State Consumer Disputes Redressal Commission
Smt. Rakhi Mahindra vs M/S Subhash Traders & Contractors on 30 September, 2024
Consumer Smt. Rakhi Mahendra 30.09.2024
Complaint Vs.
No. 14 of 2012 M/s Subhash Traders & Contractors
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 23.08.2012
Date of final hearing: 18.09.2024
Date of Pronouncement: 30.09.2024
Consumer Complaint No. 14 / 2012
Smt. Rakhi Mahendra W/o Sh. Sudhir Mahendra
R/o Through Sh. R.B. Singh
H. NO. 352/28, Civil Line, Roorkee
Pargana Roorkee, District Haridwar
(Through: Sh. Sudhanshu Dwivedi, Advocate)
.....Complainant
VERSUS
M/s Subhash Traders & Contractors
423/35 (35), Civil Line, Roorkee
Pargana Roorkee, District Haridwar
Through Prop. Sh. Subhash S/o Sh. Chaudhary Shyam Singh
423/35 (35), Civil Line, Roorkee
Pargana Roorkee, District Haridwar
(Through: Sh. Deepak Ahluwalia, Advocate)
.....Opposite Party
Coram:
Ms. Kumkum Rani, President
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, President):
Disposal of Preliminary Objections (paper No. 35) filed by the opposite party regarding maintainability of consumer complaint.
Preliminary objection (paper No. 35) alongwith affidavit has been submitted on behalf of the opposite party alleging that in para No. 5 of the 1 Consumer Smt. Rakhi Mahendra 30.09.2024 Complaint Vs. No. 14 of 2012 M/s Subhash Traders & Contractors complaint case the complainant has alleged agreement for sale dated 26.02.2011 is not sufficiently stamped and not registered as per provisions of the Registration Act, hence the said agreement is not admissible and enforceable and on the basis of unregistered and insufficiently stamped agreement, the complainant has no legal right to enforce the same for execution of the sale deed under law, hence the said complaint is not legally maintainable. It is further alleged in the preliminary objection that the alleged dispute under the complaint is regarding enforcement of the agreement for which suit for specific performance of the agreement is maintainable. But to frustrate the mandatory provisions of the Indian Stamp Act, Indian Registration Act, Court Fees Act and Specific Relief Act the present complaint is being filed. In the present matter, there is no deficiency in service, therefore, the consumer complaint has no jurisdiction to hear and decide the alleged dispute, hence the complaint is not maintainable and it is liable to be dismissed at preliminary stage on the basis of not being maintainable before this Commission.
2. Its reply (paper No. 38) has been submitted on behalf of the complainant without any counter affidavit. It is alleged in the reply that the Registration Act, 1908 does not make it mandatory to register "Any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest." An agreement for sale or contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. An agreement for sale is merely a document creating a right to obtain another document of sale on fulfillment of terms and conditions specified therein and the ownership will be transferred to the buyer only on the execution of 2 Consumer Smt. Rakhi Mahendra 30.09.2024 Complaint Vs. No. 14 of 2012 M/s Subhash Traders & Contractors sale deed by the seller. The buyer obtains only a right to get the sale deed executed in his favour. The agreement for sale is not compulsorily registrable under Section 17(1A) of the Registration Act and thus does not come within the mischief of proviso of Section 49 in as much as the provisions of Section 53A of the Transfer of Property Act were not attracted. It is further averred that as per Section 53A of Transfer of Property Act and the Indian Stamp Act which have been referred to above and all these provisions were considered in detail by Punjab and Haryana High Court in Sukhwinder Kaur case (supra) wherein the learned Judge held that agreement itself does not create any right, title to the property, but it is the sale deed, which when executed will create right, title and interest in the property.
It is further alleged in the reply that in 1993, the Hon'ble Supreme Court ruled in favour of M.K. Gupta in his case against the Lucknow Development Authority for not delivering his flat on time. This landmark judgment brought housing construction under the purview of the Consumer Protection Act, 1986. The Hon'ble Supreme Court ruled that "the purpose of widening the definition (of service) is to include in it not only the day to day buying and selling activity undertaken by a common man, but even activities that are otherwise not commercial in nature, yet partake of a character in which some benefit is conferred on the consumer. When the possession of the property is not given within the stipulated period, the delay is denial of service.
In the reply, it is also averred that the complaint was properly filed and is maintainable in the right court and it is evident in the Consumer Court.
3. We have learned counsel for both the parties and perused the record.
3 Consumer Smt. Rakhi Mahendra 30.09.2024
Complaint Vs.
