State Consumer Disputes Redressal Commission
Shri Vishwas Santosh Malvankar, vs Shri Santosh Atmaram Kale, on 24 October, 2014
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA FA No.71/14 1. Shri Vishwas Santosh Malvankar, s/o Santosh Vaddueo Malwankar aged about 47 years, Indian National 2. Mrs. Sarita alias Shivani Vishwas Malvankar, w/o Shri Vishwas Santosh Malvankar, aged about 45 years, Indian National. Both r/o Murida, Fatorda, Margao, Goa. ...Appellants V/s. 1. Shri Santosh Atmaram Kale, s/o Atmaram Ka,e major of age 2.Smt. Shamal Santosh Kale, d/o Shri Krishna Shanke, major of age Both r/o Flat No.41 C, Jaideep Apartments, Pajifond, Margao, Goa. .Respondent Appellants/OPs are represented by Adv. Shri. S. M. Usgaonkar Respondents/Complainants are represented by Adv. Shri M. P. Almeida Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 24/10/2014 ORDER
[ Per Justice Shri. N. A. Britto, President] This is an appeal filed u/s 27-A of the Consumer Protection Act, 1986, and, it is directed against order dated 01/08/2014 of the Lr. District Forum, Margao, in execution application no.13/2010, by which the Appellants/OPs/JDs have been sentenced to undergo simple imprisonment of 9 months and to pay fine of Rs.5,000/- each and in default to undergo simple imprisonment of 15 days.
2. We have heard Shri Usgaonkar, the lr. advocate of the Appellants/JDs and Shri Almeida, the lr. advocate of the Respondents/Complainants.
3. Three submission have been by Shri Usgaonkar, the lr. advocate of the Appellants/JDs, but, before we consider the said submissions it would be necessary to mention in brief, a few facts, giving rise to impugned order dated 1/08/2014.
4. The Appellants/OPs/JDs were the owners of a plot of land identified as plot A having an area of 361.80 sq. mts. wherein they decided to construct a commercial-cum-residential building with ground plus two upper floors, with shops with mezzanine, etc., and engaged Respondent No.1/Complainant No.1 as their contractor. A perusal of the complaint which went uncontested, and therefore its averments deemed to have been admitted, would show that the Complainant No.1 raised various bills and the OPs adjusted some of the amount due to the Complainant No.1 towards the payment of shop No.S-1, agreed to be purchased by the Complainants for a sum of Rs.3 lacs vide agreement dated 05/07/2001 for which the OPs also issued receipts. Shri Almeida, has tried to emphasize that this agreement was not only between Complainant No.1 as their contractor, but also Complainant No.2. The said shop no.S-1 to be sold was located on the ground floor and admeasured 31 sq.mts. with mezzanine. Possession of the said shop S-1 was to be given to the Complainants, as purchasers of the shop, within a period of 8 months from the date of signing of the said agreement dated 5/07/01.
5. On the basis of the said agreement dated 05/07/01, the Complainants demanded the possession of the said shop by legal notice dated 6/08/02 which was replied by taking various defenses, by reply dated 6/09/02. The Complainants then filed the complaint C.C No.12/04 which was disposed off by the District Forum by order dated 5/05/2010.
6. The OPs were, interalia, ordered to hand over the possession of the said shop to the Complainants and also to pay compensation by way of interest at 18% on sum of Rs.3,00,000/- for the period from 5/03//02 to 5/08/02, besides costs of Rs.5,000/-.
7. The said final order/decree dated 5/05/10 has attained finality in that the appeal filed by the OPs with application for condonation of delay, came to be dismissed by this Commission by order dated 13/12/12. Infact, this is a fourth time that the OPs have approached this Commission. Be that as it may, we would take up for consideration first, the third submission made by Shri Usgaonkar which was not taken as a ground of appeal in the memorandum of appeal and which has been allowed to be taken with consent of the Complainants advocate Shri Almeida without formally amending the memorandum of appeal.
8. Shri Usgaonkar, the lr. advocate of the OPs has taken us through the complaint and its various averments, including the word suit used in para 18 of the complaint and has submitted that the dispute raised by the Complainants was not a consumer dispute to be cognizable by a Forum established under the Consumer Protection Act but a dispute which was essentially regarding settlement of accounts between Complainant No.1, on one hand, and the OPs, on the other hand, and, as such ought to have been filed before a Civil Court. Pointing out again to para 18 of the complaint, Shri Usgaonkar would submit that the OPs had taken the point of jurisdiction as the dispute raised was not a case of deficiency in service but a case of settlement of accounts. Lr. advocate would submit that towards the money which the OPs were to pay to the Complainant No. 1 towards the construction, the Complainant No.1 was to be given a flat in kind. Lr. advocate, therefore, submits that the final order/decree dated 5/05/2010 is without jurisdiction and as such can be attacked even in execution proceedings and in support of the said submission, Shri Usgaonkar has placed reliance on Kanwar Singh Saini, (2012) 4 SCC 307 and Jagmittar Sain Bhagat & ors (2013) 10 SCC 136.
