IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
The Hon'ble Justice S.P. Talukdar
C.O. No. 3077 of 2006
M/s. Wellarea Trading Pvt. Ltd.
Smt. Navita Rustogi
For the Appellant : Mr. Sudhis Dasgupta,
Ms. Sampa Sarkar,
Mr. S. Chakraborty,
Mr. S. Basu,
Ms. Sangita Halder.
For the O.P.: Mr. Debojyoti Basu,
Mr. Mohit Gupta,
Mr. Arup Kumar Acharya,
Judgment on : 16.04.2008.
S.P. Talukdar, J.: This application under Article 227 of the Constitution is directed against the judgment and order dated 10th July, 2006 passed by the State Consumer Disputes Redressal Commission in S.C. Case No. 392/A/05. The backdrop of the present case may briefly be stated as follows:-
The District Consumer Forum, 24-Parganas (North), by order dated 30th August, 2005 passed in D.F. Case No. 54 of 2005 allowed the complaint filed by Smt. Navita Rustogi on contest with cost of Rs. 1,000/- payable by M/s. Wellarea Trading Pvt. Ltd. The opposite parties before the said Forum were further directed to execute and register a Sale Deed in respect of the disputed flat in favour of the complainant on receipt of the balance consideration money within a period of two months from the date of the order - failing which the complainant was to get the same executed and registered through the Forum. There was further direction upon the opposite parties to finish the construction work of the flat within the said period and to hand over the completion certificate of the building to the complainant. An amount of Rs. 10,000/- was awarded as compensation to be paid to the complainant by O.P. No.1 within the said period for the mental agony and harassment caused to her. The said judgment and order of the District Forum was challenged before the State Consumer Disputes Redressal Commission (hereinafter referred to as 'the Commission'). The Commission by the impugned judgment dated 10th July, 2006 dismissed the appeal thereby affirming the judgment and order of the Forum. The complainant approached the Forum with the grievance that she was willing to purchase a flat in the building constructed by O.P. No. 1 as a Promoter/Developer on the basis of a verbal agreement and paid a sum of Rs. 4,51,000/- as advance out of the total consideration money of Rs. 23,51,000/-. She spent an amount of Rs. 1,40,000/- for preparing the marble floor in the said flat and such amount was also agreed to be regarded as part of the money advanced. There was further agreement that the complainant would pay the balance consideration money at the time of registration of the Deed of Sale. The complainant was given possession in respect of a flat, which was not completed. Suddenly she received an advocate's notice whereby she was informed that booking of a flat in her favour had been cancelled. She was asked to collect the money, which she advanced, from O.P. No. 1. The complainant by letter dated 22nd May, 2005 requested O.P. No. 1 to execute and register a Sale Deed in her favour in respect of that flat. In view of non- response on the part of the O.P. No. 1, the complainant approached the Forum for necessary redress.
By filing a written statement, the O.P. No. 1 denied all the material allegations made in the application and challenged the maintainability of the proceeding, as the complainant could not be said to be a consumer within the scope and ambit of the Consumer Protection Act. While admitting that an amount of Rs. 4,51,000/- was paid by the complainant in eight instalments, it was alleged that she did not pay the balance amount despite being repeatedly approached. This compelled the opposite party to send a notice dated 11.9.2004 intimating thereby that on her failure to pay the balance amount of consideration money, the booking of the flat would be cancelled. It was specifically claimed that there had been no deficiency in service and as such, the complaint was liable to be dismissed. Grievances of the petitioner, as ventilated, may briefly be summed up as follows:- On 14th January, 2002, Promod Kumar Agarwal, Vikram Agarwal and Gopal Agarwal, the owners of a plot of land measuring 6(six) cottahs, 14(fourteen) chittacks, 37(thirty-seven) sq.ft. being plot No. 877, Block-'A', Lake Town, Kolkata- 700 055 entered into an agreement with the petitioner Wellarea Trading Pvt. Ltd. Upon execution of the said agreement for sale, the possession of the said plot of land was handed over to the petitioner by the owners. The petitioner upon payment of the entire consideration money to the owners obtained possession thereof. Such purchase was made with the intention to develop such land, which was thus obtained on payment of an amount of Rs. 38 lakhs. The petitioner proposed to construct a multi-storied building. Necessary documents were prepared and executed by and between the owners of the said plot of land and the petitioner and Sanjay Agarwal, a Director of the petitioner company, was appointed the Attorney by a registered power of attorney dated 30th May, 2002. The petitioner company thus started constructing the said multi-storied building after obtaining permission from the respective authorities. The building plan was duly sanctioned by the concerned municipal authorities sometime in February, 2004. The opposite party along with her husband, Lokesh Rustogi, approached the petitioner for purchasing one flat in the second floor of the western side of the said building having an area of more or less 1650 sq.ft. They inspected the said flat on 6th February, 2004. The building was completed and necessary applications were filed for issuance of completion certificate. The opposite party along with her husband after inspecting the various plots expressed desire for purchasing a flat at a price of Rs. 23,51,000/-. They were informed that anybody willing to book any flat was required to make an application for allotment by depositing a sum of Rs. 4,51,000/-. On 6.2.2004 after being satisfied regarding marketability of the said flat, the opposite party issued a cheque for an amount of Rs. 51,000/-. It was, however, dishonoured on 9th February, 2004. On being further approached, the petitioner allowed the opposite party to make such payment in eight instalments between 6.2.2004 and 18.6.2004.
