State Consumer Disputes Redressal Commission
Sh. Jia Lal Agarwal vs Sh.R .N. Gaur. on 4 May, 2023
Appeal No. Sh. Jia Lal Agarwal 02.05.2023
62 of 2014 Vs.
Sh. R.N. Gaur (Deceased)
Smt. Kaveri Devi
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 03.04.2014
Date of Final Hearing: 28.04.2023
Date of Pronouncement: 04.05.2023
First Appeal No. 62 / 2014
Sh. Jia Lal Agarwal S/o Late Sh. Asha Ram
R/o 13, Civil Lines, Roorkee, Haridwar
(Through: Sh. Suresh Gautam, Advocate)
....Appellant
Vs.
Sh. R.N. Gaur (Deceased)
Smt. Kaveri Devi W/o Late Sh. R.N. Gaur
R/o 57/40 Gandhi Vatika, Roorkee, Haridwar
R/o 320/5, 18 Civil Line, Roorkee, Haridwar
(Through: Sh. Shreegopal Narson, Advocate)
.....Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against the judgment and order 04.03.2014 passed by the learned District Consumer Disputes Redressal Forum, Haridwar (hereinafter to be referred as the District Commission) in consumer complaint No. 210 of 2013 styled as Sh. R.N. Gaur Vs. Jiyalal Agarwal, wherein and whereby the complaint was allowed.
2. The facts giving rise to the present appeal in brief are as such that the respondent - complainant filed a complaint under Section 12 of Consumer 1 Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi Protection Act, 1986 regarding the 1/2 part of so called agreement to sell of the immoveable property executed in between the appellant and respondent on dated 15.09.2008; the above agreement to sell dated 15.09.2008 aforesaid was an unregistered agreement to sell on the stamp of Rs. 100/- and respondent - complainant has paid Rs. 6,30,500/- earnest money. According to the complaint, it is averred that after the expiry of period stipulated in the aforesaid unregistered agreement, the appellant - opposite party has not executed the sale-deed of the immoveable property, therefore, the respondent - complainant has filed the complaint for realization of the amount of Rs. 6,30,500/- or order / direct the appellant to execute the sale-deed.
3. The opposite party filed a written statement against the complaint stating that no such agreement to sell dated 15.09.2008 was executed in between the appellant the respondent - complainant and no such consideration money was ever received by him. The complaint was presented on wrong, false and fictitious grounds; the case was of the civil litigation in nature as such the District Commission did not have the jurisdiction to entertain and hear the suit. The value of the complaint was undervalued and factitious and the agreement to sell was under stamped and unregistered document as such inadmissible in evidence.
4. The District commission after perusing the material and evidence available on record passed the judgment and order 04.03.2014 wherein it was held as under:-
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Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi
5. On having been aggrieved by the aforesaid judgment of the District Commission, the appeal has been preferred by the opposite party - appellant.
6. In the appeal, the appellant - opposite party has contended that the impugned judgment is against law and facts and the District Commission has failed to appreciate the facts of the case in correct way; the impugned judgment is based on surmises and conjectures. The complaint filed by the respondent was regarding the so called agreement to sell dated 15.09.2008 is of immoveable property as such entertaining such type of a complaint was against the provision of the Consumer Protection Act, 1986. Hence, the respondent - complainant never became the consumer of the appellant as per Section 2(d) read with Section 2(i) of the Consumer Protection Act, 1986. The District Commission did not give any finding in this proposition of law inspite of the arguments advanced before it by the appellant. Moreover, the so called unregistered agreement to sell is not readable in evidence as per Section 49 of the Registration Act, but the same fact was also ignored and overlooked by the District Commission. The agreement to sell was never filed in original in the District Commission, only photocopy of the agreement to sell was filed. The agreement to sell was never proved on record by the respondent - complainant; there was no relation of buyer and seller of goods between the parties, therefore, the finding of the District Commission is contrary to the facts and law. The respondent - complainant has filed the complaint contrary to the provisions of law as envisaged in the Specific Relief Act regarding the specific performance of a contract or alternative remedy to be claimed is available by way of civil suit in the competent Civil Court after paying the court fee. The District Commission to the contrary ignored and overlooked the provisions of Section 3 of the Consumer Protection Act, 1986 which clearly provides for that the Act is not in derogation of the provisions of any other law for the time being in force. Thus, the complaint is not maintainable, 3 Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi therefore, the Commission be pleased to allow the appeal with cost and set aside the impugned judgment and the complaint be dismissed with costs.
