State Consumer Disputes Redressal Commission
Mrs. Filomena Rodrigues, vs Mr. Francis Olivin Afonso, on 20 August, 2013
BEFORE THE HONBLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, AT PANAJI Complaint No. 7/2012 Quorum : Honble Shri Jagdish Prabhudesai and Honble Smt. Vidhya Gurav, Members 1. Mrs. Filomena Rodrigues, 68 years of age, r/o Flat No. D-3/2, Cedmar Apts., M. G. Road, Panaji, Goa; 2. Mr. Edwin do Perpetuo Sucorro Rodrigues, 41 years of age, r/o Flat No. D-3/2, Cedmar Apts., M. G. Road, Panaji, Goa. Complainants V/s 1. Mr. Francis Olivin Afonso, s/o Manuel J. Afonso, major of age, r/o C Block, Cedmar Apts., M. G. Road, Panaji, Goa. 2. Ms. Marilyn Sheryl Carvalho, d/o Manuel Simplicio Carvalho, major of age, r/o C Block, Cedmar Apts., M. G. Road, Panaji, Goa. Opposite Parties Ld. Adv. N. D. Kamat present for Complainant Ld. Adv. A. R. Kantak present for Opposite Parties O R D E R
(Per Shri Jagdish Prabhudesai, Member) Date : 20.8.2013
1. By this Order we shall dispose of the present complaint filed by the Complainant herein against the Opposite Parties herein u/s 12 of the Consumer Protection Act, 1986.
2. The brief facts of the case are as under :
I It is alleged in the complaint that they were in possession of a residential tenement bearing H. No. 94 on the property bearing Chalta No. 131 of P.T. Sheet No. 42 of the City Survey of Panaji, situated Off M. G. Road, Panaji, Goa.
By the Agreement dated 19.1.2005 made between Mr. Dominic Isaac, carrying business under the name and style of the Premium Builders of the First Part, the Complainants of the Second Part and the owners of the said property of the Third Part, Mr. Dominic Isaac, in consideration of the Complainants vacating the said tenement, agreed to build and hand over to the Complainants as absolute owners thereof, a new flat bearing No. D-1/1 in the building Cedmar Apartments, M.G. Road, Panaji, Goa as per the description of the Schedules of the Agreement and the Sketch Plan annexed thereto. Shri Dominic Isaac further agreed to pay to the Complainants a sum of Rs. 5 Lakhs in consideration of the Complainants vacating the said tenement in addition to the said flat to be constructed free of cost.
II It is further alleged that by Agreement of Assignment dated 5.1.2008, Mr. Dominic Isaac assigned all the Agreements made with the concerned parties i.e. the owners of the property to the Assignee i.e. to the Opponent No. 1.
In terms of the said Agreement, the Opponent No. 1 acquired all rights and interest of Mr. Dominic Isaac for the development of the properties bearing Chalta No. 128 to 138 of P.T. Sheet No. 32.
III The Complainants have further alleged that the Opponents executed an Agreement dated 22.4.2010 with the Complainants, whereby in consideration of rights of t he Complainants to the said premises, they agreed and undertook to construct for the Complainants, free of cost, a new Flat having built-up area of not less than 102.71 sq. mts. identified as Flat No. D-1/1 situated on first floor of Block D of the building Cedmar Apartments in place of the premises occupied by the Complainants, as per the described in Schedules II and III thereof, the plan annexed thereto and other terms and conditions contained in the Agreement and deliver possession thereof to the Complainants as its absolute owners. The Opponents further agreed to pay to the Complainants a sum of Rs. 5 Lakhs as compensation for vacating the said premises in addition to the construction of the said flat.
IV The case of the Complainants is that by the aforesaid Agreement the Opposite Parties further agreed to provide to the Complainants an alternate premises for their occupation till new flat is ready for their occupation in all respects and is handed over to them. The Agreement further provides that the Opponents shall construct and hand over possession of the said flat and execute a proper Deed of Conveyance in favour of the Complainants within 18 months from date the Complainants vacate the said tenement, failing which it was agreed that the opponents shall be liable to pay to the Complainants a compensation of Rs. 15,000/- per completed month and in case of incomplete month, compensation for Rs. 500/- per day.
