State Consumer Disputes Redressal Commission
Nicco Uco Alliance Credit Ltd. vs Mr. Puthenparambil Varghese Samuel on 7 April, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/276/2013 (Arisen out of Order Dated 11/02/2013 in Case No. CC/486/2009 of District Kolkata-I(North)) 1. Nicco Uco Alliance Credit Ltd. Nicco House, 2nd Floor, 2, Hare Street, P.S. Hare Street, Kolkata - 700 001. ...........Appellant(s) Versus 1. Mr. Puthenparambil Varghese Samuel S/o Late P.C. Varghese, 93/4, Karaya Road, P.S. - Karaya, Kolkata - 700 019. 2. Mrs. Lizy Samuel W/o Mr. Puthenparambil Varghese Samuel, 93/4, Karaya Road, P.S. - Karaya, Kolkata - 700 019. 3. Dr. Abhijit Sen S/o Late Amiyo Kumar Sen,Nicco House, 2, Hare Street, P.S. Hare Street, Kolkata - 700 001 & also at 27A, Asutosh Choudhury Avenue, P.S. Ballygunge, Kolkata-700 019. 4. Smt. Shipra Sen W/o Dr. Abhijit Sen, Nicco House, 2, Hare Street, P.S. Hare Street, Kolkata - 700 001 & also at 27A, Asutosh Choudhury Avenue, P.S. Ballygunge, Kolkata-700 019. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mrs. Mousumi Chakraborty Mr. Partha Chakraborty , Advocate For the Respondent: Mr. Ranjit Das, Advocate Mr. Ranjit Das, Advocate Mr. Sibaji Sankar Dhar, Advocate Mr. Sibaji Sankar Dhar, Advocate ORDER
07/04/16 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-I in CC 486 of 2009 allowing the complaint and directing the OPs jointly and severally to perform the registration in respect of the deed of lease in accordance with the leasehold right in terms of agreement dated 27/04/02 in respect of the flat in question in favour of the Complainants, pay compensation of Rs.40,000/- and litigation cost of Rs.10,000/- to the Complainants within 45 days from the date of communication of the order failing which interest @ 9% p.a. shall accrue over the entire sum till realisation.
The case of the Complainants/Respondents, in short, is that they wanted to purchase a flat and entered into an agreement for assignment of lease dated 27/04/02 with the OP Nos.1, 2 and 3 in respect of a dilapidated flat measuring about 840 sq. ft. in the leasehold property for a consideration of Rs.6 lakh held by OP Nos.1 and 2. OP No.3 is the financier and the confirming party. The Complainants initially paid Rs.1,20,000/- and, subsequently, the balance amount of Rs.4,80,000/- along with 4% interest thereon was paid by the Complainants. The OP No.3 assured that there will be no problem in execution of the deed of lease after payment of the entire consideration. Even after the payment of total consideration and payment of all the previous dues of OP Nos.1 and 2 in regard to the Municipal taxes in respect of the said flat, the OPs did not register the deed of lease. The Complainants several times requested the OPs to execute the register deed of lease, but to no effect. For the said reason, the complaint was filed before the Learned District Forum.
The OP No.3 filed W.V. stating that the OPs do not render any service within the meaning of the provisions of C. P. Act, 1986 and the complaint case was not maintainable. It has been stated in the W.V. that a flat in the leasehold property would not come within the purview of C. P. Act, 1986. By an agreement for assignment the OP Nos.1 and 2 agreed to assign their leasehold right in the said flat to NICCO UCO Alliance Credit Ltd. (previously known as Alliance Credit and Investment Company Ltd.). The said flat has been charged in favour of UCO Bank and several other Banks forming a consortium for the dues of NICCO UCO. The proceeding was instituted before the Learned Debt Recovery Tribunal. An order has also been passed by the Learned Tribunal whereby NICCO UCO has been restrained from selling, transferring or alienating of its charged properties including the flat in question.
The Learned Counsel for the Appellant has submitted that originally it was the assignment of lease for 99 years and the property originally belonged to one Soorajmull Mohta and others, all trustees of Mohta Dharmart Nidhi who was the lessor and one Shanti Devi Dalmia was lessee. It was a lease for 99 years. Subsequently Shanti Devi Dalmia constructed a new multi-storied building in the premises according to the sanctioned plan. Shanti Devi Dalmia created sub-lease in favour of OP Nos.1 and 2. It is contended that it was not a case of out and out sale and title to the property cannot be transferred in a leasehold property. The Learned Counsel for the Appellant has referred to the decision reported in AIR (35) 1948 Bombay 349 [Treasurer of Charitable Endowments vs. S.F.B. Tyabji].
The Learned Counsel for the Respondent has submitted that the Complainants intended to purchase a flat and OP No.3 was the financier. It is contended that the deed of assignment has not been executed and in the said deed there was no story of pendency of any case before the Learned Debt Recovery Tribunal. It is submitted that the Complainants paid the consideration amount in full and also paid the Municipal taxes.
We have heard the submission made by both sides and perused the papers on record. From the averment made in paragraph 1 of the complaint it appears that the Complainants intended to purchase the leasehold dilapidated flat measuring about 840 sq. ft. being flat no.A-5 (5th floor) at 93/4, Karaya Road, Kolkata-700 019. From the averment made in the agreement for assignment of leasehold right dated 27/04/02 it is clear that the property belonged to Mohta Dharmart Nidhi Trust. Since it is a trust property it cannot come within the purview of C. P. Act, 1986. Moreover the Complainant in the petition of complaint has expressed his intention to purchase the property. In this connection we place reliance on the decision of the Hon'ble National Commission reported in IV (2012) CPJ 491 (NC) [Sunil J. Varma Vs. City and Industrial Development Corporation Ltd. & Anr.] wherein it has been held that the complaint was based on matters arising from agreement of lease and there was no hiring of service and payment of consideration between the parties and the Complainant was not a consumer. In another decision reported in 2011 CTJ 492 (SC) [Bhubaneswar Development Authority Vs. Sushanta Kumar Mishra] it has been held that in case of lease cum sale agreement there was no deficiency in service. In the decision reported in I (2011) CPJ 318 (NC) [Yogesh Yadab vs. Ansal Housing and Construction Ltd. & Anr.] it has been held that the matter pertained to lease between the parties which was a civil dispute. Moreover, from averment made in paragraph 1 of the complaint it appears that it was a dilapidated flat in the leasehold property. It is not a case of rendering facilities in the matter of housing construction and, therefore, there was no hiring of services under section 2(1)(o) of the C. P. Act, 1986.
It also appears from the averment made in the W.V. that a case was filed in the Learned Debt Recovery Tribunal wherein an order of injunction has been passed restraining NICCO UCO from transferring or alienating all its charged properties which includes the flat in question.
Having heard the Learned Counsel for the parties and on perusal of the papers on record, we are of the considered view that the Complainants are not entitled to get any relief in this case. The Learned District Forum was not justified in allowing the petition of complaint.
The Appeal is allowed. We set aside the impugned judgment and order. The petition of complaint is dismissed. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER