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2017 DIGILAW 938 (HP)

Nagar Panchayat v. Mehar Chand Sharma

2017-08-16

MEENA VERMA, P.S.RANA, VIJAY PAL KHACHI

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ORDER P.S. Rana (R), President. - Present appeal is filed against order dated 15.12.2016 passed by Learned District Forum in consumer complaint No. 106/2016 title Mehar Chand Sharma vs. The Secretary Nagar Panchayat Daulatpur Chowk Una. Brief facts of Case: 2. Complainant Mehar Chand Sharma filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainant is senior citizen. It is pleaded that certain numbers of shops situated at bus-stand Daulatpur Chowk District Una H.P. were auctioned publically for 11 months on lease basis in the month of October 2014 by Nagar Panchayat Daulatpur District Una H.P. It is further pleaded that complainant also participated in the auction proceedings and offered highest bid for shop No. 57 for the commercial purpose. It is further pleaded that thereafter shop No. 57 was allotted to complainant. It is further pleaded that thereafter complainant was asked by opposite party to deposit lease rent at the rate of Rs. 2030/-(Two thousand thirty) per month amount w.e.f. November 2014 to September 2015 and opposite party also asked the complainant to deposit security amount to the tune of Rs. 10000/- (Ten thousand). It is further pleaded that complainant deposited a sum of Rs. 32330/- (Thirty two thousand three hundred thirty) under receipt number 12946 dated 21.10.2014. It is further pleaded that opposite party did not issue lease agreement to the complainant. It is further pleaded that shop was vacated by complainant under intimation to Secretary Nagar Panchayat on 30.09.2015. It is further pleaded that opposite party was requested to release the security amount to the tune of Rs. 10000/- (Ten thousand). It is further pleaded that opposite party did not refund security amount to the complainant. Complainant sought relief of refund of security amount to the tune of Rs. 10000/- (Ten thousand). Complainant also sought interest @18% per annum till realization. Complainant also sought compensation for harassment, mental tension and agony to the tune of Rs. 5000/- (Five thousand) and complainant also sought relief of Rs. 5000/- (Five thousand) as litigation costs. 3. Per contra version filed on behalf of opposite party. It is pleaded that consumer complaint is not maintainable. It is further pleaded that present complaint is bad for nonjoinder of necessary parties. It is further pleaded that present dispute did not fall under the definition of Consumer Protection Act 1986 and falls under Public Premises Act. 3. Per contra version filed on behalf of opposite party. It is pleaded that consumer complaint is not maintainable. It is further pleaded that present complaint is bad for nonjoinder of necessary parties. It is further pleaded that present dispute did not fall under the definition of Consumer Protection Act 1986 and falls under Public Premises Act. It is further pleaded that shop No. 57 was rented for 11 months to the complainant in the year 2014 w.e.f. November 2014 to September 2015. It is further pleaded that thereafter complainant filed written request to opposite party for renewal of his tenancy w.e.f. 01.10.2015 to 31.08.2016 and it is further pleaded that on the request of complainant his tenancy was renewed. It is further pleaded that shop in dispute is in the possession of complainant under his key and lock. It is further pleaded that demand notice was issued to complainant qua rent to the tune of Rs. 22770/- (Twenty two thousand seven hundred seventy). It is further pleaded that lease agreement was also executed inter se parties. It is further pleaded that complainant has not paid rent due to the opposite party. Prayer for dismissal of complaint sought. 4. Learned District Forum partly allowed complaint and ordered opposite party to pay Rs. 3790/- (Three thousand seven hundred ninety) i.e. amount of security after deduction of arrears to complainant within 30 days from the date of receipt of copy of order. Learned District Forum further ordered that failing which opposite party would pay interest @9% per annum from the date of filing of complaint i.e. 28.03.2016 till realization. Learned District Forum ordered opposite party to pay costs to the tune of Rs. 2000/- (Two thousand) to the complainant. 5. Feeling aggrieved against order passed by Learned District Forum appellant filed present appeal before State Commission. 6. We have heard learned advocate appearing on behalf of appellant and we have also heard respondent in person. We have also perused entire record carefully. 7. Following points arises for determination in present appeal. 1. Whether dispute between lessor and lessee qua commercial shop and whether dispute between lessor and lessee qua refund of security amount is consumer dispute under Consumer Protection Act 1986. 2. Final order. Findings upon point No. 1 with reasons: 8. We have also perused entire record carefully. 7. Following points arises for determination in present appeal. 1. Whether dispute between lessor and lessee qua commercial shop and whether dispute between lessor and lessee qua refund of security amount is consumer dispute under Consumer Protection Act 1986. 2. Final order. Findings upon point No. 1 with reasons: 8. On dated 28.05.2016 learned District Forum after perusal of contents of complaint and version filed by opposite party ordered complainant to file rejoinder if any and also to adduce evidence on 21.07.2016. On dated 21.07.2016 complainant did not file any evidence qua adjudication of controversial facts as per modes mentioned under section 13(4) of Consumer Protection Act 1986. and tendered in evidence documents annexures C-1 to C-4 and closed the evidence. 