Mohan Co. Pvt Ltd vs Santosh Yadav

THIS appeal emanates from judgment rendered by the U.P. State Consumer Disputes Redressal Commission, Lucknow in Complaint Case No. C/156/SC/98. By the impugned judgment, the State Commission finally allowed the complaint, directing execution of sale deed in respect of the plot in question in joint names of the complainant-Smt. Santosh Yadav and one Smt. Murti Devi on payment of Rs. 7,280 along with interest @ 6% till the date of the order to the appellants.

A few facts may be stated at the outset in order to highlight contours of the dispute. One Somdev Yadav had booked three flats with M/s. Mohan Co. (P) Ltd. of which late Shri M.C. Mohan was the Director. Somewhere in 1990, said M.C. Mohan died. O.P. No. 1, Jintender Mohan is his son. The three flats booked by late Somdev Yadav in or about 1969 considered of Plot No. 12 situated at Rajendra Garden area. Admittedly, it was purchased by Somdev Yadav in his own name. The second plot bearing No. 150, Ravindra Garden, Lucknow was booked in the name of Smt. Murti Devi, who was the wife of his brother. There is no dispute about the abovesaid two plots. The third plot, which is subject matter of the dispute, is Plot No. 123, Chand Ganj Garden, Lucknow of which the transaction could not be completed by said Somdev Yadav during his life time. It appears that Somdev Yadav died somewhere in 1989.

FOR the sake of convenience, the parties to the dispute may be hereinafter referred to by their original nomenclature as was in the State Commission. It may be mentioned that though the Plot No. 123 was booked jointly in the name of complainant, Smt. Santosh Yadav and her sister-in-law by name Smt. Murti Devi Yet, said Smt. Murti Devi was not made party to the proceedings in the complaint. It may be further stated that complainant, Smt. Santosh made feeble attempt to improvise her case by seeking amendment in the complaint the effect that Smt. Murti Devi had relinquished her rights in her favour as a result of family settlement. The amendment was not allowed by the State Commission. The Revision Petition preferred by complainant, Smt. Santosh came to be dismissed. We may notice that there is absolutely no material on record to show that said Smt. Murti Devi, at any point of time, relinquished her rights in respect of disputed Plot No. 123 in favour of complainant, Smt. Santosh Yadav. Still, however, such issue is of not of much significance. It is well settled that any one of the co-owner or prospective co-vendee can maintain action for recovery of the property notwithstanding absence of any prospective co-vendee to join the litigation.

BRIEFLY stated, case of complainant Smt. Santosh, as unfolded from pleadings before the State Commission and the record, was that the OP Nos. 1 and 2 were dealing in business of freehold plot vending under various schemes. Her husband had paid Rs. 3,120 on 5.4.1969 as part of the consideration of Plot No. 123. It was agreed between the parties that remaining consideration will be paid by instalments of Rs. 400 per month. Though, another freehold Plot No. 150, Ravindra Garden was transferred by OP Nos. 1 and 2 in favour of Smt. Murti Devi, on 24.11.1970, yet, Plot No. 123 was not transferred in joint name of said Smt. Murti Devi and herself. The OP Nos. 1 and 2 avoided transferring the Plot No. 123 in their name under one or another pretext. After 1970, there was legal prohibitory notification issued by Lucknow Development Authority for effecting transfer of the said inasmuch as it was covered by provisions of Urban Ceiling Act. By letter dated 23.6.1979, complainant Smt. Santosh urged the Opponent Nos. 1 and 2 to transfer the plot as per the agreement. Though, frequently she demanded transfer of Plot No. 123, yet, they avoided to comply with the terms of the agreement. Eventually, she learnt that the OP Nos. 1 and 2 were making an attempt to illegality transfer that plot to the third party. Therefore, she filed FIR dated 4.9.1998 for offence under Section 406 and 420 of the IP Code in Police Station at Aliganj. Since the price of the Plot No. 123 has now increased, the OP Nos. 1 and 2 avoided to execute the said sale deed in her favour under false pretext that she alone wanted to misappropriate the said plot. By letter dated 20.9.1998, OP No. 1 assured her to execute the sale deed. However, he backed out from the promise and, therefore, the complaint was filed before the State Commission vide Complaint Case No. C-156/SC/1998 with a prayer to direct the OP Nos. 1 and 2 to transfer the possession of Plot No. 123 and to execute sale deed in her favour and also to give her compensation of Rs. 5,00,000

