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
SYNOPSIS OF ORAL SUBMISSIONS / WRITTEN SUBMISSIONS
ON
BEHALF OF THE APPELLANT
1.
The Appeal challenges the legality and sustainability of the impugned order
The present Appeal under Section 41
of the Consumer Protection Act, 2019 challenges the Order dated 01.12.2023
passed in CC/361/2021, whereby the Learned District Consumer Commission
allowed the complaint and directed the Appellant to hand over possession of the
“B” Schedule flat and execute and register a deed of conveyance in favour of
the Respondent upon receipt of the balance consideration, besides awarding
compensation of Rs.30,000/- and litigation cost of Rs.8,000/-.
The impugned order is liable to be
interfered with because the foundational issues raised by the Appellant have
not been properly adjudicated.
2.
The central question is: what was the true nature of the transaction?
The Appellant's specific defence
before the Learned District Commission was that the transaction was connected
with investment of money and that the Agreement for Sale operated as a security
document. The Appellant further pleaded that he was prepared to refund the
money received from the Respondent together with prevailing banking interest.
Therefore, the first issue ought to
have been whether the Respondent had established the necessary relationship of consumer
and service provider under the Consumer Protection Act, 2019.
Authority:
Faqir Chand Gulati v. Uppal Agencies
(P) Ltd. & Anr., (2008) 10 SCC 345
The Supreme Court emphasized
examination of the real nature and substance of the transaction and the
relationship between the parties.
Submission: The nomenclature of the Agreement cannot substitute a
proper determination of the actual nature of the transaction.
3.
Consumer jurisdiction cannot be assumed merely because an Agreement for Sale
exists
The Appellant does not
contend that a Consumer Commission can never entertain a dispute arising out of
an Agreement for Sale.
The narrower and stronger submission
is that the Respondent was required to establish:
- that he was a consumer;
- that the Appellant was rendering/had rendered a
service;
- that consideration was paid for such service;
- that there was deficiency in that service; and
- that the relief claimed arose out of such deficiency.
The impugned order does not
adequately address the Appellant's specific case concerning the true character
of the transaction.
4.
The Appellant's plea that the flat had already been sold goes to the root of
the relief
The Appellant specifically pleaded
that the subject flat had already been sold and was no longer in his occupation
or possession. This ground was expressly incorporated in the Appeal.
This raises fundamental questions:
- Whether the Appellant still owned the flat;
- Whether the Appellant had possession;
- Whether any third-party rights had arisen;
- Whether the Appellant could legally execute a
conveyance;
- Whether a subsequent purchaser was a necessary party;
and
- Whether the direction could legally be executed against
the Appellant.
These questions were required to be
determined before granting the principal relief.
5.
A direction to convey property presupposes legal capacity to convey
The impugned order directs the
Appellant to hand over possession and execute and register a deed of
conveyance.
However, if the Appellant had
already transferred the property to a third party, the Commission was required
to first determine the legal effect of that transfer.
A person cannot ordinarily be
directed to convey an interest which he no longer possesses without
adjudicating the rights of the person who presently holds such interest.
Authority:
M/s Fortune Infrastructure (Now
Known as Hicon Infrastructure) & Anr. v. Trevor D’Lima & Ors., (2018) 5
SCC 442
The Supreme Court recognized that
where delivery/transfer of the property cannot effectively be achieved, the
relief may have to be moulded into appropriate monetary relief,
including refund and compensation.
Submission: The Consumer Commission must grant a relief which is both
legally permissible and practically executable.
6.
Refund with interest was a material defence and alternative course
The Appellant had specifically
stated that he was willing to refund the money received from the Respondent
together with prevailing banking interest.
That offer could not be treated as
irrelevant.
If the subject flat was no longer
available with the Appellant, the Commission was required to consider whether
the appropriate remedy was:
refund + reasonable interest +
appropriate compensation,
rather than directing conveyance of
the property.
7.
The Appellant's case is not defeated by Rita Das
The Respondent may rely upon:
Smt. Rita Das v. Mrs. Jayashri Ghosh
& Ors., C.O. No.3111 of 2008, decided on 14.12.2011, Calcutta High Court.
The Appellant does not dispute that
in an appropriate case the Consumer Commission may grant relief relating to
execution/registration of conveyance.
