(Uday Umesh Lalit and Indu Malhotra, JJ.)
Civil Appeal No(s). 1794/2019, decided on February 6, 2020
Dr. Vayalil Parameswaran Radhakrishna Pillai ___________ Appellant;
v.
Hebron Properties Pvt. Ltd. and Others _______________ Respondent(s).
With
Conmt.Pet.(C) No. 978/2019 in C.A. No. 1794/2019
Civil Appeal No(s). 1794/2019; Conmt.Pet.(C) No. 978/2019; and C.A. No. 1794/2019
The Order of the court was delivered by
Order
1. This appeal under Section 23 of the Consumer Protection Act, 1986 is directed against the judgment and order dated 25.01.2019 passed by the National Consumer Disputes Redressal Commission [for short “the National Commission”] in Consumer Case No. 140 of 2019.
2. On 22.6.2011, an agreement for sale was executed between the appellant and the respondents herein, whereunder Villa bearing 68, Type B, consisting of five bed rooms was agreed to be sold by the respondents in favour of the appellant. The agreement was followed by another agreement dated 2.7.2011 which was in the nature of giving further details about the property and the land appurtenant to Villa. In terms of these agreements, the price was settled at Rs. 2.25 crores.
3. The entire consideration in relation to said Villa was made over by the appellant to the respondents.
4. By further agreement dated 05.05.2016, the aforesaid agreements entered into between the parties were terminated and a cancellation agreement was executed. This cancellation agreement provided that the sum of Rs. 2.25 crores deposited by the appellant would be refunded to him.
5. According to the appellant, there was another subsidiary agreement under which a further sum of Rs. 1.25 crores by way of compensation was also agreed to be made over to the appellant. This part is disputed by the respondents.
6. Be that as it may, certain cheques were issued by the respondents to honour the terms of the agreement dated 5.5.2016. It is common ground that a sum of Rs. 10 lakhs was received by the appellant. However, the cheque for Rs. 1.25 crores issued by the respondents got dishonoured and is subject matter of proceedings initiated by the appellant under Section 138 under the Negotiable Instruction Act, 1881.
7. Thereafter, Consumer Case No. 140 of 2019 was filed by the appellant before the National Commission praying inter alia:
“(a) direct the Opposite Parties to refund a sum of Rs. 2,25,00,000/- (Rupees two crores and twenty five lakhs only) alongwith 24% of interest on the sum from the respective date of deposits and its realization to the complainant; and
(b) direct the Opposite Parties to pay Rs. 1,25,00,000/- (Rupees one crore and twenty five lakhs only) as compensation in terms of the confirmation letter dated 5.5.2016 with interest @ 24% from 5.5.2016; and
(c) direct the Opposite Parties to pay a sum of Rs. 60,00,000/- (Rupees sixty lakhs only) towards rental for two years as per addendum-1 Clause 2 with interest @ 24% from 02.07.2016, and
(d) direct the Opposite Parties to pay compensation of Rs. 2,00,00,000/- (Rupees two crores only) to the complainant as they caused mental agony, hardship, financial loss on account of interest paid to the bank and failed to fulfill the contractual obligations, deficiency in services, unfair trade practice, restrictive trade practice.
(e) award cost of the complaint to the complainants;”
8. The aforesaid Complaint Case came up before the National Commission on 25.01.2019 for preliminary hearing. The National Commission found that the complaint was not maintainable before the Consumer Forum as the dispute was not a consumer dispute within the meaning of the Consumer Protection Act, 1985.
9. The observations made by the National Commission were as under:
“I have heard the learned counsel for the complainant on the question as to whether there is an existing relationship of the consumer and the service provider between the complainant and the Ops or not. In my opinion, once the agreement dated 02.07.2011 whereunder a villa was allotted to the complainant, was cancelled, not unilaterally but with the mutual consent of the parties on account of financial difficulties of the complainant and it was agreed that the amount of Rs. 2,25,00,000/- would be refunded to the complainant alongwith a sum of Rs. 1,25,00,000/- as compensation, relationship of consumer and service provider between the parties came to an end. Thereafter, the complainant ceased to be a consumer of the OP within the meaning of Section 2(1)(d) of the Consumer Protection Act since the OP was no more required to construct a villa for the complainant. As a result, the Consumer Forum would not have jurisdiction to entertain this complaint and the appropriate remedy for the complainant if he wants to recover the above referred amount from the OP is to approach a Civil Court for the redressal of his grievances. Even otherwise, the prescribed period of two years from the date of agreement, limitation of two years from the date of accrual of the cause of action prescribed in Section 24A of the Consumer Protection Act expired on 05.05.2018 if computed from 05.05.2016 and on 05.11.2018 if computed with effect from six months thereafter.”
10. The Complaint Case thus came to be rejected on the first day without issuing notice to the respondents.
11. In this appeal challenging the correctness of the view taken by the National Commission, notice was issued by this Court on 8.3.2019. Thereafter by order dated 9.5.2019, the parties were directed to appear before the Mediation Centre and it was further directed:
“Pending further consideration, Villa 3 68 Type B in the Project Herbon Enclave, shall not in any way be encumbered by the respondent. Status quo, as on date, shall be maintained as regards the possession and status of said Villa.”
12. The attempts at mediation having failed, the matter is now taken up for hearing. We heard Mr. Gireesh Kumar, learned advocate for the appellant and Mr. P.B. Suresh, learned advocate for the respondents.
13. Mr. Suresh, learned advocate for the respondents placed for our perusal photographs of the Villa in question, which according to him is complete in all respects. He submitted that the respondents are willing to hand-over and convey the Villa to the appellant in discharge of the obligations undertaken by virtue of agreements dated 22.6.2011 and 2.7.2011.
14. Mr. Gireesh Kumar, learned advocate however, submitted that the appellant would not any longer be interested in securing conveyance of the Villa and would rather pray for refund of the amount that was agreed between the parties to be made over to the appellant.
15. It must be mentioned that Mr. Suresh, learned advocate for the respondents conceded the issue that the dispute as raised would be maintainable before the Consumer Forum. Both the learned counsel invited our attention to the decision of this Court rendered in (2019) 5 SCC 725 [Pioneer Urban Land and Infracture Ltd. v. Govindan Raghavan]
16. In the circumstances, the view taken by the National Commission in holding the complaint not to be maintainable is found to be erroneous. We, therefore, allow this appeal, set aside the view taken by the National Commission and restore Complaint Case No. 140 of 2019 to the file of the National Commission to be disposed of on merits.
17. In order to facilitate disposal of the Complaint Case No. 140 of 2019, the interim order passed by this Court as stated hereinabove shall continue till further orders by the National Commission.
18. It shall be open to the appellant to accept the offer made by the respondents and agree to have the Villa conveyed to him in terms of the agreements dated 22.6.2011 and 2.7.2011. In case the appellant is unwilling to have the Villa conveyed to him, an affidavit to that effect shall be filed before the National Commission within two weeks, whereafter the National Commission may permit the respondents to sell the Villa to any other person. However. the consideration received in respect of such sale shall, in its entirety, be deposited in the Registry of the National Commission to await final orders to be passed in Complaint Case 140 of 2019.
19. Since the original agreements were entered into between the parties in the year 2011, we direct the National Commission to dispose of the Complaint Case 140 of 2019 as expeditiously as possible and preferably within six months from the receipt of the order.
20. With the aforesaid directions, the appeal stands allowed. No costs.
21. In view of the aforesaid directions, nothing further need be done in Contempt Petition (C) No. 978/2019 in C.A. No. 1794/2019, which also stands disposed of.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Civil Appeal No(s). 1794/2019
Dr. Vayalil Parameswaran Radhakrishna Pillai.….Appellant(s)
v.
M/s. Hebron Properties Pvt. Ltd. & Ors.….Respondent(s)
(IA No. 32349/2019-APPROPRIATE ORDERS/DIRECTIONS )
WITH
CONMT.PET.(C) No. 978/2019 in C.A. No. 1794/2019 (XVII-A)
Date : 06-02-2020 This appeal was called on for hearing today.
(Before Uday Umesh Lalit and Indu Malhotra, JJ.)
For Appellant(s) Mr. M. Gireesh Kr., Adv.
Mr. Ankur S. Kulkarni, AOR
Mr. S. Parthasarathi, Adv.
For Respondent(s) Mr. P.B. Suresh, Adv.
Mr. Vipin Nair, AOR
Mr. Karthik Jayashankar, Adv.
UPON hearing the counsel the Court made the following
ORDER
22. The appeal is allowed in terms of the signed order.
23. The Contempt Petition is disposed of in terms of the signed order.
24. Pending applications, if any, also stands disposed of.
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