V It is also alleged that though the Opposite Parties provided with alternate premises, they neglected to hand over the said flat to the Complainants by 22.10.2011.
VI The Complainants have alleged defects in the alternate flat and based on the said cause of action, have filed the present complaint with the reliefs for direction of this Commission to the Opposite Parties for handing over and transfer of the said flat alongwith the proportionate undivided area of flat, to execute proper Deed of Coinveyance in favour of the Complainants, compensation at Rs. 15,000/- per month from 22.10.2011, direction for repairs of the lift to the alternate flat, to keep access open to the terrace of the building wherein alternate premises are situated and for compensation of Rs. 500/- per day from 1.1.2012 for causing inconvenience to them.
3. Upon receiving Notice from this Forum, the Opposite Parties filed their written version dated 26.6.2012 inter alia opposing the case of the Complainants on following amongst other grounds :
I The Opposite Parties alleged that the Complainants are not the consumer as defined under Consumer Protection Act, 1986 and further that there is no payment made or promised by the Complainants to the Opposite Parties as evident from the complaint and there was no monetary consideration in as much as the possession of the flat was to be delivered free of cost within the stipulated time and therefore this Commission has no jurisdiction to try and entertain the present complaint.
II The Opposite Parties also objected this complaint on the grounds that the Complainants have mixed up the two fold causes of action together in the present complaint, one being related to the delivery of the flat and the other being related to some services, facilities, etc. in respect to altogether different flat.
The Complainant cannot be allowed to mix up two different causes of action in a single complaint under the provisions of Consumer Protection Act, 1986.
III The case of the Opposite Parties is that this complaint involves facts and issues which can be decided only in a regular trial before the Civil Court.
IV It is further contended by the Opposite Parties that they had filed a rent case against the Complainants for eviction bearing Case No. ARC/22/1995 which was subsequently withdrawn as amicably settled and that the Opposite Parties had made various attempt to settle with the Complainants and also sent various registered Notices which were returned as unserved. Since there was no settlement that could be arrived at, the Opposite Parties initiated proceedings before the Rent Controller bearing Rent Case No. ARC/27/2008 and that the Complainants therein claimed that they were not the tenants but Mundkars of the premises.
V It is also the case of the Opposite Parties that the Agreement dated 22.4.2010 was not executed by the Opposite Parties willingly or with any free consent and that the Agreement was one sided and not at all a fair Agreement. The Opposite Parties further contended that there was misrepresentation about the area of the house occupied by the Complainants as also that the area shown in the Agreement was much more than the actual area occupied by the Complainants.
VI The Opposite Party denied the non-providing of the services like use of lift, access of the terrace or parking for the vehicle of the Complainants in respect of the alternate flat.
VII The Opposite Parties have therefore alleged that there is no valid cause of action against them and therefore the present complaint deserves to be dismissed with costs.
4. The Complainant No. 2 has filed his Affidavitory evidence and relied on the documents in support thereof. The Opposite Party No. 1 has also filed his Affidavit-in-Evidence along with the documents in support of the defence. We have gone through the pleadings of the parties and various documents brought on record. We have perused the Interrogatories submitted by Opposite Parties dated 14.1.2013 and reply on Affidavit by the Complainant dated 7.2.2013.
Oral arguments have been advanced by Ld. Advocates for both the parties and our attention was drawn to various provisions of the Consumer Protection Act, 1986, Indian Contract Act, 1872, Transfer of property Act, 1882, The Indian Stamp Act, 1968, Goa. Daman & Diu Rent (Protection from Eviction) Control Act, 1968 and certain decisions of the Higher Courts.