The present case is distinguishable
because the Appellant's challenge is based upon the failure to determine the
factual and legal foundation for granting that relief, particularly:
(i) the nature of the transaction;
(ii) consumer/service relationship;
(iii) alleged deficiency;
(iv) subsequent sale of the property; and
(v) the Appellant's inability to deliver/convey the property.
Thus, Rita Das does not
automatically validate the impugned order.
8.
Sunil Kohli does not conclude the present appeal
The Respondent may also rely upon:
Sunil Kohli & Anr. v. Purearth
Infrastructure Ltd., Civil Appeal Nos.9004-9005 of 2018, decided on 01.10.2019.
The said case primarily concerned
the statutory test of “consumer” in the context of commercial use and
self-employment.
The present case raises a materially
different question concerning the actual nature of the transaction and the
continuing availability/title of the property.
Therefore, the said authority has to
be distinguished on facts.
9. The impugned order does not adequately deal with
the cumulative effect of the Appellant's defence
The following four facts have to be
read together:
A.
The transaction was pleaded to be an
investment/security arrangement.
B.
The Appellant offered refund with
prevailing banking interest.
C.
The flat was pleaded to have already
been sold.
D.
The Appellant therefore claimed that
the flat was no longer in his possession.
The effect of these four
circumstances was required to be determined before directing compulsory
conveyance.
10. Material pleadings and evidence require appellate
consideration
The Appellant participated in the
original proceeding and filed his Written Version, evidence on affidavit,
questionnaire and replies. The Appeal record itself identifies these documents.
The Appellant's defence was
therefore not a new case introduced for the first time in appeal.
The appellate jurisdiction of this
Hon'ble Commission is therefore properly invoked for examination of whether the
findings of the Learned District Commission are supported by the pleadings and
evidence on record.
11. The correct appellate approach
The Appellant respectfully submits
that the question before this Hon'ble Commission is not simply:
“Can a Consumer Commission direct
execution of a deed?”
The correct question is:
“On the particular facts of this
case, after considering the pleadings and evidence, was the Respondent entitled
to an order directing this particular Appellant to deliver possession and
execute a conveyance of this particular flat?”
The Appellant submits that the
answer is No, unless the Respondent first establishes the necessary
consumer relationship, enforceable contractual right, deficiency in service and
the Appellant's continuing legal capacity to convey the property.
12. AUTHORITIES — LIST FOR HANDING UP
|
Sl.
No. |
Authority |
Proposition |
|
1. |
Faqir Chand Gulati v. Uppal
Agencies (P) Ltd., (2008) 10 SCC 345 |
True nature/substance of
transaction and relationship between parties |
|
2. |
Fortune Infrastructure v. Trevor D'Lima, (2018) 5 SCC 442 |
Appropriate/moulded relief where
property cannot effectively be transferred |
|
3. |
Smt. Rita Das v. Mrs. Jayashri
Ghosh, C.O. No.3111 of 2008, Calcutta
HC, 14.12.2011 |
Consumer jurisdiction concerning
conveyance; distinguishable on facts |
|
4. |
Sunil Kohli v. Purearth
Infrastructure Ltd., Civil Appeal Nos.9004-9005/2018,
01.10.2019 |
Test of “consumer”;
distinguishable on factual matrix |
|
5. |
Imperia Structures Ltd. v. Anil
Patni, (2020) 10 SCC 783 |
Consumer remedy in real-estate
matters; demonstrates why jurisdiction objection should not be put too
broadly |
13. FINAL SUBMISSION
In view of the aforesaid facts and
authorities, the Appellant respectfully submits that the impugned Order dated
01.12.2023 is liable to be set aside.
The Learned District Commission
failed to adequately adjudicate the Appellant's material defence concerning the
true nature of the transaction and the subsequent sale/non-availability of the
subject flat, and consequently granted a relief of possession and conveyance without
adequately establishing that such relief could legally and effectively be
enforced against the Appellant.
The Appeal therefore deserves to be allowed
and the Consumer Complaint dismissed.
In the alternative, if this Hon'ble
Commission comes to the conclusion that any monetary liability survives against
the Appellant, the relief may appropriately be moulded by directing refund
of the amount actually received together with reasonable interest and such
compensation as may be considered just and proper, rather than directing
conveyance of a property which, according to the Appellant's specific case, is
no longer in his possession.
AND FOR THIS ACT OF KINDNESS, THE
APPELLANT AS IN DUTY BOUND SHALL EVER PRAY.
Advocate for the Appellant
Place: Kolkata
Date: ____________
No comments:
Post a Comment