No. 14 of 2012 M/s Subhash Traders & Contractors
4. We have perused the complaint filed on behalf of the complainant, wherein the complainant has sought relief, which is mentioned below-
"d& ;g fd foi{kh dks funsZf"kr djus dh Ñik djsa fd foi{kh] ,d fdrk ¶ySV] uEcj ch&1 gS] ftldk dqy fufeZr {ks=Qy 1097 oxZQhV gS] ftlesa rhu csM:e] ykWch] fdpu] LVksj] ckyduh] nks VkW;ysV cus gSa rFkk lqij ,fj;k 1370 oxZQhV gS] ftlesa fufeZr {ks= dk 25 çfr"kr ¼thuk] fy¶V] iSlt s ] ikfdZax ,d dkj gsrq] ftldk vf/kdre {ks=Qy 120 oxZQhV gksxk½ rFkk fufeZr {ks= lfEefyr gSA fLFkr vgkrk uEcj 42] tknwxj jksM+] flfoy ykbZUl] :M+dh] ftyk gfj}kj] ftlds iwjc esa & tknwxj jksM+] if"pe esa & iSlst] mRrj esa & lEifRr Jh lq"khy vjksM+k ,oa nf{k.k esa & ¶ySV uEcj ch&2 gS] dk cSukek çkfFkZuh@okfnuh ds gd esa "ks'k foØ; ewY; eq0 2]50]000@& :i;s çkIr dj vafdr o iathÑr djk;sA"
5. In para No. 5 of the complaint, the complainant has contended that she has paid Rupees Three Lacs as advance to the opposite party when the agreement for sale was executed between the parties to the complaint case. In para No. 8 of the complaint, the complainant has further pleaded that after the payment of Rupees Twenty Lacs in favour of the opposite party, the complainant has asked the opposite party on dated 30.08.2011 to execute the sale deed in favour of the complainant, but the opposite party has replied that the construction work in the subject flat is not completed, hence after completion of the construction work in the flat, he would execute the sale deed positively till 30.03.2012 in favour of the complainant. After a perusal of the contentions and pleadings of the complaint, it is apparent that the petition was filed for getting the relief of execution of sale deed through Court in favour of the complainant by the opposite party. The complainant has submitted the unregistered agreement 4 Consumer Smt. Rakhi Mahendra 30.09.2024 Complaint Vs. No. 14 of 2012 M/s Subhash Traders & Contractors for sale alongwith complaint, which bears paper Nos. 9 to 12, wherein in para No. 5 it is written as reproduced:-
"5½ ;g fd çFkei{k us ;fn bl bdjkjukek ekgnk cS; dh "krksZ ds vuqlkj o vof/k esa cSukek f}rh;i{k ds fgr esa ugha fd;k rks f}rh;i{k dks gd gksxk fd og U;k;ky; }kjk rdehy ekgnk cS; dh dk;Zokgh djkdj cSukek vius gd esa djk ys rFkk bldk [kpkZ çFkei{k ls olwy dj ysA"
6. So as per the above agreement for sale it was specifically created between the parties that as per the terms and conditions of agreement for sale the First party did not execute the sale deed in favour of second party, thereafter the second party shall have the right to file a suit for execution of sale deed before the competent court to get the property registered in favour of the complainant through Court at the expenses of First party.
7. So as per the above agreement for sale, it gives a right to file a suit before the competent Court, in case of failure of the terms and conditions of the agreement for sale, the Second party / Buyer was given a right to file a suit for specific performance and for execution of sale deed for the property in dispute in favour of the complainant without delivery of possession, therefore, the matter in dispute does not come within the purview of Civil Court.
8. Besides it, in the complaint case as well as in the notice (paper No.
23), it is also mentioned that as believing the talks of the opposite party, the complainant had purchased a stamp paper in the Tehsil for execution of sale-deed of the property in dispute, but the opposite party did not appear to participate in the proceedings of sale deed in favour of the complainant. Thus, the pith and substance of the complaint as well as of the above alleged notice, it appears that the drafting of all the contentions has transpired that 5 Consumer Smt. Rakhi Mahendra 30.09.2024 Complaint Vs. No. 14 of 2012 M/s Subhash Traders & Contractors the complainant has brought as a suit for specific performance before the Civil Court. Learned counsel for the complainant has submitted the case law Civil Appeal No. 6044 of 2019, Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, decided on dated 07.04.2022, wherein the complainant arguing that the facts and pleadings mentioned are different from the case in hand.
9. The complainant has further stated that in the case of Utpal Trehan Vs. DLF Home Developers Ltd., 2022 0 Supreme (SC) 605, the Hon'ble Supreme Court has held that the builder's own case is that maintenance charges ought to be paid to Association - Nature of dispute having originated from a consumers' grievance, role of Court has to be beyond just being an adjudicatory forum in an adversarial cause and must have an element of proactivity in public interest.
10. Learned counsel for the complainant has further argued that in this case, the Court has considered that the delay in delivery of possession of flat and the appellants obligation of allottee to pay maintenance charges comes within the purview of Consumer Protection Act, 1986. But as per the pleadings, contentions, notice available on record. No such relief has been sought in the complaint that the complainant has not paid maintenance charges.