9. There can be no dispute about the proposition of law stated in the above decisions. We may refer to the judgement in Kanwar Singh Saini , supra wherein the Apex Court has held as follows:
There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute.
10. In Jagmittar Sain Bhagat & ors (supra) Apex Court has again held as follows:
Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes a decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the root of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a court/ tribunal inherently lacks jurisdiction, acquiescence of a party equally should not be permitted to perpetrate and perpetuate defeating of the legislative animation. The court cannot derive jurisdiction apart from the statute.
11. We are unimpressed with the submissions made by Shri Usgaonkar the lr. advocate of the Appellants. The basis on which the consumer complaint was filed by the Complainants is the agreement dated 5/07/2001 styled as an agreement of sale of shop under which the OPs, as owners/builders, had agreed to sell to the Complainants, as purchasers, the said shop identified as shop no.S-1 on the ground floor for a consideration of Rs.3,00,000/- which were to be paid as per schedule annexed thereto, and, as per the said schedule, it appears that the payments have been made or adjusted by the Complainants, for which receipts were also obtained by them, and, even assuming, and, we repeat the word assuming, that the payment of Rs.3,00,000/- to be made by the Complainants was by way of adjustment of the bills raised by the Complainant No.1 towards the works of construction of the said commercial-cum-residential building, nevertheless, that would remain as consideration to be paid by the Complainants to the OPs under the said agreement dated 5/07/2001 for sale of the said shop. In this context, we may refer to the order of this Commission dated 16/12/2013 in E.A. No.6/13 in the case of Dr. Mahmood Ali wherein this Commission has observed that :
We may now only refer to the decision of Maharashtra State Commission in M/s. S.P. Developers vs. Narendra Rameshwar Mishra & ors., 2012(1) CPR 2, wherein the lr. Commission has observed that the definition of consideration as revealed from the Contract Act contemplates promise to perform a particular act or abstinence as agreed between the parties. Cash payment is one of the factors.
However, in every case it is not expected that it should be a cash payment. Even act and abstinence to perform a particular act or not to perform particular act is a consideration under the law. This finding was given in a case where land was given to the appellant M/s. S. P. Developers for development on consideration that the appellant would give one flat admeasuring 800 sq.ft. built up area to the complainant.
It was also held that it was not a contract or agreement without consideration but it was a contract with a valid consideration on record and therefore the District Forum was justified in directing possession of the flat and also monthly compensation.
12. Considering the definition of the expression consumer particularly given in Section 2(d)(ii), the definition of service given in Section 2(1)(o) which is otherwise very wide, and the definition of deficiency given in Section 2(1)(g), the OPs were to provide service to the Complainant of selling the said shop and as such were service providers, who on their failure to provide the said shop, inspite of legal notice, were deficient in providing the said service, as contemplated by Section (2)(1)(g) of the C. P. Act, and, the complainants as consumers of the said service had rightly filed the consumer complaint which was decreed in their favour for reliefs already referred to, and, therefore there is no question of the Lr. District Forum not having jurisdiction to entertain and decide the complaint. The first submission therefore needs to be rejected.
13. The second submission of lr. advocate of the OP is that the OP No.2 is a woman, and, therefore cannot be sentenced to jail, and, in support of this submission Shri Usgaonkar has placed reliance on the decision in the case of Mrs. Jancy Joseph, AIR 1999 Ker 234, which was rendered relying on a division Bench decision of the Madras High Court reported in 1996 CCJ 668, and, also on the decision in Jolly George Vargese and anr., AIR 1980 SC 470. Shri Usgaonkar would submit, referring to Jolly George that the OPs have if at all, committed a breach of contract, and, therefore cannot be sentenced to prison.
13. We are unable to accept this submission made by Shri Usgaonkar. The decision in Mrs. Jancy Joseph (supra) was rendered by Kerala H.C. referring to the said other two decisions at a time when the final order/decree of a Forum was executable in the same manner as if it were a decree or order made by a court in a suit pending therein. It was then lawful for the Forum in the event of its inability to execute it to send the same for execution to the Court within the legal limits of whose jurisdiction the person against whom it was made resided or carried on business or personally worked for gain. Another decision of the Kerala High Court in Mary Chacko, AIR 2005 Ker 291, is to the same effect. These decisions are of old vintage, if we may say so, with respect, and now cannot be considered as good law.
15. Sections 25 and 27 of the Consumer Protection Act have changed their complexion since then and with effect from 15/03/03. Section 27 of the Consumer Protection Act has been substituted and subsection (1) thereof has been renumbered, and, as it stands today, Section 27, sub section (1), inter alia, provides that when a person against whom the complaint is made fails or omits to comply with any order made by the Forum such person shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to 3 years or with fine which shall not be less than Rs.2,000/- but which may extend to Rs.10,000/- or both. In other words, Section 27 of the Consumer Protection Act as it stands, makes the disobedience of an order of the Forum into an offence punishable with imprisonment or with fine or with both. As rightly pointed out, on behalf of the Complainants, Section 138 of the Negotiable Instruments Act, makes an offence of dishonor of cheques into a criminally punishable offence, and likewise Section 27(1) of the C. P. Act makes disobedience of the Order of the Forum into a criminally punishable offence which can be punished with imprisonment or fine or with both, and, when such is the legal position there can be no distinction made whether the person disobeying the order is a man or woman or for that matter a boy or a girl.
