1.      This First Appeal has been filed under Section 51 of the Consumer Protection Act, 2019 (“the Act”) against the Order dated 17.02.2021 passed by the learned U.P. State Consumer Disputes Redressal Commission at Lucknow (“the State Commission”), in CC No. 112 of 2014, wherein the State Commission dismissed the Complaint filed by the Appellant/Complainant. The State Commission has also dismissed the Review Application No.14/2021 vide order dated 16.07.2021.

2.      For Convenience, the parties in the present Appeal are being referred as mentioned in the Complaint before the State Commission.  “Prashant Chandra” is referred to the Complainant/Appellant whereas “Jai Prakash Associates Limited and its Officials” are referred to as Respondents No.1 to 3/OP-1 to 4 and Mr. Ramesh Pawar is denoted as Respondent No.4/OP-5.

3.      Brief facts of the case, as per the Complainant, are that he purchased a property from Respondents No.1 to 3 (OP-1 to 4) for Rs.30,89,800/- under a Provisional Allotment Letter dated 31.03.2010. The possession of the unit was promised within 30 months. Due to delay in the project, he decided to exit and negotiated the sale of the unit to Respondent No.4 and received an advance of Rs.5,00,000/-. The complainant filed an affidavit on 23.11.2011, stating the transfer of rights to Respondent No.4 and informed the proposed transfer to Respondent No.1 on 30.11.2011. His representative, Mr. Devashish Sahni, visited the site office to gather information on documentation for transfer and was made to sign various documents without the complainant's consent, resulting in unauthorized transfer of the unit to Respondent No.4. Respondent No.4 failed to pay him the remaining balance and later demanded higher amount to retransfer the unit back. He sought to reverse the unauthorized transfer and cited a Supreme Court decision voiding transfers based on an unregistered power of attorney. Despite several communications and legal notices, OPs justified the transfer and failed to rectify records. His efforts to restore the ownership of the unit were met with repeated delays and demands for additional payments for issuing No Objection Certificates (NOCs). He deposited Rs.75,000/- for NOCs, but their delays caused the NOCs to expire without restoring the unit. He continued to make payments, including substantial amount of Rs.4,50,233/- to avoid further interest penalties and paid Rs.27,74,346/- covering 95% of the total cost of the unit. He faced financial strain, harassment, and incurred additional costs due to their actions. Being aggrieved, he filed a complaint under Sections 12/17 of the Act, 1986 before the State Commission seeking compensation for the deficiency in service, loss, and harassment.

4.      The Respondents Nos.1 to 3/OP-1 to 4 in their joint Reply filed before the State Commission contended that the complaint should be dismissed because there is no valid cause of action against them. The complainant failed to provide accurate information to the State Commission. He applied for an apartment (Unit No. ANM 0101608) on 12.08.2009 and accepted the terms of the temporary allotment. A temporary allotment letter was issued on 31.03.2010, stipulating that possession would be handed over within 30 months. On 12.10.2012, he transferred the rights of his apartment to Mr. Ramesh Kumar Pawar and Smt. Sajjana Devi through a notarized affidavit. He also executed a Power of Attorney in favor of Devraj Sahani on 30.11.2011, authorizing the transfer. Consequently, no contract or relationship remained between the complainant and respondents. OP-2 to 4 contended that they provided no service to the complainant, did not receive any fees from him, and thus, no cause of action exists against them. They argued that the complainant is not a consumer in this context, and the complaint is time-barred. They denied any deficiency in service or unfair trade practices and asserted that they did not cause any harm or made illegal demands. The OPs contended that all actions were taken according to the complainant's instructions and the procedures for transfer were followed correctly. The allegations of criminal conspiracy and fraudulent transfer are unfounded. His Power of Attorney was executed correctly, and necessary documents presented were authorized. His claim about the power of attorney holder's actions and document collection are false and the transfer was done legally. His assertions about signings and assurances of restoration are false. The complainant, having surrendered his unit, is not entitled to any further information. They denied any fraudulent or illegal actions regarding the unit transfer to Mr. Ramesh Kumar Pawar and his wife. The unit was transferred as per the complainant's request, supported by an affidavit dated 23.11.2011 and other necessary documents. They denied that the unit can be retransferred to the complainant since it has already been legally transferred to another party. The respondents sought that the complaint lacks merit, it is based on incorrect facts, and should be dismissed.

5.      The State Commission, vide Order dated 17.02.2021, dismissed the Complaint No.112/2014 with the following observations:

  “Heard, the Learned Counsel present and perused the pleadings and documents on record.

  In this matter Prashant Chandra had sent a letter dated 30.11.2011 to J.P. Associates Ltd, that vide the temporary allotment letter dated 31.03.2010 Apartment/Plot No. A.N.M.0101608 J.P. Aman, NOIDA, had been given to him, that plot has been transferred to Ramesh Kumar Pawar Son of Sri Karan Singh and Smt. Sajjana Devi, wife of Ramesh Kumar Pawar, Resident of Flat No. 57, Ground Floor, Bhagwan Mahaveer Hospital campus, near Keshav Mahavidyalaya, opposite Pitampura Club, Pitampura, Delhi-34 and after the transfer of the property he has no interest remaining in it. All rights accruing on account of the temporary transfer may be transferred to the said transferee.

  Thereafter on the file is available a letter of Ramesh Kumar Pawar sent to J.P. Associates Ltd, in which he desired that Apartment/Plot No. A.N.M.0101608 J.P. Aman, NOIDA, be transferred in the name of original allottee Prashant Chandra.

  An affidavit dated 23.01.2011 is available on record which has been executed before the Oath Commissioner. In this Prashant Chandra has said that he has transferred the Apartment/Plot temporarily allotted to him to Ramesh Kumar Pawar and Sajjana Devi. After the request is accepted by the company and the transfer is affected, I shall not have any interest or right in the said property. He has also said that there was no encumbrance etc. and J.P. Associates Ltd/ J.P. Infra Tech Ltd is being authorized to change his name with the name of the transferee in respect of the Apartment/Plot.

  Thereafter on 07.12.2011 Ramesh Kumar Pawar has given an undertaking to the effect that Prashant Chandra had on his own transferred the temporary allotment of the Apartment/Plot in his name and that he undertakes to abide by all the terms and conditions of the lease deed. He assures that he shall pay all charges including maintenance charges and remaining outstanding to J.P. Associates Ltd. He will pay the entire Stamp Duty, Registration charge and Legal expenses in respect of the said Apartment/Plot. A similar undertaking has been given by Smt. Sajjana Devi, wife of Ramesh Kumar Pawar on 07.12.2011.

  Here it is clear that Prashant Chandra on his own had given a letter and an affidavit authorizing the respondent to transfer the temporary allotment in favour of the transferee and had voluntarily relinquished all his interest and rights in favour of Ramesh Pawar. The complainant cannot now say that he had only deputed someone to inspect and take the documents.

  On record is a power of attorney dated 30.11.2011 in which Prashant Chandra has authorized Devraj Sahani to present himself in the office of J.P. Associates and to execute all the documents pertaining to transfer of the Apartment/Plot No. A.N.M.0101608 J.P. Aman, NOIDA, allotted in the name of Prashant Chandra and do all such acts as may be required to be done. In this power of attorney it has not been written that the same was being executed solely for the purposes of perusal of documents, instead it has specifically been mentioned thus he can do all such things as may be required for transfer of the plot. From this it is clear that between Prashant Chandra and Ramesh Pawar there must have been some dialogue on account of which the complainant had transferred the said Apartment/Plot temporarily allotted to him in favour of Ramesh Kumar Pawar which is also clear from the power of attorney and the letter of Prashant Chandra dated 30.11.2011 and the affidavit dated 23.11.2011.

  When Prashant Chandra has transferred all his interests and rights, he is no longer a consumer of the respondent. In fact Ramesh Kumar Pawar and Smt. Sajjana Devi, have become the consumers of the respondents.

  Ramesh Kumar Pawar now himself wants to transfer the Apartment/ Plot in favour Prashant Chandra and the complainant alleges that for this purposes J.P. Associates Ltd are not giving their consent. When Prashant Chandra has no right left in the said Apartment/Plot then he has no legal place and it is for the 3rd party to file against the respondent and ask for the desired relief.

