BEFORE THE HON’BLE WEST BENGAL STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
KOLKATA
FIRST APPEAL NO. ______ OF 2023
SRI ASHOK KUMAR GUPTA
…Appellant
-versus-
SRI GOUR MITRA
…Respondent
STRONG & PRECISE ARGUMENTS
ON
BEHALF OF THE APPELLANT
I.
THE IMPUGNED ORDER IS UNSUSTAINABLE BECAUSE THE PRINCIPAL RELIEF GRANTED WAS
NEVER PROPERLY TESTED AGAINST THE APPELLANT’S LEGAL CAPACITY TO PERFORM IT
1. My Lords, the entire case turns
on one fundamental question:
Can a Consumer Commission direct a
person to hand over possession of and convey an immovable property without
first determining whether that person continues to own, possess or have the
legal authority to convey that property?
The Appellant respectfully submits: No.
The Appellant specifically pleaded
that the subject flat had already been sold and was no longer in his
possession.
Yet the impugned order directs the
very same Appellant to:
(i) hand over possession; and
(ii) execute and register the deed of conveyance.
That is the fundamental error.
II. THE COMMISSION COULD NOT GRANT A RELIEF WITHOUT
ADJUDICATING THE PRECONDITION FOR THAT RELIEF
The impugned order assumes the
Appellant's continuing ability to convey the flat.
But assumption is not
adjudication.
Before directing conveyance, the
Commission was required to determine:
- Does the Appellant still own the flat?
- Does he possess the flat?
- Has the flat been transferred to somebody else?
- Has any third-party right intervened?
- Can the Appellant legally execute a conveyance?
- Can the Appellant lawfully deliver possession?
Unless these questions are answered,
the direction for conveyance is legally incomplete.
The relief cannot precede the
finding which is its legal foundation.
III. THE RESPONDENT CANNOT OBTAIN A BETTER RELIEF THAN
THE APPELLANT’S LEGAL CAPACITY PERMITS
The Respondent may have an Agreement
for Sale.
But an Agreement for Sale does not
automatically establish that the Appellant, at the date of adjudication, still
possessed the property and had an unrestricted legal capacity to convey it.
Therefore:
Contractual entitlement ≠ automatic
conveyance by a person who claims no longer to possess the property.
The Commission was required to
adjudicate the intervening event—the alleged subsequent sale—before directing
specific performance in substance.
IV. THE SUBSEQUENT SALE WAS NOT A COLLATERAL FACT — IT
WAS THE HEART OF THE RELIEF
The Appellant's plea of subsequent
sale was not a technical defence.
It directly answered the
Respondent's principal prayer.
If the flat was still with the
Appellant:
possession → conveyance may be considered.
If the flat was no longer with the
Appellant:
the entire nature of the relief
changes.
The Commission therefore could not
bypass the question.
The Appellant submits:
Once subsequent sale was
specifically pleaded, the burden was upon the adjudicating authority to
determine its legal effect before ordering possession and conveyance.
V. THE ORDER IS THEREFORE NOT MERELY ERRONEOUS — IT IS
INCAPABLE OF PROPER EXECUTION ON THE APPELLANT’S CASE
The impugned order directs:
“hand over the possession”
and
“execute and register a deed of conveyance”.
These are positive acts.
A positive direction necessarily
requires an existing legal and factual ability to perform the act.
If the Appellant no longer possesses
the flat, he cannot simply manufacture possession.
If he no longer possesses title or
transferable interest, he cannot simply create title by an order of the
Consumer Commission.
Therefore:
The executable character of the
relief itself depended upon a factual determination which the Learned
Commission failed to make.
VI. THE SECOND ERROR: THE COMMISSION DID NOT PROPERLY
DETERMINE THE TRUE NATURE OF THE TRANSACTION
The Appellant's specific case was
that the transaction was connected with investment of money, the
Agreement being treated as a security document, and that the Appellant was
prepared to refund the amount with prevailing banking interest.
That defence went to the root of
maintainability.
The first question ought therefore
to have been:
What was the real transaction
between the parties?
Not merely:
“Is there an Agreement for Sale?”
The Supreme Court in Faqir Chand
Gulati v. Uppal Agencies Pvt. Ltd., (2008) 10 SCC 345, emphasized
examination of the real nature of the relationship and transaction in
determining consumer jurisdiction.
The Appellant relies upon that
principle—not to say that every agreement for sale is outside consumer
jurisdiction, but to submit that the particular transaction pleaded by the
Appellant required proper adjudication before granting consumer relief.
VII. THE RESPONDENT HAD TO ESTABLISH THE
CONSUMER-SERVICE RELATIONSHIP
The Consumer Protection Act does not
convert every contractual dispute into a consumer dispute.
The Respondent had to establish:
Consumer → Service → Consideration →
Deficiency → Entitlement to relief.
The impugned order must therefore
demonstrate:
What was the service?
What was the deficiency?
How was that deficiency established?
Why was conveyance of the particular
flat the legally appropriate relief?
The Appellant submits that these
questions were not properly answered.
