NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member
Raja J. Vaghani and Anr. – Appellants
versus
M/s. Raj Developers – Respondent
First Appeal No.207 of 2014 and First Appeal No.208 of 2014
Decided on 1.3.2021

IMPORTANT POINT
“Since Complainant ceased to be a consumer, complaint held not maintainable.”

Headnote:

Consumer Protection Act, 1986 – Sections 19 and 2(1)(c) : [Consumer Protection Act, 2019 – Sections 41 and 2(6)] – Flat-Buyer Agreement – Delay in delivery of possession – Conflicting claim – Scope – Appellant and respondent executed a Flat Buyer Agreement dated 1.10.1996 – And possession of flat to be handed over on or before 1.3.1998 – In year 2008, a Tripartite Agreement was executed between Respondent as ‘Developer’, Mr. and Mrs. G.P. Yadav as ‘Purchaser’ and appellant as “Confirming Party” – Since cheque issued by purchaser got, bounced, the appellant cancelled the aforesaid agreement and got the sale agreement dated 1.10.1996 registered – Allegedly a respondent received full payment but failed to handover possession of the flat to appellant – Aforesaid purchasers are necessary parties for adjudication of dispute – However the case being complicated cannot be decided by Consumer Forum – Competent Court to decide such dispute is the Civil Court – Since the complainant has relinquished his rights and as such ceased to be a computer, thus, he has no ground to approach the commission for redressal – Impugned order passed by State Commission upheld – Complaint not maintainable.

Held: The State Commission, the Complainant filed present Appeal before this Commission. Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Appellant submitted that the Tripartite Agreement was cancelled due to non-payment of dues by Mr. Gajanan Prasad Yadav and Mrs. Aruna Gajanan Yadav. The original agreement between the Appellant and the Respondent remained intact and obligatory. The only issue was whether the Appellant, as original Flat purchaser, had independent right for performance of the said agreement or not. Since the Tripartite Agreement had failed, the original contract between the Appellant and the Respondent, which was duly registered by paying full stamp duty on 20th September 2009, was binding. As such, the Respondent was bound to perform the original contract. Learned Counsel submitted that the observation made by State Commission that the Appellant relinquished his rights was totally erroneous and deserved to be quashed.

Learned Counsel for the Respondent submitted that the Appeal was barred by limitation and non-joinder of necessary parties. It was also submitted that Appellant had sold the Flat and there was a dispute as to the ownership of the Flat. Both the Appellant as well as Mr. Gajendra Prasad Yadav claimed ownership. It was submitted that proceedings before the Consumer Forum are essentially summary in nature and Consumer Forum is not competent to adjudicate disputes regarding ‘Title’. The present Appeal can only be adjudicated by a Competent Civil Court. Learned Counsel for the Respondent further stated that the alleged unilateral registration of the Agreement, dated 22.08.2008, by the Appellant, without informing the Respondent, was clearly in derogation of clause-24 of the Agreement which read as follows “At the time of entering into this Agreement the Purchaser shall pay the stamp duty and registration charges payable. The Purchaser shall immediately after the execution of this Agreement lodge the same for registration with the Sub-Registrar of Assurance and inform the Developer the number under which and day on which the same is registered with sufficient notice to enable to Developer within reasonable time thereafter to attend the office of Sub-Registrar of assurance and admit execution and thereafter ….and risks of the Purchaser.”

Brief facts of the case are that the Appellant executed a Flat Buyer Agreement dated 1.10.1996 with the Respondent for sale of Flat No.602, ‘B’-Wing, Regency Park, Amrit Shakti, Chandivali, Powai, Mumbai. Total sale consideration was Rs.3,31,500/-, to be paid in instalments. As per clause-9 of the Agreement, the Respondent agreed to complete construction of the building and handover possession of Flat No.-602 ‘B’ Wing on or before 1st day of March, 1998. Appellant made payments as per the demands of the Respondent. In 2008 a Tripartite Agreement was executed between Respondent as ‘Developer’, Mr. Gajendra Prasad Yadav and Smt Aruna Gajendraprasad Yadav as ‘Purchaser’ and the Appellant as ‘Confirming Party’. Mr. Gajendra Prasad Yadav issued a cheque but the same got bounced. Appellant then cancelled the said Tripartite Agreement and subsequently got the sale agreement, dated 01.10.1996 registered before the Sub-Registrar of Assurance. Some of the purchasers had already taken possession and registered a society in the name of ‘Regency Cooperative Housing Society Limited’ under the Maharashtra Cooperative Societies Act, 1960. The Appellant obtained membership of the society and was paying monthly membership charges to the society, without possession of the Flat. The Appellant alleged that the Respondent received full payment as per the Agreement but failed to hand over possession of the flat to the Appellant.

I have perused the relevant record and given thoughtful consideration to the arguments of Learned Counsels for the Parties. It cannot be ignored that Mr. Gajendra Prasad Yadav and Smt. Aruna Gajendra Prasad Yadav, being parties to the Tripartite Agreement, are necessary parties to adjudicate the dispute effectively and completely. The Complainant and Mr. Gajendra Prasad Yadav were claiming the Flat and in the light of conflicting claims, the Opposite Party was unable to hand over possession. The proceedings before the Consumer Forum are summary in nature and the dispute regarding title of a property cannot be decided by the Consumer Forum and such disputes being complicated in nature are adjudicated and decided best by a Civil Court, where the parties can prove their case by adducing evidence. Scope of Consumer Forum is limited to the extent of deficiency in service and unfair trade practice. This case being complicated in nature cannot be decided by the Consumer Forum. The competent Court to decide this case is the Civil Court. State Commission observed that “the Complainant is a party to the agreement dated 8th April, 2008 in which he had consented to surrender his right as a purchaser of the flat from the Opponent. The time when he has given up his right for the non-impleaded party by name Gajendra Prasad Yadav and Smt. Aruna Yadav, it certainly connotes that the Agreement between the Complainant and that of developer Opponent dated 1st October, 1996 stood cancelled. At the same time the Complainant also came out of his position as a consumer of the services of the other party. As the Complainant has relinquished his rights and as such ceased to be a consumer and, therefore, he has no ground to approach the Commission for redressal and also request us to issue any directions on the agreement which has been annulled by his fresh agreement with the developer Opponent, in which he is only a confirming party.” The day he entered into a fresh agreement with Mr. Gajendra Yadav and Smt. Aruna Yadav, he ceased to be a Consumer. Thus, by his own action, Complainant ceased to be a Consumer and, therefore, the Complaint is not maintainable. For the foregoing discussion, order passed by the State Commission is justified. Appellant failed to point any illegality or irregularity in the order passed by the State Commission, warranting interference in exercise of Appellate jurisdiction Appeal is accordingly dismissed with no order as to cost. (Paras 8 to 12)

Result: Appeal Dismissed.