Order No: 4                                                                                    Date:29/08/2023

This case record is taken up for consideration in the matter of passing order in this M.A. Case which has been initiated in view of the application filed by O.P. No. 3 challenging the maintainability of C.C. Case No. 265/2021.

This matter has been contested by the O.P. of this M.A. Case who is the complainant of C.C. Case No. 265/2021 by filing written objection.

The argument highlighted by Ld. Advocates of the both sides has been heard in full.   Considered submission.

It is the main point of contention and argument of the O.P. No. 3 of C.C. Case No. 265/2021 and applicant of this M.A. Case that the C.C. Case No. 265/2021 is not maintainable as the said case has been filed by the complainant on the basis of the fraudulent /forged Agreement for Sale and Development Agreement. In this regard Ld. Advocate for the applicant of this M.A. Case has drawn the attention of this District Commission to the content of the Agreement for Sale which has been filed by the complainant in C.C. Case No. 265/2021 and also has described the content of the Development Agreement which has also been filed in the M.A. Case No. 66/2023.

On the other hand the O.P. of M.A. Case No. 66/2023 who is the complainant of complaint Case No. 265/2021, in course of argument and in the written objection pointed out that Ld. District Commission has already admitted the C.C. Case No. 265/2021 and thereafter the O.P.  No. 3 appeared in the said C.C. Case  and also filed written version and this matter is clearly reflecting  that the C.C. Case No. 265/2021 is ready for disposal and for that reason this District Commission cannot dispose  of the fate of this M.A. Case  which is on the basis of the maintainability petition.  By drawing  the attention of this District Commission to the written version filed by the O.P. No. 3 pointed out that the O.P. No. 3 of C.C. Case No. 265/2021 in the written version has admitted the fact that execution of Agreement for Sale  and Development Agreement and for that reason they cannot escape from the liability.  It is alleged by the O.P. of this M.A. Case that this M.A. Case is not maintainable and it has been filed by the O.P. No. 3 who is not a party of the agreement, for dragging this case.

On the background of the above noted facts and circumstances as well as argument highlighted by Ld. Advocates of both sides this District Commission for the interest of arriving at just and proper decision in this M.A. Case finds that there is necessity of making scrutiny of the Agreement for Sale which has been filed by the complainant in C.C. Case No. 265/2021 and also for examining the Development Agreement which has been filed in this M.A. Case No. 66/2023.

On close examination of the Agreement for Sale which has been executed in between complainant and O.P.  it is revealed that in the said agreement there is no reflection regarding mode of payment of the consideration of money.  Moreover, there is also discrepancy in the matter of actual payment of the consideration money by the complainant.  More so, the said Agreement for Sale is not containing the signatures of complainant in every pages of the Agreement for Sale and it is only lying at the last page (Page No. 13) of the said Agreement for Sale.  Moreover, the Constituted Attorney Sri Ram Ranjan Kr. Singh has also not signed every pages of the said Agreement for Sale and signature of the said Constituted Attorney is reflecting as witness.  All these factors are clearly reflecting that there is a serious discrepancy in the matter of execution of the Agreement for Sale.  This matter has not been clarified by the complainant in the complaint petition.  Thus, it is crystal clear that there is serious doubt about the actual execution of the said Agreement for Sale or not.

As the complaint case is based on the said Agreement for Sale it can be questioned about the maintainability of this C.C. Case.  All these factors are clearly reflecting that as the complaint Case No. 265/2021  is based on a questionable deed (Agreement for Sale and Development Agreement), it can be easily  ascertain  that this C.C. Case No. 265/2021 is not at all maintainable.  More so, regarding the question which is raised by the O.P.  of this M.A. Case that this M.A. Case is not maintainable, it can be said that Hon’ble National Commission in its judgment passed “ in 2003 (1) C. P.J.  Page 256 has been pleased to observe that the question of maintainability can be raised at any point of time.

It is the settled principle of law that where complicated question of law and facts are involved Forum under the Consumer Protection Act may not be a proper Forum to dispose of such a case in summary fashion.  It is also observed by the Hon’ble Apex Court that a Civil Court would be the right place to decide the issue involved in that case.  This observation of the Hon’ble Apex Court has been reported in the (2002) 2 SCC page 1. Similar view has also been observed by the  Hon’ble Apex Court and it is reported in 2023 (AIR Supreme Court) page 1762.

A cumulative consideration of the above noted discussion goes to show that the complaint Case No. 265/2021 which has been filed is not maintainable either in facts or in the eye of law and for that reason the complaint Case No. 265/2021 is liable to be dismissed.

In the result

                      it is accordingly,

                                                            O R D E R E D

That this M.A. Case being No.  66/2023 be and the same is allowed on the contest.

It is held that the C.C. Case No.  265/2021 is found not maintainable and so it is dismissed on contest.

Let the case record of M.A. Case No. 66/2023 be tagged with the case record  C.C. Case No. 265/2021.  No order has passed to cost.

Dictated & corrected by me.

President