BOTH the OP Nos. 1 and 2 resisted the complaint on various grounds. They submitted that complainant, Smt. Santosh has no right to file the complaint without joining said Smt. Murti Devi. They further submitted that the booking of the plot No. 123 was made by deceased Somdev Yadav by way of Benami transaction. They denied that the remaining consideration was to be paid by instalments of Rs. 400 per month. They denied that further consideration was paid by deceased Somdev during his life-time. According to them, the transaction was between deceased Somdev and deceased M.C. Mohan and, therefore, complainant Smt. Santosh has no personal knowledge, whatsoever, about terms which were settled between them. They denied that by letter dated 19.9.1998, OP No. 1 Jitendra Mohan agreed to execute the sale deed of Plot No. 123 in favour of complainant, Smt. Santosh, free of encumbrances and without any charge of litigation. It was contended that the exemption of Plot No. 123 was obtained only with a view to allow execution of the sale deed in favour of the complainant, Smt. Santosh Yadav, but the transaction could not be completed because it was totally barred by limitation. They further raised objection regarding maintainability of the complaint on the ground of limitation. They also pointed out that the complainant, Smt. Santosh had filed a civil suit (R.C.S. No. 199/1989) in the Court of Munsif, South Lucknow for identical cause of action which was returned to her by order dated 24.8.1990 with direction to present the plaint before proper Court. Still, however, complainant, Smt. Santosh failed to present the plaint before the competent Court and as such, the claim for specific relief is otherwise untenable. They pointed out that the FIR lodged by complainant, Smt. Santosh Yadav was ultimately frustrated due to final report given by the investigating agency for want of sufficient evidence available against them. They submitted further that the complaint is liable to be dismissed in view of the fact that complicated question of facts and law are involved in the proceedings and, therefore, the Consumer Commission is not the proper Forum for the purpose of trial. They submitted that the complainant, Smt. Santosh Yadav may be directed to get her rights determined by the competent Civil Court. On these premises, they sought dismissal of the complaint.

ON the basis of material placed on record, the State Commission came to the conclusion that OP Nos. 1 and 2 avoided to execute the sale deed in favour of complainant, Smt. Santosh Yadav under one pretext or the other. The State Commission further held that though remaining payment of Rs. 7,280 by way of consideration is not proved by complainant, Smt. Santosh Yadav, yet equity demanded that on payment of such amount with interest @ 6% p.a., her complaint should be allowed. Accordingly, the complaint was party allowed vide the impugned judgment.

FEELING aggrieved, OP No. 1, Jitendra Mohan and O.P. No. 2 M/s. Mohan Company Pvt. Ltd. have preferred F.A. No. 457 of 2004, whereas, the complainant, Smt. Santosh Yadav had preferred F.A. No. 460 of 2004. Both the appeals were heard together and as such, are being decided by this common judgment.

THE material points involved in these appeals are: (i) Whether complaint filed by Smt. Santosh Yadav was barred by limitation and as such, should not have been entertained by the State Commission? (ii) Whether in view of complex questions of facts and law involved in the matter, the State Commission should have restrained itself from deciding the civil rights of the parties in the summary proceedings? (iii) Whether the impugned judgment of the State Commission is otherwise sustainable on appreciation of the facts and in view of the nature of findings rendered by it?

