Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath (Presiding Member) dismissed the complaint while granting an opportunity to the Complainant to approach any Appropriate Forum/ Authority of Court.

The instant complaint was filed under Section 21 of the Consumer Protection Act, 1986.

Complainant a resident and owner of an apartment at Ambience Island Lagoon Apartment, Gurgaon. OP 1 is the Director of the Opposite Parties 2 and 3.

What is the Complaint?

Complainant submitted that an Apartment Buyers Agreement, dated 20-10-2001 was executed between the Complainant and OP 2 for which he paid an amount of Rs 54, 46, 706 towards the purchase of the apartment.

Further Complainant paid an additional 13% of the sale price in two instalments for the registration of the Deed of the Apartment. In 2003, the complainant received the confirming receipt from OP 2 and in 2014 the Conveyance Deed was also executed.

OPs to date has not executed the Deed of Apartment in favour of the Complainant. Further, they alleged that the Conveyance Deed was forced upon them in lieu of Deed of Apartment.

Adding to the above allegations, another revelation was made that the OPs systematically and intentionally defrauded and misled the Complainant.

Hence, the Complainant alleged deficiency in service.

Analysis and Decision

Bench noted that OPs executed the Conveyance Deed as per clause 13 of the Apartment Buyer Agreement.

Further, adding to the above, Commission stated that there were no one-sided clauses in the Agreement which constituted an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 and deficiency in service under Section 2 (g) of the Consumer Protection Act, 1986.

In fact, the Complainant sought for the execution of the Conveyance deed before the Delhi High Court in Civil Suit No. C.S.(O.S) No.2155 of 2011. 

“…the expressed “terms and conditions” of the ABA are binding on Parties”.

Hence, since Complainant himself filed a Civil Suit in Delhi High Court for the execution of the Conveyance Deed, he cannot back out after it is executed.

Supreme Court’s decision in Bhubaneshwar Development Authority v. Susanta Kumar Mishra, (2009) 4 SCC 684 held:

“Further, any fora under the Consumer Protection Act, 1986 (“the Act”, for short) before granting any relief to a complainant, should be satisfied that the complaint relates to any of the matters specified in Section 2(1)(c) of the Act, and that the complainant has alleged and made out either unfair or restrictive trade practice by a trader, or defects in the goods sold or any deficiency in a service rendered, or charging of excessive price for the goods sold, or offering of any goods hazardous to life and safety without displaying information regarding contents, etc. If none of these is alleged and made out, the complaint will have to be rejected”

In the decision of Satish Kumar Pandey v. Unitech Ltd., Consumer Complaint No. 427 of 2014, it was held that it was an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum to revise the said terms.

Commission observed that Clause 13 of the Agreement clearly stipulated that:

“the Company along with its Associates/Subsidiary Companies as stated earlier shall prepare and execute along with the Apartment Allottee a conveyance deed to convey the title of the said Apartment in favour of Apartment Allottee…”

Therefore, in the present matter, the Commission cannot grant any relief beyond the Agreement entered between the Parties.

Complaint was dismissed in view of the above terms. [Dr Amitabha Sen v. Raj Singh Gehlot, 2021 SCC OnLine NCDRC 23, decided on 24-02-2021]

Advocates who appeared before the Commission:

For the Complainant: Dr Amitabha Sen (Advocate) Complainant in person with Ms Aditi Pandey Ms Prarthana and Mr Abhinav, Advocates

For the OP: Mr P.K. Agrawal, Advocate with Ms Tanya Sharma and Ms Deepti Gupta, Advocate

Explanation of a few terms used in the above brief:

  • Conveyance: An instrument which transfers property from one person to another defined for the purposes of the Conveyancing Act, as including ‘assignment, appointment, lease settlement, and other assurance, and covenant to surrender, made by deed on a sale, mortgage, demise or settlement of any property or on any other dealing with or for any property’. [Whart.]
  • Deed: A formal document on paper or parchment duly signed, sealed and delivered. (factum inter partes) needing no actual indentation (Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 5) made between two or more persons in different interests or a deed-poll (charta de unâ parte) made by a single person or by two or more persons having similar interests.
  • Agreement: Every promise and every set of promises, forming the consideration for each other, is an agreement, [Section 2(e), Contract Act, 1872 (India)]
Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.K. Sikri, Ashok Bhushan and M.R. Shah, JJ. disposed of a matter concerning execution of conveyance deed and set aside the orders passed by Bombay High Court for want of jurisdiction.