The aforesaid amount of Rs. 4,51,000/- was thus paid by eight instalments. The flat was completed in all respects on the date of payment of last instalment i.e. 18th July, 2004. The petitioner requested the opposite party to execute an agreement for sale for purchase of the said flat. The opposite party was further requested to make payment of the consideration money within a specified period and deliver possession on payment of the entire consideration amount of Rs. 19 lakhs within seven days from the date of execution of the agreement when the petitioner would give the letter to the opposite party for taking possession of the said flat. The opposite party neither bothered to execute any such agreement for sale nor the balance amount of Rs. 19 lakhs was paid. The opposite party was informed that this would leave the petitioner with no option but to cancel the booking as there were other intending purchasers waiting in the queue. In September, 2004, the opposite party approached the petitioner and expressed her inability to make payment of the balance consideration amount of Rs. 19 lakhs and requested the petitioner to return the amount of Rs. 4,51,000/- already paid. The petitioner accordingly terminated the booking and by a letter dated 11.9.2004 requested the opposite party to collect the said amount of Rs. 4,51,000/- from the petitioner. The opposite party, however, changed her stand soon thereafter and sought to be accommodated. The husband of the opposite party assured the petitioner to make payment of Rs. 5,51,000/- instead of Rs. 19 lakhs on or before 15th January, 2005 and assured that the balance amount will be paid at the time of registration of the conveyance for which time for six months was sought for. Such assurance was accordingly noted on a paper, which was duly singed by the husband of the opposite party on 5.12.2004. O.P., however, failed to pay the said sum of Rs. 5,51,000/- within 15th January, 2005. The petitioner accordingly issued a notice dated 22nd February, 2005 stating that booking of the flat was cancelled for failure of the opposite party to make payment of the balance consideration of Rs. 19 lakhs within seven days from the date of notice. O.P. was also requested to collect the refund of the said amount of Rs. 4,51,000/-, which was paid earlier.
O.P. on receipt of the said letter dated 22nd February, 2005 gave a reply by letter dated 24th February, 2005 thereby making various false and frivolous allegations. Petitioner replied to the same by advocate's letter dated 5.3.2005.
The petitioner upon receiving the completion certificate dated 20th December, 2004 once again requested the opposite party to take possession of the flat within seven days by 7th December, 2005 and to make payment of the balance amount of Rs. 19 lakhs within seven days from the date of such notice. There was no favourable response from the opposite party. The opposite party thus failed and neglected to execute the said agreement nor could she discharge her obligation to pay the balance amount of consideration money but rushed to the learned Consumer District Redressal Forum seeking redress. An application for injunction was filed praying for restraining the petitioner from disposing of or transferring the flat to any third party. The present petitioner appeared before the learned Forum and filed objection. Being dissatisfied with the interim order dated 7.3.3005, the petitioner approached this Court with an application under Article 227 of the Constitution. The Hon'ble High Court refused to grant any order of status quo. The petitioner accordingly entered into an agreement on 14.5.2005 with one Manasi Exim Pvt. Ltd., which made payment of the entire consideration amount. Since the total consideration sum of Rs. 20 lakhs was paid by Manasi Exim Pvt. Ltd., the petitioner was compelled to sell the same at a lower value. On receipt of the said amount, possession was duly handed over to the said Manasi Exim Pvt. Ltd., as there was no order restraining the petitioner from handing over such possession in view of the termination of the agreement by and between the petitioner and the opposite party due to breaches and defaults. Learned Senior Counsel, appearing for the petitioner, while inviting attention of the Court to the aforesaid facts and circumstances, submitted that the Consumer Redressal Forum or for that matter, the State Commission did not have any jurisdiction to entertain the application filed by the present opposite party.
