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Judgment
1.This revision petition has been filed by the petitioners, Vikram Aditya Choudhary and another against the order dated 13.5.2015 passed by the State Consumer Disputes Redressal Commission, Jharkhand Ranchi (for short, 'State Commission') wherein the appeal filed by the petitioners against the order dated 11.1.2012 passed by the District Forum, Bokaro in Consumer Complaint No.16 of 2009 has been dismissed.
Brief facts of the case are that in 1986 petitioners rented out a shop to the respondent. Later on, some dispute arose and both the parties filed cases against each other. OP-2/petitioner filed T(E)S 1/96 against the complainant/respondent for his eviction under Section 11 (c ) of Bihar Building (LR&E) Control Act, 1982 in Bokaro and the same was dismissed on merit in 2000. Against the said order, OP-2 filed TA No.11 /2000 before District Judge Bokaro and the same was transferred to the fast track court. OP-2 filed another suit against complainant on the ground of default u/s11 (d) of the Bihar Building (LR&E) Control Act, 1982 and also filed a money suit 1/96 before Sub-Judge for the recovery of rent and electricity charges. Then there was an outside court settlement between OP-2 and the complainant that the tenanted premises will be given to OP and he will create a new tenancy in favour of complainant closely attached to east of the old tenanted premises with new terms and conditions. On 15.5.2008 compromise decree was passed.
The respondent/complainant filed a consumer complaint No.16/2009 before the District Forum alleging that petitioners did not give the possession of the new shop, which was dismissed on 4.3.2009 as being not maintainable . The respondent/complainant preferred an appeal baring no.117/2009 before the State Commission and the State Commission remanded the case to the District Forum to decide the maintainability again and to decide on merits if maintainable. The District Forum vide its order dated 11.1.2012 allowed the complaint as under:
"Therefore, in the end of justice, we allow the petition of the complainant with a direction to the opposite parties to handover the vacant possession of the newly tenanted premises fully detailed in the schedule at the foot of the petition in terms of rent agreement with a compensation of Rs.50,000/- (Rupees Fifty Thousand only) to be paid to the complainant for physical harassment, mental agony and financial losses incurred by the petition within 30 days from the date of this order. On default O.P. will be liable to pay a fine of Rs.200/- (Rupees Two Hundred only) per day till the compliance of this order."
Aggrieved by the order of the District Forum, the petitioners /OPs preferred an appeal before the State Commission which was dismissed vide its order dated 13.5.2015 which reads as under:
In the result, the appellants are directed to handover the vacant possession of the premises as per the agreements dated 2.2.2008 and 6.10.2008 within 60 days of this order. The tenancy as per the agreements will commence from the date of handing over such possession. The rent already paid by the complainant will be adjusted in future rent. The appellants will also pay Rs.50,000/- to the complainant as compensation for harassment, mental agony and financial loss, within the same time. If the appellants fail to comply with any part of this order, they will be liable to pay fine of Rs.200/- per day from the date of the impugned order i.e. 11.1.2012 till the compliance of the order."
Hence, the present revision petition.
Heard the learned counsel for the parties and perused the record.
The learned counsel for the petitioners argued that the compromise was filed in the civil suit in a civil court and compromise decree was also obtained by the complainant from the civil court. Hence, if there was any non compliance on the part of the petitioner, the complainant should have moved to the civil court and not to the consumer forum for compliance of the decree passed by a civil court.
Learned counsel for the petitioners further argued that the complainant is not a consumer as the petitioners are not service provider in the matter. To support his argument, he referred to the following judgment:
"i. Laxmiben Laxmichand Shah (Mrs.) Vs. Sakerben Kanji Chandan (Mrs.) and others, (2001) 9 Supreme Court Cases 604, wherein it is held:
In the grounds of appeal filed in this court, it was contended that the appellant had hired the services of the respondent landlord in respect of cleaning, repairing and maintenance of the subject building for consideration. But we do not find any such clause in the terms of the lease. The National Commission was therefore right in coming to the conclusion that the appellant was not a consumer as defined in the Consumer Protection Act, 1986."
The learned counsel further stated that the present complaint would be treated as a complaint in respect of new rent agreement and earlier status of the respondent as tenant has nothing to do with the present complaint. In support of his argument, the learned counsel referred to the following judgment :
"Ghansi Ram Lal Shah Vs. Smt. Supriya Suhas Sarmalkar and others, R.P. No.337 of 2011 decided on 6.9.2011 has held as under:
In the agreement dated 5.1.2002, petitioner has been referred to as developer of the property in question. Once the petitioner becomes developer then relationship of landlord and tenant, which was earlier there between the parties, ceased to exist. In this regard it would be relevant to go through the findings of the District Forum, which reads as under:-
"Now admittedly there had been Development Agreement dtd. 5/1/2002, a copy of which is produced on the record by the Complainants, alongwith list of documents at Exhibit-A. The complainants are seeking relief, as against the Opposite Party-Builder-Developer; on the basis of this Development Agreement. No doubt, in the development agreement, the Complainants are referred to as the 'tenants' and the Opposite Party-Builder/Developer, has been referred to as the 'owner/landlord' However, the foundation of the complaint is the terms incorporated in the Development Agreement dated 5.1.2002, based upon relationship as the flat-purchaser and the Builder/Developer. The complainants have not filed this complaint, as against the Opposite Party-Builder/Developer; in his capacity as 'landlord', and therefore, relationship of 'landlord' & 'tenant', which previously existed is immaterial. Under the Development Agreement dtd. 5/1/2002, a new relationship came into existence, as the flat-purchaser and the Builder/Developer, Consideration of the said development agreement was the original tenanted room occupied by the Complainants, which they vacated pursuant to the development agreement. It be further noted that as per clause No. (07) of the development agreement, the Opposite Party -Builder/ Developer, specifically agreed to allot Flat No. B/102 to the Complainants, on ownership basis, free of any cost. Rights of the Complainants qua that flat emanate from the above-referred term incorporated in the development agreement.
As pointed out above, relationship of landlord & tenant got subsided /vanished/extinguished on execution of Development agreement dtd. 5/1/2002 and a new relationship got blossomed in place of old relationship of landlord & tenant. This is further articulated by the fact that the Opposite Party-Builder/Developer; not only entered into an agreement with the complainant, but got possession of the tenanted room from the complainants and accommodated the complainants in an alternate temporary accommodation. Thus, the agreement was not only executed, but partly performed by either of the party and that part was performed by the Opposite Party, in his capacity as the Builder/Developer and not as a landlord. No landlord on earth would provide an alternate accommodation to the tenant on vacating tenanted premises. All these facts are sufficient to expose the contentions of the Opposite Party-Builder/Developer; and this further show that the contention is wholly unsustainable and based upon misconstrued interpretation of the development agreement. The statement in commentary relied upon by the Learned Advocate for the Opposite Party shows that a tenant under a lease agreement had approached the Hon'ble National Consumer Disputes Redressal Commission claiming compensation on the ground that the landlord had failed to render service to him. That is not the case here and the Complainants have not approached this Forum, in their capacity as the tenants of the Opposite Party-Builder/Developer; as the landlord. Therefore, that statement in the commentary would not be applicable to the present case. Hence, we hold that the complaint has filed is maintainable before this Forum under the Consumer Protection Act, 1986."
On the other hand, learned counsel for the respondent/complainant stated that even after the compromise and the compromise decree, the petitioners/OPs did not handover the possession of the new shop as per the agreement, though the complainant had paid the requisite amount. There was no alternative before the complainant but to file a consumer complaint. It is true that the compromise decree was of the civil court, however, the compromise was between the parties and then it becomes a contract between the parties, wherein the OP had agreed to handover the possession of the new shop on the consideration as agreed and paid by the complainant. Therefore, it was just like any other builder buyer agreement and the complainant was entitled to file the consumer complaint as a consumer. Rebutting the arguments of the learned counsel for the petitioner, the learned counsel for the respondent stated that as the tenancy is against a consideration, the tenant is a consumer. To support her arguments, the learned counsel for the respondent relied upon the following judgment:
"Jadishbhai M. Sneth alias Soni Vs. Surbhih Relators India Pvt. Ltd. and another, II (2012) CPJ 525 (NC), wherein it is held:
"This Commission in a number of judgments in the similar facts and circumstances has held that the tenant would be a consumer within the meaning of section 2 (1) (d) of the Act and complaint filed by him maintainable. In the case of Sinew Developers Ltd. & Ors. Vs. Madhav Rajaram Outurkar IV (2008) CPJ 215 (NC), dealing with the same question, this Commission held as under:-
As may be seen from Para No.5 of the order of the State Commission to consider the meaning of Consideration it took note of the decisions in Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, III (1989) CPJ 36 (SC), Sonia Bhatia Vs. State of U.P. & Ors., 1981 (2) SCC 585 and the discussion made in Vol.17, Corpus Juris Secundum. Commission reached the conclusion that surrender of the tenanted shop by the Respondent to the Petitioners was consideration. Failure to provide shop admeasuring 250 sq. ft. by the Petitioners was deficiency in service. Pendency of suit instituted after the filing of complaint would not come in the way of respondent in securing possession of the shop through the consumer fora. Having heard Mr. Jaidka and considering the facts of the case, we do not find any illegality or jurisdictional error in the order of the State Commission warranting interference in revisional jurisdiction u/s 21 (b) of the Act."
It was further argued by the learned counsel for the respondent that the remedy under the Consumer Protection Act, 1986 is available to a consumer in addition to the normal remedy available under the law for the time being in force as provided under Section 3 of the Consumer Protection Act, 1986. Thus, even if the complainant was entitled to move to the civil court, under the relevant clause, it was always open to the complainant to file a consumer complaint before the Consumer Forum. In support of the arguments, learned counsel referred to the judgment of Hob'ble Supreme Court in Trans Mediterranean Airways Vs. M/s. Universal Exports, Civil Appeal No.1909 of 2004, wherein the Supreme Court has observed as follows :
"32). In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other Statute. It does not extinguish the remedies under another Statute but provides an additional or alternative remedy. In the instant case, at the relevant point of time, the value of the subject matter was more than `20 lakhs, by which the National Commission is conferred jurisdiction for any cause of action that arises under the Act. Further, we are not inclined to agree with the argument of Shri. Bhagat that exercising of jurisdiction was in contravention of International Law, as the Warsaw Convention and the Hague Protocol have been incorporated into the domestic law by the passage of the CA Act. Therefore, we do not find any legal infirmity in the National Commission exercising its jurisdiction, as the same can be considered a Court within the territory of a High Contracting Party for the 30 purpose of Rule 29 of the Second Schedule to the CA Act and the Warsaw Convention. Before we conclude on this issue, we may usefully notice a three Judge Bench decision of this Court in the case of Ethiopian Airlines vs. Ganesh Narain Saboo (Civil Appeal No.7037 of 2004) which view is binding on us xxxxx":
It was further stated by the learned counsel that the complainant has paid Rs.1,800/- per month as rent from February 2008 to August, 2008 plus Rs.1,50,000/- as refundable interest free security and Rs.20,000/- and Rs.30,000/- for construction work on 6.9.2008 and 6.10.2008. He was to take possession of the new tenanted premises on or before February, 2008.
I have considered carefully the arguments of both sides and examined the record. First, respondent already had one decree for the same relief as prayed for in the complaint. So he should have filed the execution for the compromise decree in the civil court which passed the decree. However, complainant wanted to have another decree from a consumer forum for the same relief to get the possession of the shop in the new building. When the complaint was dismissed by the District Forum on 4.3.2009, the complainant filed Civil Suit No. 72/2011 for specific performance in the civil court. But when the District Forum decided complaint, he withdrew suit no 72/2011. Thus, the complainant resorted to forum shopping to get same relief. From the facts of the case, it can be concluded that different suits and proceedings culminated finally in a compromise decree dated 15.5.2008 from a civil court. Therefore, any situation, status, disputes between the parties stood settled by this decree and Consumer Forum cannot go behind this decree. The consumer forum has only to see the new rent agreement entered between the parties on 2.2.2008 at the most, as this has been taken to be the cause of action. It is seen that on the basis of this rent agreement dated 2.2.2008, a decree dated 15.5.2008 was already passed, hence on the basis of same agreement, the second decree from a different court/Forum was not justified. Moreover, the rent agreement dated 2.2.2008 was signed by the parties and the same was to remain effective for 5 years from February, 2008 subject to its extension with mutual consent. Thus, the agreement has already expired in the year 2013 itself and is not valid today as the same has not been extended by the parties. Hence, it cannot be enforced as on today. In this situation, the only remedy that can be provided to the respondent is that the amounts paid by the respondent in pursuance of rent agreement dated 2.2.2008 to the petitioners are ordered to be refunded with appropriate interest and compensation.
Based on the above discussion, it is now ordered that petitioners shall pay Rs.2,12,600/- (Rs.1800x7 + Rs1,50,000/- + Rs.20,000/- + Rs.30,000/-) with interest @ 9% p.a. from 1.9.2008 till actual payment alongwith compensation of Rs.75,000/- to the complainant. The order be complied within a period of 30 days from date of receipt of copy of order. Revision Petition No.2374 of 2015 stands accordingly disposed of.