State Consumer Disputes Redressal Commission
Smt. Mangala R. Karapurkar, vs Shri. Subhash Suhas Naik, on 6 November, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI -GOA FA No. 27/2013 Smt. Mangala R. Karapurkar, House No. 287, Sarwada, Margao, Goa. . Appellant/O.P. v/s Shri. Subhash Suhas Naik, Flat No. B6, G-4, Vijay Nagar Complex, Corlim, IIhas, Goa. . Respondent/Complainant Appellant/O.P. is represented by Adv. Shri. D.S. Naik. Respondent/Complainant is represented by Adv. Shri. A.A.S. Talaulikar. Coram: Shri. Justice N. A. Britto, President Shri. Jagdish Prabhudessai, Member Dated: 06/11/2013 ORDER
[Per Justice Shri. N. A. Britto, President] This appeal has been filed by the OP in CC No. 163/2002 and is directed against order dated 14/01/13 of the Lr. North Goa District Forum by which the consumer complaint filed by the complainant on 30/10/02 has been allowed.
2. Some facts are required to be stated to dispose off this appeal and for that the parties to this appeal shall be referred to in the names as they appear in the cause title of the complaint.
3. The OP was the owner of a flat, having purchased the same under agreement dated 15/05/1990 from Goa State Co-operative Housing Finance Federation. The OP entered into an agreement with the complainant on 13/05/2002 to sell to the complainant the said flat identified as flat No. B-6, G-O admeasuring 54.25 sq.mtrs for a sum of Rs. 2.5 lacs. Rs. 1 lac was paid as earnest money at the time of execution of the said agreement and Rs. 1.5 lacs were to be paid on or before 13/06/02. It was agreed that if the complainant committed default in payment of the said amounts within the time stipulated, the OP would be at liberty to terminate the agreement in which event the earnest money paid by the complainant would stand forfeited and the OP on such termination, would refund to the complainant the part payment towards the balance of the purchase price. It was further stipulated that the possession of the said flat would be delivered to the complainant provided the amount due and payable was paid to the OP. However, the admitted position today is that the complainant was put in possession of the suit flat from 14/05/02, as admitted by OP in RCS NO. 10/12/C subsequently filed on 16/1/12 before the Civil Judge, Sr. Division at Panaji.
4. The complainant claiming that a sum of Rs.
1 lac was paid at the time of the execution of the agreement and Rs. 70,000/- subsequently, and further claiming that the balance would be payable as agreed upon at the time the complainant was inducted as a member of the Society, the complainant sent a registered notice to the OP on 29/08/02 calling upon the OP to issue to the complainant a no objection certificate for transfer of the shares and to induct the complainant as a member of Vijayanagar Co-operative Housing Society Ltd., and on failure of the OP to comply with the said notice, the complainant filed the consumer complaint on 30/10/02.
5. Notice of the complaint was sent to the OP and on failure of the OP to contest the complaint, the OP was set exparte on 20/01/03. The complaint was then adjourned several times at the request of the complainant and then complainant remained absent. On 19/11/03 the Lr. District Forum chose to adjourn the complaint stating that the order to be passed would be communicated to both the parties and then there was a gap of almost five years and we regret to note that this is the state of the functioning of the District Fora in the State of Goa.
6. Thereafter, on 8/7/08 both the parties appeared before the Lr. District Forum and showed their desire to settle the complaint and accordingly the complaint was fixed for settlement on 25/07/08. The complainant had shown his willingness to pay the balance amount before the Lok Adalat. On 25/07/08 the complainant appeared before the Lr. District Forum with Rs. 80,000/- being the balance amount payable to the OP but the OP remained absent and therefore the complainant was directed to remain present with the said amount on 22/08/08. On this day, the complainant remained present with cheque of Rs. 80,000/- drawn on Goa State Co-operative Bank and although the OP remained absent an order came to be passed by the Lr. District Forum and the same became the subject matter of FA No. 31/2011 which was decided by this Commission by order dated 24/1/12 and the said order dated 22/08/08 was set aside and the Lr. District Forum was directed to disposed off the complaint, by following the prescribed procedure, as expeditiously as possible and in any event within a stipulated period of three months from 07/02/12.
7. After passing the said order dated 22/08/08, notice appears to have been sent to the OP on 22/12/10, which was unclaimed by the OP and after several adjournments the complainant presented a new cheque and the OP was ordered to be issued a fresh notice returnable on 28/04/11 and OP appeared on 28/4/11 through advocate and on 30/06/11 the complainant remained present but the OP remained absent and a last opportunity was given to the OP to file an affidavit. On 15/07/11 the complainant remained absent but the OP remained present and informed the Lr. District Forum that she was not interested to receive the amount deposited by the complainant in view of her plan to prefer an appeal.