AT the outset, it may be mentioned that the prayer of the complainant, Smt. Santosh Yadav was that the specific performance of the agreement of sale of the year 1969. The said agreement of sale was entered into between deceased, Somdev Yadav and the deceased Mohan Lal in 1969. The averments in the complaint would show that said Mohan Lal was Managing Director of OP No. 2, M/s. Mohan Company Pvt. Ltd. They were dealing in business of vending of open plots. Obviously, the transaction between deceased Somdev Yadav and Mohan Lal was of commercial nature. There is no legal substratum to draw inference that complainant, Smt. Santosh Yadav was having any personal knowledge about the terms of the said transaction. There is absolutely nothing on record to show that the remaining consideration was to be paid by way of instalments of Rs. 400 per month. Though, it was case of complainant, Smt. Santosh Yadav that a receipt dated 5.4.1969 was executed by M.C. Mohan in his own handwriting, yet, she failed to produce the Original Receipt though produced a photocopy of that receipt. In this context, the learned Counsel for the OP Nos. 1 and 2 had raised objection. It was contention of the learned Counsel for the OP Nos. 1 and 2 that if the original receipt could have been produced then opinion of handwriting expert could have been sought in order to verify the genuineness of the documents. The State Commission, however, observed that though such signatures were denied by OP No. 1, Jitendra Mohan, yet, he tactfully avoided to state whether he was aware of the transaction or not. How such kind of conduct of OP No. 1, Jitendra Mohan was relevant is not made clear by the State Commission. What the State Commission observed about the non-production of the original receipts may be pointed out as below: "One has to be very sure as to what order should have been passed on the request of the complainant, because in the arguments Sri Agrawal has said that if the original receipt was produced that would have gone for expert opinion about existence, or not, of the original signature of late Sri M.C. Mohan and other officials. Conclusions shall have been dependent upon such evidence as the expert or other witness acquainted with those hand-writing and signature as shall have been produced before the Commission might indicate. It would have been a non-ending process and more like an arduous adventure not knowing what the fate of those receipts shall ultimately made to turn out to be. The other vital aspect is that according to Smt. Santosh Yadav, in case the original receipts are asked to be produced, the life and safety of the complainant and also the safe custody of those receipts would have been in real jeopardy. Giving utmost consideration to the various aspects involved, it has to be concluded that great amount of risk is involved with as much uncertainties about the ultimate outcome and thus no useful purpose would be served by asking the complainant to produce the original receipts."

PERUSAL of the above observations would make it manifestly clear that complex issues of civil nature were involved in the proceedings. It is an admitted fact that complainant, Smt. Santosh Yadav had filed a civil suit bearing R.C.S. No. 199/1989 against the O.P. Nos. l and 2 in the Court of Munsif, South Lucknow. Perusal of the pleadings in that plaint would go to show that she alleged payment of Rs. 11,180 to O.P. No. l, Smt. Sarswati Mohan who was wife of late Sh. M.C. Mohan. She further alleged that the plot was being constructed at the relevant time. Therefore, she had sought possession of the said plot from O.P. No. 2 by demolishing the structure. The Civil Court returned the plaint for presentation thereof in proper Court by order dated 24.8.1990. It is worthy to be noted that the complainant, Smt. Santosh Yadav never presented the said plaint before any other Court having jurisdiction over the matter. In this context, contention of Mrs. K. Radha Rao, Amicus Curiae for the complainant, Smt. Santosh Yadav is that the subject matter of that suit was different from the subject matter of the consumer complaint and, therefore, no presentation of the suit before the competent Court will debar the complainant from approaching the Consumer Commission. Without giving any opinion on this question, we are of the opinion that such a question also has to be decided by the Civil Court in regular proceedings and not by the Consumer Commission in summary proceedings. It is true that ordinarily, the matter cannot be relegated to the Civil Court only because complicated questions are involved. Still, however, where there are real disputed questions of facts and law which required adjudication by the Civil Court, after recording of evidence and holding of a regular trial, the Consumer Commission/Forum is nor a proper Fora to determine such questions. This Commission in Dr. Dinesh v. Swastic Builders, I (2002) CPJ 60 (NC), held that where the issues were required to be determined after recording elaborate and oral evidence, the complainant shall approach the Civil Court.

NO doubt, Section 3 of the Consumer Protection Act provides that the provisions of the Act are in addition to and not in derogation to provisions of any other law for the time being in force. Obviously, the consumer complaint can be entertained though a civil suit on the same cause of action may also can be filed. It does not, however, mean that such additional remedy provided under the Consumer Protection Act, 1986 gives lee-way to circumvent the regular procedure of filing proper suit when complex and complicated questions of facts and law are involved. In this view of the matter, we are of the opinion that the complaint of Smt. Santosh Yadav ought not to have been entertained by the State Commission. For the clinching issues required to be determined were of complex nature. For example, the issue regarding identity of the person and details of actual payment made after the agreement of sale, the impact of provisions of the Urban Ceiling Land Act, the limitation to seek specific performance of the agreement, the effect of subsequent letter issued by O.P. No. l. in 1998 after filing of the criminal case which probably could not have extended the time under Section 18 of the Limitation Act, so on and so forth. As pointed out earlier, the State Commission gave much importance to the letter which was issued by O.P. No. l, Jitendra Mohan on 19.9.1998. The complainant - Smt. Santosh did not refer to this letter in the complaint alleging that the time for a specific performance was extended. The State Commission on its own assumed that the limitation period was extended by O.P. No. l on account of that letter said to have been issued on 19.9.1998 and another one on 28.9.1998. The gist of both the letters is reproduced by the State Commission in the following way: "The document dated 19.9.1998 summarises the discussion and settlement by noting therein that Sri Jitendra Mohan, opposite party will execute the sale deed of plot No. 123 to Smt. Santosh Yadav free of encumbrances and without any litigation. In return Smt. Santosh Yadav agreed to take back the criminal case lodged against him. Similarly, the letter dated 28.9.1998 indicated that in the event of returning the original receipts of payments and bearing the expenses of the registration of the sale deed and with the assurance that no matter is pending with, the Lucknow Development Authority or any other department, the plot will be registered in her name."

