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2013 DIGILAW 731 (CAL)

Gopal Das v. Ajoy Mukherjee

2013-09-26

TARUN KUMAR GUPTA

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Judgment : Tarun Kumar Gupta, J. This is an application under Article 227 of the Constitution of India challenging order dated 12th December, 2012 in S. C. Case No.FA/194/2012 passed by State Consumer Disputes Redressal Commission, West Bengal. The background fact of this case may be summarized as follows:- The O. P.s. being complainants filed a complaint in the District Consumer Disputes Redressal Forum 24 Pgs. (South) (hereafter to be referred as District Forum) being CCEE case No.162 of 2010 against present petitioner O. P. Their case was that they entered into an agreement dated 1st of April, 2009 with the O. P. for purchase of a flat in premises No.26/49 Motilal Road, Kolkata – 700061 at a consideration of Rs.7,10,000/-. The complainants made a total payment of Rs.1,16,000/- towards consideration. In spite of repeated demand the O. P. refused to hand over possession of the flat on execution of the deed of sale as per agreement. Accordingly, complainants filed said complaint praying for issuing direction upon present petitioner O. P. to execute and register said deed of conveyance, to pay Rs.40,000/- towards compensation for unnecessary harassment and also to pay a sum of Rs.10,000/- towards litigation cost. The present petitioner as O. P. appeared in the District Forum belatedly when the matter was fixed for ex parte hearing and was permitted to contest the case by filing written version on payment of a cost of Rs.10,000/- vide order dated 11th February, 2011. On account of non-payment of said cost of Rs.10,000/- O.P. was permitted to contest the case on points of law only vide order dated 13th of December, 2012. After argument learned trial court allowed said complaint with a cost of Rs.2,000/-. Present petitioner being O. P. was directed to execute and register sale deed in respect of the suit flat in favour of the complainants within two months with a further direction to pay compensation of Rs.40,000/- to the complainants for the harassment and mental agony with a further direction that those amounts shall carry interest at the rate of 12% per annum if not paid within two months. Present petitioner being aggrieved with said judgment dated 21st of June, 2010 preferred an appeal under Section 15 of the Consumer Protection Act, 1986. Present petitioner being aggrieved with said judgment dated 21st of June, 2010 preferred an appeal under Section 15 of the Consumer Protection Act, 1986. After contested hearing learned State Consumer Disputes Redressal Commission (hereafter to be referred as the State Commission) rejected said appeal upon modification of the order of district forum to the extent that on receipt of balance amount of Rs.5,93,500/- from the complainant, the present petitioner should deliver possession of the flat on execution and registration of the deed of conveyance and that a compensation of Rs.40,000/- to be paid by the present petitioner to the O. P.s. within 45 days therefrom failing which the amount shall carry interest at the rate of 9% per annum till realization in full. Being aggrieved with said judgment dated 12th December, 2012 this revisional application has been filed. Mr. Srijan Nayek appearing for the petitioner has assailed the judgments of the Forums below on the following grounds:- (1) There was an agreement of purchase of the flat in between the O. P. complainants and the present petitioner and that on account of failure to deliver the flat the O. P.s should have filed a suit for specific performance of contract. The O. P.s. were not consumers within the meaning of Section 2 (d) of the Consumer Protection Act, 1986 (hereafter to be referred as the Act of 1986). Non-delivery of flat in spite of alleged receipt of part consideration money is not a deficiency of service within the meaning of “service” as defined under Section 2(O) of the Act of 1986. (2) The District Forum without any authority to impose any cost, imposed a heavy cost of Rs.10,000/- as a condition precedent for filing written version by the present petitioner O. P. which was illegal. (3) As said cost of Rs.10,000/- was too heavy, the present petitioner as O. P. could not contest the proceeding in the District Forum by adducing evidence and that it violated natural justice. (4) Though the State Forum noted the objections of the petitioner regarding imposing of said heavy cost for permitting him to effectively participate in the proceeding which tantamounted to violation of natural justice but did not consider the same. (4) Though the State Forum noted the objections of the petitioner regarding imposing of said heavy cost for permitting him to effectively participate in the proceeding which tantamounted to violation of natural justice but did not consider the same. In support of his contention he has referred an unreported decision of Hon’ble Apex Court in Civil Appeal No.5466 of 2012 to impress upon this court that a person cannot be permitted to invoke the Act of 1986 unless it is a dispute with regard to the matter which comes within the meaning of “service” as defined under Section 2 (1) (o) and unless the complainant is a “consumer” within the meaning of Section 2 (1) (d) of the Act of 1986. He next submits that there was no provision of second appeal to the National Commission from the appeal order of the State Forum and as such the present petitioner is entitled to invoke the revisional jurisdiction of this court challenging the order of the State Forum as an appellate authority. He next submits that even if there was an alternative