5. At the outset, it is observed that though we would have ordinarily proceeded, in the first instance, to consider the preliminary objection raised by the Opposite Parties herein that the present complaint is not maintainable at law since the Complainants are not consumers within the meaning of Section 2(i)(d)(ii) of the Consumer Protection Act, 1986, however we are inclined to decide the said objection in the latter part of this Judgement for the sake of convenience, clarity and after examining other issues arising out of the peculiar facts and circumstances of this case.
6. To begin with, it has become necessary for us to deal with the objections raised by the Opposite Party to the Agreement dated 22.4.2010, since the same goes to the root of the matter itself viz. the Agreement dated 22.4.2010 on which the present complaint of the Complainants is based.
7. The objections raised are two fold, one being under the Indian Stamp Act, 1968 as amended by the State of Goa and the other under the Indian Registration Act, 1908.
8. The first objection relates to the Agreement dated 22.4.2010 being improperly or insufficiently stamped. It has been argued and pointed out by the Advocate for the Opposite Parties that the case of the Complainant is on the Agreement dated 22.4.2010 which is valued at Rs. 75 lakhs, but has been drawn on a stamp paper of Rs. 50/-. The Opposite Parties point out that in terms of Ordinance No. 4/2006 published in Gazette Series I, No. 12 dated 23.6.2006 an Agreement for Sale of immovable property has to be drawn on a stamp paper of 1% of the value when the valuation exceeds Rs. 5 Lakhs and the Agreement not having been done on the requisite stamp paper is bound to be impounded and consequently cannot be enforced in terms of law.
9. The Opposite Parties in support of this argument have relied on the case of Avinash Kumar Chauhan V/s Vijay Krishna Mishra (200() 2 SCC 532 wherein our Supreme Court vide para 22 thereof has held as under :
We have noticed heretobefore that Section 33 of the Act casts a Statutory obligation on all authorities to impound a document. The Court being an Authority to receive a document in evidence is bound to give effect thereto. The unregistered Deed of Sale was an instrument which required payment of the stamp duty applicable to a Deed of Conveyance. Adequate stamp duty admittedly was not paid. The Court therefore, was empowered to pass an Order in terms of Sec. 35 of the Act.
10. The Opposite Parties have also drawn our attention to para 25 of this Judgement wherein it was held :
Section 35 of the Act, however rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.
11. The Advocate for the Complainant sought to distinguish this Judgement on the basis that what was under consideration before the Honble Supreme Court in the said Judgement was Deed of Sale and what is in consideration before this Commission is an Agreement.
12. We are afraid that we are not satisfied with these arguments. What was under
consideration before the Honble Supreme Court was the provision under the Indian Stamp Act. It is not in dispute that Stamp duty was payable on the Agreement in terms of the Ordinance No. 4/2006 published in Gazette Series I No. 12 dated 23.6.2006 and on an Agreement for Sale of immovable property the same ought to have been on a stamp paper of 1% of the value since the valuation exceeds Rs. 5 lakhs.
13. The Complainants sought to distinguish this Judgment of the Supreme Court by citing Padma Nair V/s the Deputy Collector, Calculation and Stamp duty & anr. reported in AIR 1994 Bom. 160. To our minds this decision only differentiates an Agreement for Sale from a Deed of Sale and it does not take the case of the Complainants any further in the matter of the non-affixation of the proper stamp duty on the Agreement for Sale dated 22.4.2010.
14. We are not at all impressed by the arguments of the Complainants that such a deficit Stamp Duty can be affixed on the said Agreement later on. Hence in our opinion, once it is pointed out that the Agreement dated 22.4.2010 is improperly or insufficiently stamped, Sec 35 of the Indian Stamp Act becomes applicable and the reasoning of the Hon'ble Supreme Court as transcribed above becomes directly applicable and we as an Authority are bound by the aforesaid categorical imperatives in the Judgement of the Hon'ble Supreme Court that a document of this nature shall not be admitted for any purpose whatsoever.
15. That takes us to the second objection raised by the Opposite Parties herein as pertaining to non-compliance of the relevant provisions under the Indian Registration Act, 1908, more particularly Sec 17 thereof dealing with the registrable documents of which the Registration is compulsory and Sec 49 mandating the consequences of non-registration of the document required to be registered.