11. In the relief column, the complainant has never sought the possession of the property in dispute, therefore, the facts narrated in the above cited case law are different from the facts mentioned in the instant case.
12. Learned counsel for the opposite party has submitted a case law M.K. Gupta vs. Lucknow Development Authority, First Appeal No. 21 and 24 of 1990 decided on dated 13.07.1990, wherein the complainant -
6 Consumer Smt. Rakhi Mahendra 30.09.2024
Complaint Vs.
No. 14 of 2012 M/s Subhash Traders & Contractors
appellant was allotted a MIG house by the respondent - Lucknow Development Authority against cash payment of Rs. 1,13,197/-, which was deposited in full by 29.07.1988 and the opposite party - respondent here- had undertaken to deliver possession of the house to the appellant and get the transfer of the house registered on payment of the full amount as calculated by the Lucknow Development Authority and the house was registered in the name of the allottee - appellant on 18.08.1988. However, the respondent did not give possession of the house to the appellant because the construction work in the said house had not been completed.
So in the above case, the Hon'ble National Commission has ordered that the respondent - Lucknow Development Authority has not been able to complete the construction work in the house since August, 1988 and the complainant - appellant has been put to great hardship by reason of his not being able to take possession of the house allotted and registered in his name and the Commission directs the respondent - Lucknow Development Authority to hand over the possession of the house in 'as is where is' condition to the complainant - appellant by not later than 31.07.1990; the Hon'ble National Commission has also held that the legal plea of maintainability of the complaint under the Consumer Protection Act, 1986 has already been decided in First Appeal No. 5 of 1989, Garima Shukla Vs. U.P. Awas Evam Vikas Parishad. Hence, such objection has not force.
13. In the case of Avinash Kumar Chauhan vs. Vijay Krishna Mishra, AIR 2009 Supreme Court 1489, the Hon'ble Supreme Court has held that unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance and adequate stamp duty admittedly was not paid and therefore the Court was empowered to pass an order in terms of Section 35 and the plea that the document was admissible for collateral purpose would not be tenable, thus, 7 Consumer Smt. Rakhi Mahendra 30.09.2024 Complaint Vs. No. 14 of 2012 M/s Subhash Traders & Contractors the order directing impounding of said document was not liable to be interfered with.
14. In the case of Anand Kumar Dwivedi vs. M/s Jha Associates (Reg.) & Ors., 2016 I CPR (NC) 668, the Hon'ble National Commission has held that merely because the sale deed has not been executed in favour of the complainant by OP No. 5, who is owner of the land, complaint is not entertainable by consumer fora and it is simplicitor case of specific performance for execution of sale deed.
15. In the case of Mangilal Soni Vs. T. Marappa & Ors., II (2011) CPJ 95 (NC), the Hon'ble National Commission has held that taking the averments and allegations on their face value, we are of the considered opinion that opposite parties cannot be said to have rendered any service to the complainant, for the deficiency of which, the complaint can be filed before a Consumer Fora. It appears to be a case of non-performance of its obligation by a vendor under an agreement for sale for which the complainant would have been advised to file civil suit either for specific performance of the agreement for sale or any other alternative relief in accordance with law. In our opinion, the complaint before this Commission is wholly misconceived and is dismissed as such, however, with liberty to the complainant to work out her remedy before a competent Court in accordance with law.
16. Thus, in the light of the above cited case laws referred on behalf of the opposite party, we are of the considered view that as per the pleadings of the complaint case as well as contentions of the notice of the complaint, it appears that the case is non-specific performance for its obligation under agreement for sale for which the complainant would file civil suit either for specific performance of agreement for sale or any other alternative relief in 8 Consumer Smt. Rakhi Mahendra 30.09.2024 Complaint Vs. No. 14 of 2012 M/s Subhash Traders & Contractors accordance with law. So in our view, such type of case is not tenable and maintainable in the Consumer Fora / Commission and this type of case is not covered within the purview of Consumer Protection Act. Thus, we are of the considered opinion that the Preliminary Objections filed on behalf of the opposite party are liable to be allowed and this Commission has no jurisdiction to entertain such type of complaint, therefore, we are of the considered opinion that the complaint case is not maintainable and tenable in this Commission.
17. Accordingly, the preliminary objections are hereby allowed. The complaint case is hereby dismissed with liberty to the complainant to work out her remedy before a competent Court in accordance with law within a period of 60 days from the date of this Order. No order as to costs.
18. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
19. File be consigned to the record room along with a copy of this Order.
(Ms. Kumkum Rani) President (Mr. B.S. Manral) Member This judgment is dated, signed and pronounced today.
(Ms. Kumkum Rani) President (Mr. B.S. Manral) Member Pronounced on: 30.09.2024 9