  The complainant has prayed for a direction to the respondent that Apartment/Plot No. A.N.M.0101608 J.P. Aman, NOIDA be restored in his name without levying any interest or penal interest. How far is such a relief justified because the relief claimed is not pertaining to a consumer but pertains to a Civil Court because the complainant is asking for a mandatory injunction which cannot be granted here, because he is no longer consumer of the respondent. In the remaining reliefs various types of interest and compensation has been prayed for but the question which arises is that when the said Apartment/Plot has been transferred to Ramesh Pawar then unless Ramesh Pawar transfer this Apartment/Plot to the complainant till then no relief can be granted then only Ramesh Pawar and Smt. Sajjana Devi are entitled for any relief from the respondent.

  This matter is a unique type of matter where the complainant has with his own wish, affidavit and power of attorney transferred the temporary allotment of Apartment/ Plot to Ramesh Kumar Pawar in respect whereof concerned documents have also been executed and subsequently Ramesh Kumar Pawar has again wanted to transfer the plot which has not yet been transferred. When someone else has come in place of the complainant then the complainant cannot be the aggrieved party or become a consumer of the respondent.

  Looking at of the circumstance of the case we come to the conclusion that there is no legal ground to maintain the complaint which is liable to be dismissed with cost.

ORDER

The complaint is dismissed with cost.”

6.      The State Commission, vide Order dated 16.07.2021, also dismissed the R.A. No.14/2021 with the following reasons:

  “File presented.

Heard parties.

This review application Case no. 112/2014 Prashant Chandra versus Jay Prakash Associates Limited and Others has been preferred against the judgement and order dated 17. 02. 2021. The first ground for review is that Sri Rajendra Singh a Member of the Bench did not recuse himself, whereas he was ill-disposed towards the applicant/petitioner, but no ground has been demonstrated. Hence this ground for review is not legally tenable.

  The second ground which has been taken is that the learned counsel for the respondent number 5 was not present for hearing on account of Covid-19. This ground is available only to the respondent number 5 or his learned advocate and not to the applicant/petitioner. Hence this ground is also not legally tenable for review.

  The third ground is that although the matter had been reserved after hearing the parties on 1 December 2020 but as the decision was not rendered for four weeks it ought to have been listed for rehearing, but this was not done and the judgement was rendered thereafter which is in violation of the law laid down by the Hon'ble Supreme Court. The decision of the Supreme Court has not been placed before this Bench nor has any reference been made of the said decision during the course of hearing. Hence this ground for review is not legally tenable. One other ground has been taken that the respondent number 5 has accepted the ownership of the applicant/petitioner despite of which he has been accepted as the owner and as such the decision rendered is not sustainable.

  From the evidence it is established that Sri Prakash Chandra had transferred all his rights in the apartment/plot allotted to him in favour of Ramesh Pawar, as such the applicant/petitioner is no longer a consumer of the respondents. If Ramesh Pawar again wants to transfer the plot in favour of Prakash Chandra as he has deposed then it is merely his wish. On account of his wish, the applicant/ petitioner would not become a consumer of the remaining respondents, hence on the basis of the wish of the respondent number 5 it cannot be accepted that the applicant/petitioner is the owner of the property. Hence on this ground also there is no ground to review the judgment. Remaining points in the review application have been taken on the basis of merits of the case. A judgment based on merits of the case can only be assailed before the appellate court which alone is entitled to confirm or set aside the same and not in an application for review. Hence the review application is misleading and without any substance, solely to waste the time of the Commission.

  It is worthwhile to mention that case No. 112/2014 has been adjudicated under the provisions of Consumer Protection Act, 1986. The procedure prescribed in the Consumer Protection Act, 2019 has not been followed, hence a case instituted under the old act and judgment rendered therein cannot be reviewed under the provisions of the new procedure. In view of all the aforesaid reasons the review application is liable to be dismissed.

ORDER

The review application is dismissed.”

7.      Being dissatisfied with orders dated 17.02.2021 and 16.07.2021 passed by the State Commission, the Appellant/ Complainant filed the present First Appeal No.844 of 2021 with the following prayer:

A. To set aside the order dated 17.02.2021 in Original Complaint Case No.112 (S/C) of 2014 passed by the State Consumer Disputes Redressal Commission, U.P., Lucknow;

B. To set aside the order dated 16.07.2021 in Review Application No.14/2021 passed by the Ld. State Consumer Dispute Redressal Commission, UP, Lucknow; and

C.  May pass any other order in the interest of justice.

8.  In the amended Appeal, the Appellant mainly raised the following:

A.  Respondent No. 4 did not appear on 17.02.2021 on account of Covid-19 when the Judgement was pronounced and his pleadings were not taken into consideration and incorrect facts were incorporated in absence of Respondent No. 4 in the Judgement.

B.  Respondent No. 4 in the affidavit dated 01.10.2012 clearly stated that that he transferred all his rights and interests in the said allotment letter and the apartment in favour of the appellant.

D.  The counsel of the Appellant was not even heard while deciding and dismissing the petition and Counsel for Respondent No. 4 was not represented on 17.02.2021, the date of judgement.

E.  Power of attorney was only called to collect the documents. It was merely a notarized power of attorney. To transfer the title on the basis of power of attorney, it must be a registered. Transfer of unit on the basis of unauthorized power of attorney is illegal.

F. Mr Rajendra Singh, learned Member holds grudge against him as he appeared against him in number of cases in the High Court;

G.  The Respondents assured that the unit would be restored in his name after execution of certain documents for which he appointed a power of attorney. But, they made him rum from here to there and did not restore the name of the appellant. The impugned orders are illegal, erroneous, perverse and bad in law.

9.      In response to the notice on Appeal, Respondent No. 1 to 3/ OP1 to 4 appeared and filed their Reply and reiterated the contentions stated in their Written Version filed before the State Commission. Respondent No.4 also appeared and filed his Reply. He averred that he was in need of a residential house in Noida and got in touch with the Appellant who was the owner of unit in question and he negotiated a sale with him and paid an advance Rs.5 Lakh on 25.10.2011. For the purposes of sanction and disbursement of loan for which he applied, he was required to furnish certain documents which were reported to be available in the office of Respondent No.1. He thus contacted the office of Respondent No.1 and he was informed that he cannot be allowed access to the documents and that only the owner/allottee or person duly authorized under a power of attorney by the owner/allottee could alone inspect and take copies of requisite documents. For this purpose, the Appellant authorized one Mr. Devraj Sahani, by a Power of Attorney executed in his favour for procuring the documents required for transfer. He paid only Rs.5 Lakh and had sought time from the Appellant to arrange the balance amount. However, the unit was transferred in the record of the Respondent No.1 in his name. He requested Respondent No.1 to restore the name of the Appellant in the records. He also made to execute an affidavit and submitted before Respondent No.1 relinquishing his rights over the unit in question, while his name was wrongly endorsed due to the fault of Respondent No.1, he has been unnecessarily harassed in the present case and he is burdened with additional cost, without being the owner/ interested in the property. 

10.    The learned Counsel for the Appellant/Complainant reiterated the facts stated in the Complaint and grounds taken in the Memo of Appeal. He sought to set aside the impugned orders passed by the State Commission.

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11.    Per contra, the learned Counsel for the Respondents No.1 to 3/ OP1 to 4 reiterated the objections taken in the Reply filed before the State Commission as well as this Commission.  He argued in favour of the impugned orders passed by the State Commission.  He sought to dismiss the present First Appeal with costs.

12.    The learned Counsel for the Respondent No.4/OP-5 reiterated the objections taken in the Reply filed before this Commission.  He has argued that he has unnecessarily arrayed in the present case as party because he is not an owner of the property in question.

13.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned counsels for both the parties.

14.    It is an admitted position that Shri Prashant Chandra the Complainant/ Appellant was the original buyer of the Flat in question. Vide letter dated 30.11.2011, the Complainant informed the builder- JP Associates Ltd OP-1 that vide the temporary allotment letter dated 31.03.2010 Apartment No. A.N.M.0101608 J.P. Aman, NOIDA allotted to him has been transferred to Shri Ramesh Kumar Pawar (OP-5) and Smt. Sajjana Devi W/o Ramesh Kumar Pawar and that after the said transfer of the said property he has no interest remaining in it. All rights accruing on account of the temporary transfer may be transferred to the said transferee (OP-5). An Affidavit dated 23.01.2011 was executed before Oath Commissioner by him was also submitted. The complainant had stated that there was no encumbrance etc. and OP-1 was authorized to change his name with the name of OP-5 in respect of the flat. Thereafter, on 07.12.2011, OP-5 had given an undertaking that the complainant had on his own transferred the temporary allotment of the Apartment in his name and that he undertakes to abide by all the terms and conditions of the lease deed and assured to pay all charges including maintenance charges and remaining outstanding to J.P. Associates Ltd. He also undertook to pay the entire Stamp Duty, Registration charge and Legal expenses in respect of the said Apartment. A similar undertaking was given by Smt. Sajjana Devi, wife of Ramesh Kumar Pawar on 07.12.2011.

15.    Thus, it is clear that the complainant on his own had given a letter and an affidavit authorizing the OP-1 to transfer the temporary allotment in favour of OP-5 and voluntarily relinquished all his interests and rights in favour of OP-5. The complainant cannot now say that he had only deputed someone to inspect and take the documents. Vide power of attorney dated 30.11.2011 the complainant authorized Mr Devraj Sahani to present himself in the office of OP-1 and to execute all the documents pertaining to transfer of the said Apartment and do all such acts as may be required to be done. This power of attorney does not reveal that the same was executed solely for the purposes of perusal of documents. It was specifically mentioned that he can do all such things as may be required for transfer of the plot. Therefore, the independent agreement between the complainant and OP-4 with respect to transfer of property in question is clear. After he transferred all his interests and rights to OP-5, clearly he is not a consumer of the respondents.

16.    Subsequently, a letter of OP-5 was received by OP-1 stating that the said unit be transferred in the name of the Complainant. Thereafter, it is the allegation of the complainant that OP-1 is not consenting for the same. It is clear that as on date, the complainant has no right left in the said Apartment as he created 3^rd party interest. It is the prayer of the complainant for a direction to OP-1 to restore the Flat to his name, without levying any interest or penal interest. Clearly, such relief cannot be claimed as prima facie he is not a consumer of OPs and thus ineligible to seek relief under the Act. This essentially pertains to relief that can be sought from a civil court as, what is being sought is a mandatory injunction and pecuniary awards. After the transfer of the said Apartment, till OP-5 transfers this Apartment to the complainant, OP-5 constitutes the consumer of OP-1 and no relief is admissible under the Act to the complainant.

17.    The learned State Commission, vide Order dated 17.02.2021 dismissed the complaint. Thereafter, the complainant filed Review Application making allegations against Sri Rajendra Singh, a learned Member of the Bench that he did not recuse himself, while being ill-disposed towards to the complainant. He however neither raised any such issue during the proceedings nor advanced any material evidence to substantiate the accusations. Therefore, the accusations are woefully untenable. The complainant had also stated that OP-5 was not present for hearing on account of Covid-19. Clearly, grievance in this regard, if any, shall be addressed by OP-5 and the complainant has no claim in this regard.  It was also alleged that while the matter was reserved on 01.12.2020, the decision was given for four weeks. Therefore, it ought to have been listed for rehearing. The same was not done and the judgement pronounced thereafter which violated the law laid down by the Hon'ble Supreme Court. While the complainant made the said assertion, evidently no such order of the Hon’ble Supreme Court was cited during the course of hearing. Accordingly, vide order dated 16.07.2021, the Review Application No.14/2021 was also dismissed.

18.    It is undisputed that the complainant had transferred all his rights in the Apartment allotted to him by OP-1 in favour of OP-5. Thus, the complainant/ petitioner is no longer a consumer of the OP-1. If OP-5 again wants to transfer the Apartment in favour of the complainant, such transfer is between the parties and the parties need to adhere to their respective liabilities. If he wishes to transfer the property to Prakash Chandra, it is within his purview. When once the transfer is executed, the present complainant/petitioner is no longer a consumer of the remaining respondents.

19.    The learned State Commission considered the matter and passed a detailed and well reasoned order dated 17.02.2021 dismissing the Complaint. Further, on the complainant filing Review Application No.14 of 2021, the learned State Commission vide order dated 16.07.2021 dismissed the same by a detailed order. In view of the foregoing deliberations and after due consideration of the matter in its entirety, I find no reason to interfere with these detailed and well reasoned orders passed by the learned State Commission.

20.    The First Appeal No. 844 of 2021 is, therefore, dismissed.

21.    There shall be no order as to costs. All pending applications, if any, also stand disposed of accordingly.