7. We have heard learned counsel for both the parties and perused the material available on record.
8. A perusal of the complaint has shown that the complainant is the respondent who has made an unregistered agreement on Rs. 100/- stamp paper with the appellant - opposite party. In the pleadings of the complaint, nothing is written that the appellant - opposite party is a developer, who has promised to sell the land after developing the area.
9. Learned counsel for the appellant - opposite party has averred that the respondent never became the consumer of the appellant as per Section 2(d) read with Section 2(i) of the Consumer Protection Act, 1986, but the same plea has been overlooked by the District Commission while appreciating the evidence and pronouncing the impugned judgment.
10. We have perused the Section 2(d) of the Consumer Protection Act, 1986 wherein in Section 2(d) the term "consumer" is defined and under Section 2(i) of the Consumer Protection Act, 1986, the term "goods" has been defined. Section 3 of the Consumer Protection Act, 1986 has provided that the remedy under this section is in addition to the provisions of any other law for the time being in force. The act is not in derogation of the provisions of any other law for the time being in force. Section 3 - is reproduced as under:-
"Section 3 - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
11. The above provision has clearly defined that the remedy provided under the act is in addition to the provisions of any other law for the time 4 Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi being in force and the provisions of this Act give the consumer an additional remedy beside those that may be available under other existing laws. But the requirement of the Act should be fulfilled. It is pertinent to mention that Sh. R.N. Gaur has expired during the pendency of appeal, hence in place of deceased - Sh. R.N. Gaur, his legal heir (Smt. Kaveri Devi, wife of the deceased - Sh. R.N. Gaur) was impleaded and added in the memo of appeal as necessary party. In the complaint, the complainant has sought relief either to pay earnest money to the tune of Rs. 6,30,500/- to the complainant or the appellant - opposite party be directed to execute the sale-deed of the property as per the agreement to sell. It is also proved that in the above mentioned agreement, deceased - Sh. R.N. Gaur and his wife Smt. Kaveri Devi both were parties.
12. Learned counsel for the respondent - complainant has submitted a cited case law in the case of Vijay Kumar Singh Vs. Rana Cooperative Housing Society, 2020 (3) CPR 304 (NC) stating that the case is not legally maintainable in the Consumer Commission.
13. We have perused the above ruling, wherein the Hon'ble National Commission has held in para No. 5 as under:-
"It is not in dispute that a plot of land was sold by R-1 Society to the petitioner/complainant. It is also not in dispute that the sale deed of the said plot was executed by the society in favour of the petitioner/complainant. It is also not in dispute that a demand was raised by Kanpur Development Authority upon the petitioner/complainant on the ground that the land, subject matter of the sale deed, executed by the society, in his favour was acquired 5 Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi land. The petitioner/complainant having already paid the price of the land to the Society it was for the Society to contest the demand raised by Kanpur Development Authority if the said demand was illegal or unjustified. Having already paid the price of the land to the Society the complainant cannot be compelled to litigate with Kanpur Development Authority by challenging the demand raised by the Authority. In any case it is only the Society which can contest the demand raised by Kanpur Development Authority since it is only the Society which knows whether the land sold by it to the complainant was acquired land or not. The complainant/petitioner being a purchaser from the Society will not be in a position to prove that the land sold to him by the Society was not acquired land. It is for the seller of the land to prove that at the time the land was sold by him it was free from any kind of encumbrance, claim, charge etc. Therefore, it is for the Society to challenge the demand raised by Kanpur Development Authority and prove in the said challenge that the land sold by it to the complainant not being acquired land the demand raised by Kanpur Development Authority was illegal."
Accordingly, the above revision petition was allowed and the impugned judgment was set aside by the Hon'ble National Commission.
6Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi
14. With due respect, the finding of the Hon'ble National Commission is not applicable to the case in hand because the complainant has nowhere stated that the complainant had purchased the land from the appellant - opposite party in Cooperative Housing Society. No evidence has been produced on behalf of the respondent - complainant in order to show that the appellant - opposite party was the developer who has promised to execute the sale-deed after developing the area.
15. Section 2(d) of the Consumer Protection Act, 1986 is as under:-
"Section (d) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid 7 Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;"
16. The word 'person' is also defines in Section 2(m) of the Consumer Protection Act, 1986, according to which, the 'person' includes, (i) a firm whether registered or not, (ii) a Hindu undivided family, (iii) a co-operative society and (iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not.
