National consumer disputes redressalcommission new delhi


REVISION PETITION NO.3956 of 2008



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REVISION PETITION NO.3956 of 2008

(From the Order dated 17.06.2008 in S.C. Case No. 130/A/2007 of  State Consumer Disputes Redressal Commission, West Bengal)

 

Sanjay Kumar Gupta, 275, G.T. Road, P.O. Liluah, Police Station – Bally, District – Howrah.



                            ... Petitioner

  Vs.

 1. Kebal Kishan Barma,
2. Raj Kumar Barma, Both r/o 232/C/1, G.T. Road, P.O. Belur, Police Station – Bally,
District – Howrah
3. Amar Nath Ghosh, R/o 232/C/1, G.T. Road, P.O. Belur, Police Station – Bally,
District – Howrah.
                                             … Respondents.


 BEFORE: - 

HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT

HON’BLE MRS. VINEETA RAI, MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER 

For the Petitioner                   :        Mr. Sanjoy Kumar Ghosh, Advocate

                                                with Ms. Rupali Ghodh, Advocate.

 For the Respondents  :         Mr. Suchit Mohanty, Advocate 

O R D E R

(Pronounced on  3rd day of July, 2014)

 D.K. JAIN, J. PRESIDENT 

This Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainant is directed against the order, dated 17.06.2008, passed by the State Consumer Disputes Redressal Commission, West Bengal Kolkata in SC Case No. 130/A/2007, whereby the State Commission has overturned the order made by the Consumer Disputes Redressal Forum, District Howrah (for short “the District Forum”) in Complaint No. HDF 207 of 2006. 

2.      Succinctly put, the material facts are that Respondent No. 1, (Opposite Party No. 1) was the owner of property situated at 232/C/1, G.T. Road, Belur, Howrah.  He, along with his son, Respondent No. 2 herein (Opposite Party No. 2) developed the said property into several residential flats.  For the purpose of development and sale of flats so constructed, Respondent No. 1 executed Power of Attorney in favour of Respondent No. 2. On 21.11.2003  the said Respondents entered into an agreement for sale of a flat on the first floor to the Complainant for a total consideration of `2,88,900/-.  A sum of `1,30,000/- was paid by the Complainant by various cheques.  In addition, a sum of `1,60,000/- was stated to have been paid in cash against proper receipts between the period 10.07.2003 to 27.11.2003.  As per the agreement, possession of the flat was to be delivered to the Complainant by 31.05.2004. Despite repeated requests, the said Respondents refused to deliver possession of the flat.  He claims to have learnt in the meantime that some time in the year 2005 the said Respondents had inducted Respondent No. 3 (Opposite Party No. 3) in the said flat without his knowledge and consent. Thus alleging deficiency in service and unfair trade practice on the part of Respondents No. 1 and 2 for not delivering possession despite payment of full consideration, the Complainant filed Complaint against the Respondent, praying for delivery of possession of the flat, free from all encumbrances, or in the alternative, for refund of `2,90,000/- with bank rate of interest thereon along with a compensation of `1,00,000/- and costs. 

3.      Before the District Forum, Respondents No. 1 & 2 were proceeded ex-parte, as they had refused to accept the notice.  The complaint was, however, contested by Respondent No. 3 mainly on the ground that he was not aware of the agreement for sale between the Complainant and Respondents No. 1 & 2; the said Respondents had entered into an agreement with him for sale of the said property on 19.01.2004; sale deed in his favour was executed on 08.09.2004 and in the absence of any claim by the Complainant against him, the Complaint deserved to be dismissed. 

4.      Upon consideration of the documents placed on record by the Complainant, which included the agreement for sale and the receipts bearing the signatures of Respondents No. 1 & 2, the District Forum came to the conclusion that there was deficiency in service and unfair trade practice on the part of Respondents No. 1 & 2.  Consequently, the District Forum allowed the complaint against the said Respondents, directing them to refund the afore-noted amount deposited by the Complainant with them along with interest @ 18% p.a. from the date of full payment till realization.  Additionally, a compensation of`20,000/- and costs of litigation were also awarded.  However, the complaint qua Respondent No. 3 was dismissed.

5.      Aggrieved, Respondents No. 1 & 2 preferred appeal to the State Commission.  Accepting their plea that they were not afforded an opportunity to adduce evidence and that the agreement for sale dated 21.11.2003 was not properly stamped, the same having been executed on a stamp paper of `10/-, it should have been impounded, the State Commission held as under:-

“Since only ex parte evidence was taken before the Forum below, we are inclined to remand the case to the Forum below for taking necessary evidence from the contesting parties and dispose of the matter after hearing the same on merit. In this context, we are inclined to say that the deficiency of the Appellants in the present case is of complex nature.  It is not a case of sheer delay on the part of the Appellants to deliver the flat and execute the Deed of Conveyance.  The Appellants had sold the same flat unauthorisedly and unlawfully to another purchaser without the knowledge of the Respondent No. 1.  Obviously the suffering of the Respondent No. 1 in the present case is compounded by the illegal action of the Appellant.  He has lost not only financially, but also the cost of the flat with lapse of each day had increased almost disproportionately.  As the flat has been sold, the Appellant cannot restore the flat to the Respondent No. 1 at this stage.  The nature of deficiency in the present case is a complex one.  The decision in 2007 CTJ 1063 (CP) (NCDRC) – Asiatic Estate Development Vs. Shyam Sunder Paliyenkar, and also decision in 2007 CTJ 625 (CP) (NCDRC) might be relevant in the present case.