VIII. THE OFFER OF REFUND WAS MATERIAL AND COULD NOT
BE IGNORED
The Appellant's case was not one of
simply retaining the Respondent's money.
The Appellant specifically pleaded
willingness to refund the money with prevailing banking interest.
Therefore, if the Commission
concluded that money was due to the Respondent, it was required to consider
whether refund with appropriate interest and compensation was the
legally appropriate remedy in view of the alleged subsequent sale.
In Fortune Infrastructure (Now
Known as Hicon Infrastructure) v. Trevor D’Lima, (2018) 5 SCC 442, the
Supreme Court dealt with a situation where delivery of the particular property
could not effectively be achieved and considered monetary relief including
refund and compensation.
Thus:
Where the property cannot legally
and effectively be delivered, the remedy must be moulded; the Commission cannot
insist upon an impossible act.
IX. DO NOT ARGUE THAT CONSUMER COMMISSION HAS NO POWER
TO ORDER CONVEYANCE
This is important.
The Appellant should not make
the absolute submission:
“Consumer Commission has no
jurisdiction to order execution of a sale deed.”
That proposition is vulnerable.
The better submission is:
“Even assuming that the Consumer
Commission possesses jurisdiction to direct conveyance in an appropriate case,
such jurisdiction must be exercised upon proof of the consumer relationship,
deficiency in service and the legal and factual ability of the opposite party
to perform the direction.”
That proposition directly addresses
this case and avoids unnecessary confrontation with contrary authorities.
X. THE CASE OF RITA DAS DOES NOT SAVE THE
IMPUGNED ORDER
If the Respondent relies upon Smt.
Rita Das v. Mrs. Jayashri Ghosh & Ors., Calcutta High Court, the answer
should be:
“We are not disputing the general
jurisdiction of the Consumer Commission to grant conveyance-related relief in
an appropriate case. We are disputing the grant of that relief in this case
without deciding whether this Appellant still had the property, possession and
legal capacity to convey it.”
Therefore Rita Das does not
answer the present factual defect.
XI. THE MOST IMPORTANT DISTINCTION
The Respondent may say:
“There is an Agreement for Sale;
therefore, the Respondent is entitled to the flat.”
The answer is:
“The existence of an agreement is
the beginning of the enquiry, not the end of it.”
The Commission had to determine:
Agreement → enforceability →
continuing title/possession → capacity to convey → appropriate relief.
The impugned order effectively
jumped from:
Agreement → conveyance.
That is precisely where the error
lies.
XII. THE RELIEF GRANTED IS DISPROPORTIONATE TO THE
FINDINGS RECORDED
The District Commission granted:
- possession of the flat;
- execution and registration of conveyance;
- Rs.30,000/- compensation; and
- Rs.8,000/- litigation cost.
The principal relief is therefore
not merely compensation for deficiency.
It is effectively a direction
compelling transfer of an immovable property.
Such an extraordinary consequential
direction required clear findings supporting the legal entitlement and
feasibility of the transfer.
XIII. THE APPELLANT'S CASE IS SUPPORTED BY THE RECORD,
NOT AN AFTERTHOUGHT
The Appellant participated in the
original proceeding and filed his pleadings and evidence. The appeal
specifically records the Written Version, evidence on affidavit, questionnaires
and replies.
Therefore, the Appellant is not
introducing a new factual defence at the appellate stage.
The issue is whether the Learned
District Commission properly appreciated the defence already before it.
XIV. THE SINGLE STRONGEST QUESTION FOR THE BENCH
The Appellant respectfully submits
that the entire Appeal can be tested by one question:
“If the Appellant had already sold
the flat before the impugned order, how could the Learned District Commission
direct that very Appellant to hand over possession and execute a conveyance of
that flat without first adjudicating the effect of that sale?”
If that question cannot be satisfactorily
answered, the impugned order cannot stand in its present form.
XV. CONCLUSION
The Appellant respectfully submits
that the impugned order suffers from three fundamental defects:
FIRST:
The true nature of the transaction
and the consumer-service relationship were not properly determined.
SECOND:
The specific defence of subsequent
sale/non-possession of the flat was not adequately adjudicated.
THIRD:
Despite that unresolved issue, the
Commission granted the most consequential relief—possession and conveyance
of the flat.
Therefore:
The foundation was not determined,
but the consequence was imposed.
That is the fundamental error
requiring appellate interference.
XVI. FINAL PRAYER
The Appellant therefore respectfully
prays that this Hon’ble Commission may be pleased to:
A.
allow the Appeal;
B.
set aside the Order dated 01.12.2023 passed in CC/361/2021;
C.
dismiss the Consumer Complaint;
OR, IN THE ALTERNATIVE,
D.
mould the relief appropriately by directing refund of the amount legally found due,
together with reasonable interest and such compensation as may be considered
appropriate;
E.
set aside the direction for delivery of possession and execution/registration
of conveyance, particularly in the absence of a finding that the Appellant
continues to possess and have legal capacity to convey the subject property;
and
F.
pass such further order as this Hon’ble Commission may deem fit and proper.
Advocate for the Appellant
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