9. Opposite party filed affidavit of Satish Kumar Secretary Nagar Panchayat Daulatpur in evidence. There is recital in the affidavit that shop No. 57 was rented out to complainant for 11 months w.e.f. November 2014 to 30.09.2015. There is further recital in the affidavit that thereafter complainant filed written request to opposite party for renewal of his tenancy w.e.f 01.10.2015 to 31.08.2016. There is further recital in the affidavit that on the request of complainant tenancy was renewed. There is further recital in the affidavit that shop is in possession of complainant under his key and lock. There is further recital in the affidavit that demand notice was also issued to complainant qua rent amount to the tune of Rs. 22770/- (Twenty two thousand seven hundred seventy) on dated 17.11.2015 and there is further recital in the affidavit that again notice was issued to complainant on dated 14.12.2015. There is further recital in the affidavit that complainant did not handover vacant possession of shop to opposite party. There is further recital in the affidavit that opposite party is entitled to rent amount from complainant as per law. There is further recital in the affidavit that written agreement signed by complainant is binding upon complainant. 10. Submission of learned advocate appearing on behalf of appellant that dispute inter se parties is in the capacity of lessor and lessee qua commercial shop and is relating to settlement of accounts which is not consumer dispute as defined under Consumer Protection Act 1986 and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused the receipt annexure C-1 placed on record. State Commission has carefully perused the receipt annexure C-1 placed on record. As per annexure C-1 placed on record it is proved on record that complainant had given security to the tune of Rs. 10000/- (Ten thousand) qua shop No. 57 and has also paid rent of shop No. 57 w.e.f. November 2014 to September 2015 to the tune of Rs. 22330/-(Twenty two thousand three hundred thirty). It is also proved on record that agreement annexure R-2 for the lease of shop No. 57 was executed inter se parties and shop No. 57 situated at bus-stand Daulatpur Chowk was given to complainant on lease and rent of shop was fixed at Rs. 2030/- (Two thousand thirty) per month. It is also proved on record that shop was given to lessee (Complainant) for commercial purpose. There is no recital in the complaint that complainant took the shop from opposite party to earn his livelihood by means of self-employment. As per section 2(d) of Consumer Protection Act 1986 any goods or any service availed for commercial purpose would not fall within the definition of consumer. Even case of complainant did not fall within the explanation given in section 2(d) w.e.f. 18.06.1993. See 2017 (1) CPR 436 NC title Sahil Chaudhary vs. Bhasin Infotect & Infrastructure Pvt. Ltd. See 2017(2) CPR 51 NC title Santosh Hans & Anr. vs. M/s. TDI Infrastructures Ltd. & Ors. See 2017 (2) CPR 52 NC title Sunil Kishan Lal vs. Shirish Dixit. See 2017 (2) CPR 53 NC title Ravi Kumar vs. M/s. S.S. Conbuild Pvt. Ltd. See 2017 (2) CPR 64 NC title Ganesh Chander Mrig vs. JMD Ltd. 11. It is also proved on record that dispute inter se parties is relating to settlement of accounts qua refund of security amount. In relief clause complainant has stated in positive manner that opposite party be ordered to release the security amount deposited by complainant to the tune of Rs. 10000/- (Ten thsouand) qua leased shop. State Commission is of the opinion that remedy of complainant is to file civil suit to recover security amount because dispute inter se parties is relating to settlement of accounts and it is well settled law that dispute relating to settlement of accounts inter se parties should not be decided by Consumer Forum. See 1998 (3) CPJ 9 NC title Vishal Roadways vs. Economic Traders. 12. See 1998 (3) CPJ 9 NC title Vishal Roadways vs. Economic Traders. 12. It is also well settled law that dispute between lessor and lessee qua violation of terms and conditions of lease should be adjudicated before civil court and should not be adjudicated by consumer forum under Consumer Protection Act 1986 in a summary manner. See 1995 (2) CPC 59 Haryana title District Consumer Welfare Association Bhiwani vs. Sanjay and Co. Bhiwani & Ors. Also see 2011 (1) CPJ 318 NC title Yogesh Yadav vs. Ansal Housing and Construction Ltd. & Anr. 13. Submission of respondent namely Mehar Chand Sharma that order of learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. It is held that complainant did not fall within the definition of consumer as defined under Consumer Protection Act 1986. It is expedient in the interest of justice and on the concept of natural justice to direct the complainant to seek remedy before competent civil court of law. Lease is defined under section 105 of Transfer of Property Act 1882 which means transfer of immovable property of a right to enjoy such property for a certain time express or implied or in perpetuity. In view of above stated facts point No. 1 is decided accordingly. Point No. 2: Final Order 14. In view of findings upon point No. 1 above appeal is allowed and order of learned District Forum dated 15.12.2016 announced in consumer complaint No. 106 of 2016 is set aside and complaint filed by complainant is dismissed. Complainant is relegated to civil court for adjudication of dispute. Receipt annexure C-1 and lease agreement annexure R-2 placed on record will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.