A bare perusal of the above summary of the letters goes to show that the settlement was as per conditions which were orally settled between the parties. In the event of return of original receipts of payments and complainant, Smt. Santosh Yadav agreeing to bear expenditure of registration of the sale deed with the assurance that no matter is pending with the Lucknow Development Authority, the plot was to be registered in her name. It is also most important to notice that in consideration of such agreement for registration of the sale deed in favour of complainant, Smt. Santosh Yadav, she agreed to take back the criminal case lodged against him. It is manifestly clear that the so-called subsequent agreement was for the consideration which is of unlawful nature. The complainant, Smt. Santosh Yadav agreed to withdraw the prosecution and, therefore, O.P. No. l, Jitendra Mohan agreed to execute the sale deed on her compliance of the conditions like production of the payment receipts, undertaking regarding NOC of LDA, etc. It is necessary, therefore, to examine whether such kind of renovation of the contract is for lawful consideration and is otherwise valid. For, it is necessary to examine whether such contract is without consideration and the agreement is for unlawful consideration. The impact of Sections 23, 24 and 28 of the Indian Contract Act, 1872 are also the issues that require close scrutiny and determination.

THOUGH, original contract made between deceased Somdev Yadav and deceased Mohan could not have been extended after the same had become inexecutable because the O.P. Nos. 1 and 2 had declined to execute the sale deed in respect of Plot No. 123 much prior to the complaint in 1990. The parties had fought earlier litigation too. Obviously, complainant, Smt. Santosh Yadav was well aware that the demand for specific performance was refused a way back and many years prior to filing of the consumer complaint as well as issuance of the letters, in the year 1998 which are referred to by the State Commission and quoted as above, yet, no specific performance of the contract was sought within a period of three years of such refusal. Article 54 of the Limitation Act, 1963 reads as follows: 54. Description of suit Period of Limitation Time from which period begins to run For specific performance of a contract 3 years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.

SO assuming that no date was fixed for the performance of the contract between deceased Somdev and deceased Mohan, yet, when complainant, Smt. Santosh Yadav had noticed that the performance was refused even prior to 1990 at the time of filing of the suit, the remedy for specific performance of the contract could be treated as barred by limitation. The Consumer Fora cannot be made available to avoid the legal barrier created under the Limitation Act and the Contract Act which otherwise impeded the so-called consumer from pursuing the regular remedy like a civil suit. We are of the opinion that entertaining of such complaint filed by the complainant, Smt. Santosh Yadav itself amounted to abuse of the process of law. We are of the opinion that the State Commission arbitrarily directed execution of the sale deed in favour of Smt. Santosh Yadav and her sister-in-law on making payment of Rs. 7,280 with 6% interest. Once it was found by the State Commission that part payment of consideration of the amount of Rs. 7,280 was itself doubtful and could not be definitely determined, the direction in the nature of grant of specific performance is not short of arbitrariness.

FOR the reasons aforesaid stated, we are of the opinion that the impugned judgment is destitute of legal reasons, proper appreciation of the intricacies of issues involved and the facts of the matter. The State Commission ought to have at least relegated the complainant, Smt. Santosh Yadav to the Civil Court in view of complex nature of the litigation. All said and done, looked from any angle, the impugned judgment is unsustainable in the eye of law. Hence, the F.A. No. 457 of 2004 is allowed and impugned judgment is set aside. The cross appeal i.e. F.A. No. 460 of 2004 stands dismissed. Since complainant Smt. Santosh Yadav is a widow, we direct that the parties shall bear their own costs throughout. Appeal No. 457 of 2004 allowed. Appeal No. 460 of 2004 dismissed.