8. After FA No. 31/11 was decided by this Commission on 24/1/12 both the parties appeared by the Lr. District Forum as directed on 07/02/12 and lr. advocate for the OP submitted that the OP did not wish to file affidavit-in-evidence. It may be noted at this stage that the OP had not even filed her written version, and, was otherwise ordered to proceed exparte.
9. The complainant then filed an application for amendment on 21.06/12 and the same was allowed by order dated 28/06/12. It is at this stage that the OP appears to have filed a written statement. The Lr. District Forum has rightly noted that the written version was filed by the OP only after the amendment application was filed by the complainant. Eventually, the complaint came to be decided by the impugned order dated 14/1/13.
10. The lr. District Forum by virtue of the impugned order has directed the OP to transfer the shares of the suit flat in favour of the complainant. The Lr.
District Forum has concluded that a sum of Rs. 1.7 lacs was paid by the complainant to the OP on the basis of receipts produced and has directed that Rs. 80,000/- deposited by the complainant to be paid to the OP as balance amount of the sale price of the suit flat.
The complainant has been awarded Rs. 1 lac by way of compensation towards mental stress and agony and costs of Rs. 20,000/- and has further directed that in case the compensation is not paid within the appeal period, the same will carry interest at the rate of 12% p.a.
11. In the above background, we have heard the lr. advocates on behalf of both the parties.
Strangely, the complainant has filed a lengthy reply to the appeal as well as lengthy written arguments after advancing oral submissions and much paper has been wasted on that score. We have perused the record.
12. Shri. D.S. Naik, the lr. advocate on behalf of the Appellant/OP would contend that the OP is not a builder and as such the complainant is not a consumer and as such the complaint could not have been entertained by the Lr. District Forum.
Shri. Naik would submit that what was agreed to be sold to the complainant was a second hand flat earlier purchased by the OP under the agreement dated 13/05/02 and as such the complainant ought to have approached a Civil Court for specific performance of the said agreement where all issues could have been decided by the Civil Court and in that regard Shri. Naik has placed reliance on State Bank of India vs. Shilender Chaudhary (IV) 2010 CPJ 234 and Mandira Mookerjee vs. District Consumer Disputes, AIR 2005 CAL 108.
13. We are unable to accept the submission made by Lr. Adv. Shri. D. S. Naik. The case of Mandira Mookerjee (supra) is of no assistance to the case of the OP. The case of Mandira Mookerjee was also a case for execution of a conveyance pursuant to an agreement for purchase of a flat under the scheme formulated by the developer under agreement with the owner before the consumer Forum and it was held that the consumer Forum was competent and has jurisdiction to grant the relief of execution and registration of the conveyance in the kind of contract involved in that case; the proceedings were maintainable before the Consumer Forum.
13.1. In coming to the said conclusion, the Hon. High Court referred to France B. Martins vs. Mafalda Maria Teresa Rodrigues, wherein the Apex Court has held that it was within the jurisdiction of the Commission under the 1986 Act to grant relief of specific performance of the contract for execution and registration of the conveyance. Reliance was also placed on Olympus Superstructures Pvt. Ltd., vs. Meena Vijay Khetan, wherein it was held that even the arbitrator can grant the relief of specific performance of sale of an immovable property and being so there could not be any bar of it being equally true in relation to a proceeding before the Consumer Forum (see para 7.3 of the Lr. Judgement ). It was also held that:
7.5. we may deal with those definitions as hereafter. But before doing so. We may refer Section to 11 of the 1986 Act, in order to construe the jurisdiction of the Consumer Forum. Section 11 confers on the District Forum jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed Rs. 20 lacs. Thus it is not only the grant of a specific relief but also the compensation in lieu thereof is well within the jurisdiction of the Consumer Forum and as such it cannot be said that the specific performance as contemplated in the circumstances of the cases not being an agreement for sale of immovable property simpliciter could be drawn out of the jurisdiction.
The Court referred to the definition of the word service being of very wide amplitude and further held in para 7.9 that:
It could still remain a service, even if it is contended that because of the amendment of Section 17 of the Registration Act, the agreement was unenforceable since practically for all reasonable purposes and fictionally the possession of the property has been delivered to the consumer pursuant to the agreement for the sale intending to convey title to the property and the formalities relating to the execution and registration of the conveyance, a service obligation remains to be performed. In such a case where the contract is almost performed in other respects and only the formalities for legally conveying title remains to be performed pursuant to the scheme formulated, as involved in the present case, the obligation of execution registration of conveyance would be a service within the meaning thereof as defined in Section (2)(o).
