BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

R.P.No.60   OF 2013 AGAINST I.A.NO.56 OF 2013 IN C.C.NO.435 OF 2012 DISTRICT FORUM-II HYDERABAD

Between:

K.Sudhakar Rao S/o K.Ramaiah
Aged 42 years, Occ: Pvt Service
R/o Flat No.602, SCK Residency
Red Hills, Hyderabad-04

                                        Revision Petitioner/petitioner/proposed OP3

                A N D

 1.    Smt C.Devayani D/o Sri Venkatswamy
        Aged 42 years, Occ: Central Govt.Employee
        D.NO.16-19-18, Main Road, Old Guntur
        Guntur

Respondent/respondent/complainant

2.     Mr.Suryanarayana Reddy
        R/o 603 “C” Block, Everest Aditya Enclave
        Ameerpet, Hyderabad

3.     M/s Gharonda Builders and Developers,
        rep. by tis Managing Partner, 4-4-932/1 to 3
        Kandaswamy Lane, Opp: to Hanuman Vyayam
        Shala School, Sultan Bazar, Hyderabad-95
        (R2 & 3 not necessary parties)

                                        Respondent/respondent/opposite parties                                        

Counsel for the Revision Petitioner         M/s A.P.Venugopal

Counsel for the Respondent                   M/s  V.Gourisankara Rao(R1)

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE I/C PRESIDENT

                        SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

&

S.BHUJANGA RAO, HON’BLE MEMBER

THURSDAY THE TWENTY EIGHTH DAY OF NOVEMBER

                                   TWO THOUSAND THIRTEEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.             This is a revision preferred by the proposed opposite party no.3 against the order of the District Forum dismissing the petition holding that fact whether the petitioner purchased the Flat in the name of the first respondent can be decided only in civil court.

2)             The case of the first respondent /complainant in brief is that she entered into Agreement of sale for purchase of Flat No.306 with the respondent no.2 who is the landlord of the property bearing door no.1-8-678/20 situate at Azamabad locality of Hyderabad city and the respondent no.2 entered into Development Agreement with the respondent no.3 for development of the property and construction of residential complex,’ Gharonda Chamundesari Complex” therein.  She submitted that she paid a sum of  `10,00,000/- out of total sale consideration of `12,80,000/- to the second respondent and the third respondent abandoned construction of the Flat whereon she filed the complaint seeking direction to the respondents to complete the construction of the Flat and handover its possession to her.

3.             The petitioner has filed petition, I.A.no.56 of 2013 seeking his impleadment in the complaint as the opposite party no.3 on the premise that the respondent no.1 is his legally wedded wife and due to differences that arose between the first respondent and the petitioner, they opted for grant of divorce from Family Court by filing O.P.No. 613 of 2009 and the Family Court granted divorce to them on 23.012.2012.

4.             The petitioner submitted that during subsistence of his marriage with the first respondent, they entered into agreement of sale with the second respondent for purchase of the Flat bearing number 306 and he paid the amount of  `4,00,000/- through cheque and arranged for an amount of  `6,00,000/- which was paid through cheque issued by the first respondent and he requested the respondents no.2 and 3 to execute sale deed in respect of the Flat either in his favour or jointly in the name of the first respondent and him and that the first respondent without adding him party to the proceedings, filed the complaint.

5.             The second respondent and the third respondent had not chosen to oppose the petition.

6.             The Dist. Forum after considering the arguments of both  sides  dismissed the petition on the premise that Order I Rule 10 which is invoked by the petitioner is not applicable to the proceedings initiated under the provisions of the Consumer Protection Act and the question whether the petitioner had paid sale consideration and obtained document in the name of the first respondent would be decided by civil court.

7.             Aggrieved by the order of the District Forum, the petitioner has filed the revision contending that the finding of the District Forum holding that provisions of Order I Rule 10 is not applicable to the proceedings initiated under the provisions of the Consumer Protection Act is against the law laid down by the Hon’ble National Commission in reported in Ii (2013) CPJ 545 and that in view of rival claims involving disputed questions of facts the District Forum ought to have allowed the petition and relegated the parties to civil court.

8.             The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?

9.            There is no denial of the fact that the petitioner and the first respondent are legally wedded couple and they are divorcee  by decree of divorce granted by the family Court in O.P.No.613 of 2009.   The petitioner claimed that he paid the amount of  `4,00,000/- through cheque and another sum of  `6,00,000/- through the first respondent to the respondent no.2 towards part of sale consideration of the Flat.

10.            The first respondent had stated that though the petitioner and she had a joint bank account with Indian Bank and the amount was paid from out of the joint account, she contributed for the amount and it was her personal amount. The first respondent in paragraphs 6 and 7 of her affidavit has stated as follows:

6.         I further submit that as stated in the main complaint, on 9.11.2006 I paid Rs.6,00,000/- to the OP vide SBI cheque No.481278.  This is my personal salary account with SBI Chiragh Ali Lane Branch.  I have issued another cheque bearing No.985873 Dt.16.10.2006 for Rs.4,00,000/- of Indian Bank Barakatpura Branch.  This Account is a joint Account of myself and my former husband/petitioner herein.  It is not out of place to submit that every joint account holder is legally entitled to issue cheques.

7.         I further submit that on 13-10-2006 I have transferred Rs.1,75,000/- from my SBI salary account through cheque NO.481277 to our joint account in Indian Bank.  ON the same day, I have cancelled my personal FDR NO.179015 with Indian Bank and credited the maturity amount of rS.1,00,000/- into our joint account with the same Bank. ON 14.10.2006 I have taken gold loan of Rs.1,45,000/- by cash and credited into our joint account with Indian Bank.  Thus out of my own personal funds, Rs.4,20,000/- is credited into our joint account with Indian Bank.  Out of those funds only I have issuec cheque NO.985873 Dt.16-10-2006 for rs.4,00,000/- to the oP NO.1.  Thus it is clear that whatever amount paid by me to OP NO.1 from our joint account is only is my personal amount.  Indian Bank pay-in-slip Dt.13.10.2006 and 14.10.2006 are herewith filed for the perusal of the Hon’ble Forum.

11.            The amount, thus was paid toward part of the sale consideration from the joint account of the first respondent.    It is pertinent to note that the second respondent who is the vendor of the first respondent had not opposed the petition. The petitioner being the joint account holder of the account from where the amount was arranged to be paid to the second respondent is a proper as also necessary party to the proceedings. 

12.              A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff will not make such person a necessary party or a proper party to the suit for specific performance.

13.            The learned counsel for the petitioner has drawn support for his contention that provisions of Order I Rule 10 CPC are made applicable to the proceedings initiated under the provisions of the Consumer Protection Act from the decision of the Hon’ble National Commission in “Mahindra Lifespace Developers Ltd. Vs Mr. Sunil Jasuja and others“ reported in II 2013 CPJ 545 (NC)  wherein the National Commission has made observation as under:

In case a person is not impleaded as a party, all questions raised in the suit cannot be finally completely and effectually decided and there is likelihood of another proceeding which can be avoided by impleading such person as a party to the suit, notwithstanding an objection by the plaintiff, he may be joined as party since his presence before the court is found necessary”

14.            Thus, in view of the aforementioned decision and in the light of admitted fact of source of the sale consideration for the Flat being the joint account of the respondent no.1 and the petitioner, this Commission is of the considered view that the petition deserves to be allowed and the petitioner is entitled to be impleaded as party to the proceedings. Whether the respondent no.1 paid the amount form her personal amount or the petitioner has contributed from his income would be the questions that do not require any consideration at subsequent stage of the complaint.

15.            In the result, the revision petition is allowed setting aside the order of  the  District Forum.  The revision petitioner is directed to be impleaded as the opposite party no.3 in the complaint. There shall be no separate order as to costs.

                                                                        Sd/-

                                                                I/C PRESIDENT

                                                                        Sd/-

                                                                    MEMBER

                                                                        Sd/-

                                                                     MEMBER

                                                                  Dt.28.11.2013

కె.ఎం.కె.*