16. The Advocate for the Opposite Parties has pointed out that u/s 17 (a)(b) the documents required to be registered as mentioned herein are :
other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property.
17. In this regard, the Advocate for the Opposite Party has then taken us through the Agreement dated 22.4.2010 to point out that vide this document it is the case of the Complainant that they have as consideration given their rights of the tenant to the tenanted premises in their occupation as lessees and were to receive as absolute owners and free of cost a new flat.
18. The Advocate for the Opposite Parties has then taken us to the case of Avinash Kumar /Chauhan V/s Vijay Krishna Mishra (supra) and more particularly to para 28 where the Hon'ble Supreme Court has quoted extracts from the case of Sanjeeva Reddi V/s Johanputra Reddi reported in AIR 1972 AP 373 wherein it is held as under :
The effect of non-registration is that such a document shall not affect any immovable property covered by it or confer any power to adopt and it cannot be received as evidence of any transaction affecting such property or conferring such power.
19. The Advocate for the Opposite Parties have also drawn our attention to para 29 of the Judgement supra wherein the Hon'ble Supreme Court has quoted the excerpts from T. Bhaskar Rao V/s T. Gabriel reported in AIR 1981 A.P. 175, the same being as under :
It is now well settled that there is no prohibition under section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purposes unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act.
20. In the case of the Agreement dated 22.4.2010, admittedly the Agreement has not been registered under the Indian Registration Act, 1908. On going through the Agreement, in our opinion the provision for registration as set out under section 17(1)(b) of the Indian Registration Act, 1908 are squarely applicable.
The Agreement does extinguish the rights to the tenanted premises, since the tenanted premises in terms of the Agreement are to be demolished. The Agreement also seeks to create rights to the Flat D-1/1.
21. The Advocate for the Complainants to get out from this rigour sought to point out Sec 17(2)(vi) and submit that the Agreement dated 22.4.2010 was merely creating a right to obtain another document which will when executed create, declare, assign, limit or extinguish any such right,. title or interest.
22. We are afraid we are unable to agree to the arguments of the Advocate for the Complainants as regards the applicability of Sec 17(2)(vi) in the present case since the very opening words of this provision pre-suppose the non-applicability of /sec 17(1)(b) and we have already held earlier that the Agreement dated 22.4.2010 does extinguish certain rights as also does create some rights and hence was required to be registered under Sec 17 of the Indian Registration Act, 1908. We are therefore bound by the Judgement of the Hon'ble Supreme Court supra and hold that the document i.e. the Agreement dated 22.4.2010 cannot be considered for evidence purposes in the matter of the present complaint.
23. The Advocate for the Complainants then sought to submit that the Consent Terms had been filed before the Court of the Rent Controller in the Rent proceedings that were pending before him. Admittedly, the Rent Controller did not accept the Consent Terms as also did not make any Order as per the Consent Terms filed. The Complainants also have not brought on record anything to indicate that they were aggrieved by the Rent Controller not making an Order as per the Consent Terms. The Complainants also did not agitate the action of the Rent Controller by filing of any Appeal or any proceedings before the Appellate Authority. Under these circumstances, the submissions as to Consent Terms being filed before the Rent Controller and which in effect were not accepted by the Rent Controller, loses its legal weightage.
24. The Opposite Parties in fact pointed out that they had filed an Appeal before the Administrative Tribunal against the dismissal of the Rent cases by the Rent Controller on the application of the Complainants of having surrendered the possession of the premises in their occupation and that one Appeal was in the matter of the claim of eviction of Tenant whereas the other Appeal was in the matter of the claim as a Mundcar.
The Opposite Parties also contended that in the present case, the Complainants had been given compensation and which was under the provisions of Sec 31 of the Rent Control Act. Since these aspects pertain to the provisions under the Rent Control Act, we do not desire to dwell upon the same any further.