13.2. This Commission in FA. No. 20/12 filed by Mormugao Municipal Council by order dated 4/4/13 has held as follows:
The O.P. in terms of clause 1, is required to execute a sale deed in favour of the complainant. No sale would be complete unless a registered sale deed is executed in favour of the complainant. This is a implied contract between them. In terms of clause 6 the O.P. is required to transfer the house tax. These can be said to be services which the O.P. is required to render to the complainant under the contract of sale dated 20/12/04.
It is contractual service which the O.P. was required to perform under the agreement. Therefore, the O.P. is a service provider against whom the complaint is maintainable.
14. We would prefer to follow the above view. The definition of deficiency given in Section 2(g) of the C.P. Act is wide enough also to cover a case where an act is undertaken to be performed by a party under a contract is not performed by a party it would amount to deficiency of contractual service. The definition of service - is also wide enough, and therefore we find that since the O.P. has failed to convey the suit flat to the complainant by virtue of a sale deed as well as to request the Village Panchayat to transfer the tax, there is deficiency of service on the part of the O.P, in terms of the agreement between them.
14. The next submission made by Shri. D.S. Naik, lr. advocate is that there is a civil suit filed by the OP in which a counter claim has also been filed by the complainant and all the issues between the parties can be conveniently decided in the said civil suit. The lr. advocate would submit that the Lr.
District Forum was therefore not justified in proceeding with the parallel proceeding.
14.1. The Lr. District Forum has concluded that the agreement of sale is dated 13/05/02 and the consumer complaint was filed on 30/10/02 while the said civil suit was filed on 16/1/12 and that for all these years the complainant was in possession and enjoyment of the flat with the consent of the OP and since the suit was filed subsequently the Lr. Forum had ample powers to try and entertain complaint as it appears that the suit was filed by way of afterthought.
14.2. We are entirely in agreement with the above finding of the Lr. District Forum.
Admittedly, the Act of 1986 gives to a consumer an additional remedy to enforce his rights, in addition to the remedy which would otherwise be available to him of approaching the Civil Court.
We have already noted that the complaint filed on 30/10/02 was first disposed off by the Lr. District Forum by order dated 22/08/08 and the suit was filed much later and only on 16/1/12.
The OP should have taken appropriate steps, in case the OP desired and was otherwise entitled to, seek a stay of the proceedings of the consumer complaint from the said Civil Court.
There was nothing parallel in the proceedings of the consumer complaint and the said civil suit. The consumer complaint which was filed earlier in point of time was bound and in fact ought to have been decided as required by the 1986 Act within three months or so.
14.3. In our view, and on the facts of this case, the decision in State Bank of India vs. Shilendra Chaudhary (supra) is of no assistance to the case of the OP. In that case the civil suit appears to have been filed before the filing of the consumer complaint and for that reason it was observed that as the Civil Suit filed by the Appellant was pending before the Civil Court and parallel proceedings for the same cause of action in the complaint would be a misuse of the process of law as the complainant could seek relief in the said civil suit by filing a counter claim, and, such the order passed by the Lr. District Forum was disturbed.
14.4. In the circumstances, therefore, we are unable to accept the submission of the Lr. Adv. Shri. D.S. Naik that the consumer complaint ought not to have been decided because much later the OP had filed a civil suit in which the complainant had raised a counter claim.
15. The next submission of Lr. Adv. Shri. Naik is that the amendment application was time barred. We are unable to accept this submission, as well. The complainant had only placed on record subsequent events which took place by virtue of the said amendment application events such as that the complainant had paid an amount of Rs. 62,951/- to the said Society which was otherwise payable by the OP; that the OP had sent a letter to him calling upon to him to pay Rs. 1.5 lacs when he was liable to pay only Rs. 80,000/- etc. etc. In fact nothing turns round on the said application for amendment and therefore we are unable to accept the submission that the said application was time barred.
16. No other submissions have been made by the Lr. Adv. Shri. D.S. Naik on behalf of the OP.
17. After examining the matter from various aspects, we do not find any infirmity or illegality in the impugned order requiring our interference. We therefore proceed to dismiss the appeal with costs of Rs. 5000/- to be paid to the complainant.
[Shri. Jagdish G. Prabhudesai] [Justice Shri. N. A. Britto] Member President