K. Boopathy vs N. Jayavantham & Anr

Sudip Ahluwalia, Member

This Revision Petition has been filed against the impugned Order dated 17.10.2017 passed by the Ld. State Consumer Disputes Redressal Commission, Karnataka in Appeal No. 33/2016, vide which the Appeal filed by the Petitioner was dismissed, and the Order of the Ld. District Forum was affirmed.

The Complainant's case revolves around the purchase of two adjacent sites, numbered 108 and 109, situated in Doddanagamangala Village, Begur Hobli, Bangalore. These sites were carved out from Sy. No. 14 and 15. The Complainant paid a total of Rs. 4,52,000/- for these sites, as evidenced by separate receipts. The Sale Deeds for these sites were registered on 06.05.2003 and 01.06.2004 at the Sub-Registrar's office, Bangalore South Taluk. Despite the purchase and registration, the Complainant did not receive possession of the sites. The Petitioner had promised to mark the boundaries and deliver possession at a later date. However, complications arose when some individuals initiated a dispute against the Petitioner in OS No. 523 /2011 before the Principal Civil  Judge, Jr.  Division, Bangalore  Rural  District.  They  obtained  an  injunction order and fenced the disputed land, which included the Complainant's sites. The individuals claiming rights over the land argued that the sites purchased by the Complainant were not part of Sy. No. 14 and 15 but rather part of Sy. No. 14/16. To resolve the dispute and clarify the exact location of the sites, a Commission was appointed by the Court. The said Commission, in its report submitted in March 2014, confirmed that the sites in question were indeed part of Sy. No. 14/16 and not Sy. No. 14 and 15 as claimed by the Complainant. Subsequently, the Complainant sent a Legal Notice to the Petitioner, demanding either the refund of the purchase amount at market value along with 18% p.a. interest or the delivery of the sites as promised. When the Petitioner failed to comply with either demand, the Complainant approached the Ld. District Forum seeking relief and resolution to the issue.

The District Forum vide its Order dated 04.11.2015 allowed the Complaint No. 742/2014 and directed the Petitioner to pay to the Complainant an amount of Rs. 4,52,000/- with interest @18% p.a. from the date of registration of sale deeds till the date of realization, along with Rs. 5,00,000/- towards deficiency of service, and Rs. 3,000/- towards litigation costs. The Petitioner filed Appeal against the Order in the State Commission which dismissed it and affirmed the Order in the District Forum. The relevant extracts of the impugned Order are set out as below -

“07. On perusal of the records of the District Forum it is seen that the complainant has filed the layout plan which is marked as document No.2 and on perusal of the same it is seen that the same clearly reads as layout of house sites in Survey No.14/04 and 15 at Doddanagamangala Village, Bangalore South, but, irrespective of whether Vendor of the complainant was having right over the property in the land bearing survey No.14/04 and 15 or not as per the report of the Court Commissioner, the said layout is wrongly formed in the land bearing Survey No.14/16 and not in the land bearing Survey No.14/4 and 15 and in the circumstances, the owner of the land bearing Survey No.14/16 has filed the original suit. As rightly observed by the District Forum that Op No.1 has not disputed the correctness or otherwise the report of the Surveyor submitted in O.S.No.523/2011. Further Op No.1 also not specifically denied that the site bearing No.108 and 109 was sold in favour of the complainant and formed the land purchased by him i.e., in survey Nos. 14/4 and 15.

On perusal of the records in particular the document filed by the complainant it is seen that land bearing survey No.14/4 situated far away from the land bearing survey No.14/16 and 15.

Thus as observed by the District Forum Op No.1 has formed layout in the land which does not belong to him. In the circumstances, the direction given by the District Forum to Op No.1/Appellant herein to refund the amount paid by the Respondent/Complainant along with interest is proper. Likewise in the circumstances of the case, awarding of compensation and litigation expenses is also proper and same does not call for any interference. Hence, the following

ORDER

The above Appeal is dismissed.

Parties to bear their own cost.

The amount in deposit is ordered to be transmitted to the District Forum for disbursement.

Return LCR forthwith.”

Ld. Counsel for Petitioner has argued that in the Respondent No. 1's counter-affidavit, specifically at Page 6, Paragraph 10, it has been  acknowledged that the property in question was sold during pendency of the Appeal for a sum of Rs. 18,00,000/-. Annexures P15 & P16 confirm the receipt of this amount, indicating that the Respondent No. 1 has not incurred any financial loss; That it is admitted by the Respondent No. 1 that an Agreement for Sale was executed on 10.12.2010 with Mr. V. Janardhan. Notably, this document was not referenced in prior proceedings, and the Respondent No. 1 profited from the sale during the pendency of the Appeal. The Respondent No. 1 not only sold the property but also violated the Stay Order pertaining to the same; That the complaint raises complex factual issues concerning the identification of the scheduled lands. The original suits related to these lands were pending before the Civil Court, the lower Fora had overlooked that the Consumer Protection Act's summary jurisdiction is not suitable for adjudicating such type of disputes. Given its complexity and the need for extensive evidence and investigation, the Civil Court is the appropriate forum to address and resolve the issues raised in this complaint.

