Sunday, August 9, 2026

BRIEF NOTES OF ARGUMENT ON BEHALF OF THE APPELLANT

 

BEFORE THE HON’BLE WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION
KOLKATA

FIRST APPEAL NO. ______ OF 2023

IN THE MATTER OF:

SRI ASHOK KUMAR GUPTA
…Appellant

-Versus-

SRI GOUR MITRA
…Respondent

BRIEF NOTES OF ARGUMENT ON BEHALF OF THE APPELLANT

I. INTRODUCTORY SUBMISSION

  1. The present Appeal under Section 41 of the Consumer Protection Act, 2019 is directed against the Order dated 01.12.2023 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata Unit–III (South), in Consumer Complaint No. CC/361/2021, whereby the complaint was allowed on contest and the Appellant was directed to hand over possession of the “B” Schedule flat and to execute and register a deed of conveyance in favour of the Respondent upon receiving the balance consideration, apart from payment of compensation of Rs.30,000/- and litigation cost of Rs.8,000/-.
  2. The operative portion of the impugned order, therefore, substantially grants the Respondent relief in the nature of enforcement of the alleged contractual right to obtain the immovable property.
  3. The Appellant respectfully submits that the impugned order suffers from errors both of fact and law, particularly because the Learned District Commission failed to properly adjudicate the Appellant’s specific and material defence regarding:

a. the true nature and character of the transaction;

b. the contention that the transaction involved investment/security of money;

c. the Appellant’s willingness to refund the amount received together with prevailing banking interest;

d. the fact that the subject flat had already been sold and was no longer in the possession of the Appellant; and

e. the consequential legal impossibility of directing the Appellant to convey a property which, according to his pleaded case, was no longer available with him.

II. FIRST AND FUNDAMENTAL ISSUE:

WHETHER THE TRANSACTION WAS IN FACT A CONSUMER TRANSACTION

  1. The first question requiring determination was whether the Respondent had established the existence of a “consumer dispute” within the meaning of the Consumer Protection Act, 2019.
  2. The mere existence of an Agreement for Sale does not, by itself, conclusively determine the jurisdictional character of every dispute arising between the parties.
  3. The substance, object and actual character of the transaction must be examined.
  4. The specific case of the Appellant, as pleaded before the Learned District Commission, was that the transaction was in substance connected with investment of money and that the Agreement was treated as a security document. The Appellant further pleaded that he was willing to refund the money received from the Respondent with prevailing banking interest.
  5. Therefore, the Learned District Commission was required to record a specific finding as to whether the Respondent had hired or availed of any “service” for consideration and whether there was any “deficiency in service” as contemplated under the Consumer Protection Act, 2019.
  6. The issue could not have been decided merely by relying upon the existence of the Agreement for Sale without examining the surrounding circumstances and the specific defence raised by the Appellant.
  7. In:

Faqir Chand Gulati v. Uppal Agencies (P) Ltd. & Anr., (2008) 10 SCC 345,

the Hon’ble Supreme Court examined the real character of the agreement and emphasized that the legal relationship between the parties has to be determined from the substance of the transaction and the rights and obligations actually created between them.

  1. The said judgment is relevant for the limited proposition that the Commission is required to ascertain the true nature of the transaction rather than proceeding merely upon the nomenclature employed by the parties.
  2. In the present case, such examination assumes greater importance because the Appellant specifically pleaded that the transaction was in the nature of an investment/security arrangement.

III. SECOND ISSUE:

FAILURE TO PROPERLY DETERMINE WHETHER DEFICIENCY IN SERVICE WAS ESTABLISHED

  1. The jurisdiction of the Consumer Commission is attracted only when the ingredients of a consumer dispute are established.
  2. The Respondent was required to establish the contractual obligation, the corresponding service obligation, the alleged failure on the part of the Appellant and the resulting deficiency in service.
  3. The Appellant submits that the Learned District Commission did not sufficiently deal with the defence that the transaction itself was not in the nature alleged by the Respondent.
  4. The finding of deficiency in service must necessarily flow from an established obligation of the service provider and a corresponding failure to discharge that obligation.
  5. In the absence of a proper determination regarding the true character of the transaction, the consequential finding of deficiency and the relief granted thereon become unsustainable.

