National Consumer Disputes Redressal
M/S J. Girija vs 1. Dr. P. Satyanarayana on 18 January, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 496 OF 2011 (From the order dated 28.10.2011 in Complaint No.5051/2011 of the State Commission, A.P.) M/S J. GIRIJA W/O LAKSHMANNA, HINDU, AGED ABOUT 36 YEARS, EMPLOYEE, R/O SAIKRIPA, H. NO.35-5/2, G.K. COLONY, SAINIKPURI POST SECUNDERABAD - 110094 Appellant (s) Versus 1. DR. P. SATYANARAYANA S/O LAKSHMAIAH HINDU, AGED ABOUT 65 YEARS, AYURVEDIC DOCTOR & MONEY LENDER, C/O SAI HOMEO CLINIC, R/O 2-1-566, OPP. SHANKARMATT, NALLAKUNTA, HYDERABAD 500044 2. SRI P. SAILESH NARAYAN, S/O DR. P.SATYANARAYANA HINDU AGED ABOUT 35 YEARS, OCC. MONEY LENDER, R/O 2-1-566, OPP.SHANKARMATT, NALLAKUNTA, HYDERABAD 500044 Respondent (s) BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant (s) : Mr. L.Venu Gopal, Advocate with Major T.K.M.Rao, Advocate Pronounced on : 18th January, 2012 ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER Present appeal has been filed by appellant against order dated 28.10.2011, passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short State Commission).
2. Vide impugned order, complaint filed by appellant was ordered to be returned with an observation that same could be filed at an appropriate Court having jurisdiction in the matter.
3. Appellant/complainant filed a complaint under Section 17 (a) (i) of the Consumer Protection Act, 1986, (for short as Act) before the State Commission mentioning therein that the complaint has been filed for deficiency of service ; money lending services-non redemption of mortgage u/s 60 of T.P.Act, 420, 406 and 112 of the IPC.
4. Appellant sought the following reliefs in its complaint ;
1. To grant injunction under Section 18 r/w 14 of the CP Act to prohibit the OPs to alienate the property pending finalization of the complaint.
2. To immediately redeem the mortgage in favour of the complaint and to handover the documents and posses or to pay market value as on the date.
3. To construct the two demolished rooms of the sizes as mention in the mortgage deed or to pay compensation of Rs.5,00,000/- to the complainant.
4. To erect a perimeter fence all around the entire plot of the size 90 X 60 Yards or pay compensation of Rs.1 lakh.
5. To get the encroachments on the eastern-side or pay compensation of Rs.10 lakhs to the complainant.
6. To get the plot cleaned of the garbage and remove the unauthorized parking or to pay compensation of Rs.1 lakh.
7. To pay Rs.3 lakhs to the complainant towards loss of mesne profits.
8. To pay damages to the tune of Rs.5 lakhs for the loss of profit for denying the sale of plot at peak time.
9. To compensate Rs.5 lakhs escalation of the cost of construction.
10.To take immediate action to get the encroachments removed in the open space in the northern side of the plot or to pay compensation of rs.10 lakhs.
11. To pay Rs.1 lakh towards harassment and agony caused.
12. To pay Rs.1 lakh towards the cost of suit and travel expenses.
5. State Commission after hearing the counsel for appellant and after perusing the record held, that it cannot take cognizance of the complaint, in view of the fact that appellant claimed to be a mortgagor of the opposite parties. While dismissing the complaint it observed ;
When the complainant herself admits that the opposite parties are denying the discharge of the entire mortgage amount and they refused to return the documents, we are unable to appreciate that the case comes under the provisions of the Consumer Protection Act. It cannot be said that non-return of documents of title amounts to deficiency in service more so according to them the complainant did not repay the debt.
It is purely a civil dispute. The questions that were raised in the complaint cannot by no stretch of imagination could be construed as a consumer dispute. Eviction of third party from the premises, direction for construction of demolished premises cannot be directed by the consumer fora nor they are the consumer disputes as prescribed under the Consumer Protection Act.
The learned counsel for the complainant also relied the decision of Honble Supreme Court in Dr.J.J. Merchant Vs. Shrinath Chaturvedi reported in (2002) 3 SCJ 715 and contended that merely because the consumer commission is required to have summary trial is hardly a ground for directing the consumer to approach Civil Court. Equally relying C.C.I. Chambers Co-operative Housing Society Ltd. Vs. Development Credit Bank Ltd. reported in (2003) 7 SCC 233 contended that the consumer fora have been established and conferred with the jurisdiction in addition to the conventional courts. Merely because recording of evidence is required or some questions of fact and law arise which would need to be investigated and determined cannot be a ground for shutting the doors of any Forum under the Consumer Protection Act. There is no quarrel as to the propositions rendered in those decisions. We are not rejecting the complaint on the ground that it requires an elaborate trial or that evidence has to be taken on the above points. What we opine is that the dispute raised is not a consumer dispute that could be agitated before the Consumer Fora or Commission. The reliefs sought for cannot be equated with the services defined under the Act.
In the circumstances, the complaint is returned with an observation that same could be filed at an appropriate court having jurisdiction in the matter.
6. It is contended by learned counsel for the appellant that appellant is very much a consumer in view of the provisions of Section 2 (1) (d) (ii) and 2 (1) (o) of the Act.
7. Other contention made by learned counsel for the appellant is that the damages have occurred due to the possessory mortgagee not taking due care u/s 76 (a) of the Transfer of Property Act, 1882 and as such State Commission could not have dismissed the appeal in limini without giving the notice to the opposite party. In this regard, learned counsel has relied upon Rajesh Kumar Vs. World Wide Immigration Consultancy Services Ltd. & Anr. Reported as I (2005) CPJ 326, decided by Consumer Commission of Chandigarh.
8. As per appellants own case, she has filed the present complaint for deficiency of service ; money lending services-non redemption of mortgage u/s 60 of T.P.Act, 420, 406 and 112 of the Indian Penal Code. 9. The reliefs claimed under Transfer of Property Act, 1882, Indian Penal Code, seeking directions for demolition of the rooms getting the encroachment removed, removal of unauthorized encroachment, unauthorized construction, to get the plot cleaned of the garbage and removal of the unauthorized parking, does not fall within the purview of the Act.
10. This Commission is not bound by the decision of the State Commission as cited by learned counsel for the appellant, in support of its contention. Even otherwise, u/s 17 of the Act read with Section 12 of Act, State Commission has got ample power to reject the complaint at the admission stage itself.
11. We do not find any ambiguity or illegality in the impugned order of the State Commission. The order passed by State Commission is perfectly legal and justified and State Commission rightly dismissed the compliant of the appellant in limini.
12. Under these circumstances, we hold that the present appeal filed by the appellant is not maintainable and the same is devoid any merit. It has been filed just to waste of time of this Commission. Accordingly, the appeal of the appellant is hereby dismissed with costs of Rs.10,000/-.
13. Appellant is directed to deposit the costs of Rs.10,000/- by way of cross cheques in the name of Consumer Legal Aid Account of this Commission, within four weeks from today. In case, appellant fails to deposit the said costs within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization.
14. List on 24.2.2012 for compliance.
J. (V.B. GUPTA) PRESIDING MEMBER ...
(VINAY KUMAR) MEMBER Sonia/