IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: HON’BLE THIRU. JUSTICE. R. SUBBIAH , PRESIDENT
TMT. S.M. LATHA MAHESWARI, MEMBER
F.A.No.154/2015
(Against the order passed in C.C.No.05/2013, dated 21.07.2014 on the file of the District Commission, Namakkal)
MONDAY, THE 09th DAY OF AUGUST 2021.
S. Muthukrishnan,
Joint Sub-Registrar,
Joint-2, Sub-Registrar Office,
Namakkal – 637 001. Appellant/Opposite Party
- Vs –
Arivuselvan,
S/o. Kolandan,
49-C1, Ramapurampudur Kuttai Theru,
Namakkal – 637 001. Respondent/Complainant
Counsel for the Appellant/Opposite Party : M/s. Lavanya Shankar, Advocate.
Respondent /Complainant : Appeared party-in-person.
ORDER
HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT. (Open Court)
1. This appeal has been filed by the appellant/opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the Learned District Commission, Namakkal made in C.C.No.05/2013, dated 21.07.2014 allowing the complaint directing the opposite party to pay a sum of Rs.90,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainant with default interest at the rate of 6% per annum till the date of payment.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redressal Commission, Namakkal.
3. The brief facts which are necessary to decode this appeal are as follows;- The case of the complainant is that he entered into an agreement with one Mr. Rathinam, S/o. Munian for purchasing a land with building. But, the said Rathinam
has refused to execute the sale deed in faviour of the complainant as per the terms of the agreement of sale and hence the complainant has filed a suit in O.S.No.205/1996 on the file of Sub-Court, Namakkal as against the said Rathinam for a specific performance and in the said suit a decree was passed in favour of the complainant. Subsequently, the complainant has filed an execution petition for execution of the decree in R.E.P.No.53/2010 and was ordered in the said execution petition on payment of “sale consideration by the complainant, the opposite party said Rathnam would execute the sale deed in favour of the complainant as per the terms of the agreement. Accordingly, the sale deed was executed on payment of sale consideration by the complainant and it was presented for registration before the Joint Sub-Registrar No.2, Namakkal and the same was also registered as document No.1663/2011 on 23.02.2011. Subsequently, the complainant was informed by the Sub-Registrar that he could come and collect the registered document after 4 days. But, the document was not handed over to the complainant but he was made to run pillar to post by the Registrar’s office in returning the document. In the meanwhile, the opposite party, Mr. Muthukrishan joined duty as Sub-Registrar on 05.07.2012. Even after the opposite party assumed charges no steps were taken to hand over the said document. Therefore, the complainant was left with no other option except to resort to hold demonstration in front of the opposite party on 17.10.2013. Even thereafter, the Sub-Registrar was keeping the document in his custody for some ulterior motive. Since the complainant could not get the documents in time, he was unable to proceed with the construction work of the building with minimum expenses. In the meantime, price of construction materials increased manifold. Finally, in a vindictive mood, the sub-Registrar had sent the document to the Deputy Collector (Stamps) under section 47 (A) of the Stamp Act, and hence the complainant was compelled to pay extra duty. Because of the activities of the opposite party, the complainant had incurred huge amount in repairing the building which caused him great mental agony. The entire events have occurred only due to the deficiency in service committed by the opposite party, the Sub-Registrar, the appellant herein. Hence the complainant filed a consumer complaint before the District Commission claiming compensation of Rs.1,90,000/- against the opposite party with cost.
4. The complainant’s case was resisted by the opposite party by filing written version denying all the above allegations wherein he contended inter alia that a sale deed was executed by the vendor in favour of the complainant in which the value of the site was not mentioned in the document. Since only the guidelines value of the agricultural land was available in the office of the Sub-Registrar Office, in order to assess the value of the site and the building, the document was kept pending. In this situation, new guidelines authorization came into effect from 01.04.2012 onwards. While so, the Sub-Registrar who had registered the document went on transfer and this opposite party assumed charges on 15.07.2012. On 17.10.2013, when the father of the complainant came to the office of the opposite party and enquired about the said document, he was informed by the opposite party that the document was kept pending for want of site sketch and was also asked to produce the same. But, the father of the complainant sought for sufficient time to produce the site sketch and thereafter he has not turned up to the office to produce the sketch for more than the period of two months. In the mean time, the value of the property for survey No.125/1 was assessed and the father of the complainant was informed to pay the additional stamp duty. But, neither the complainant nor his father had come forward to pay the additional stamp duty and hence, the document was referred to the Deputy Collector (Stamps) under section 47(A) of the Stamp Act. Thereafter, the complainant paid additional stamps duty assessed by the Deputy Collector (Stamps) and received the document on 25.06.2013. By suppressing all these facts, the complainant has filed a complaint as if the opposite party purposely delayed in handing over the document. As there was no deficiency in service on his part, the opposite party sought for dismissal of the complaint.
5. The opposite party has also filed additional written version contending inter alia that he discharged his duty as per the Stamp Act in registering the document and performing the follow-up action as his work is quasi-judicial in nature. Further, there is no service contract between the complainant and the opposite party and hence the complaint is not maintainable before the Consumer Commission as the complainant is not a consumer under the provisions of the Consumer Protection Act.
6. In support of their case, both sides have filed their respective proof affidavits before the District Commission. Exhibits A1 to A8 were marked on the side of the complainant whereas Exhibits B1 to B9 were marked on the side of the opposite parties to prove their own cases.
7. Based on the submissions made by both sides and after analyzing the available records, the District Commission, allowed the complaint for the reasons if the Government officer acted arbitrarily himself and independently discharged his statutory duty, the said Government Officer can be prosecuted under the provisions of the Consumer Protection Act. To fortify this submissions, the District Commission has relied on a judgment of the Hon’ble Supreme Court reported in 2004 C.T.J. at Page 605, in the case of Ghaziabad Development Authority – Vs - Balbir Singh and also another judgment of the Apex Court reported in 2005 C.T.J at Page 130, Haryana Urban Development Authority – Vs –Lalit Jain.
8. It is submitted by the learned counsel for appellant/opposite party that there is no relationship of consumer and service provider between the complainant and the opposite party. Further, the opposite party has discharged his duty only in the official capacity and hence a complaint against him in his personal capacity is not maintainable. It is further submission of the learned counsel for the appellant/opposite party that the complainant had suppressed the material facts that the document in question was referred to under section 47(A) of the Indian Stamps Act to the Deputy Collector (Stamps) for insufficient stamp duty and for further enquiry and after conducting an enquiry and based on the assessment made by the Deputy Collector (Stamps) the complainant paid necessary stamp duty and received the document. But, these facts were purposely suppressed by the complainant in the complaint and thereby the complainant has not approached this Commission with clean hands and hence on this ground alone the order of the District Commission is liable to be set aside by allowing this appeal.
9. Keeping the submissions, we have carefully gone through the materials available on record. It is the case of the complainant that the present complaint has been filed mainly on the allegations that the document was presented with the Sub-Registrar Office in Namakkal as early as on 22.03.2012. But, the registered document was not handed over to him. The complainant was made to run pillar to post for more than 7 months to get back the registered document. Whenever, the complainant approached the opposite party only evasive reply was given to him and therefore he was put to a lot of mental agony and hence he preferred the consumer complaint claiming a sum of Rs. 1,90,000/- as compensation for mental agony and sufferings. But, it is the reply of the opposite party that the complaint was filed against him in his personal capacity and not in official capacity and hence the complaint is not maintainable. In fact, the document was not presented before the opposite party and it was submitted before his predecessor for registration and the opposite party assumed charge only on 05.07.2012 after two months from the date of presentation of the documents. The opposite party has performed his duty only as a statutory function as per the Registration Act. Therefore, he cannot be made personally liable for discharging his official functions and under such circumstances, the complainant ought to have taken steps to amend the complaint impleading the Registrar’s office as the opposite party. In fact, on 08.08.2019, this Commission has passed the following order: “Both present. It is seen that the main complaint has been filed against one Mr.S. Muthukrishnan, as Joint Sub-Registrar in his personal capacity which is not correct. In the above circumstances, it is also submitted that said S. Muthukrishanan is no more. At request, for steps to amend the cause title call on 01.10.2019 before Registrar”. In spite of the above directions, the complainant has not chosen to implead the Joint Sub-Registrar’s Office as a party. Therefore, we are of the opinion that on the ground of non-impleading necessary party namely, The Sub-Registrar, the appeal is to be allowed by setting aside the order of the District Commission. Further, on factual aspects also, we find that the document was referred under section 47(A) of the Stamps Act, to the Deputy Collector (Stamps) for proper valuation and collection of deficit stamps and on completion of enquiry the deficit stamp duties were paid and the document was received. In support of this contention, Exhibits B1 to B9 were marked on the side of the opposite party. But, the complainant purposely suppressed these facts and filed a complaint as if he was made to run pillar to post to get back the documents. Therefore, as contended by the counsel for the appellant/opposite party, the complainant has not approached this Commission with clean hands and as such circumstances, we are of the opinion that the finding rendered by the learned District Commission to allow the complaint is not sustainable. Therefore, on this ground also the appeal is liable to be allowed. Based on the above discussions, we come to the conclusion that the order of the learned District Commission is liable to be set aside by allowing this appeal.
10. In the result, the appeal is allowed by setting aside the order of the learned District Commission, Namakkal made in C.C.No.05/2013, dated 21.07.2014. There shall be no order as to costs in this appeal.
The Registry is directed to return the mandatory Fixed Deposit Receipt duly discharged in favour of the appellant/opposite party with accrued interest thereon.
S.M. LATHA MAHESWARI, R. SUBBIAH,
MEMBER. PRESIDENT.
Index: Yes/No
TCM/SCDRC/Chennai/Orders/August/2021