IV. THIRD ISSUE:

THE LEARNED DISTRICT COMMISSION FAILED TO CONSIDER THE APPELLANT’S CASE THAT THE FLAT HAD ALREADY BEEN SOLD

  1. The Appellant specifically pleaded that the subject flat had already been sold and was no longer in his occupation or possession.
  2. This was not an incidental or irrelevant defence. It went to the very root of the relief claimed by the Respondent.
  3. Once the Appellant pleaded that he no longer possessed the property, the Learned District Commission ought to have determined:

i. whether the Appellant continued to have title over the property;

ii. whether the Appellant continued to have possession;

iii. whether any third-party rights had been created;

iv. whether any subsequent purchaser or transferee was a necessary or proper party;

v. whether the Appellant had the legal capacity to execute a conveyance in favour of the Respondent; and

vi. whether the direction for delivery of possession and execution of conveyance was legally and factually capable of implementation.

  1. A direction to execute and register a conveyance presupposes that the person against whom the direction is issued has the requisite title, authority and legal capacity to convey the property.
  2. The impugned order, however, does not adequately deal with the consequences of the Appellant’s specific defence that the property had already been sold.
  3. The Hon’ble Supreme Court in:

M/s Fortune Infrastructure (Now Known as Hicon Infrastructure) & Anr. v. Trevor D’Lima & Ors., (2018) 5 SCC 442,

considered the consequences arising where the property could not be conveyed and ultimately moulded the relief by directing refund and compensation rather than insisting upon an impossible transfer.

  1. The said judgment is important for the present case because consumer jurisdiction must ultimately result in an effective and legally enforceable relief.
  2. Therefore, if the Appellant had ceased to possess or own the subject property, the Learned District Commission ought to have first adjudicated the legal effect of such subsequent sale before directing the Appellant to convey the property.

V. FOURTH ISSUE:

THE IMPUGNED ORDER GRANTS A RELIEF WHICH COULD NOT BE EFFECTIVELY EXECUTED AGAINST THE APPELLANT

  1. The impugned order directs the Appellant to hand over possession of the “B” Schedule flat and execute and register a deed of conveyance in favour of the Respondent.
  2. The Appellant’s specific case is that the flat had already been sold.
  3. Consequently, the question of executability of the order becomes fundamental.
  4. An adjudicatory authority cannot issue a direction which, on the admitted or established factual position, cannot be lawfully performed by the person against whom it is issued.
  5. If a third party has acquired rights in the property, the rights of such third party cannot ordinarily be determined behind his back.
  6. The Learned District Commission ought therefore to have considered whether the relief sought by the Respondent was capable of being granted and executed against the Appellant alone.

VI. FIFTH ISSUE:

REFUND WITH REASONABLE INTEREST WAS A MATERIAL ALTERNATIVE RELIEF

  1. The Appellant had specifically stated in his pleadings that he was willing to refund the amount received from the Respondent together with prevailing banking interest.
  2. The said offer was a material circumstance requiring consideration.
  3. The Respondent’s entitlement to obtain the particular flat necessarily depended upon the continuing existence of the Appellant’s legal and factual ability to transfer the property.
  4. Where the property itself is no longer capable of being transferred by the opposite party, the appropriate relief may require moulding in terms of refund, interest and reasonable compensation.
  5. In Fortune Infrastructure (supra), the Hon’ble Supreme Court granted refund and compensation where the contractual subject matter could not be effectively delivered in the manner originally contemplated.
  6. Therefore, even assuming that some liability of the Appellant was established, the direction for compulsory conveyance was not the only possible relief and ought not to have been granted without first examining the feasibility and legality of such conveyance.

VII. SIXTH ISSUE:

THE CONSUMER COMMISSION HAS JURISDICTION IN APPROPRIATE CASES, BUT THE JURISDICTIONAL FOUNDATION MUST FIRST BE ESTABLISHED

  1. The Appellant does not advance the overbroad proposition that a Consumer Commission can never grant a direction for execution of a conveyance.
  2. The Appellant respectfully submits that the question is dependent upon the facts and circumstances of each case and upon the existence of a genuine consumer dispute.
  3. In:

Smt. Rita Das v. Mrs. Jayashri Ghosh & Ors., C.O. No.3111 of 2008, decided on 14.12.2011,

the Hon’ble Calcutta High Court considered the jurisdiction of the Consumer Forum in relation to execution and registration of a deed of conveyance and held that such jurisdiction is not necessarily excluded merely because the relief concerns execution of a title deed.