However, the agreement instrument not being duly stamped it is ordered that the impugned agreement be impounded and be sent to the District Collector, Howrah for assessing stamp duty along with penalty of 20% (twenty per cent) of the total value of stamp duty.  It is further ordered that the Forum shall hear the case afresh after the impugned document (Agreement) is received from the District Collector duly stamped.”

          Hence the present Petition.   

6.      On conclusion of final hearing, it was brought to our notice that during the pendency of this Revision Petition, Respondent No. 1 had expired.  The Petitioner was permitted to bring on record the legal heirs of the said Respondent, which has been done.

7.      Having heard Ld. Counsel for the parties and perused the documents on record, we are of the opinion that the impugned order is unsustainable.

8.      As regards the grievance of Respondents No. 1 & 2 that they were not aware of the proceedings before the District Forum as the service report of refusal had been obtained by the Complainant in collusion with postal authorities is concerned, except for a bald assertion in the memo of appeal filed before the State Commission, nothing was brought on record in support of the said averment.  Therefore, in the absence of any cogent material on record, in our view, the State Commission was not justified in remanding the case back to the District Forum for afresh adjudication after affording an opportunity to the said Respondents to adduce evidence, more so, when the factum of execution of the documents filed by the Complainant was not questioned.

9.      We may now advert to the main issue, viz. whether the State Commission was correct in law in holding that since the agreement for sale was insufficiently stamped, it was liable to be impounded and till appropriate stamp duty was paid, the complaint could not be entertained?   

10.    There is no gainsaying that the Act is a legislation for social benefit, meant to protect the interests of consumers, and therefore, in order to achieve the objective and purpose of the legislation, while construing the provisions of the Act a consumer forum is expected to adopt a constructive approach and not get bogged down by hyper technicalities of procedure.  Sections 12, 13 & 14 of the Act read with Rules made thereunder, lay down the procedure for entertainment and disposal of complaints by the consumer fora, including this Commission (See Section 22 of the Act).  Except for the procedure prescribed in these provisions, a Consumer Fora is not bound by any other procedure.  Even the provisions of the Evidence Act are not applicable.  Nevertheless, the principles of natural justice have to be scrupulously observed.

11.    In the present case, in our opinion, the factum of execution of the agreement for sale not being in dispute, the State Commission committed a serious illegality in non-suiting the Complainant on a technical ground that requisite stamp duty on agreement for sale had not been paid. A Consumer Forum is primarily meant to provide protection to the consumers and their claims cannot be defeated on technical grounds.   In our view the alleged non-payment of sufficient stamp duty was not material for the purpose of determining the question as to whether there was any deficiency in service under Section 2 (1) (g) read with Section 2(1) (o) of the Act.  In our opinion, non-delivery of possession of the flat in question within the stipulated time undoubtedly amounted to deficiency in service on the part of Respondents No. 1 & 2, falling within the purview of the Act. 

12.    Furthermore, having pocketed the money from the Complainant and then reselling the same flat to Respondent No. 3, without raising any demand from the Complainant or putting him to notice of any kind, their conduct in walking out of agreement dated 21.11.2003, was most unethical. Undoubtedly, Respondents had indulged in unfair trade practice within the meaning of Section 2 (1) (r) of the Act.  It was a clear case of deceit, which got compounded when the complaint was sought to be resisted on a technical ground, viz., full   Stamp   Duty   had not been paid on the agreement for sale. If  that  was  so, the said Respondents would have ensured that the full Stamp Duty was paid on the agreement for sale, before accepting the amount towards consideration for the flat.   We may note that in the memo of appeal filed by the said Respondents before the State Commission, the execution of Agreement dated 21.11.2003 with the Complainant and receipt of cheques totaling `1,30,000/- were not disputed.  As a matter of fact, while refuting the claim of the Complainant that a sum of `1,60,000/- was paid in cash against the receipts executed by both the said Respondents, it was stated that the said receipts had been obtained by the Complainant by taking advantage of his friendship with the said Respondents and by making false representations that these were against the payment of `1,30,000/- by cheques.  To say the least, the plea defies logic, more so, when the said receipts are not only executed on the letter-heads of Respondent No. 1, these are signed by him on the revenue stamp and were countersigned by Respondent No. 2. 

13.    For the aforegoing reasons, the Revision Petition is allowed and the impugned order is set aside with costs, assessed at  `10,000/-. If the total amount in terms of the order made by the District Forum has not yet been paid to the Complainant, the same shall be paid within four weeks from the date of receipt of a copy of this order, failing which, the Complainant shall be entitled to interest @ 12% p.a. from the date of order of the District Forum till realization.  

(D.K. JAIN, J.) PRESIDENT

(VINEETA RAI) MEMBER

(VINAY KUMAR) MEMBER

Ar/*

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

  




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