State Consumer Disputes Redressal Commission
Mr. Sergio Antonio Costa Caldeira vs Shri. Jose Joao Domingos on 20 February, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA RP No. 15/2012 Mr. Sergio Antonio Costa Caldeira aged 48 years, married, residing at c/o Saluzinho Fernandes, Behind General Post Office, Panaji, Goa. Complainant/D.H. v/s. Shri. Jose Joao Domingos Godinho, M/s. Perfect Builders, and Developers, C/o. Flat No. 9, 3rd Floor, Mutual Housing Co-op. Society, Gina Street, Dr. Dada Vaidya Road, Panaji, Goa. . Respondent/J.D. Complainant/D.H. is represented by Adv. Shri. A.P. Furtado. Respondent/J.D. exparte. Coram: Shri Justice N.A. Britto, President. Shri Jagdish Prabhudessai Member. Dated: 20/02/2013 ORDER
[Per Shri Justice N.A. Britto, President] Application dated 17/07/06 filed by the Complainant/D.H. has been dismissed by order dated 06/11/12, impugned in this revision petition.
2. The said application was filed for attachment and sale of an undivided right in H.No. E-631 at Dr. Dada Vaidya Road, to recover an amount of Rs, 4,34,388.90ps from the O.P/J.D. The said application was filed at the time when the J.D. was undergoing sentence imposed upon him under Section 27(1) of the C.P. Act, 1986 of 3 months simple imprisonment plus fine of Rs. 25,000/-.
3. The application did not make a mention as to whether the said premises were residential or commercial but the J.D. in his reply had stated, that the said premises were let out to his late parents wherein the brother of the J.D. was now residing. We see that the said premises were sought to be recovered by the landlord for the reconstruction of the building in proceedings before the Rent Controller, having No. Addl/Rent/1/98/SDO.
4. On failure on the part of the D.H. to mention in the application dated 17/07/06 that H.No. E-631 were commercial premises, the lr. District Forum was bound to proceed on the basis that the premises in question were residential premises. Not that this would make any difference in law, as we shall soon see.
5. Be that as it may, two points arise for our consideration. We asked Shri. A.P. Furtado, the lr. advocate on behalf of the D.H. whether it was permissible for the lr. District Forum to attach and sell the said residential premises of H.No. E-631 at Dr. Dada Vaidya Road, and, his submission is that the lr. District Forum could have attached and sold the same though at the same time lr. Adv. submitted that the D.H. will have no problem in case a recovery certificate is issued to the Collector to recover the said amount due by the J.D in terms of Section 25(3) of the C.P. Act. In support of his first part of the submission Shri. A.P. Furtado, the lr. advocate has placed reliance on State of Karnataka vs. Vishwabharati House building Co-operative Society, 2003 (2) SCC 412.
6. In our view, the lr. District Forum ought not to have considered the application of D.H. for attachment and sale of the property to recover the dues which the J.D. was liable to pay to the D.H. Incase any dues at all were liable to be paid, then the lr. District Forum ought to have issued a certificate to the Collector as provided by sub section (3) of Section 25 of the C.P. Act, 1986. The judgment of Vishwabharathi House Building Co-operative Society (supra) is of no help to the D.H. It came to be rendered by the Apex Court on 17/01/03 while Section 25 came to be substituted w.e.f. 15/03/03 by virtue of Act 62 of 2002. Prior to the substitution of Section 25, order passed by the Fora could have been enforced in the same manner as if it was a decree or order made by a Court in a suit and in case of inability to execute it send such order to the Court which was to execute it as if it was a decree or order sent to it for execution and in this context the Apex Court had stated that Section 25 had provided for a legal fiction for the purpose of execution of the order passed by the Fora and had further stated that only in the event the Fora was unable to execute its order, the same may be sent to the Civil Court of its execution and therefore the High Court was not correct to hold that each and every case, the order passed by the Fora was required to be sent to the Civil Court for execution thereof.
7. As far as the merits of the application are concerned, the conclusion arrived at by the lr. District Forum that the property in order to be attachable under sub section (1) of Section 60 CPC must be saleable property and capable of being transferred; and the property which is not capable of being transferred cannot be attached, cannot be faulted. This finding of the lr. District Forum appears to be in consonance with the case of Belrex India Ltd., AIR 1983 Delhi 430.
