is the case of the Appellant that he is no way concerned with the sale of the subject plot and he never received any consideration and that the case of Respondent does not constitute any consumer dispute and that the forum had no jurisdiction at all to entertain the complaint and pass the orders which are impugned in this appeal.
13) The Respondent mainly contended in his complaint that in the month of June 2011 when he visited the site, he noticed some college building had come-up in his plot and also the surrounding plots. Hence, attributing fraud and deception on the part of the Appellant, invoked the jurisdiction of the forum below. Admittedly, the subject plot and the residence of the Appellant is located at Kondapur village, which is beyond the territorial jurisdiction of the forum below. The cause of action for the present complaint is stated to have arisen only in June 2011 when the Respondent visited his plot and had seen some building had come-up in the site. Hence, filed the complaint alleging deficiency of service and negligence on the part of the Appellant.
14) As regards cause of action, we may state that cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter-alia to mean that every fact which would be necessary for the complainant to prove, if traversed, in order to support his right to the Judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the Opposite parties an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not the complaint or petition, as the case may be, shall be rejected summarily. In Union of India and others vs. Adani Exports Ltd., and another, reported in (2002) 1 SCC 567, it was held that in order to confer jurisdiction on a High Court to entertain a writ petition, it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the court to decide the dispute and the entire or a part of it arose within its jurisdiction. In the instant case, the cause of action for the Respondent actually arose on 17.05.1989 when the sale deed was executed and the complaint ought to have been filed within a period of two years from such date.
15) As regards the jurisdiction is concerned, we may state that a plain reading of Section 11 of the Consumer Protection Act, 1986 reads as below:
"Jurisdiction of the District Forum (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed rupees twenty lakhs.
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.
The above provision arguably allows the Complainant a multitude of choices in regard to where he may institute his lis, complaint or action. Admittedly, in the case on hand, the Appellant was residing at Kondapur and the subject property too. If sub-sections (a) of Section 11 is to be interpreted disjunctively from sub-section (c), as the use of the word 'or' appears to permit the Complainant to file the complaint at any of the places where the cause of action may have arisen regardless of whether the Opposite party has even a branch office at that place. However, if the Opposite party's location is to form the fulcrum of jurisdiction, and it has an office also at the place where the cause of action has occurred, it has been held that the Complainant is precluded from instituting the complaint anywhere else. Obviously, this is also because every other place would constitute a forum non conveniens. In the instant case, Section 11 provides for institution of a complaint where the opposite party has a branch office or personally works for gain. Viewing the matter from that angle, the forum below had no jurisdiction to entertain the complaint as the Appellant and the subject property were located at Kondapur village of Rangareddy district, outside the territorial jurisdiction of the forum below.
16) The main contention of the Respondent is that the Appellant, through his GPA holders sold the subject plot to third parties after registering the same in his favour. This is nothing but a fraud or deception on the part of the Appellant and if that being the case, the fora constituted under the Consumer Protection Act, 1986 are barred from entertaining the complaint. As a matter of fact, this is a case of recovery of amount against the encroached property which averments involve complex question of law and facts, which have to be adjudicated upon in a suit by way of lengthy evidence and complex nature under various provisions of law. The disputed facts covering these issues also cannot be gone into and considered in a summary nature proceeding before Consumer Fora and Consumer Fora is not expected to adjudicate on them. Such issues will be beyond the scope of reliefs which could be granted by the consumer fora. We may state that the Hon'ble Apex Court in the matter of Oriental Insurance Co., Ltd., vs. Munimahesh Patel, reported in 2006 CTJ 173 (Supreme Court) (CP), also held that the proceedings before Consumer Fora are essentially summary in nature and adjudication of issues which involve disputed complex factual situations, should not be adjudicated upon by them.
17) The questions as to who committed fraud, deception and cheating and whether the Respondent is entitled to repossession and recovery of the amount in view of specific performance of the relief prayed for all these questions that could be considered in a civil suit, necessarily not by the Consumer Fora, as it has nothing to do with the housing activity as defined u/s 2(1)(o) of the Act, in view of the fact that the subject matter is of civil nature. Hence, the appeal deserves to be allowed by setting aside the orders of the forum below. If advised, the Respondent is at liberty to approach the civil court to seek recovery of his claim in a competent court having jurisdiction. The respondent shall, however, be at liberty to resort to any other remedy available to him, under the provisions of law. For the aforesaid reasons, we answer the point framed for consideration at paragraph No.11, supra, in favour of the Appellant and against the Respondent. Accordingly, we allow the appeal and set aside the orders of the District Consumer Forum-III, Hyderabad dated 15.01.2014 made in CC No.1113/2011 and consequently dismiss the complaint.
18) In the result, we allow the appeal setting aside the orders dated 15.01.2014 of the District Consumer Forum-III, Hyderabad made in CC No.1113/2011 and consequently dismiss the complaint.
PRESIDENT MEMBER Dated 03.02.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER