Narendra Nath Mishra vs Binod Kumar & Ors

Dinesh Singh, J

This is a buyer - builder co. dispute, wherein deficiency in service has been alleged against the builder co. and its functionaries by the buyer - complainant.

The chronology of adjudication of this case in consumer protection fora is as follows. A complaint was filed before the State Commission on 04.07.2001. The State Commission allowed the complaint vide its Order dated 31.03.2008. In appeal, the National Commission, vide its Order dated 05.11.2009, set aside the Order dated 31.03.2008 of the State Commission and remanded the case back to the State Commission for decision afresh in accordance with law. The State Commission allowed the complaint vide its Order dated 25.10.2010. These first appeals have been filed on 25.11.2010 apropos the said Order dated 25.10.2010 of the State Commission.

The State Commission vide its Order dated 25.10.2010, which has been impugned in the instant two first appeals, has made the following award:

In the circumstances, the composite view, on consideration of facts and circumstances taken by the Commission in the earlier order dated 31-03-2008, does not require any modification as it has not been set-aside on merit rather seems to be based on equity and natural justice. However, since more than two years elapsed so interest @18% per annum from passing of the aforesaid order dated 31-03-2008 is to be calculated for the purpose of award to be paid to the complainant by the O.P.

( para 22 of the State Commission's impugned Order dated 25.10.2010)

The operative portion of its earlier Order dated 31.03.2008, which has been referred to by the State Commission in para 22 of its fresh Order dated 25.10.2010, was as below:

Hence we direct that as a total compensation and final settlement of the claim O.Ps. 1 to 3 should pay to complainant 2½ times from the money in deposit i.e. Rs.8,00,350/- (Rs. Eight Lakhs Three Hundred and Fifty) and Rs.5000/- (Five thousand) as litigation cost. O.Ps. 1 to 3 are jointly and severally liable to pay. However, complaint is dismissed against O.P. No. 4 with costs of Rs.5,000/- (Five thousand). However, if possession of any flat as owner has already been given by O.P.s to the complainant the total compensation payable will be only Rs. two lakhs and not Rs.8,00,350/-.

(para 6 of the State Commission's Order dated 31.03.2008)

On 04.06.2019, after hearing arguments of learned counsel for both sides and after perusing the record, we passed the following order:

Dated: 04.06.2019

ORDER

Heard the learned counsel for both sides.

Perused the material on record.

The complaint is dismissed, with liberty to the complainant to approach a competent civil court as per the law.

It goes without saying that, if the complainant chooses to bring action in a civil court, he is free to file an application under section 5 of the Limitation Act, 1963, and, in such contingency, the chronological facts and proceedings in the consumer protection fora would be material and relevant towards making such application.

Learned counsel for the opposite parties submits that the opposite parties will not press the issue of limitation if action is brought by the complainant in a civil court.

Reasoned judgement to follow.

We are giving our reasons hereinafter.

We note that the State Commission's earlier Order dated 31.03.2008 had been set aside by this Commission vide its Order dated 05.11.2009 and the case had been remanded back for decision afresh as per the law. That is to say, the Order dated 31.03.2008 of the State Commission stood extinguished after this Commission passed its Order dated 05.11.2009. Material reference to its earlier Order dated 31.03.2008, and material reference to the award made therein, while adjudicating the case afresh and making its fresh award in its fresh Order dated 25.10.2010, is, ex facie, erroneous. The Order dated 31.03.2008, which was passed ex parte against the opposite parties, and which stood extinguished on being set aside by this Commission vide its Order dated 05.11.2009, should not have been materially referred to in the fresh adjudication on merit, after affording opportunity to both sides, and the fresh Order, passed in adjudication afresh, should in itself have been a self-contained and reasoned Order.

That being as it is, we also note that a 'joint compromise petition' dated 26.09.2001 was filed by both sides, together, in the court of Chief Judicial Magistrate. The 'joint compromise petition' had the signatures of both sides, including those of the complainant (Mr. Narendra Nath Mishra). The same is admitted to by both sides. We further note that the said 'joint compromise petition' was in the nature of 'settlement' of the substantive dispute being agitated in the State Commission. We furthermore note that the court of Chief Judicial Magistrate took cognizance of the said 'joint compromise petition' in its proceedings on 15.12.2001, and that a sum of Rs.983/- was handed over by learned counsel for the accused (opposite party / ies in the consumer complaint before the State Commission) to the learned counsel for the informant (complainant in the consumer case before the State Commission) as 'residual' payment. The said proceedings dated 15.12.2001 in the court of Chief Judicial Magistrate are admitted to by both sides. It is also told by both sides during arguments that the criminal proceedings in the court of Chief Judicial Magistrate are still pending [i.e. still pending on the date of the arguments before this Commission (04.06.2019)].

Proceedings in the court of Chief Judicial Magistrate are distinctively different from proceedings in the State Commission, the one is in the criminal domain, the other in the civil domain. In this case, we but note that the 'joint compromise petition' dated 26.09.2001 filed in the court of Chief Judicial Magistrate and the proceedings dated 15.12.2001 in the court of Chief Judicial Magistrate are material and relevant in the proceedings before the State Commission, since they pertain to a 'settlement' (filed jointly, signed jointly, and admitted to by both sides) relating to the substantive dispute before the State Commission.

That being as it is, after perusing the entire material on record, including inter alia, specifically, the 'joint compromise petition' dated 26.09.2001 filed in the court of Chief Judicial Magistrate, the proceedings dated 15.12.2001 in the court of Chief Judicial Magistrate, the allegations / averments and counter - allegations / counter-averments that are evident from the material available on the case-file, we are of the considered opinion that the civil dispute between the complainant on the one side and the builder co. and its functionaries on the other side is such that, for its apt adjudication on merit, it requires recording of oral evidence and proving documentary evidence as per the provisions of the Indian Evidence Act, 1872 and adherence to the substantive and procedural provisions of the Code of Civil Procedure, 1908, best undertaken in a civil court.

In other words, we do not find the facts and specificities of the case, and the allegations / averments and counter - allegations / counter - averments inherent therein, to be such as can be aptly adjudicated on merit in summary proceedings by quasi - judicial consumer protection tribunals established under the Act 1986.

In the light of the above discussion, the impugned Order dated 25.10.2010 of the State Commission is set aside.

The complaint is dismissed, with liberty to the complainant to seek remedy in a competent civil court as per the law.

We make it explicit that this Commission has no comments or observations whatsoever on the merits in the civil case, of either side (or on the criminal case in the court of Chief Judicial Magistrate).

It goes without saying that, if the complainant chooses to bring action in a civil court, he is free to file an application under section 5 of the Limitation Act, 1963, and, in such contingency, the chronological facts and proceedings in the consumer protection fora would be material and relevant towards making such application.

Learned counsel for the builder co. and its functionaries submitted that it will not press the issue of limitation if action is brought by the complainant in a civil court.

So disposed.