Before grievances raised by Mr. Dasgupta, appearing as learned Counsel for the petitioner are dealt with on merits, it is, perhaps, necessary to refer to the stand taken by the present opposite party challenging maintainability of the present application under Article 227 of the Constitution.
Mr. Basu in this context sought to derive inspiration from various judgments. According to him, in view of the provisions of Sections 19 and 21 of the Consumer Protection Act (as amended), the present revisional application under Article 227 of the Constitution is not maintainable on the ground of availability of alternative remedy. This is more so, when the petitioner in this case did not take the ground that the judgment under challenge suffers from any material irregularity or non-application of mind or even on the ground of error apparent on the face of the record. In absence of any jurisdictional error or when there is no mistake apparent on the face of the record, this Court can have hardly any justification for examining the findings of the Tribunal in response to an application under Article 227 of the Constitution. (Ref: Adarsh Mahila Shiksha Pratisthan & Anr. Vs. Municipal Assessment Tribunal & Ors, as reported in 2005(1) CHN 165). In the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors., as reported in (1998) 8 SCC 1, it was held that mere existence of an alternative statutory remedy is not a constitutional bar to High Court's jurisdiction but is a self- imposed restriction. It is the settled law that the alternative remedy would not operate as a bar in at least three contingencies i.e. (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged.
Mr. Basu contended that since the present case does not relate to any of those contingencies, there is no reason for entertaining the present application. Reference was made to the decision in the case of Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors., as reported in (1983) 2 SCC 433. Reference was also made to the decision in the case Jenson & Nicholson (India) Ltd. Vs. Industrial Investment Bank of India & Ors., as reported in AIR 2002 Cal. 73. The learned Single Bench of this Court in the facts and circumstances of the said case refused to entertain the application under Article 227 of the Constitution of India in view of existence of an efficacious alternative remedy by way of an appeal.
While dealing with a case relating to Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Apex Court in the case of Punjab National Bank Vs. O.C. Krishnan & Ors., as reported in (2001) 6 SCC 569, held that the High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act.
Mr. Basu emphatically submitted that the Apex Court in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. & Ors., as reported in (1985) 1 SCC 260 held that Article 226 of the Constitution is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations that the Court must have good and sufficient reason to bypass the alternative remedy provided by statute.
In this context, Mr. Basu further referred to the decisions in the case of Sheela Devi Vs. Jaspal Singh, as reported in (1999) 1 SCC 209, Ramendra Kishore Biswas Vs. State of Tripura & Ors. as reported in (1999) SCC 472 and G. Veerappa Pillai Vs. Raman and Raman Ltd. & Ors., as reported in AIR 1952 SC 192.
In response to this, Mr. Dasgupta contended that an appeal shall lie to the National Commission only against the order made by the State Commission in exercise of its powers under its original jurisdiction. Therefore, an appeal from an order of the District Forum shall be only before the State Commission and there cannot be any second appeal to the National Commission. (Ref: Smt. Rani Roy Vs. C.E.S.C. Ltd. & Ora., as reported in 1998(II) CHN 1).
Section 19 of the Consumer Protection Act, 1986 lays down that "any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of Section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:
Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period ............."
The order under challenge before this Court in this application under Article 227 of the Constitution is not an order within the meaning of sub-clause (i) of clause (a) of Section 17 which gives the State Commission the jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed (exceeds rupees twenty lakhs but does not exceed rupees one crore). The subsequent amendment of Section 17 did not change this aspect i.e. the original jurisdiction of the State Commission. State Commission has been vested with three types of jurisdiction i.e. a) original jurisdiction b) appellate jurisdiction c) revisional jurisdiction.
Attention of the Court was further invited to an unreported decision of the learned Single Bench of this Court in the case of Rabindra Nath Haldar Vs. Assistant Engineer, Baruipore Group Electric Supply & Anr. in C.O. No. 270 of 2005. In the said case, the order under challenge was passed by the State Consumer Disputes Redressal Commission, West Bengal in exercise of its appellate power under Section 17(a)(ii) of the Consumer Protection Act, 1986. Since such order was not passed in exercise of its original jurisdiction, there could be no scope for preferring an appeal before the National Commission against such order.