25. In our opinion, the aforesaid fact is highlighted by Opposite Party No. 1 in his Affidavit-in-Evidence when at page 15 thereof he deposes as under :
15.
I say that the Complainant subsequently filed an application before the Rent Controller mentioning that they had vacated the premises and inspite of objections from the Opposite Party, managed to get the Rent Case dismissed. The said Order however is in no manner Final and the Opposite Party has filed an Appeal and the matter is presently sub judice before the Administrative Tribunal of Goa, the same being Rent Eviction Appeal No. 4/2011 and Rent Eviction Appeal No. 5/2011.
It has to be noted that the said Opposite Party has produced on record the copies of Appeal Memo marked as Annexure D Colly to the said Affidavit-in-Evidence, amply making it clear that the whole matter is presently sub judice before the Administrative Tribunal of Goa.
26. In our considered opinion, it will be wholly improper, unfair and unlawful for this Commission to decide the fate of the present complaint when the aforesaid Appeals are pending before Administrative Tribunal, Panaji. Ends of justice require that we remain duty bound by restraining ourselves from exercising any jurisdiction/power vested in us under the Consumer Protection Act, 1986 in respect of the present consumer dispute.
27. It is also pertinent to note that the Complainants herein have failed to prove that they through their Advocate, have served on the Opposite Parties the notice dated 15.2.2012. The Opposite Parties have denied the service of the said Notice stating that they have not received it and that they would have replied the said Notice had they received it. There is no postal acknowledgement of the receipt of the said Notice put on record by the Complainants. In the absence of valid service of the said Notice, we find it unsafe to rely on the credibility of the contents of the said Notice and observe that the Complainants appear to have intended to create new and additional evidence in the form of the alleged Notice.
28. It is in the light of our aforesaid observations and findings that we now advert to the question as to whether the Complainants are the consumers under the provisions of the Consumer Protection Act, 1986. The Opposite Parties have vehemently argued that the Complainants are not the consumers and the Opposite Parties are not the service providers within the meaning of the Consumer Protection Act, 1986. The Opposite Parties have relied on a number of Judgements which hold that a dispute between a landlord and a tenant do not come within the scope and ambit of the Consumer Protection Act. These include the Judgements reported in I(1992) CPJ 30 (Bidyut Kumar Dutta & Ors. V/s Ramesh Sharma) of the Calcutta High Court and 1(2001) CPJ 7 (SC) (Laxmiben Laxmichand Shah V/s Sakerben Kanji Chandan & Ors) of the Hon'ble Supreme Court.
The truth of the matter is that though the Complainants have called themselves tenants by using the expressions such as tenant, tenancy rights, etc. in the Agreement dated 24.4.2010, still the jural relationship between the Complainants and the Opposite Parties as tenants and landlord is not proved relationship in the eyes of the law.
Also the fact remains that the Complainants herein themselves have taken a contradictory defence before the Rent Controller that they are the Mundkars and the whole matter is sub judice in the pending Appeals as observed earlier. It is not for this Commission to make any final pronouncement on the aspect of the legal status of the Complainants vis--vis the Agreement dated 22.4.2010. The intention of both the parties while entering into the said Agreement cannot be gathered with certainty and clarity. We therefore hold that the Complainants herein have failed to prove their legal character and sanctity of the jural relationship between the parties to the said Agreement. In the result we conclude that the Complainants have failed to prove that they are the consumers and the Opposite Parties herein are their service providers within the meaning of Section 2(i)(d)(ii) of the Consumer Protection Act, 1986 and therefore on this ground alone the present complaint is not maintainable at law.
29. At this stage, we are duly bound to point out that the Opposite Parties have raised another valid objection while opposing the case of the Complainants. They have brought documentary evidence on record to show that the Complainants who claimed to be Tenants had in Reply to the Rent proceedings taken a defence of their being Mundcars as defined under the Goa Daman & Diu Mundcars (Protection from Eviction) Act, 1975.