This Commission has heard both the Ld. Counsel for Petitioner and Respondents, and perused the material available on record.

During pendency of these proceedings, it had been brought to the notice of the Bench hearing the matter on 2.8.2018 that the Respondents/ Complainants had sold the disputed property during pendency of the Appeal in the Ld. State Commission.  Copies of the Sale Deed as well as Sale Agreements executed by the Complainant in favour of one Shri V. Janardhan dated 15.9.2017 have been placed on record as Annexures –P-15 and P-16 alongwith this Revision Petition. Perusal of the Schedule of the Properties sold by the Respondent/Complainant goes to indicate that the very same properties which were the subject matter of his original Complaint No. 742 of 2014 had been transferred by him to the third party- Shri V. Janardhan.

In this view of the matter, the contention of the Complainant/ Respondent that he had been cheated by the Petitioner/ Opposite Party who had allegedly transferred those properties without satisfactory title to the same would ex facie appear to be untenable, because long after filing of the complaint the said complaint has himself transferred the very same properties to a third party for valuable consideration which is many times the quantum of the amount ordered to be refunded by the Ld. District Forum, which decision was in turn affirmed by the Ld. State Commission.  It may be mentioned that the consideration price paid by the Complainant which was ordered to be returned to him was only Rs. 4,52,000/- to which interest and certain compensation amount had been ordered to be paid, but the Complainant from his side sold the same properties during pendency of the Appeal itself for a total consideration of Rs. 30.00 lakhs to the 3rd party- Shri V. Janardhan. In his counter affidavit filed on 23.8.2018, the Complainant/ Respondent did not deny the factum of having sold the disputed properties during pendency of the Appeal, but gave his own peculiar explanation for the same alongwith a prayer for increasing the amount of compensation payable to him, and his statements in this regard are reproduced as follows -

“10. While referring to clause (k) of paragraph 2, the Respondent No. 1 state that the Petitioner brought the same issue (i.e., disposing of properties to V. Janardhan on 15-9-2017 during the pendency) to the notice of Hon’ble State Commission sometime in November 2017 before finalization of written Order ready and after declaration of Appeal dismissed.  It is bring to notice that believing the sale deed, respondent enter into agreement of sale in 2010 (ANNEXURE-8).  Subsequently in the year 2007 the vendee pressurise for Registration on which the Respondent Register (Already filed by the Petitioner Annexure P-15 and Annexure P-16 at pg. 120-131 in Revision Petition) and received 18 lakh amount on total.

It is privilege of Respondent’s No. 1 to bring to the notice of this Hon’ble Commission, the value of the sites at the B’lore Silican Town, Doddanagamangala village, Konappa Agrahard Panchayat, Bangalore South Taluk is approx.. Rs. 80 lakhs to Rs.1 Crore (Annexure-9 & Annexure-10).  As time passed by, day rate is increasing alarmingly which the Petitioner does want to create troubles.

The Respondent No 1 most respectfully prays that this Hon’ble National Commission may be pleased to restore the Orders passed by Dist. Forum & State Commission with enhanced amount of Rs. 5,00,000/- to that of prayer amount Rs. 10,00,000/-, taking into account the present value of sites.”

Now,  from the explanatory Statement No. 11 re-produced in the preceding paragraph, it becomes abundantly clear that the intention of the Respondent to purchase the two sites in question was to earn profit therefrom by reselling the same, as he has clearly expressed his disappointment at having being constrained to sell the same  only for Rs. 30.00 lakhs, although he had purchased the same for a much lesser amount of Rs. 4,52,000/-.  The fact that his Purchaser has actually accepted the sale by paying such huge amount is ipso facto an indication that there was no serious dispute of title associated with the same. Needless to mention, provisions of the Consumer Protection Act, 1986 cannot be used to enable a litigant to earn huge speculative profits from any given transition, especially in this case in which he had not averred anywhere in his original complaint (Anneure-P1), that the sites in question were purchased by him “exclusively for the purposes of earning his livelihood by means of self-employment” which is a sine qua non to come within the definition of ‘Consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986.

For the aforesaid reasons, this Commission is of the opinion that for the own act of the Respondent/ Complainant of having sold away the disputed sites in question for a price which was for in excess of the compensation granted to him by way of refund of the original sale price paid by him, alongwith interest thereupon, which in any case would not have exceeded the amount of Rs. 30.00 lakhs actually received by him by reselling those sites during pendency of the Appeal, he would not be entitled for any further relief in the given circumstances.

The present Revision Petition is therefore allowed after setting aside the impugned Order of both the Ld. Fora below and the complaint filed on behalf of the Respondent accordingly stands dismissed.  Parties to bear their own costs.

Pending application(s), if any, also stand disposed off as having been rendered infructuous.