BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 446/2008 against CCSR 2114/2007, Dist. Forum-I, Hyderabad.
Between:
1) Nirmal Kumar Pandey
S/o. S.B. Pandey, Age: 44 years
2) Smt. Vijay Lakshmi Pandey
W/o. Nirmal Kumar Pandey
Age: 39 years, H.No. 3-6-158/5, Lakshmi Enclave
Boosareddyguda, Thokkatta Village
Cantonment, Secunderabad *** Appellants/
Complainants.
And
1) Smt. V. Lakshmi Bai
W/o. Late V. Pandurangam Naidu
House Wife, Cable Operator
H.No 144, Picket, Secunderabad
2) V. Krishna Kumar
S/o. Late V. Pandurangam Naidu
H.No 144, Picket, Secunderabad
3) M/s. Kollati Constructions Ltd.
6-4, 6th floor, Chennoy Trade Centre
Park Lane, Secunderabad
Rep. by its Managing Director
K. Seshagiri Rao.
4) K. Seshagiri Rao, S/o. K. Srinivasa Rao
Age: 50 years, Business, R/o. 3A/1, Picket,
Secunderabad.
5) K. Pavan, S/o. Late K. Ramakrishna Rao
Prop. M/s. Anjana Builders
Flat No. 401, Anjana Towers
Plot No. 3, Shanti Deep Colony
Kakaguda, Secunderabad.
6. M/s. Prudential Co-operative Bank Ltd.
Regd. Office R.P. Road, Secunderabad
Rep. by its Managing Director
Person-In-charge. *** Respondents/Ops
Counsel for the Appellant M/s. B.S. Prasad
Counsel for the Respondent: M/s. V. Jyothi (R1 & R2)
M/s. K. Koteswara Rao (R3&R4)
M/s. M. Venkat Divakar (R6)
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SMT. M.SHREESHA, MEMBER.
MONDAY, THE TWENTY NINETH DAY OF NOVEMBER TWO THOUSAND TEN
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President.)
***
1) Appellants are unsuccessful complainants.
2) The case of the complainants in brief is that they are the joint owners of a building having purchased it under registered sale deed from R1 constructed and developed by R4 on behalf of R3. R2 is the son of R1 and R4 is his close relative. R1 and R4 on behalf of R3 entered into an agreement for construction of row duplex houses on the sanction obtained by R1 from the Cantonment Board, Secunderabad. When they intended to purchase one of the duplex houses bearing No. 3-6-158/5 for a sum of Rs. 22,50,000/- entered into tripartite agreement dt. 28.6.2002 on the promise that they would arrange housing loan from LIC Housing Finance Ltd by virtue of tripartite agreement. Accordingly sale deed dt. 16.7.2002 was executed, and delivered the house. While so they came to know that R1 has executed gift settlement deed in favour of R2 in the month of June, 2001 in respect of entire land wherein duplex houses were constructed. Further R2 has mortgaged the land. They also learnt that certain loans were taken by R5 from R6 bank for the said purpose. R2 also appeared to have created false equitable mortgage in favour of R6 despite knowing full that R2 did not have any valid title. The settlement deeds were fraudulent, sham and nominal for which R2 had figured as one of the witnesses. In fact they had discharged the loan taken from LIC Housing Finance etc. Later they came to know that R4 filed O.S. No. 138/2006 against R1 & R2 on the file of I Additional Chief Judge, City Civil Court, Hyderabad wherein they pleaded that settlement deeds were created for nominal purpose and they are sham. In those circumstances they got issued legal notice on 17.9.2007. Since they were bonafide purchasers they were apprehensive that R6 bank may falsely proceed against their property claiming false rights created in favour of R6 by R2 without any valid right or title.
Since they are consumers and the respondents having caused loss and damage and adopted unfair trade practice they sought Rs. 20 lakhs towards damages and compensation and direct R1 to R5 to indemnify any claim that would be made by R6 and complete unfinished works and costs.
3) The Dist. Forum dismissed the complaint at the stage of admission on the ground that the dispute does not attract the provision of the Consumer Protection Act in order to enquire into the execution of so called gift settlement deeds in favour of respondents by the owners and having raised the plea of fraud, forgery the Consumer Forum has no jurisdiction to resolve the dispute, more so when it has to determine the matters in summary manner. It followed the decision N. Shiva Rao Vs. M/s. Dwaraka Motors Company reported in 1 (1993) CPJ 88 (NC).
4) Aggrieved by the said decision the complainants preferred the appeal contending that the Dist. Forum ought not to have rejected the complaint at threshold on the ground that complex questions of fact and law are involved. The short question that arises for consideration is whether the builder and owner could convey the property by making mis-representation that the property was free from encumbrances. They were bound to indemnify and keep the complainant harmless of any claims of the vendors. The Dist. Forum ought to have followed the dicta laid down by the Hon’ble Supreme Court in M/s. Fair Air Engineers Pvt. Ltd. Vs. N. K. Modi reported in AIR 1997 SC 533. The complaint would undoubtedly come within the jurisdiction of the Dist. Forum and therefore prayed that the appeal be allowed and direct the Dist. Forum to register the complaint and dispose of the matter according to law.
5) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
6) The complainants have purchased duplex houses under registered sale deed dt. 16.7.2002 from R1 owner of the property and obtained possession. Since then they have been in possession of the property. Now they allege that having promised that there were no encumbrances, and that the title is free from all encumbrances, they learnt that a suit O.S. No. 138/2006 was filed by R4 builder against his vendor R1 and others alleging that settlement deeds that said to have been executed by R1 in favour of R2 are sham and nominal and does not have any title. The complainants allege that “It is thus clear that the R1, R2, and R4 with fraudulent intentions, and deceitful means have created fake settlement deeds without any true intention to transfer right, title and interest only for the purpose of availing loans in the name of R5 from R6 bank. In spite of impleading themselves as parties to the said suit to prove that settlement deeds were nominal or that they were sham etc., filed a complaint under the Consumer Protection Act seeking indemnification from R1 to R5 by stating that the debt allegedly contracted by R1 to R5 would not bind them. Alleging that this constitutes unfair trade practice and deficiency in service they claimed Rs. 20 lakhs towards compensation.
7) The very purpose of introducing Section 12(3) of Consumer Protection Act is to see that the complaints not connected with consumer dispute are not entertained. If notices are ordered in order to find out whether the said complaint is maintainable or not the very purpose of introduction Section 12(3) will be defeated. It would un-necessarily delay the proceedings. The complainant can as well seek appropriate remedy in a competent forum instead of unnecessarily litigating the matter before the Consumer Forum where there is no jurisdiction. The Dist. Forum lacks jurisdiction to decide the matter. The contention that the complaint cannot be dismissed at threshold has no meaning, more so, in the light of introduction of Section 12(3) of Consumer Protection Act.
8) The complainant intends to declare that the settlement deeds executed by the parties are nominal and non-est though for the self same cause a suit is pending. We fail to understand how the complainant can term it as consumer dispute. There is no consumerism in this. These acts cannot be said to constitute either deficiency in service or unfair trade practice. By mere using of those words it would not come to the rescue of the complainant to file a complaint before the consumer fora under the Consumer Protection Act. Ex-facie the complaint is not within the purview of Consumer Protection Act. There is no consumer relationship between the parties. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
9) In the result the appeal is dismissed. No costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 29. 11. 2010
*pnr
“UP LOAD – O.K.”