In the present case, an application under Section 12 of the Consumer Protection Act was filed before the District Forum and the order passed by the District Forum was challenged by preferring an appeal before the State Commission. The State Commission having disposed of the appeal by the impugned order, the present petitioner is left with no option but to seek redress before this Court by filing such application under Article 227 of the Constitution.
Thus, the stand taken by Mr. Basu, learned Counsel for the opposite party in this regard, fails to inspire confidence of the Court.
Learned Senior Counsel, Mr. Dasgupta, while assailing the impugned order of the State Commission, submitted that there had been failure on the part of the District Forum as well as the State Commission to appreciate that the grievance of the present opposite party/applicant does not come within the scope and ambit of Consumer Protection Act. According to him, the District Forum or the State Commission were not at all justified in entertaining the claim of the present O.P./Applicant.
Section 2(1)(b) of the Consumer Protection Act defines 'complainant' and a 'consumer' is also a complainant under sub-clause (i).
Clause (c) of sub-section (1) of Section 2 of the said Act defines 'complaint' as any allegation in writing made by a complainant. Such allegation may be in respect of the goods bought by him or agreed to be bought by him if the same suffer from one ore more defects or that the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect - with a view to obtaining any relief provided by or under this Act.
The definition of consumer is contained under Section 2(1)(d) of the Act which reads as follows:-
"(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose." Referring to Section 11 Mr. Dasgupta submitted that the Forum has jurisdiction 'to entertain complaints where the value of the goods and services and the compensation, if any, claimed does not exceed rupees twenty lakhs'. This, according to him, indicates that the Forum has jurisdiction 'to grant of relief in respect of only goods and services.' Section 25 of the said Act provides with the procedure for the manner of enforcement of orders of the District Forum, the State Commission or the National Commission. Referring to the same, it was submitted by Mr Dasgupta that it distinctly shows that the relief that may be granted by the Forum is in respect of only money. This section has been substituted in place of old Section 25 with effect from 15.03.2003 by an Amendment Act (62 of 2002).
Mr. Dasgupta, thus, categorically submitted that the application, which was filed before the Forum, is just not maintainable.
Mr. Basu in response to this first referred to the factual backdrop of the entire case. He contended that admittedly there was no written agreement between the parties. It was virtually an oral agreement. Receipts were not granted in respect of the payments made. The final instalment was payable at the time of registration of the conveyance. The complainant claimed to have paid an amount of Rs. 5,91,000/-. It was claimed that as per mutual agreement, an amount of Rs. 4,51,000/- was paid out of the consideration money of Rs. 23,51,000/-. By a letter dated 11th September, 2004, the complainant was informed that on her failure to pay the balance consideration money, booking of the scheduled flat would be cancelled. To this, husband of the complainant further assured to pay a sum of amounting to Rs. 5,51,000/- on or before 15.1.2005 and time for six months was sought for payment of the balance amount at the time of registration of the flat. Such assurance was noted in a document dated 5th December, 2004. For alleged non-compliance, the complainant was served with a notice regarding cancellation of the booking of the said scheduled flat. Complainant was further asked to collect the paid up booking amount of Rs. 4,51,000/-. Such controversy ultimately took the complainant to the Consumer Forum. Referring to the decision in the case of Smt. Naseem Bano Vs. State of U.P. & Ors., as reported in AIR 1993 SC 2595, it was submitted that any statement if not controverted by the opponent on Affidavit, it will be presumed that the statement has been accepted/admitted by the said party. It is claimed that the complainant repeatedly offered to pay the balance amount and approached the opposite party before the District Forum to execute and register proper Deed of Conveyance, but the latter on various pretexts refused to do the same.
The fact that various amounts were paid by the complainant on different dates was brought to the notice of this Court in support of the contention that the complainant was all along ready and willing. The complainant also did her best to obtain necessary fund from the bank. She further spent huge amount on the occasion of 'Griha Prabesh Ceremony' of the scheduled flat. It was categorically submitted that the document as sought to have been relied upon by the present petitioner, being Annexure-'C' to the application, contains interpolation made in a calculated and designed manner. According to Mr. Basu, there was no default clause and the words 'in case of default the contract shall stand cancelled' was subsequently introduced.
Regarding maintainability of the application filed before the District Forum, it was submitted by Mr. Dasgupta that there could be no scope for the said Forum and thereafter, by the State Forum to entertain such application whereby the petitioner sought to enforce an agreement, which was admittedly not in writing. Besides, there could be hardly any scope for taking recourse to the provisions of the Consumer Protection Act where the appropriate remedy lies in a suit for specific performance of contract.
In this context, referring to the decision in the case of Mandira Mookherjee Vs. District Consumer Disputes Redressal Forum & Ors., as reported in 2005 (1) CLJ (Cal) 496, it was submitted that there is no reason for the Forum not to entertain the grievances regarding refusal to execute and register the Deed of Conveyance as agreed to earlier.
In the said case, the learned Division Bench of this Court observed as follows:- "...... the Specific Relief Act is a law that recognizes the right of specific performance of a contract available to a party aggrieved and such relief can be had before the Civil Court. There is nothing in the Specific Relief Act which provides that the relief under the said Act cannot be had anywhere else other than the Civil Court. A contract can very well be enforced before an Arbitrator if it contains an Arbitration Clause." It was further held that "the legislation of 1986 Act is a valid piece of legislation creating Specific Forum for specific purpose in relation to specific matters. The Court is not supposed to limit the jurisdiction conferred upon it by the wisdom of the legislation unless it offends any statute or some other law. We are, however, of the view that these provisions of 1986 Act do not offend any statute or any other law. Our attention has not been drawn to any such situation. On the other hand, Section 3 of the 1986 Act provides that the provisions of the said Act shall be in addition to and not in derogation of the provisions of any other law."
It may be worth mentioning that in the case, as referred to, "the agreement was not an exclusive agreement relating to sell of an immovable property simpliciter. On the other hand, it includes various contracts envisaging various transactions to be performed by the respective parties; it also includes contract for various kinds of services to be provided by the respective parties. The Consumer has also paid the stamp duty payable on the deed of agreement. By reason of the attempt to seek relief before the Consumer Forum, he has expressed his readiness and willingness to perform the part of the contract he is supported to perform. The major part of the contract is already performed leaving only a minor part to complete the performance of the contract. Therefore, we do not think that it could be taken out of the jurisdiction of the Consumer Forum relying on the definition of the words and expression defined in 1986 Act."
Mr. Basu in order to respond to the challenge referred to in details, the various judgments passed by the Apex Court as well as other Courts.
Relying upon the decision in the case of Lucknow Development Authority Vs. M.K. Gupta, as reported in (1994) 1 SCC 242, it was submitted by Mr. Basu that the Apex Court in the said case dealt with construction and delivery of houses by Development Authority. The complaint regarding use of substandard material or delay in delivery of house was not rejected as being not maintainable on the ground that the goods under the Act meant only moveable goods as defined under Sale of Goods Act and not immovable property.
Attention of the Court was invited to the Apex Court decision in the case of Olympus Superstructures Pvt. Ltd. Vs. Meena Vijay Khetan & Ors., as reported in (1999) 5 SCC 651. The Supreme Court in the said case observed that merely because there is need for exercise of discretion in case of specific performance, it cannot be said that only the civil Court can exercise such a discretion. Such disputes can be referred to arbitration. Mr. Basu sought to stretch it further by mentioning that this could very well be extended while interpreting Consumer Protection Act.
The case of Tulip Park Co-operative Housing Society Ltd. Vs. Sai Overseas Import & Export, as reported in (1999) 8 SCC 588, relates to deficiency in service. It does not seem to have much relevance in the present case.
The decision of the Apex Court in the case of Franceb Martins & Anr. Vs. Mafalda Maria Teresa Rodrigues (Mrs.), as reported in (1999) 6 SCC 627, was particularly brought to the notice of this Court in support of the stand that this Court is not expected to go for a literal meaning but must give a purposive interpretation while dealing with matters under the Consumer Protection Act. In the said case, it was held that the purpose of such Act is better protection of interests of consumers. There is provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes and matters connected therewith.
It was submitted on behalf of the opposite party that the reliefs sought for in the said case was by way of seeking execution of Sale Deed. The Apex Court dismissed the appeal against the order of dismissal of revision petition by National Commission. The State Forum allowed the appeal thereby setting aside the order of dismissal by the District Forum on the ground that the application was barred by time.
Reference was made to the decision in the case of Secretary T.C.A. Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors., as reported in (2004) 1 SCC 305. It was submitted on behalf of the opposite party that the Court is required to take a broad view having regard to the scheme of the Consumer Protection Act. In fact, it cannot be denied that from the scheme of the Act and the purpose sought to be achieved, it can very well be said that this is to protect the interest of consumers better. The provisions are so required to be interpreted broadly, positively and of course, purposefully. Mr. Basu submitted that in the context of the present case, there is need for giving a meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act is in addition to other remedies provided under other Acts unless there is a clear bar. The Hon'ble Supreme Court in the case of Fair Air Engineers Pvt. Ltd. & Anr. Vs. N. K. Modi, as reported in (1996) 6 SCC 385, held that the Act provides the additional remedy. The legislature, thus, intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. It is true that an application under the Consumer Protection Act does not deserve refusal by the Consumer Forum on the ground that complicated nature of questions of law and fact are involved. In the case of CCI Chambers Co-operative Housing Society Ltd. Vs. Development Credit Bank Ltd., as reported in AIR 2004 SC 184, the Apex Court observed that "the anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e. by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the fora under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of the High Court. Each District Forum is headed by person who is, or has been, or is qualified to be a District Judge. Mere complication either of facts or of law cannot be a ground for the denial of hearing by a Forum under the Act."
In the case of Ghaziabad Development Auithority Vs. Balbir Singh, as reported in (2004) 5 SCC 65, the Apex Court observed that if after delivery of possession, the sale deeds or title deeds are not executed without any justifiable reasons, the compensation would depend on the amount of harassment suffered. If possession is refused or not given because the consumer has refused to pay the amount, then on the finding that the demand was unjustified the consumer can be compensated for harassment and a direction to deliver possession can be given. What was essentially dealt with by the Apex Court in the said case was when and how compensation can be awarded and justifiability of the same. In course of submission, Mr. Basu, as learned Counsel for the opposite party/complainant, dealt with various other aspects relating to Consumer Protection Act. His detailed and thorough analysis of the said Act and its applicability by referring to various judicial pronouncements has undoubtedly been of great assistance. But the effective adjudication of the controversy raised in the present application may not demand any detailed reference to the same. After coming to a decision that such application under Article 227 of the Constitution is very well maintainable, the other aspect, which demands consideration, is whether the opposite party as complainant could approach the District Forum with the grievance as ventilated in the application filed there and seek direction upon the present petitioner to execute a Deed of Conveyance.
Materials available on record reveal that there was an agreement, though not in writing, between the parties and it was in respect of a flat proposed to be transferred in favour of the opposite party/complainant. Consideration money was fixed at Rs. 23,51,000/-. An amount of Rs. 4,51,000/- was paid as advance. The petitioner took the stand that for failure to make payment of the entire amount of consideration money, the said contract had to be cancelled and it refused to execute and register any Deed of Conveyance. There was material before the District Forum showing that the opposite party/complainant was not agreeable to take back the money, earlier advanced and approached the petitioner herein to execute and register such Deed on receipt of the balance amount of consideration money. Opposite party claimed that after taking possession of the flat 'Griha Prabesh Ceremony' was performed and an amount of Rs.1,40,000/- was spent for certain finishing job like marbling of floor etc.
It is never in dispute that the petitioner agreed to transfer a flat in favour of the O.P./complainant and it, perhaps, requires no mentioning that the O.P./complainant was not only accepted as a buyer but in pursuance of the agreement there had been follow up action from both sides.
Having regard to the fact that this Court is now dealing with an application under Article 227 of the Constitution, I do not think there is much scope for entering into the factual details. How far the O.P./complainant could establish her claim by evidence on affidavit is not primarily a matter for consideration at this stage. There is no reason for any further analysis of the merits of the evidence and materials, since it is outside the scope and ambit of the present application under Article 227 of the Constitution. It is enough to find that O.P. successfully established her claim before the District Forum and the State Commission confirmed the finding of the said Forum. But there is one significant aspect this Court has been called upon to adjudicate. The crux of the present controversy is whether the Consumer Forum had the jurisdiction to entertain the grievance relating to non- execution and consequent, non-registration of the Deed of Conveyance thereby transferring a flat in favour of the complainant. This Court finds it difficult to accept the contention made by Mr. Basu in this regard.
Mr. Dasgupta repeatedly referred to the fact that Consumer Protection Act has undergone radical change in complexion in view of the amendment of 2002 which took effect from 15th March, 2003. Section 25 of the Act relates to enforcement of orders of the District Forum, the State Commission and the National Commission. It certainly does not speak of specific performance of contract.
Section 11 of the Consumer Protection Act relates to jurisdiction of the District Forum. Sub-section (1) of Section 11 just refers to jurisdiction to entertain complaint where the value of the goods or services and the compensation, if any, claimed does not exceed Rs. 20,00,000/.
Section 2(e) of the Consumer Protection Act reads as follows:- "(e) 'consumer dispute' means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;" Section 2(i) of the said Act is as follows:-
"(i) 'goods' means goods as defined in the Sale of Goods Act, 1930 (3 of 1930);" For the purpose of proper appreciation of the grievances raised by the complainant before the District Forum, it is, perhaps, necessary to refer to the definition of 'service' in the Act of 1986.
Section 2(o) is as follows:-
"(o) 'service' means service of any description which is made available to potential [users and includes, but not limited to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
The insertion of 'housing construction' in Section 2(o) of the Consumer Protection Act, 1986 is quite significant. Question may arise as to what does exactly it mean ? If the word 'construction' is taken out, what remains is the single word 'housing'. In that event any dispute relating to service of any description of potential user relating to 'housing' can very well be a consumer dispute requiring to be dealt by the Consumer Court. When the word 'construction' is added, it assumes different significance. This impliedly suggests that the dispute should be relating to some defect or deficiency in the construction of a house. It may be relating to the quality of the materials supplied. It may be in relation to the equipments and gadgets required to be provided with. It may even be with reference to shape and size. But this Court does not think that the scope can be so widened that a dispute alleging non-execution of a document/deed of conveyance or its non-registration can also be a subject matter of dispute before a Consumer Forum.
The fact, however, remains that the opposite party/complainant is equipped with the decision of the learned Division Bench of this Court in the case of Mandira Mookherjee (Supra). The learned Division Bench in connection with the said case placed reliance upon the decision of the Apex Court in the case of France B. Martins & Anr. Vs. Mafalda Maria Teresa Rodrigues (Mrs.), 1999 (6) SCC 627 and the case of the Secretary, T.C.A. Credit Society Vs. M. Lalitha (Dead) Through Lrs. & Ors., 2004 (1) SCC 305. Both the said cases have already been referred to and so far the applicability of the same is concerned, Article 141 of the Constitution leaves no scope for controversy. The learned Division Bench of this Court in the case of Mandira Mookherjee (Supra), thus, held that the Consumer Forum is competent and has jurisdiction to grant the relief of execution and registration of the conveyance in the kind of contract involved in the case under reference. The Supreme Court in its decision in Lucknow Development Authority Vs. M. K. Gupta, (1994) 1 SCC 243 refuted the contention that the term "services" must be confined to services rendered in connection with transfer of goods and that no complaint should be entertained for any defect in relation to immovables such as a house or building or allotment of site. The complainant in this case was aggrieved of either delay in delivery of possession of the house or use of sub-standard material, etc., in the housing services. The Court said that the jurisdiction under the Act could not be excluded even if the services in question related to immovable property. It cannot, however, be denied that the facts and circumstances of the said cases are distinctly different from those of the present case. Mr. Dasgupta, in this context, referred to the observation of Lord Halsbury in Quinn Vs. Leathem (1901) AC 459 :
"A case is only authority for what in actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it." The expression 'ratio decidendi' may be expressed as follows:- "The ratio decidendi of a case is any rule of law expressly or impliedly treated by the Judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him ............"
It was observed in the case of Quinn Vs. Leathem (Supra) that "every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found."
It is true that it is not everything said by a Judge when giving judgment that constitutes a precedent. The observations which are not general propositions of law necessarily applicable to future cases and the decisions based upon them do not constitute a precedent.
In this context, it may be said that the reason why it is not everything said by a judge in the course of his judgment that constitutes a precedent is that, among the propositions of law enunciated by him, only those which he appears to consider necessary for his decision are said to form part of the ratio decidendi and thus to amount to more than an obiter dictum. Dicta in earlier cases are, of course, frequently followed or applied, but dicta are never of more than persuasive authority. There is no question of any judge being bound to follow them. Even when the ratio decidendi of a previous case is merely a persuasive authority, it must be followed in later cases unless the judge has good reason to disapprove of it. It constitutes a precedent, and the difference between a persuasive precedent and an obiter dictum is only slightly less significant than that between binding and persuasive precedents.
There is distinction between ratio decidendi and obiter dictum : "An opinion given in court, if not necessary to the judgment given of record, but that it might have been as well given if no such, or a contrary had been broach'd, is no judicial opinion; but a mere gratis dictum." (See: 'Precedent in English Law, Cross and Harris, 4th Edn. P-41).
There is an important factor, which deserves effective consideration and that relates to the issue of enforceability of the order. The relevant Act of 1986 having undergone sea change in view of the Amendment Act, 2002 which came into effect on 15th March, 2003, this Court is called upon to consider whether any such direction for execution and registration can at all be enforced.