remedy but still a party can approach the High Court to invoke its jurisdiction under Article 227 of the Constitution of India if it can be shown that the alternative remedy would not be an efficacious one, or that the order was passed by an authority without jurisdiction, or that an order has been passed by an authority in violation of the principles of natural justice. In support of his contention he has referred a case law reported in 2012 1 CHN (CAL) page 543 (Auro Developers vs. Mala Mukherjee). He also refers a case law reported in (2013) 1 CAL LT 581 (Bhavesh Rajnikant Kampani vs. Kolkata Municipal Corporation & Ors.) to impress upon this court that an order without reasoning should be rejected. Mr. Sabyasachi Bhattacharyya appearing for the O. P. complainants submits that the petitioner could have moved National Commission against the impugned order of the State Commission under Section 21 (b) of the Act of 1986. According to him, the petitioner has tried to by-pass the National Commission by filing the instant case under Article 227 of the Constitution of India. Mr. Sabyasachi Bhattacharyya appearing for the O. P. complainants submits that the petitioner could have moved National Commission against the impugned order of the State Commission under Section 21 (b) of the Act of 1986. According to him, the petitioner has tried to by-pass the National Commission by filing the instant case under Article 227 of the Constitution of India. According to him, the petitioner can invoke the jurisdiction of this Court under Article 227 of the Constitution of India by bypassing National Commission if it can be shown that the order of the Forum was without jurisdiction or that there was violation of any natural justice. Mr. Bhattacharyya draws attention of this court to the terms of the agreement dated 1st of April, 2009 between the parties to show that there was an agreement of construction of a flat of about 750 square feet by the present petitioner at a consideration of Rs.7,10,000/- on receipt of an earnest money of Rs.1,06,500/- with a promise to complete said construction within 12 months from the date of said agreement and to hand over possession of the flat after its registration on receipt of balance consideration money. According to him, as the present petitioner has received part consideration for providing the specific service namely construction of the flat and the O. P. complainants paid part consideration money for availing of said service the O. P. complainants were consumers within the meaning of Section 2 (1) (d) (ii) for providing the specific service of construction of flat by the petitioner O. P. within the meaning of Section 2 (1) (o) of the Act of 1986. According to him, the O. P. complainants were the consumers and that the forums had the authority to decide the dispute. In support of his contention he refers a case law reported in AIR 2011 Supreme Court 130 (Chandigarh Housing Board vs. Avtar Singh & Ors.) to show that if there was an agreement between the parties for delivery of a flat on receipt of consideration money and part of which has already been received in that case for non-delivery of the flat and / or non-execution of the sale deed the purchaser may file a proceeding in the appropriate consumer forum under the Act of 1986. He next submits that if the O.P. omits or fails to take any action to represent his case within the time given by the Forum, the authority had the right to proceed ex parte against him, to impose cost upon him for taking adjournments in terms of Section 13 (2) (b) and Section 13 (3A) of the Act of 1986. He further refers regulation 11(3) of the Consumer Protection Regulations, 2005 to show that the Forum has the authority to impose cost for adjournments. In this connection he draws the attention of this court to the order dated 11th February, 2011 passed by the District Forum wherein it was noted that in spite of receipt of notice by the wife of the present petitioner / O. P. he did not appear in the proceeding in time and that when the matter was fixed for ex parte hearing he appeared and accordingly the Forum permitted him to take part in the proceeding by filing written version subject to payment of a cost of Rs.10,000/-. He next draws the attention of this court to the subsequent order dated 13th January, 2012 of the District Forum wherein learned counsel appearing for the present petitioner O. P. submitted that as the petitioner O. P. was unable to pay the cost, he was debarred from filing written version but may be allowed to contest the case on the point of law. According to him, in view of the submission of the present petitioner O. P. he was permitted to contest the case on the point of law only. He next submits that if the ultimate finding of the order is found to be correct then lack of reasoning should not be a ground for interfering with the same. In terms of Section 2 (1) (d) (ii) of the Act of 1986 any person who hires or avails of any service for consideration which has been paid or promised or partly paid and partly promised is a consumer within the meaning of said Act. Again the term “service” was defined under Section (2) (1) (o) of the said Act of 1986. As per said definition some services including housing constructions were brought within the meaning of said definition of “service” though said definition was not limited to the descriptions mentioned therein. Again the term “service” was defined under Section (2) (1) (o) of the said Act of 1986. As per said definition some services including housing constructions were brought within the meaning of said definition of “service” though said definition was not limited to the descriptions mentioned therein. As such, the “service” within the meaning of the Act of 1986 is much wider than the services specified therein. In the case in hand, admittedly there is a contract in between the present petitioner and O. P. complainants. As per terms of said contract petitioner O. P. received a part consideration with the promise of giving a service in the way of construction of a flat followed by delivery of possession thereof after registration of the sale deed on receipt of balance consideration money. As such, O. P. complainants were consumers within the meaning of said Section 2 (1) (d) and the petitioner O. P. was a service provider within the meaning of Section 2 (1) (o) of said Act of 1986. The order dated 11th of February, 2011 of the District Forum shows that in spite of service of notice upon the present petitioner O. P. through his wife he did not appear to contest said proceeding in time. It further appears that when he appeared in the Forum belatedly he was permitted to contest said proceeding by filing written version on vacating ex parte hearing on condition of payment of a cost of Rs.10,000/-. In terms of Section 13 (2) (b) read with Section 13 (3 a) of the Act of 1986 read with Regulation 11 (3) of the Consumer Protection Regulations, 2005, the Forum had the authority to impose said cost for belated appearance of the petitioner O. P. As such, it cannot be said that the Forum imposed said cost having no authority or that it was an illegal order. It further appears from the order dated 13th of January, 2012 of the District Forum that the present petitioner moved the State Commission in R. P. 75 of 2011 against said order of 11th February, 2011 but without any success. The petitioner O. P. did not move any other higher forum at that point of time. It further appears from the order dated 13th of January, 2012 of the District Forum that the present petitioner moved the State Commission in R. P. 75 of 2011 against said order of 11th February, 2011 but without any success. The petitioner O. P. did not move any other higher forum at that point of time. Rather it appears from said order dated 13th January, 2012 that learned counsel of the present petitioner O. P. submitted before the District Forum that O. P. being unable to pay the cost is debarred form filing the written version but he may be permitted to contest the case on the points of law. In view of said admitted submission of learned counsel of the petitioner O. P. the District Forum permitted him to contest said proceeding on the point of law. From the order dated 13th of January, 2012 it appears that the present petitioner O. P. was rather a consenting party in passing of said order and that he knowingly and willingly participated in said proceeding before the District Forum by arguing on the points of law. As such, there was no violation of natural justice as alleged by the petitioner O. P. Learned State Commission has rightly held that O. P. complainants were entitled to take possession of the flat in question and that the petitioner O. P. should deliver possession of the same on execution and registration of the deed of conveyance on receipt of the balanced consideration amount within a time frame. There was also no illegality in the order of payment of compensation of Rs.40,000/-to the O. P. complainants by the present petitioner O. P. or in the order of direction of payment of interest at the rate of 9% per annum till realization of said amount in case of non-payment of the same within the time frame given therein. It is true that learned State Commission should have given reasoning for rejecting the objections of the petitioner in the impugned judgment. But this court has discussed in details regarding said objections. In view of the discussions made above I am of the opinion that absence of reasoning for rejection of superficial objections of the petitioner / O. P. in the order impugned did not vitiate the same in the facts and circumstances of this case. But this court has discussed in details regarding said objections. In view of the discussions made above I am of the opinion that absence of reasoning for rejection of superficial objections of the petitioner / O. P. in the order impugned did not vitiate the same in the facts and circumstances of this case. There is no denial that the petitioner O. P. could have moved the National Consumer Commission under Section 21 (b) of the Act of 1986 against the impugned order of State Commission. However, said alternative remedy by itself may not be ground for High Court to refuse to exercise its jurisdiction under Article 227 of the Constitution of India if it can be shown that any of the following conditions are fulfilled namely (i) such alternative remedy would not be an efficacious one, or (ii) the order was passed by an authority without jurisdiction, or (iii) an order has been passed by an authority in violation of the principles of natural justice. In the case in hand, it has already been found that the petitioner has failed to make out a case of passing order by an authority without jurisdiction or in violation of principles of natural justice. In terms of Section 21 (b) of the Act of 1986 the National Commission has jurisdiction to call for the records and pass appropriate orders for any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. It is thus clear that the present petitioner had an alternative remedy before the National Commission in terms of Section 21 (b) of the Act of 1986 and said alternative remedy cannot be said to be not an efficacious one. As such, on that score also the present application was not entertainable. Accordingly, the application is hereby dismissed on contest. However, I pass no order as to costs.