17. In the case in hand the respondent - complainant does not within the purview of term "Person", hence the consumer complaint filed by the respondent - complainant is not maintainable.
18. Here it is pertinent to mention that the case in hand, appellant - opposite party is neither the society nor the Hindu Undivided Family and any firm whether registered or not, nor cooperative housing society, hence the complaint does not come within the purview of Section 2(d) & 2(i) of the Consumer Protection Act, 1986. Moreover, the civil case for specific performance is entertainable under the Specific Performance Act. We are of the view that in order to save the court fees, the respondent - complainant has submitted the complaint even knowing that respondent - complainant was not a consumer under the Consumer Protection Act.
19. Learned counsel for the appellant has drawn our attention to the cited case law of the Hon'ble National Commission in the case of Anand Kumar 8 Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi Dwivedi Vs. M/s Jha Associates (Reg.) and Ors., 2016 I CPR (NC) 668 wherein the Hon'ble National Commission has held as under:
"Learned Counsel for the appellant submitted that as complainant was consumer qua OP being developer of land and as land was not developed, learned State Commission committed error in dismissing complaint at admission stage; hence, appeal be admitted. Perusal of agreement to sell and purchase reveals that agreement was executed between OP No 5 and complainant for sale of 65 sq. yds. of land for Rs.11,05,000/-. Agreement nowhere reveals that OP No. 5 is developer and in the agreement to sell it has nowhere been mentioned that OP No. 5 will get the land developed. Merely because 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.
Appellant has not placed any evidence on record to show that OP No. 5 was engaged in housing construction and in such circumstances; complainant does not fall within purview of consumer.
Learned Counsel for the appellant has placed reliance on judgment of Hon'ble apex 9 Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi Court in C.A. No. 4432 of 2012 - Norne Construction P. Ltd. etc. etc. Vs. Union of India (UOI) and Ors. etc. in which it was observed that if a person enters into an agreement with the developer or a contractor, the nature of the transaction is covered by the expression 'service'. This judgment is not applicable to the facts and circumstances of present case as agreement does not depict that OP No. 5 was developer. He also placed reliance on judgment of Hon'ble Apex Court in AIR 2007 (SC) 2198 - Bangalore Development Authority Vs. Syndicate Bank which is not applicable as OP No. 5 does not fall within purview of developer of land.
As it is a case of simplicitor sale of land, complainant ought to have filed suit for specific performance and consumer fora had no jurisdiction to entertain complaint."
20. The above cited case law is fully applicable to the case in hand. Respondent - complainant has not drawn our attention to any terms and conditions of the agreement, which have revealed that the appellant - opposite party was a developer and as per the agreement the respondent - complainant will get land developed.
21. We are of the view that merely the reason the sale deed was not executed in favour of the respondent - complainant by the appellant - opposite party (owner of the land), the complaint is not entertainable by 10 Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi consumer commission and it is simplicitor a case of specific performance for execution of sale-deed.
22. Thus, in such circumstances, we are of the definite opinion that the respondent - complainant should bring a suit for specific performance, and should not file a complaint under the provisions of Consumer Protection Act, 1986. It appears that due to not giving proper advice on behalf of the respondent - complainant's advocate, the respondent - complainant filed the consumer complaint, hence we are of the view that one opportunity should be given to the respondent - complainant to bring the civil suit for specific performance within three months from the date of this judgment, so that the respondent - complainant may get justice and may get relief from the competent court. Accordingly, we hold that the appeal is liable to be allowed.
23. Appeal is allowed. Impugned judgment and order dated 27.11.2013 is hereby set aside and the consumer complaint is hereby dismissed. No order as to costs of the appeal.
24. Respondent - complainant is directed to file civil case before the regular competent court for specific performance within a period of three months from today. Reader and office of this Commission are directed to send copy of the judgment immediately to the concerned District Commission, so that the respondent - complainant may get the requisite papers from the District Commission to be able to file a regular suit for specific performance before the competent court.
25. Statutory amount deposited by the appellant in the appeal be returned to the appellant.
26. 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 11 Appeal No. Sh. Jia Lal Agarwal 02.05.2023 62 of 2014 Vs. Sh. R.N. Gaur (Deceased) Smt. Kaveri Devi uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this order be sent to the concerned District Commission for record and necessary information.
27. Appeal file be consigned to the record room alongwith a copy of this Judgment.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 04.05.2023 12