  1. The Appellant respectfully distinguishes the said judgment on facts.
  2. The present Appeal is not founded merely upon the proposition that the Consumer Commission lacks jurisdiction to direct execution of a deed.
  3. The Appellant’s case is that before granting such relief, the Learned District Commission was required to determine:

a. whether the Respondent was a consumer;

b. whether the transaction constituted hiring/availing of service;

c. whether deficiency in service was established;

d. whether the agreement was genuinely enforceable in the circumstances pleaded;

e. whether the Appellant continued to possess or own the flat; and

f. whether the conveyance could lawfully and effectively be executed by the Appellant.

  1. Those questions assume particular importance in view of the Appellant’s specific defence.

VIII. SEVENTH ISSUE:

THE APPELLANT’S CASE MUST BE DECIDED ON ITS OWN FACTS AND NOT BY A GENERAL ASSUMPTION REGARDING PROPERTY TRANSACTIONS

  1. The Respondent may contend that an agreement for purchase of a flat necessarily creates a consumer dispute.
  2. Such proposition cannot be applied mechanically.
  3. The Commission must examine the actual transaction, the pleadings, the consideration paid, the obligations undertaken by the parties, the conduct of the parties and the subsequent events.
  4. In Faqir Chand Gulati (supra), the Hon’ble Supreme Court emphasized examination of the real nature of the relationship between the parties.
  5. Thus, the Appellant submits that the specific plea of investment/security could not have been brushed aside without a reasoned adjudication.

IX. EIGHTH ISSUE:

SUNIL KOHLI v. PUREARTH INFRASTRUCTURE LTD. IS DISTINGUISHABLE

  1. The Respondent may seek to rely upon:

Sunil Kohli & Anr. v. M/s Purearth Infrastructure Ltd., Civil Appeal Nos.9004-9005 of 2018, decided on 01.10.2019.

  1. The Appellant respectfully submits that the said judgment does not conclude the present dispute.
  2. In Sunil Kohli, the Hon’ble Supreme Court was concerned principally with whether the complainants fell within the statutory definition of “consumer” notwithstanding the intended commercial use of the premises, and held that commercial use by the purchaser himself for earning livelihood through self-employment may fall within the statutory exception.
  3. The present case involves a different and more fundamental issue, namely the Appellant’s specific case regarding the true nature of the transaction and the subsequent sale/non-availability of the subject property.
  4. Therefore, Sunil Kohli does not dispense with the requirement of determining the actual facts and legal relationship between the parties in the present Appeal.

X. NINTH ISSUE:

MATERIAL PLEADINGS AND EVIDENCE COULD NOT BE IGNORED

  1. The Appellant participated in the original proceeding and filed his Written Version, evidence on affidavit and other pleadings.
  2. The record of the present Appeal itself contains the Written Version, evidence on affidavit, questionnaires and replies of the parties.
  3. The Appellant’s defence was therefore not an afterthought introduced for the first time in Appeal.
  4. The Learned District Commission was required to consider the material evidence and record findings on the material issues arising from the pleadings.
  5. An order which fails to consider a material defence going to the root of the controversy is liable to appellate interference.
  6. The Appellant respectfully submits that the impugned order does not sufficiently adjudicate the combined effect of:

(i) investment/security transaction;
(ii) offer of refund with interest;
(iii) subsequent sale of the flat; and
(iv) inability of the Appellant to deliver possession/convey title.

XI. TENTH ISSUE:

RELIEF MUST FOLLOW THE PROVED LEGAL RIGHT

  1. The Respondent’s prayer for possession and conveyance could be granted only after establishing an enforceable right against the Appellant.
  2. The burden was upon the Respondent to establish the factual and legal foundation for such relief.
  3. The Commission ought not to have proceeded on the assumption that the mere existence of an Agreement for Sale automatically entitled the Respondent to an order directing conveyance of the property.
  4. The enforceability of the agreement and the Appellant’s continuing ability to perform it were essential matters requiring adjudication.

XII. OVERALL EFFECT OF THE ERRORS

  1. The cumulative effect of the above circumstances is that the impugned order cannot safely be sustained.
  2. The Learned District Commission failed to adequately consider the Appellant’s material defence regarding the nature of the transaction.
  3. It further failed to adequately consider the Appellant’s specific case that the flat had already been sold and was not in his possession.
  4. The Learned District Commission consequently granted a positive direction for delivery of possession and execution of conveyance without first determining whether the Appellant had the legal and factual ability to comply with such direction.
  5. The impugned order therefore suffers from material errors in appreciation of facts and application of law warranting interference by this Hon’ble State Commission in exercise of its appellate jurisdiction under Section 41 of the Consumer Protection Act, 2019.

XIII. PRINCIPAL JUDICIAL AUTHORITIES RELIED UPON

1. Faqir Chand Gulati v. Uppal Agencies (P) Ltd. & Anr.

(2008) 10 SCC 345

Proposition: The real nature and substance of the transaction and relationship between the parties must be examined while determining whether the relationship falls within the Consumer Protection Act.

2. M/s Fortune Infrastructure (Now Known as Hicon Infrastructure) & Anr. v. Trevor D’Lima & Ors.

(2018) 5 SCC 442

Proposition: Where the property cannot effectively be delivered/transferred as contemplated, the relief can be moulded appropriately, including refund and compensation.

3. Smt. Rita Das v. Mrs. Jayashri Ghosh & Ors.

C.O. No.3111 of 2008, decided on 14.12.2011, Calcutta High Court

Proposition: Consumer jurisdiction is not automatically excluded merely because the relief involves execution/registration of a deed of conveyance. The decision is distinguishable on the facts of the present case.

4. Sunil Kohli & Anr. v. M/s Purearth Infrastructure Ltd.

Civil Appeal Nos.9004-9005 of 2018, decided on 01.10.2019

Proposition: The question whether a purchaser is a “consumer” depends upon the statutory test and factual circumstances. The decision is distinguishable from the present case on its facts.

5. M/s Imperia Structures Ltd. v. Anil Patni & Anr.

(2020) 10 SCC 783 / AIR 2021 SC 70

Proposition: The Consumer Protection Act provides an independent remedy in appropriate real-estate disputes; therefore, the Appellant should not rely upon an absolute proposition that the Consumer Commission lacks jurisdiction merely because the dispute concerns immovable property.

XIV. SUBMISSION IN A NUTSHELL

  1. The Appellant respectfully submits that the present Appeal is not founded upon a technical objection to consumer jurisdiction.
  2. The central issue is whether, on the facts pleaded and proved, the Respondent established an enforceable consumer claim against the Appellant for obtaining possession and conveyance of the particular flat.
  3. The answer, according to the Appellant, must be in the negative because:

A. the true nature of the transaction was specifically disputed;

B. the Appellant pleaded that the transaction involved investment/security of money;

C. the Appellant offered refund with prevailing banking interest;

D. the Appellant specifically pleaded that the flat had already been sold;

E. the Appellant was therefore no longer in possession of the subject flat;

F. the Commission did not adequately adjudicate the legal effect of the alleged subsequent sale;

G. the Commission directed conveyance without adequately determining the Appellant’s continuing title and capacity to convey; and

H. the relief granted consequently becomes legally and practically incapable of effective execution against the Appellant.

XV. PRAYER

  1. In view of the facts and circumstances stated hereinabove, it is most respectfully submitted that this Hon’ble Commission may graciously be pleased to:

a) allow the present Appeal;

b) set aside the impugned Order dated 01.12.2023 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata Unit–III (South), in CC/361/2021;

c) dismiss the Consumer Complaint being CC/361/2021;

OR IN THE ALTERNATIVE

d) suitably modify the impugned order by moulding the relief in accordance with law and the actual availability/ownership of the subject property, including appropriate refund of the amount received with reasonable interest, if found legally payable;

e) set aside the directions for delivery of possession and execution/registration of the deed of conveyance insofar as the same are incapable of lawful performance by the Appellant;

f) pass such other or further order or orders as this Hon’ble Commission may deem fit and proper in the interest of justice.

AND FOR THIS ACT OF KINDNESS, THE APPELLANT AS IN DUTY BOUND SHALL EVER PRAY.

Advocate for the Appellant

Place: Kolkata
Date: ____________

 

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