8. Nevertheless, Shri. A.P. Furtado, lr. Adv.
would submit that undivided right in a property is property which is capable of being sold. Shri. Furtado relies on article 1376 of the Portuguese Code of Civil Procedure which states that:
If any of the heirs may have made the transfer of his quota to any stranger without offering the preference to the other co-heirs, these can exercise a right of preference in the inventory proceedings when the transferee comes to present his entitlement.
When more than one heir appears to seek preference, the unique of article 1514 shall be observed.
9. On perusal of the records, we find that earlier reliance was placed on Article 2177 of the Civil Code and on the decision of the Apex Court in Smt. Gian Devi Anand, AIR 1985 SC 796. Article 2177 reads as follows:
A co-owner cannot, however, dispose any specific part of a common object without it having been assigned to him in partition; and the cession of the right which a party may be entitled to can be limited in conformity with law.
10. In Smt. Gian Devi Anand (supra) it was held that statutory tenancy in respect of commercial premises was heritable and the heirs of the statutory tenant are entitled to the same protection against eviction as afforded to tenant under the Act (The Delhi Rent Control Act, 1958).
11. Further submission made on behalf of the D.H. is that the lr. District Forum erred in not noticing that the parents of the J.D. had expired and consequently the estate had devolved on the heirs and the J.D. as an heir had acquired an undivided right to the said estate and the said right is a crystallized right and as such is a specific asset of the J.D. As far as this submission is concerned there can be no quarrel with the same. Another submission made on behalf of D.H., is that the District Forum grossly erred in applying section 60 of the CPC to the present case and the District Forum ought to have seen that first of all CPC does not apply to such matters as C.P. Act is a Code in itself laying down its own procedure and secondly assuming without admitting the CPC would apply, the specific item of the undivided estate could be sold and the lr. District Forum grossly erred in not noticing that the bar was only in respect to the tenancy rights of the residential premises and the bar does not apply to the tenancy rights of commercial premises as the J.D was claiming that the tenancy in favour of his parents was of commercial premises.
12. We are unimpressed with all these submissions made on behalf of the D.H. It is only procedural provisions of the CPC that may not be followed by the Fora under the C.P. Act but certainly not its substantive provisions. Section 60(1) (kc) appears to be such a substantive provision which exempts from attachment and sale in execution of a decree the interest of a lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodation apply. The Delhi High Court in Belrax India Ltd., (supra) has clearly held that the property, in order to be attachable under sub-section of Section 60 CPC must be
(i) saleable property and (ii) capable of being transferred, and, property which is not capable being transferred cannot be attached. The Delhi High Court has further held that the proviso to Section 60 (1) of the Code provides what properties are exempt from attachment.
It further holds that the proviso no doubt mentions properties which are exempt from attachment but not mention of a property in the proviso does not mean that it is attachable, and, the proviso is not to be interpreted so as to nullify main provision. The tenant has no disposing power over the premises under his tenancy. He has no right to transfer the tenancy rights. The tenant can do so only with the consent of the landlord in writing. the tenant has no saleable interest or disposing power over the tenancy rights of the premises. It follows therefrom that the undivided right which the J.D. has acquired in the said residential premises of H.N. E-631 could not have been attached and sold for the recovery of amount due by the J.D. in view of the said exemption of Section 60(1) (kc) of CPC.
To that extent the impugned order does not call for our interference.
13. Be that as it may, it appears that the possession of the flat GF-3 has been already handed over to the D.H, in terms of the final order/decree dated 26/02/03 as modified by the State Commission vide order dated 17/02/04. We see that at one stage the J.D. had shown his inclination to pay the decretal amount by installments but now he claims that he is penniless or a pauper. It would be for Collector to find out ways and means to recover the amount due by the J.D., once the recovery certificate for the amount due is issued to the Collector.
14. In view of the above discussion, we direct the lr. District Forum to hear the parties and issue the necessary certificate of recovery of the amount due by the D.H. to the J.D. in terms of Section 25 (i) of the C.P. Act, 1986. The view held by the lr. District Forum that the interest of the J.D. in the suit premises is exempt from attachment and sale is upheld.
Revision disposed off accordingly.
[Shri. Jagdish Prabhudessai] [Shri. Justice N.A. Britto] (MEMBER) (PRESIDENT)