Section 25 of the Principal Act relates to enforcement of orders of the District Forum, the State Commission or the National Commission. In order to enforce orders, there could be direction for attachment of property of the person not complying with the interim order. Such order under sub-section (1) of Section 25 cannot remain in force for more three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto. There is also provision for issuing a certificate for any amount due from any person under an order of a District Forum, State Commission or the National Commission to the Collector of the District and the Collector must proceed to recover the amount in the same manner as arrears of land revenue. By virtue of the amendment, such order of the Forum or the Commission may be enforced as if it were decree or order made by a Court in a suit pending therein and it clearly lays down that it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it and the Court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution. The complexion was not so prior to the amendment.
No doubt, by the Amendment Act, 2002 enforcement of orders of Forums/Commissions have been made more stringent. In the present case, it is difficult to gather how the present opposite party/complainant could really establish her readiness to get the contract enforced. Controversy had been raised regarding genuineness of a vital document being Annexure-'C' to the application. Allegation was made that 'the default clause' was an interpolation. True, any evidence, if not properly controverted, may very well be relied upon. But even in a matter heard ex-parte, it remains primarily the duty of the person or party to establish a fact with evidence, even if unchallenged, to the satisfaction of the judicial conscience of the Court or the Tribunal. All such factors go a long way to place the present case on a footing different from those of the cases, referred to earlier, including the case of Mandira Mookherjee (Supra).
It cannot be denied that law must respond to the challenge of a fast changing society. Our administration of justice must meet the need and aspiration of the people. The 'bold spirits', and not 'the timorous soul', with their active role, by making purposive interpretation and giving constructive meaning to the letters of law can provide the people with proper relief. In the context of consumer movement, W. Friedman said in his book 'Law in a changing society' that it is the inter-play of public opinion, judicial interpretations and legislative reforms that characterizes a going movement to counter the predominance of the stronger party. Lord Denning in his lecture 'From precedent to precedent' said that a lawyer seeking justice may be compared to a scientist seeking truth. Whereas law must be certain, it must be just too. While interpreting law one cannot afford to ignore that its principles must be consonant with justice. The 'statement of objects and reasons' of the Consumer Protection Act, 1986 may be reproduced as follows:-
"The Consumer Protection Bill, 1986 seeks to provide for better protection of the interests of consumers and for the purpose, to make provision for the establishment of Consumer councils and other authorities for the settlement of consumer disputes and for matter connected therewith.
It seeks, inter alia, to promote and protect the rights of consumers such as - (a) the right to be protected against marketing of goods which are hazardous to life and property;
(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices; (c) the right to be assured, wherever possible, access to an authority of goods at competitive prices;
(d) the right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums;
(e) the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and
(f) right to consumer education................."
The Consumer Forums are the quasi-judicial bodies, which are required to observe the principles of natural justice and to award, wherever appropriate, compensation to consumers.
With the passing of time and in order to meet the requirements of the people and the society, such Act was amended.
There is force in the submission made by Mr. Dasgupta on behalf of the present petitioner that the judicial pronouncement enabling the Forum/Commission to issue direction for execution and registration of a Deed of Conveyance, strictly speaking, cannot be made applicable to the facts and circumstances of the present case. Considering all these aspects, this Court is inclined to hold that it was not within the competence of the State Commission while affirming the order of the District Forum to issue direction for execution and registration of a Deed of Conveyance in the facts and circumstances of the present case.
The present application being C.O. No. 3077 of 2006 be allowed. The judgment and order under challenge being S.C. Case No. 392/A/05 as well as the order dated 30th August, 2005 passed in D.F. Case No. 54/2005 be accordingly set aside. This, however, does not prevent the opposite party/complainant to take appropriate steps and initiate proper action for redressal of her grievances and it is needless to add that any observation made hereinbefore will certainly not bind any other judicial authority. There is no order as to costs.
Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)
Immediately after passing of the said judgment, Mr. D. Basu, appearing as learned Counsel for the opposite party/complainant, has prayed for stay of operation of the said order. Though opposed by the learned Counsel for the petitioner, having regard to all relevant aspects, I find no reason for standing in the way. This judgment and order passed today, i.e. on 16.04.2008 be stayed for a period of four weeks from this date. Urgent xerox certified copy of this judgment, if applied for, be given to the learned Counsel for the parties as expeditiously as possible.
(S.P. Talukdar, J.)