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Judgment
This appeal has been filed under section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 05.11.2018 of the State Commission on interlocutory application no. 1060 of 2018 in complaint no. 398 of 2018.
We have heard the learned counsel and have perused the record including inter alia the impugned Order dated 05.11.2018 of the State Commission and the memorandum of appeal.
The appeal has been filed with admitted delay of 20 days.
However, in the interest of justice, considering the reasons mentioned in the application for condonation of delay, in order to decide the matter on merit rather than to dismiss it on the threshold of limitation, the delay is condoned.
Briefly, Mr. Somtirha Banerjee, the respondent no. 2 herein, and Ms. Aliva Kushary, the appellant herein, who were husband and wife, were co-allottees of the subject flat. Subsequently they had a marital discord and became estranged. The wife filed a complaint before the State Commission in which the essential relief asked for was a direction to the respondent no. 1 builder co. to register the subject flat in the joint names of herself and the husband. The builder co. was made the opposite party no. 1, the husband was made the opposite party no. 2 and the bank, the respondent no. 3 herein, was made the opposite party no. 3. On an interlocutory application filed by the husband the State Commission vide its impugned Order dismissed the complaint as ‘not maintainable’ holding that the wife cannot be considered as ‘consumer’ (“- - - in our considered opinion, she cannot be considered as a consumer”). The principal reason taken by the State Commission was that the wife had failed to show that she has made any payment in respect of the subject flat (“- - - the Complainant has miserably failed to establish that she made any payment in respect of the subject property.”).
Learned counsel for the wife submits that Mr. Somtirha Banerjee, the husband and Ms. Aliva Kushary, the wife made a joint application dated 04.04.2006 as co-applicants to the builder co. The allotment letter dated 18.04.2006 was issued by the builder co. in their joint names as co-allottees. Similarly the possession letter dated 16.12.2008 was issued by the builder co. in their joint names as co-allottees. They jointly paid a total amount of Rs.21,21,120/- to the builder co. towards the consideration of the subject flat. The receipts issued by the builder co. for the amounts received from time to time were in their joint names as co-buyers. In this regard learned counsel draws attention to some of the receipts dated 24.05.2006, dated 16.12.2008 and dated 16.12.2008 in which the respective amounts have been received by the builder co. from both of them jointly as co-buyers. They had taken a loan of Rs.18,13,112/- from the bank as co-borrowers. The subject flat was mortgaged with the bank against their joint names. The bank’s certificate dated 08.08.2018 of repaying the loan and of no dues being outstanding was issued in their joint names. A matrimonial suit between the parties was decreed vide Order dated 30.10.2017 passed by the competent civil court. Appeal thereagainst has been filed by the husband, which is still pending decision. Even subsequent to these proceedings the builder co. continues to treat them as co-allottees / co-owners as is also evident from its correspondence placed on record including an e-mail dated 01.08.2018 in which the wife has been told to fulfill some formalities in order to get the subject flat registered. Submission is that the wife was ‘consumer’ of the builder co. and the State Commission has erred by not holding her to be ‘consumer’.
Learned counsel for the husband submits that the wife was not a ‘consumer’ of the husband and as such she could not have filed the complaint with him as an opposite party. He also submits that the allotment and payments were made prior to the estrangement and therefore now that they are estranged the wife cannot make any claim whatsoever apropos the subject flat. Submission is that the State Commission has rightly treated the wife as not being ‘consumer’ and has rightly dismissed the complaint as ‘not maintainable’.
We may first note that the State Commission has dismissed the complaint as ‘not maintainable’ by holding that the wife was not ‘consumer’ of the builder co. That she was not ‘consumer’ of the husband is too obvious and the State Commission has not dwelt on this aspect.
Here we may quote for reference section 2(1)(d)(ii) of the Act 1986 which defines ‘consumer’:
“consumer” means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
In the instant case the husband and wife together had jointly applied for and obtained the subject flat from the builder co. as co-allottees and had jointly paid the consideration therefor including by way of loan as co-borrowers and with receipts from the builder co. in their joint names as co-allottees. As such both were ‘consumer’ of the builder co. within the meaning of section 2(1)(d)(ii).
The application was made jointly as co-applicants, the allotment letter was issued jointly as co-allottees, the possession letter was issued jointly as co-allottees, bulk of the consideration that is Rs. 18,13,112/- out of Rs. 21,21,120/- ( 85.5%) was paid by way of loan taken jointly as co-borrowers, the liability of repaying the loan was of both, the husband and the wife, joint and several, the bank’s certificate of repaying the loan and of no liability being outstanding was issued in their joint names, the receipts from the builder co. for the various amounts paid from time to time were in the joint names of the two co-allottees, and the prayer made in the complaint was for registration of the subject flat in the joint names of the two co-allottees, the wife and the husband, both. Notwithstanding that no relief was sought against the husband and the interests of the husband were taken care of in the complaint, even still the husband, being an interested party, was made a party to the proceedings by impleading him as an opposite party.
Yet the State Commission has arrived at findings that the wife did not make any payment in respect of the subject flat and was therefore not ‘consumer’ of the builder co. and has dismissed the complaint as ‘not maintainable’, which appear to be patently erroneous.
The matrimonial discord leading to a decree of divorce, whatever the status and stage of the suit be, does not materially affect the fact that the allotment was joint and the consideration was jointly paid including by way of a loan taken jointly and for which the liability was joint and several. Had they remained married they would have been co-allottees / co-borrowers as husband and wife, if the marriage was / is annulled they will continue to be co-allottees / co-borrowers as strangers. The annulment or otherwise of the marriage does not materially affect the status of co-allottee or of co-borrower including the responsibility to repay the loan unless the decree of divorce or any order of a competent court gives any express direction to the contrary.
The argument of the learned counsel for the husband that the wife cannot be a ‘consumer’ of his services and, therefore, the case does not lie against him is unfounded because the relief of registration of the subject flat has been sought for against the builder co. and not against the husband and in fact the interests of the husband, to be jointly registered with the wife, have been included in the prayer. Being an interested party the husband has been impleaded as a party to the case and he accordingly has the opportunity of being heard. The forum in every case has to deal with the matter in controversy so far as the rights and interests of the parties actually before it. As such we find no fault in the complaint as may embarrass or materially affect its due adjudication on merit.
The Order of the State Commission appears to have been passed in misappreciation of the holistic facts and evidence, and can thus not sustain.
Sequel to the discussion above, the impugned Order dated 05.11.2018 is set aside and the case is remanded back to the State Commission with the remark that in the facts of the present case the complainant shall be treated as ‘consumer’ within the meaning of section 2(1)(d)(ii) of the Act 1986.
The State Commission is requested to decide the complaint on merit as per the law.
The parties are directed to appear before the State Commission on 16.01.2023.
Though it is supposed to go without saying in so many words, but as a matter of abundant precaution we would like to make it overtly express that the order, whatever it be or may come to be, passed in this process by the consumer protection forum shall be within the peremeters and ambit of the Consumer Protection Act in relation to ‘deficiency in service’ and / or ‘unfair trade practice’ that may have been occasioned by a service provider towards a ‘consumer’, without entering into the domain and jurisdiction of the competent civil court with regard to determination of the rights, title or ownership per se of the subject property.
The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel. The Registry is also requested to forthwith communicate this Order to the State Commission by the fastest mode available. The stenographer is requested to upload this Order on the website of this Commission immediately.