This order relates to an application filed on August 02, 2007 by the OP Nos. 2 to 7, inviting us to adjudicate upon the preliminary issues and maintainability of the complaint case, first, before the merit of the case is heard, for contraction of the time and proceeding, as the case has undergone long and chequered history pending before this Commission for the last 7 years, under the facts and circumstances stated in the succeeding paragraphs.
1. It appears from the records of the proceeding, that, on or about August 21, 2002, the complainant, as plaintiff, filed a Title Suit No.1236/2002 before the learned City Civil Court at Calcutta against the opposite party no.1 and the owners, inter-alia, praying for a declaration that he has acquired an indefeasible right and interest in respect of the ‘suit property’ by virtue of two several agreements for sale respectively dated February 04, 1998 and February 24, 1998 and for permanent injunction. Subsequently, the plaintiff/complainant on August 22, 2002 obtained an ex-parte order of status-quo which, as it appears, was vacated due to effluxion of time. On or about September 09, 2002, after a lapse of 18 days, the complainant filed the instant complaint case u/s. 12 of the Consumers’ Protection Act, 1986, inter-alia, praying for direction against the opposite party no.1 and the owners to register the deed of conveyance in respect of the flat; in default thereof, for necessary penal action against them and for other reliefs including cost from the opposite party no.1 for a sum of Rs.10,000/- and for harassment Rs.50,000/-.
2. The ingredients of the complaint case, are, as under :
i) In or about January, 1998, the developers/builders, the opposite party no.1, represented to the complainant that it had entered into development agreement dated April 22, 1987 with the owners of the premises, whereunder, as represented, it shall construct the building(s) at their own costs; 50% of the newly constructed area along with all open and covered spaces including the roof, corridor, landing etc shall belong to them and balance 50% would be allotted to the owners;
ii) Accordingly, the developers/builders got the building plans sanctioned and invited intending purchasers to enter into agreement for sale of flats. The opposite party no.1, also, represented that there would be provision for sale of covered and open car parking space together with sale of open space on the northern side of the ground floor adjacent to certain flats as well as roofs above of certain flats ;
iii) The complainant, accordingly, entered into two agreements for sale - one, for sale of land on February 04, 1998, and another, sale of unit construction dated February 24, 1998, respectively, inter-alia, agreeing to purchase the ground floor, GF-10, together with one covered car parking space as also exclusive right to use and occupy the open space, measuring 1000 sft on the northern side adjacent to the said flat, to the exclusion of all other owners and occupiers;
iv) After execution of the said two agreements for sale, the developers/builders handed over possession of the said flat including the covered car parking space and the open space exclusively, as fully described in the Schedule, to the complainant in part performance of the said agreement;
v) In terms of the aforesaid two agreements for sale, the developers/builders undertook to have sold, conveyed and transferred an undivided, impartible and indivisible share in the land together with the exclusive right to enjoy the adjacent land ad-measuring an area of 1000 sft. The terms and conditions of the land sale agreement, inter-alia, incorporates the stipulation that the conveyance shall be completed and/or executed and registered within the 31st December, 1998;
vi) That the complainant made further allegations against the developers/builders that –
a) they have been illegally demanding towards the second generator which has not been installed ;
b) they have been claiming proportionate cost towards expenses and deposit for providing transformers and electric sub-station without furnishing any particulars; and
c) they have not provided for supply of corporation water nor any provision for insurance or installed any fire fighting equipment ;
vii) The complainant, on being suspicious of the conduct of the developers/builders, duly appointed one Sri Dilip Kumar Dey, Consultant Engineer, for the purpose of measurement, and was shocked and surprised to learn from his report dated May 17, 2002 that the covered area of the flat was only 1300 sft and claimed refund of the amount being the difference between the actual area and the inflated area.
viii) The complainant has repeatedly been requesting the owners/builders/opposite party no.1 for execution and registration of the said flat along with the undivided share of land as well as exclusive right to use the said 1000 sft open space. The opposite party no.1 made no response and kept silent till December, 2000 when they over telephone repudiated the claim. ; and
ix) The complainant, in spite of his readiness and willingness and, further, having paid all the legitimate dues, the developers/builders and the owners are unnecessarily delaying in acquiring good and indivisible title which has resulted in gross deficiency in rendering services. By reason thereof, the complainant is seeking direction from the Commission for execution of the Deed of Conveyance and claiming compensation of Rs.50,000/- and the cost of the proceeding Rs.10,000/-.
3. On September 27, 2002, the aforesaid complaint case was admitted while fixing the next date on January 29, 2003. However, it appears from the record, that, on June 14, 2004, for the first time, OP Nos. 2 to 7 – the owners of the original property – were present through their Advocate, though, the complainant was absent. It, further, appears that till July 12, 2004, no copy of the petition was served on the owners, whereupon, the complainant was directed to serve the petition immediately.It appears from the record that the developers/builders/opposite party no.1, though, appeared on two occasions only, but, thereafter, did not participate in the proceeding.
4. However, on or about October 06, 2004, the owners filed their exhaustive ‘written objection’, inter-alia, raising diverse preliminary issues, impugning this Commission’s jurisdiction as well as maintainability of the complaint case including raising substantial disputes in connection with the complainant’s claim of his right, title and interest over the land, appurtenant to his flat, GF-10, measuring about 1000 sft, situate on the northern side of the premises. The said defences, inter-alia, are, as under :-
i) That the Commission has no jurisdiction whatsoever to entertain or try or determine the disputes referred to in the complaint case, as framed;
ii) That the instant complaint case is liable to be dismissed in view of the material suppression of the fact that the complainant has filed, yet, another suit, before the learned City Civil Court at Calcutta being T.S. No 1236 of 2002 involving identical – if not, substantially the same – allegations against the opposite party no.1 and the owners;
iii) On the said suit, on August 22, 2002, the complainant obtained a status-quo order in respect of the disputed area of the land, adjacent to the complainant’s flat, measuring about of 1000 sft, on the northern side of the premises. However, the said interim order lapsed due to passage of time, whereupon, the complainant filed another application for revival of the said order, but, till date, it has not been revived. Presently, the matter is pending before the Revisional Jurisdiction of the Hon’ble High Court at Calcutta;
iv) Since the complainant has been vindicating his alleged, purported right and/or claim before the learned City Civil Court, the Commission will be pleased not to exercise any jurisdiction in conformity with the settled and declared judicial policy;
v) The complaint case has been filed mala-fide and/or with ulterior motive on September 27, 2002, but, service thereof, has not been effected on the owners till June 16, 2004, while deliberately suppressing the factum of filing of the Title Suit, and, thereby, resulting in multiplicity of judicial proceedings.
vi) Since the purported two agreements for sale respectively dated February 04, 1998 and February 24, 1998 are, admittedly, not stamped, as required under Article 5D of Schedule 1A r/w Explanation thereunder and Sec.35 of the Indian Stamp Act, 1899, as amended by the West Bengal Finance Act, 1996 (in its application to the State of West Bengal), the said two purported agreements are not only inadmissible in evidence, but, also, part of a plan to perpetrate fraud on the revenue;
vii) It has, also, been deliberately suppressed from the Commission that the Kolkata Municipal Corporation had duly sanctioned the aforesaid building plan on October 09, 1991 bearing No.76 (B.7), whereunder, the northern side of the appurtenant land of the said building, measuring a width of 6.2 metres, shall be kept vacant being the rear of the premises at ground along with the entire width of the building, forming an integral part of the site;
viii) In view thereof, the alleged claim of 1000 sft by the complainant on the northern side of his flat, claimed under the aforesaid two agreements, are contrary to and/or upon infraction of the KMC Act, 1990 and/or KMC Building Rules, 1990. In the premises, the said agreements are illegal, nullity and void being contrary to the public policy;
ix) The complaint case is liable to be dismissed, since it is suffering from non-joinder of necessary parties, namely, Dr. M Haque, S/Shri D Chowdhury, B K Sarkar etc. as also other nominee(s) claiming title through opposite party no.1, as they are, also, claiming the right and title in respect of the identical 1000 sft of vacant land on the northern side of the complainant’s apartment, and that, the same would be prejudicial and/or detrimental to their vested right, title and interest in respect of the common area (common parts);
x) The Commission has no jurisdiction to pass reliefs in terms of prayers (a), (b) and (c), as framed, due to lack of the Commission’s jurisdiction;
xi) Since the controversy involves disputed question of the right, title, interpretation of a large number of documents, oral testimony, to be tendered by the respective parties, interpretation of question of municipal laws as well as the Contract Act and the effect of non-registration of documents etc, the Commission will be pleased to relegate the matter to the suit, now pending before the learned City Civil Court;
xii) The complaint case is barred by the rules of estoppel, waiver and acquiescence and/or in any event barred by limitation; and
5. Apart from the aforesaid preliminary issues and maintainability, the owners have taken diverse points on merits of the case including the point that the two agreements for sale are inconsistent and/or in conflict with the development agreement dated April 22, 1987. However, they are not relevant for deciding the preliminary issues or maintainability; hence, are not dealt with being irrelevant
Between December 15, 2004 and July 10, 2007, it appears from the records diverse adjournments were sought for on the ground of complainant’s illness, accidental fall causing injury, issuance of the show cause notice by the Commission to the complainant, amendment of the complaint case, filing of affidavit on evidence etc. However, on July 10, 2007, the owners sought for adjournment for 4 weeks as respondent no.6, who has been looking after the case for all the OPs had gone abroad.
6. On or about August 01, 2007, the owners filed the instant petition, inter-alia, raising the following preliminary issues :
1. Whether the Hon’ble Forum has any jurisdiction to entertain, try of determine the instant complainant case ?
2. Whether the complaint case, filed before the Hon’ble Forum is liable to be stayed and/or dismissed in view of the pendency of T.S. No. 1236 of 2002 (Prabhat Shroff –vs- Mithua Development (P) Ltd. & Ors. ?
3. Whether the complaint case is liable to be dismissed in view of mala-fide suppression of material facts ?
4. Whether the complaint case is liable to be rejected due to non-joinder of necessary parties ?
5. Whether the complaint case, as framed, is barred by the laws of limitation?
6(a) Whether the agreements respectively dated February 04, 1998 and February 24, 1998 are inadmissible in evidence in view of infraction of Art. 5D of Schedule 1A r/w Explanation thereof and Sec.35 of the Indian Stamp Act, as amended by the West Bengal Finance Act, 1996 ?
(b) If so, whether the complaint case is at all maintainable ?
Then, the Commission, first, directed the complainant to file an affidavit on the aforesaid petition of the owners for hearing of the preliminary issues, and, thereafter, directed both the parties to file ‘written notes’. Accordingly, the parties filed their respective ‘affidavits’ and ‘Law Notes and written arguments’ on oath.
Although, the issue of deficiency of stamp duty was raised under issue 6(a) and (b) by the owners, the complainant, nevertheless, filed, yet, another application on September 17, 2007, inter-alia, admitting that the aforesaid two agreements for sale were only on Rs.10/- each and were not properly stamped. Hence, the direction was given by the Commission on September 17, 2007, for impounding of the said two documents and for assessment of proper stamp duty together with penalty, and, further, directed to file the documents to this Commission after it is duly stamped by the Registrar.
This Commission, after hearing submissions and perusing all the ‘Law Notes’, time to time, filed by both the parties, first, on August 25, 2007, filed by the owners, and on September 17, 2007 by the complainant, with ‘second Law Notes’ filed on March 16, 2009 by the owners and on May 11, 2009 by the complainant, as well as ‘Reply’ to the complainant’s ‘Law Notes’ filed by the owners on May 18, 2009, decided to take up only those salient and relevant issues which, in our opinion, go to the root of the matter.
A. Re : Objection for framing of the ‘preliminary issues’/’maintainability
From the ‘second Law Notes’, filed by Mr. Sinha Sarkar on May 11, 2009 for the complainant, it appears, he has raised objection for framing preliminary issues separately, and not along with the merits of the case. He, inter-alia, submitted that the said petition for framing of the preliminary issues is not maintainable, as the same is based on the provision of Code of Civil Procedure under Order 14 Rule 2; whereas, the Commission’s procedures are laid down u/s.13 of the Consumers’ Protection Act, 1986. As such, there is no scope for entertaining any preliminary issue.
Mr. Sen, OP no.6, appearing in person, submitted during the hearing as also by filing his second Law Notes on May 18, 2009, inter-alia, submitted that the analogy of Order 14 Rule 2 of CPC has been erroneously drawn by the complainant; and, as such, arrived at wrong conclusion. On the contrary, he cited the decision of the Hon’ble Supreme Court, in the case of K SAGAR, MD, KIRAN CHIT FUND, MURSHIDABAD –VS- A BAL REDDY, reported in A(2008) SC 2568 at 2569, paras 7, 8 and 9, and, further, contended that the statement of law, stated in the aforesaid decision of the Supreme Court is binding on all courts and tribunals and cited the decision of SUGNATHI SURESH KUMAR –VS- JAGDEESHAN reported in A(2002) SC 681 at 684.
Considering the aforesaid rival contentions, we are of the view that the preliminary issues/maintainability, indeed, have been raised by the owners while filing their written objection way back on October 06, 2004. Further, as those preliminary issues framed therein have not been considered till date, due to long chequered history of the case, and, further, as the said issues are going to the root of the Commission’s jurisdiction, while there is no remote possibility of hearing of the case, shortly, on merits, because of the appeal, preferred by the complainant before the Collector for adjudication of the stamp duty, we have decided to take up the preliminary points/maintainability. The aforesaid course of action would undoubtedly shorten the course of litigation.
In such regard, we also considered the legal submissions of both the parties including the decision of the Hon’ble Supreme Court, cited by OP no.6, being the case of K SAGAR, MD, KIRAN CHIT FUND, MURSHIDABAD –VS- A BAL REDDY reported in A(2008) SC 2568 at 2569. In para 3 of the said report, the Hon’ble Supreme Court considered the submissions made by the party as to whether the chit fund subscriber was a consumer or not. Negating the aforesaid contention, the Supreme Court held, in para 8 –
“In the aforesaid background, we are of the view that the issue relating to the jurisdiction has to be decided by the Forum first.
We, therefore, set aside the impugned order of the National Commission confirming the order passed by the State Commission, and remit the matter to the State Commission to consider the question of jurisdiction.”
We accordingly adopt the view expressed by the Hon’ble Supreme Court as the aforesaid declaration of law is fundamental to the administration of justice to shorten the course of litigation and it is binding on us. In view thereof, we reject the contention of the complainant that the preliminary issue/maintainability cannot be adjudicated upon separately or independent of the merits.
B. Re: Effect of pending civil suit being T.S. No.1236 of 2002 before the learned City Civil Court vis-ŕ-vis the present complaint case (See - Issues 2 and 3]
Since the preliminary issues/maintainability raised by the owners, as aforesaid, we called upon the owners to address first. Respondent no.6, Mr. Sen, appearing in person, and for OP nos.2 to 5 and 7, learned sr. counsel, Mr. N C Roychowdhury substantially supported the case of Mr. Sen. Mr. Sen, OP no.6, appearing in person, placed a tabular statement set out in paragraph 11 of their affidavit along with a Law Note filed on August 25, 2007, as also a ‘comparative table’, showing the identical paragraphs in verbatim, incorporated both in the City Civil Court suit and the instant complaint case :
City Civil Court’s Suit Complaint Case
In furtherance of the aforesaid chart, they, also, filed a schedule marked ‘A’ to their affidavit, inter-alia, extracting the paragraphs from both the City Civil Court suit and the complaint case. Further, in the second Law Notes, filed on March 16, 2009, in addition to the Table ‘A’, they further added a tabular statement of the cause(s) of action against the owners in the plaint, filed before the learned City Civil Court and the complaint case as well as the cause(s) of action against the builders/opposite party no.1 by the complainant which are extracted hereunder:
Cause of action against owners- Cause of action against builders/
R 2 to 7 – same if not, identical O.P.No.1 – same if not, identical
in Plaint and Complaint Case
That is, plaintiff-complainant’s alleged Wrongful and illegal demand
claim of right, title and interest over,
and in respect of, the vacant towards proportionate cost of the
land ad-measuring 1000 SFT, appurtenant ‘second generator’ which has not
to his flat, situate at the northern side been installed [Comp. Case –
of the premises being parcel of common para 7 = Plaint – para9]
land/common parts [Comp. Case – paras
5 and 6 = Plaint – paras 6 and 8]
Wrongful and illegal demand
towards expenses for providing
transformer and electric sub-
sub-station [Compl. Case – para 8
= Plaint – para 11]
Wrongful and illegal failure to provide corporation water, insurance cover or fire fighting machine [Compl. Case – para 9 = Plaint – para 11]
Wrongful, illegal measurement of
the flat, in that, 1300 SFT was
measured instead of 1750 SFT
super covered area, as
charged by the Developers-OP
No.1 [Comp. Case – para 10 = Plaint – para 12]
In support of their contentions, they cited the decisions of (a) PROPRIETOR, JABALPUR TRACTOR –VS- SEDMAL JAINARAYAN & ANR reported in (1995)3 CPR 453; (b) M/S. ARORA INDUSTRIAL CORPORATION & ANR –VS- UNION BANK OF INDIA reported in (1991)2 CPR para 3; and (c) T G KUTAH BAKSH –VS- COMMISSIONER, MADURAI CORPORATION reported in (1993)2 CPJ 907 at 908 para 2, respectively.
Against the aforesaid allegations of the owners, Mr Sinha Sarkar, inter-alia, submitted that –
a) in the plaint, the complainant has merely prayed for declaration and permanent injunction, and that, the reliefs claimed in the said Title Suit are different from the reliefs claimed in the present consumer’s dispute case, and that, in spite of having received the full consideration from the complainant they have not executed and registered a proper deed of conveyance of the flat along with exclusive use of 1000 sft of the open space;
b) the suit was filed because the opposite parties were trying to transfer and/or alienate the suit property, hence, the suit was filed for declaration and injunction;
c) in the consumer’s dispute case, the complainant has merely sought for directions against the opposite parties to execute a deed of conveyance as also directed to refund money in respect of difference between the covered area of the flat and the actual measurement thereof;
d) The suit was filed erroneously – though, not expressly stated – inasmuch as the title suit would not be maintainable in view of Sec.12(A)(1) of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoter) Act, 1993;
e) the complainant is a consumer who has purchased immovable property upon payment of valuable consideration; and, as such, entitled to get registration;
f) he, further, contended by drawing analogy of Sec.10 of the CPC, and submitted, that, unless the principle of res-subjudice applies and the issues are directly and substantially the same, in that, the adjudication of the former suit will necessarily collapse the latter suit, only then it can be said that the matter is directly and substantially the same; and
g) lastly, the complainant is willing to withdraw the Title Suit, now pending before the learned City Civil Court, and that, he could not withdraw because the owners have filed revisional application before the Hon’ble High Court which is still pending and as such, the suit could not be withdrawn.
Considering the aforesaid rival contentions and/or submissions made, we are, first, constrained to observe that the factual aspect of the case as stated in the ‘tabular statements’ stated hereinbefore, has not been denied by the complainant. We closely perused the plaint and the complaint case and find the comparative tabulation of paragraphs of the plaint and the complaint case as also the cause(s) of actions - both in the plaint and the complaint case - (a) against the owners and (b) against the developers/builders are, indeed, the same – if not, identical. Hence, there is no dispute with regard to the same.
Now, we intend to take up the main contentions of the complainant that the ‘remedies’ and/or ‘reliefs’ claimed in the plaint and the complaint case are different, as forcefully contended by Mr. Sinha Sarkar. In view thereof, we reproduce the remedies, sought for in the plaint as well as the complaint case, as under:
Prayers in Plaint bearing T.S.No.1236 of 2002
Prayers in Complaint Case No.82(O) of 2002
a) A decree for DECLARATION that the plaintiff has acquired indefeasible right and interest in the suit property by virtue of the said agreements dated 04.02.1998 and 24.02.1998;
b) A decree for DECLARATION that the defendants, jointly and/or severally have no right to transfer and/or to alienate and/or encumber the suit property …….to any third party to the detriment of the interest of the plaintiff; and
c) A decree of permanent injunction, restraining the defendants, jointly and/or severally, from transferring and/or alienating and/or encumbering the suit property ……..and/or interfering with the peaceful possession and enjoyment of the plaintiff ………..
a) For issuing a Notice upon the opposite party and the owners to show cause as to why the Deed of Conveyance in respect of the said flat described in the Schedule below shall not forthwith executed and the registered by them;
b) In the event of the opposite party and the owners fail to appear ……..the opposite party and the owners be directed to execute and register the Deed of Conveyance in respect of the said flat described in the Schedule below in favour of your petitioners at once; and
c) In the event, the opposite party and the owners failed to obey the direction given by your Honour, necessary penal action may be taken against them to compel the opposite party and the owners to execute and register the Deed of Conveyance in respect of the said flat described in the Schedule below in favour of your petitioner
The aforesaid Tabulation appears from the owners’ Law Notes.
From the perusal of the plaint, it clearly appears that the complainant/plaintiff filed a declaratory suit, inter-alia, praying for declaration that he has acquired an indefeasible right and interest in the suit property by virtue of the agreements respectively dated February 04, 1998 and February 24, 1998 and for injunction not to alienate or encumber the suit property.
Mr. Sinha Sarkar, we are afraid, has overlooked the ‘proviso’ to Sec.34 of the Specific Relief Act, 1963. Mr. Sen, OP no.6, appearing in person, invited our notice to the ‘proviso’ of Sec.34 of Specific Relief Act, 1963 and cited the following cases:
a) C MOHAMMAD YUNUS –VS- SYED UNNISSA reported in A(1961) SC 808 at 810;
“….. A suit for declaration with a consequential relief for injunction is not a suit for declaration simpliciter. It is a suit for declaration with a further relief. Whether the further relief claimed in a particular case as consequential upon a declaration is adequate must always determine on the facts and circumstances of each case.”
b) HUMAYUN BEGAM –VS- SHAH MOHAMMAD KHAN reported in A(1943) PC 94 at 96
c) M K RAPPAI –VS- JOHN & ORS reported in (1969)2 SCC 590 at 593
“Counsel for the respondents contended that the decision of the High Court could be upheld because all it said was that the plaintiffs were entitled to a right and the question of appointment would be canvassed in the suit. This contention is unacceptable because a suit for bare declaration of a right without further relief for possession and other reliefs as the facts and circumstances would require is not supportable.”
d) MANNU CHAMAR –VS- HARI NARAIN reported in A(1947) All. 352 at 354.
“The object of the proviso is to prevent multiplicity of suit by preventing a person from getting a mere declaration of right in one suit and then seeking the remedy, without which the declaration would be useless and which could have been obtained in the same suit.”
The interpretation of ‘proviso’ to Sec.34 has not been dealt with by Mr. Sinha Sarkar. After perusing the aforesaid case laws, we are firmly of the opinion that the ‘proviso’ to Sec.34 of the S. R. Act, 1963 is an embargo on the party to claim a declaration in one suit and then seeking remedy, without which the declaration would be useless, though, the same remedy could have been easily obtained in the same suit.
We respectfully follow the aforesaid Mannu Chamar’s case, as decided by the Hon’ble High Court as well as Supreme Court’s judgment cited hereinbefore. In our considered view, mere declaration of the complainant/plaintiff’s purported claim of indefeasible right, flowing from the two agreements for sale are not, and, indeed, cannot be adequate because the complainant’s title in respect of 1000 sft, appurtenant to his flat, GF-10, would continue to remain inchoate without execution of the sale deed. In view thereof, and, in order to perfect his imperfect title, the conveyance is essential. And, as such, by way of relief, direction has been claimed to execute the deed of conveyance by the complainant in this complaint case against the opposite party no.1 and the owners. Hence, clearly falls within the ambit of mischief of ‘proviso’ to Sec.34 of S. R. Act, 1963.
After considering all the pros and cons of the respective submissions and rival contentions, we intend to follow the judgment rendered by the Hon’ble Supreme Court in the case of PROPRIETOR, JABALPUR TRACTOR –VS- SEDMAL JAI NARAIN & ANR reported in A(1953)3 CPR 543, inter-alia, holding –
“… The State Consumers Forum have also noticed it in paragraph 26 of its order and concluded that the amount claimed by M/s. Jabalpur Tractors as garage charge is Rs.18000/- and this cannot be considered as the matter is already pending and is sub-judice before the competent civil court. The Consumers’ Protection Act is not in derogation of any other law …..”
Following the aforesaid decisions of the Hon’ble Supreme Court, it is clear, that in the Title Suit filed before the learned City Civil Court, the complainant/plaintiff claimed merely declaration of his right and title flowing from the said two agreements for sale, while, in the present complaint case, he is praying for direction on opp. Party no.1 and owners for execution of the deed of conveyance. No reason at all has been assigned by the plaintiff/complainant in the Law Notes or in the submissions as to why the prayer for execution of the deed of conveyance could not be made or prayed for in the plaint. There was no impediment. It could have been easily prayed for. Hence, clearly hit by ‘proviso’ to Sec.34 of the Specific Relief Act, 1963.
C. It has been further submitted by Mr. Sinha Sarkar by drawing analogy of Sec.10 of CPC that, applying the principle of res-judicata and/or res-subjudice, the subsequent matter, now pending before this Commission will not collapse.
The aforesaid effort to draw analogy of Sec.10 of CPC, we find, is contradictory to, and in conflict with, the ‘plea’ he has taken in his second Law Notes. While contesting the question of preliminary issue, Mr. Sinha Sarkar submitted that CPC has no application. It is patently contradictory plea.
We do not agree with the submissions of the complainant, because, in the event, the learned City Civil Court declines to grant any declaration, regarding the complainant’s “indefeasible right and interest in the suit property by virtue of the said agreements dated 4th February 1998 and 24th February, 1998”, [vide – prayer in plaint], we, on the parity of reasons, will not be able to direct for execution of the deed of conveyance. As such, the complaint case would collapse. Nor are we capable of adjudicating upon the question of indefeasibility of the complainant’s right and interest, flowing from the said two agreements, as that would exclusively be decided by the learned City Civil Court. Any attempt on our part to decide the said issue would amount to encroachment of the learned City Civil Court’s jurisdiction. In the instant complaint case, there is no prayer for declaration of his right or interest and hence, we cannot go beyond the prayer, and, thereby, exceed our jurisdiction.
D. Mr. Sinha Sarkar, in the first Law Notes along with objection petition filed on September 17, 2007, in paragraphs 12(d), (e), (f) and (g), inter-alia, alleged that the aforesaid Title Suit was filed erroneously, and, even though, it had not been stated so, the said suit would not be maintainable in view of Sec.12(A)(1) of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoter) Act, 1993 [West Bengal Act of 1993]. Therefore, the said suit should be overlooked by this Commission in view of the said West Bengal Act of 1993 read with judgment delivered by the Hon’ble Division Bench, reported in (2006)1 CHN at 401.
The OP no.6, appearing in person, came out with a serious charge against the complainant, that, in spite of the fact that he was a party to the complaint filed before the Government of West Bengal against the builders/developers, opposite party no.1, nevertheless, the same has been deliberately suppressed from this Commission, in that, the complainant’s application was dismissed by the authorized officer of Government of West Bengal, Housing Department, Law (Promoter) Branch, on February 19, 2004 bearing Ref. No.99(3)-HIV/PC-19/2002.
Mr. Sen, also, drew our notice of the affidavit filed by the owners along with Law Notes on August 25, 2007, whereunder, in paragraphs 12(a) and (b) and 13 of the said Affidavit/Law Notes, and, thereafter, by filing an application on July 31, 2008, in paragraph 9 and sub-paragraphs thereunder, the owners, inter-alia, highlighted that the complainant had, and has, perpetrated fraud both on the Commission as well as the party. He invited our notice to Ext.1 of the aforesaid petition, filed on July 31, 2008, inter-alia, demonstrating that the authorized officer, under the aforesaid Act of 1993, finally passed an order on January 30, 2004, inter-alia, dismissing the said application of the complainant, filed before the said authorities.
After considering the rival contentions and perusing the order passed by the authorized officer, set up under the West Bengal Act of 1993, being Ext. A to the said application, wherefrom, it appears that the said learned adjudicator, inter-alia, held on January 30, 2004, as under :
“”The date of commencement of construction of the said building is well before the date of enforcement of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoter) Act, 1993 in the areas under the jurisdiction of KMC i.e. August 09, 1995.
The construction of building in relation to the question of the complainant’s does not fall under the purview of the said Act. Therefore, the authorized officer under the Act has no authority to adjudicate the disputes and both the complaints are dropped.”
It is unfortunate, that, in spite of the knowledge of the said order passed on January 30, 2004, as it was endorsed to the complainant under serial no.1 thereof, the said fact has been concealed and/or suppressed from this Commission. On the contrary, while filing their petition along with written notes on September 17, 2007 – well after 3 years from the date of the actual order passed by the learned adjudicator, as aforesaid - attempt has been made to mislead this Commission. Further, while dealing with the owners’ petition dated July 31, 2008, the complainant, in his written objection dated November 12, 2008, under paragraph 9 thereof, has not denied the said allegation of fraud, and, thereby, accepted the said insinuation. Thus we find that neither the said 1993 Act nor the decision of the Hon’ble Division Bench, cited by Mr. Sinha Sarkar, has any application to the facts of this case. On the contrary, the statements made by the OPs in their affidavit filed along with their Law Notes on August 25, 2007 as well as the statements and averments made in their application dated July 31, 2008 are substantially true, correct and proved.
Hence, we reject the complainant’s submission that the aforesaid West Bengal Act of 1993 had, or has, any application in respect of the building in question, situate at No.7, Rawdon Street, Calcutta, within the jurisdiction of KMC.
Further, the complainant, also, suppressed and/or concealed the material fact from the Commission that they have filed a T.S. No. 1236/2002 and the same is still pending and sub-judice. If it were known, the Commission would not admit the case, in view of declaration of the law by Supreme Court in the case of PROPRIETOR, JABALPUR TRACTOR (supra).
In the instant case, the fate of the civil suit pending before the learned City Civil Court at Calcutta and the fate of the Consumers’ Protection Act, 1986 are inter-twined. Further, the ‘proviso’ to Sec.34 of S. R. Act. 1963 is statutory embargo against insisting for any further relief in a different action. Following the decision of the Hon’ble Supreme Court, and bearing in mind that the Consumers’ Protection Act is not in derogation of any other law of the land, we respectfully follow the same and hold, that in view of the pendency of T.S. No. 1236 of 2002, the instant complaint case cannot be entertained. On the contrary, if the complainant has genuine cause of action, he could pursue his grievance before the learned City Civil Court. His interest, by pursuing the suit, will, also, not prejudicially affect him. Hence, we decide the issue in favour of the owners.
E. Re: Dispute between the parties is regarding immovable property, entailing right, title and interest in respect of 1000 sft of the vacant land/lawn, appurtenant to the complainant’s flat, GF-10. The said dispute is not a ‘consumer dispute’; and, hence, not maintainable. [See – Issue 1]
Mr. N C Roychowdhury, appearing for the OP nos.2 to 5 and 7 and Mr. Sen, respondent no.6, appearing in person, raised the substantial question of the Commission’s jurisdiction in the light of the Law Notes, filed on March 16, 2009 (‘Second Law Notes’), inter-alia, stating that no relief can be passed in terms of the prayers (a), (b) and (c) of the complaint case, since it entails serious and disputed question of title raised by the complaint. In support of the aforesaid submission, he drew out notice to Schedule ‘A’ to the plaint in Civil Suit, wherein the complainant’s flat has been defined, as under :
“ALL THAT the entire compact self-contained flat …… delineated with red borders in the map annexed hereto together with the covered car parking space no.11 on the basement floor of the building and also together the exclusive right of user to use and occupy to the exclusion of all other defendant nos/2 to 7 and occupiers in respect of the open space on the northern side adjacent to the said flat measuring 1000 sft…..”.
In the complaint case, under the head ‘SCHEDULE ABOVE REFERRED TO’, it also, includes “open space on the northern side adjacent to the said flat measuring 1000 square feet ……”
From paragraphs 14, 15, 16, 17 and 18 of the plaint, filed by the complainant in the City Civil Court, it would, inter-alia, go to show that the deed of conveyance, hitherto already executed between the Chowdhuries and the opposite party no.1 and the owners would deprive him of his right, title and interest in the suit property including the said 1000 sft of vacant lawn/ land. As such, obtained ex-parte order of ad-interim injunction, though, lapsed due to effluxion of time.
In paragraph 11 of the complaint case, it has been specifically stated that the opposite party no.1 and the owners were requested to effect “registration of the said flat and the said undivided share in land as well as the said exclusive right to use the said open space” and the opposite party no.1 and the owners have denied such execution and registration of the deed of conveyance in respect of the schedule property.
Further, from the deed of conveyance executed by the Chowdhuries on August 02, 2002 [Vide - Annex.’D’- Written Objection] –clause 6.5 thereunder stipulates : “Open and covered common passage land/lawn on the northern side and roads.” After bringing the same to the notice of this Commission, it has been submitted that those averments made in the plaint and the complaint case constitute admission, by citing the case of BASANT SINGH –VS- JANKI SINGH, reported in A(1967) SC 341 at 342/343.
It is submitted by the OP Nos. 2 to 7 that the complainant is claiming right, title and interest to the extent of 1000 sft of the land/lawn, appurtenant to his flat, GF-10, incorporated in clause 6.5 of the deed of conveyance dated August 02, 2002 under the head ‘COMMON PARTS’.
Thereafter, the owners cited the decision of LUCKNOW DEVELOPMENT AUTHORITY –VS- M K GUPTA, reported in (1994)1 CPR 569 at 574 and, inter-alia, submitted that the housing construction, in the context of definition of ‘service’ and ‘deficiency’, inter-alia, mean deficiency in rendering service of particular standard, quality or grade, but, such disputes or claims are not in respect of any immovable property. They contended, since the complainant’s claim is totally in respect of the immovable property of 1000 sft of lawn/land, appurtenant to his flat GF-10, it is not a consumer dispute; nor entailing any deficiency in service. Indeed, the land-owners were or are not remotely concerned with rendering any service whatsoever to the complainant.
However, Mr. Sinha Sarkar submitted that in so far as the complainant’s case is concerned, the complainant is a consumer because he has purchased the immovable property upon payment of valuable consideration money from the opposite party no.1 and he is entitled to get the registration of the property, purchased by him.
After considering the respective submissions – particularly, the pleadings, both in plaint as well as in the complaint case – we are of the view that the crux of the dispute between the complainant and the OP Nos. 2 to 7 is with regard to his purported claim of right, title and interest in respect of the vacant land/lawn, appurtenant to the complainant’s flat no.GF-10. In fact, the complainant by filing his written objection, in paragraph 17 thereof, virtually made it clear that the owners were, and are, ready and willing to execute the deed of conveyance in favour of the complainant “subject to and conditional upon the fact that the said conveyance has to be executed excluding the purported right of the complainant in respect of the northern side land, measuring 1000 sft.” The aforesaid statement, also, has been reflected in the ‘second Law Notes’ submitted by the complainant on May 11, 2009, inter-alia, submitting “however, the owners have, with mala-fide intention, refused to transfer the right of exclusive user in respect of the said open space lying on the back side of the flat.”
In view thereof, there is no dispute that the claim of right, title and interest over 1000 sft of lawn/land being parcel of common part/common area is the main and fundamental dispute. Hence, it is a dispute relating to, and connected with, the immovable property, in which regard the Hon’ble Supreme Court made a clear distinction between the dispute regarding the immovable property, in one hand, and the dispute arising out of rendering of service or deficiency. From the aforesaid judgement of the Hon’ble Supreme Court, it is abundantly clear that the dispute in respect of the immovable property could not be entertained by the Commission. The aforesaid observation and/or obiter, needless to say, binds this commission, as submitted by the owners, relying on the case of SUGANTHI SURESH KUMAR –VS- JAGDEESHAN, reported in A(2002) SC 681 at 684, wherein, the Hon’ble Apex Court held –
“It is impermissible by the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point ….. it is the mandate of the Constitution as provided in Art.141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India …….”
In support of their submission, they also cited the decision of FAQUIR CHAND GULATI –VS- UPPAL AGENCY P. LTD reported in (2008)10 SCC 345 at 364, and, inter-alia, submitted that the dispute by the developers/builders against the land-owners is not, and cannot be, referred to the Commission, inasmuch the landowner had not or has not agreed to provide any service and relied on paragraph 34 of the said report, as under :
“……. We may notice here if there is a breach by the land-owners of his obligation, the builder will have to approach a civil court as the landowner is not providing any service to the builder, but merely undertake certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligation, the owner has two options. He has the right to enforce specific performance and claims damages by approaching Civil Court. Or he can approach Forum under the Consumers’ Protection Act, for relief as consumer, against the builder as a service provider. Section 3 of the Act makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the complainant.”
After considering the entire legal position and submission made by the respective contesting parties including the Law Notes, time to time, submitted, on the score, we are of the view that the observations and/or obiter of the Hon’ble Supreme Court in the cases of LUCKNOW DEVELOPMENT AUTHORITY read with the ratio of FAQUIR CHAND GULATI will lead us to the conclusion that, in the instant case, the dispute arising out of the immovable property i.e. 1000 sft of vacant lawn/land, appurtenant to the complainant’s flat, GF-10 is pure and simple relating to land/immovable property by and between the landowners and the nominee(s) of the developers/builders – the complainant herein - and the same cannot be adjudicated upon by this Commission. The aforesaid issue is decided in favour of the owners.
F. Re : Non-joinder of necessary parties [See – Issue 4]
The owners represented by Mr. N C Roychowdhury, Sr. counsel and Mr. Sen, OP no.6, appearing in person, invited our notice to paragraphs 3(VIII), 4(f), (g) and (h) of the written objection, filed by the owners, and, inter-alia, submitted that –
a) Messrs. Sarkar, Chowdhury and Dr. Haque on the date of filing of the written objection and, subsequently, 21 numbers of buyers/nominees of the developers/builders, save and except the complainant and another person, had acquired right, title and interest in respect of 1000 sft on the northern side of the complainant’s flat, GF-10; and, hence, their right, title and interest would be prejudicially affected ;
b) If the direction for execution is passed by the Commission in respect of the said 1000 sft of vacant land, then, the order would be passed in violation of the principle of natural justice as all the owners and occupiers acquired right, title and interest except the complainant and another person in respect of the said lawn/land;
c) The complainant’s own case before the learned City Civil Court in paragraphs 16, 17, 18 and 19 of the plaint is, that, if the draft deed of conveyance, as proposed, is executed, that would prejudicially affect his right, title and interest in respect of his claim of 1000 sft of vacant land and obtained an ex-parte injunction which, though, was vacated due to passage of time;
d) Further, the deed of conveyance, admittedly, executed on August 02, 2002 by Dinanath Chaudhari, Nirmala Devi Chaudhari and Atit Chaudhari, as appears from Annex. ’D’ to the written objection is required to be taken into account.
e) Further, in the ‘Third Schedule’ of the said deed of conveyance under the head ‘COMMON PARTS’ or ‘COMMON AREAS’, under clause 6.5 thereof, the whole land/lawn on the northern side was shown as common parts; whereas, the suit was filed on August 21, 2002;
f) In the premises, all the buyers being nominees of the developers/builders are necessary parties, as their right, title and interest in respect of the aforesaid 1000 sft of vacant lawn/land is involved, and, unless the aforesaid 21 nos. of deeds of conveyance are set aside, it will be impediment on the part of the Commission to direct for execution of the conveyance in favour of the complainant; and
g) Further and significantly, although, the complainant sought for amendment of his complaint case after the knowledge of execution of the deed of conveyance dated August 02, 2002, and such amendments were allowed on March 06, 2006, nevertheless, he took no step whatsoever to implead the buyers being the nominees of the developers/builders.
In support of the aforesaid contention, the OPs cited the decision of (a) RAM PASRICHA –VS- JAGANNATH reported in A(1976) SC 2335 2337; and (b) MANAGER, MILK CHILLING CENTRE –VS- MAHABOOBNAGAR CITIZENS COUNCIL reported in (1991)2 CPR 177 at 180.
Mr. Sinha Sarkar appearing for the complainant, inter-alia, submitted that –
a) as the developers/builders, opposite party no.1, sold the aforesaid 1000 sft of land exclusively to him, the question of impleading other flat-owners does not arise;
b) the present dispute relates to the execution and registration of a Kobala deed by the opposite party no.1 and the owners in which matter the other flat-owners have got nothing to do; as such, they are not necessary parties;
c) The owners have not disclosed as to how and in what manner they are necessary parties or that any decree or direction cannot be passed in their absence; and
d) The owners have with mala-fide intent refused to transfer the right of exclusive user in respect of the open space and are wrongly claiming that all other flat-owners have right, title and interest over the said open space.
From the perusal of paragraphs 16, 17, 18 and 19 of the plaint, duly verified by the complainant before the learned City Civil Court, the complainant, inter-alia, alleged that his right, title and interest in respect of his claim of 1000 sft of vacant land, appurtenant to his flat, GF-10, would be prejudicially affected by the proposed sale, inter-alia, specifying clause 6.5 of the proposed deed of conveyance. The aforesaid averment in the plaint duly verified by the complainant himself constitutes unequivocal admission that the prospective buyers would have their right, title and interest in respect of the said land, claimed by him. In the case of BASANT SINGH –VS- JANKI SINGH, reported in A(1967) SC 341 at 342/343 (supra), the Hon’ble Supreme court, inter-alia, held –
“Admission by a party, signed by him and verified may be used as evidence against him in another suit.”
We respectfully adopt the view expressed by the Hon’ble Supreme Court and hold that the complainant had full knowledge that the developers/builders and owners would sell and convey the right, title and interest in respect of the aforesaid vacant lawn/land to the other buyers being the nominees of the developers/builders.
From the deed of conveyance, annexed to the written objection, it appears, the identical clause 6.5 was incorporated in the conveyance executed by and between the Chowdhuries and the developers/builders as well as the owners.
Further, the names of Dr. M Haque, S/Shri D Chowdhury, B K Sarkar were also cited while filing written objection in paragraph 3(VIII) thereof. The said conveyance was executed both by the developers/builders as well as the owners on the August 02, 2002 while the plaint was filed on August 21, 2002.
Further, even after the aforesaid point has been specifically taken, initially by the owners, while filing their written objection as aforesaid, as well as in various applications filed for adjudication of the preliminary issue/maintainability, nevertheless, for the reasons best known to the complainant, he had or has taken no step to implead them.
Further, after the filing of the written objection by the owners on October 06, 2004, two years, thereafter, the application for amendment was taken out by the complainant which was allowed by this Commission on March 06, 2006, and, yet, significantly, for the reasons best known to the complainant, he had not impleaded any of the buyers. Admittedly, the complainant lives and/or resides in the same housing complex, situate at No.7, Rawdon Street. He being an Advocate is likely to be aware of the deeds of conveyance executed by the other owners being nominees of the developers - apart from the fact that he was fully aware of the clause 6.5 of the deed of conveyance. However, he has chosen not to implead the other buyers/owners of the flats.
After considering the pleadings and submissions including the respective Law Notes of both the parties, we hold that the other buyers being nominees of the developers/builders are necessary parties because any direction for execution of the deed of conveyance in favour of complainant would infringe on their vested right and title in respect of 1000 sft of vacant lawn/land, appurtenant to the complainant’s flat, GF-10.
In this regard, we rely on the decisions, cited by the OPs/owners, namely–
a) PRAFULLA CHARAN –VS- SATYA CHARAN reported in A(1979) SC 1682 at 1690, inter-alia, held by the Hon’ble Supreme Court -
“From whatever angle, the matter may be looked at, the conclusion is inescapable that sebaits of the family deity remained solely with the descendants of the founder ….. all the sebaits were therefore necessary parties; but all of them have not been impleaded. The trustees by themselves have no right to maintain the suit in respect of the Devottar property the legal title of which vests in the idol. The right to sue on behalf of the deity vests in the sebaits. All the sebaits of the deity not having been made parties, the suit was not properly constituted, and was liable to be dismissed on this score alone.”;
b) THE MANAGER, MILK CHILLING CENTRE –VS- MAHABOOBNAGAR CITIZENS COUNCIL reported in (1991)2 CPR 177 at 180, inter-alia, held -
“At the outset, it is to be noticed that the federation to which the State Commission has issued an impugned direction was not made a party to the dispute at any stage of the proceedings. Before the District Forum, specific objection had been raised by the opposite party pointing out the said defect but the complainant took no step to implead the federation. So too in the appeal before the State Commission …..”
X x x x x x x x x x x x xx x x x x
“We are constrained to hold that direction issued by the State Commission ………… Dairy Development Co-operative Federation cannot be legally sustained since the federation had not been impleaded as a party to the proceeding before the State Commission and have not been afforded an opportunity of it being heard.”
and hold, the buyers, in whose favour the deeds of conveyance were already executed, are necessary parties, inasmuch as their right, title and interest in respect of the said 1000 sft of vacant lawn/land being part of clause 6.5 of the deed of conveyance will be prejudicially affected. It would amount to violation of natural justice, if any conveyance is directed in favour of the complainant claiming exclusive right and interest; whereas, the said and other nominees/buyers are claiming common right in respect of the said land.
It appears to be yet, another jurisdictional question: whether the commission at all has any jurisdiction to set aside the Deeds of Conveyances, admittedly, executed by the opposite party no.1 and the owners in favour of those buyers who have not been impleaded. That would entail purely question of title.
Hence, the issue is decided in favour of the OP Nos. 2 to 7.
G. Since all the matters pertaining to the preliminary issues and maintainability, involving substantial questions of law have been dealt with in the foregoing paragraphs which, in our opinion, are going to the root of the Commission’s jurisdiction as well as maintainability, we do not wish to deal with other matters raised by the OPs, namely, pecuniary jurisdiction of the Commission as well as limitation [See – Issue 5]
Hence, it is –
O R D E R E D
that the preliminary issues and the question of maintainability, as indicated above, is decided in favour of the opposite parties 2 to 7. Accordingly, the complaint case is hereby dismissed on contest without cost, the same being not maintainable under the provisions of law.
However, it will not prejudice the complainant to pursue the suit filed by him before the learned City Civil Court at Calcutta being T.S.No. 1236 of 2002. We have scrupulously avoided to deal with the merits of the case except highlighting merely what the dispute is so that the interest of the complainant is not prejudiced in the Title Suit.