The only difference which could be there is only in case there are any extenuating circumstances in favour of such person calling for lesser punishment of one type or the other. In this context, we may refer to Ravi Kant vs. National Consumer Disputes , AIR 1997 Delhi 182, wherein the Delhi HC has held that:
Section 27 of the Act has created a statutory offence the non-compliance of an order of a duly constituted Tribunal under the Consumer Protection Act, 1986 and has made the said non compliance an offence punishable with simple imprisonment or fine. A statute can create a Tribunal and might say that non compliance with the orders of the Tribunal is an offence and is punishable by way of imprisonment or fine (as in Section 27) and this penal provision can be in addition to any other mode of recovery (as in Section 25).
16. Again, the Madras High Court in the case of Radhika Purushothaman and anr. Vs. Kala Manivannan and anr. 1997 (97) Compcas 782, and after considering Jolly George Vargese (supra) and ors. decisions have come to the conclusion that:
the proceedings under Section 27 of the Consumer Protection Act, are criminal in nature. A plain reading of the Section itself would show that the section is punitive. It mentions penalty in the form of imprisonment and levy of fine.
Therefore, when it comes to criminal proceedings, it cannot be said that the Criminal Procedure Code differentiates between a man and a woman as done under Section 56 of the civil Procedure Code. A person whether man or woman is liable for punishment for violation of the order passed by the Forum. Therefore, the principles of the Civil Procedure Code cannot be applied to the punitive provision of the Consumer Protection Act.
17. The Kerala High Court in Raghavan vs. C.D.R.F., 2006 (3) KLT 706 has held that:
Two modes of implementation of the orders in the Act are provided, under Section 25 by attachment of the property/ revenue recovery and under Section 27 by way of punishment either with fine or with imprisonment or with both.
18. This Commission has reiterated by order dated 18/09/2014 in F.A. No.67/2014 in the case of Mrs. Sharma Coutinho that:
there is now preponderance of judicial opinion in support of the view that the power under Section 27(1) has got to be exercised by following the procedure prescribed for trial of offence under the code of Cr. Procedure, 1973. This Commission has also reiterated that for non compliance of an order, remedies provided and those contemplated by Section 25(3) and 27(1) of the Consumer Protection Act and both are independent and concurrent. This view is also supported by the decision of Kerala H.C. in Venugopal reported in AIR 2000 Ker 271 and the Orissa S.C. in Swapu Gas Agencies reported in 2005 (2) CPR 38.
19. The second submission therefore also needs to be rejected.
20. The third submission is that the OPs have no means to pay. Lr. advocate would submit that the Lr.
District Forum has rendered no finding on this aspect and has merely observed in the impugned order that the OPs have been enjoying the possession of the said shop as well as substantial amount of the Complainants, without there being any evidence on record. We are unable to accept this submission as well. Admittedly, the OPs are no ordinary service providers. They were the owners of the said plot of land and have put up a commercial-cum-residential building complex in which one shop was agreed to be sold to the Complainants for a sum of Rs.3,00,000/- . Complainant No.1 was their contractor, for the construction of the said building. The OPs in their evidence before the District Forum, in proceedings under Section 27 of the Consumer Protection Act, did state that they were not the owners of the premises that are mentioned in the order passed by the Forum and that they had no source of income nor any assets movable and immovable. However, they did not specify as to who were the owners of the said shop S-1. When they were questioned under Section 313 of the Cr. P.C., particularly OP No.1, regarding the obtaining of occupancy certificate and not handing over the possession of the said shop S-1 to the Complainants, OP No.1 refused to give any answers, and later again stated that they do not have any shop. However, the OPs did not state as to what they had done with the said shop which was agreed to be sold to the Complainants by virtue of the said agreement dated 5/07/2001.
It is not their case that the said shop was never built in the said commercial-cum-residential complex built by them with Complainant No.1 as their contractor or whether they had sold it to anyone or for how much it was sold. Therefore, the evidence of the OPs could not have been accepted. The only inference is that the OPs either have the possession of shop with them which was agreed to be sold to the Complainants or they have sold the same to someone else for a higher price thereby depriving the Complainants of the same under the said agreement dated 5/07/2001. To sum up, this is a clear case where under agreement dated 5/07/2001 the OPs as owners/builders had agreed to sell the shop to the Complainant for a sum of Rs.3,00,000/- and the Complainants have not been put in possession of the said shop for several years now inspite of final order/decree dated 5/05/2010. They have simply flouted the order.
20. We, therefore, find there is no merit in this appeal and consequently we proceed to dismiss the same with costs ofRs.5,000/-. The Appellants/OPs to surrender before the said Lr. District Forum within two weeks from today to undergo the said sentence, failing which the Lr. District Forum will take further steps to execute the order/sentence as per the requirements of the Cr. P.C. Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto] Member President /lm