The Opposite Parties had thereafter sought for eviction of the Complainants on this ground contending that the Complainants had denied the title of the landlord by claiming rights of Mundcarship which were akin to denying the title to the premises, Mundkar being a person who did not pay anything for the occupation of the dwelling house.
30. The Opposite Parties in this regard, have vehemently objected the attitude of the Complainants on the ground that the Complainants have taken inconsistent pleas at different Forums as regards their legal status of which they appear to be in total confusion. At one stage of the proceedings before the Rent Controller it is contended that they are the tenants, at another stage it is contended by them that they are the mundkars. In our considered opinion, such inconsistent and self-contradictory pleas taken by the Complainants herein during the proceedings before the Rent Controller, are totally un-understandable and un-supportable, which clearly go to destroy the case of the Complainants in the present case.
31. The Opposite Parties in the course of their arguments have rightly relied upon one Judgement of this Commission dated 19.11.2012 in Appeal No. 30/2012 wherein this Commission has categorically held that the Complainant at one point of time claimed to be a tenant and at another point of time contended to be an owner and that the concept of a tenant are opposed to the concept o of ownership and hence proceeded to dismiss the Appeal.
32. Our attention is also drawn to another important fact i.e. the Opposite Party No. 1 at para 22 of his Affidavit-in-Evidence has categorically deposed as under :
22. I say that apart from the above, the said flat on the first floor is held as a security by the Contractor M/s Marcon Developers vide Agreement dated 10.5.2010 executed before the Notary Shri Gopal Tamba at Panaji, Goa under Sr. No. 50 dated 7.7.2010. I am producing herewith a copy of then said Agreement dated 10.5.2010. Consequently, even, if it is held that the Complainants are entitled to the said flat, as of now it is not at all possible to hand over the said flat to the Complainants.
The said Opposite Party has produced the copy of the said Agreement marked as Annexure E Colly. Though the Complainants have objected the admissibility of this Agreement, we reject the objection for the reason that the said document has come on record in the Affidavit-in-Evidence of the Opposite Party No. 1 and the Complainants have chosen not to file their additional Affidavit-in-Evidence either objecting the said document on the ground of being inadmissible or challenging the validity of the existence of the said document. We are not aware whether or not, the transaction under the said Agreement or the Agreement itself has been challenged before any Civil Court. We, however, are content to consider the aspect of its relevancy only for the limited purpose of holding that the said Agreement dated 10.5.2010, does contemplate the charge by way of security in respect of the very same first floor flat which is the subject matter of the present dispute. To our minds, this fact squarely comes in the way of the case of the Complainants as major impediment in as much as the relief as claimed by the Complainants in the complaint for a direction to hand over the possession of the said flat and to enter into final Deed of Conveyance in favour of the Complainants, becomes redundant since the said flat cannot be said to be free from any encumbrance in view of the said Agreement dated 10.5.2010, which Agreement was entered into much before filing the present complaint.
33. Before parting with this Judgement, we would like to observe that there is every substance in the arguments of Advocate for the Opposite Parties that the Complainants have unduly mixed up or clubbed the twofold causes of action while claiming the reliefs, one being related to the delivery of the first floor flat and the other being related to some services or facilities such as use of lift, access of the terrace or parking for the vehicle in respect of altogether different i.e. alternate flat. To our minds, the Consumer Protection Act, 1986 does not allow to bring single action under one complaint where cause of action is more than one in the same complaint. It is true that the present complaint does suffer from this incurable defect.
34. In view of our aforesaid findings and observations, we do conclude that the Complainants herein have failed to substantiate and prove their main case in the present complaint so as to bring the same within the four corners of the provisions of the Consumer Protection Act, 1986. Hence we have no alternative but to dismiss the present complaint.
35. We, therefore, pass the following :
O R D E R It is hereby ordered that the present complaint filed by the Complainants herein against the Opposite Parties herein is devoid of any substance and is therefore dismissed. There shall be no Order as to costs.
Smt. Vidhya Gurav Shri Jagdish Prabhudesai (Honble Member) (Honble Member)