The present proceeding arose out of a suit filed by original plaintiffs– purchasers of flats in the building developed by the defendant Trust. The plaintiffs filed a suit before the trial court for directing the Trust to perform its obligations including execution of conveyance deed of the plot where the subject building was developed. The trial court decreed the suit of plaintiffs. Aggrieved by the same, the Trust approached the High Court. Before the High Court, the plaintiffs filed Note for speaking to Minutes for clarification of certain details on record. The High Court dismissed the appeals and petitions filed by the Trust. However, it is pertinent to note that the impugned order was passed by the High Court below the Note. Aggrieved by orders of the High Court, the Trust preferred the present appeals. The Supreme Court quashed the impugned orders on certain grounds including, inter alia, for want of jurisdiction.

The Court was of the opinion that while passing the order below the Note, the High Court traveled beyond its jurisdiction in regard to the scope of deciding a Note for speaking to Minutes. It explained, “A Note for speaking to Minutes is required to be entertained only for the limited purpose of correcting a typographical error or an error through oversight, which may have crept in while transcribing the original order. Once, the judgment/order is pronounced and if any party to the same wants any rectification of any typographical error and any clerical mistake regarding the date or number, such a party may apply to the concerned Court for correcting such an error in the judgment/order. However, a Note for speaking to the Minutes cannot be considered at par with a review application or in a given case, with an application for clarification/modification of an order. A Note for speaking to the Minutes can never be considered to be an application of such a nature.” It was held that while passing the impugned order below the Note, the High Court virtually modified its original order passed in the first appeal. Such a course was not open to the High Court and therefore the order was liable to be set aside. For such and other reasons, the impugned orders of the High Court were set aside. [Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh v. Brijal Tibrewal,2018 SCC OnLine SC 2816, decided on 14-12-2018]

Case BriefsSupreme Court

Supreme Court: In the petition challenging the validity of the conveyance deed of a property situated in Bangalore in favour of the Dewan of Mysore in the year 1900, the Court held that after 104 years of the execution of the original conveyance deed, and after acquiring various lands out of this very estate, it cannot permit the State to urge that the original conveyance deed is fraudulent or that the subsequent transfers are all collusive and, as such, void.

In the year 2004, a complaint was sent by the Secretary of the Karnataka Public Service Commission where on the ground that in the conveyance deed it was fraudulently shown that the property had actually been purchased for the First Princess of Mysore out of her personal funds. It was alleged that the original conveyance deed dated 25.08.1900 had been executed only in favour of the Dewan of Mysore. Furthermore, no stamp duty was paid on the sale deed and, therefore, it was complained that the sale was either totally illegal or that the sale was in favour of the State of Mysore and “Beaulieu” estate was not the personal property of the First Princess. As a result, summary proceedings under Section 67 of the Karnataka Land Revenue Act, 1964 were initiated against the occupants.

Holding the proceedings under the said section to be without jurisdiction, the Court explained that a bare perusal of Section 67 of the 1964 Act clearly indicates that it only applies to public roads, streets, lanes etc. or to such lands which are not the property of individuals, or an aggregate of persons legally capable of holding property. A dispute of title of property between the State and individuals cannot be decided in terms of Section 67 of the 1964 Act. Merely because the Secretary of the Karnataka Public Service Commission had, in his complaint, opined that the deed of conveyance executed more than 100 years back was fraudulently claimed to be in favour of the First Princess, was not sufficient ground to proceed under Section 67 of the 1964 Act.

Considering the fact that a number of transactions relating to the said property have taken place in this large span of time, the Court said that it could not be held that all subsequent transactions relating to the estate property were fraudulent. Fraud must be pleaded and proved; it cannot be presumed. The bench of Madan B. Lokur and Deepak Gupta, JJ, hence, held that the “Beaulieu” estate was purchased by the Dewan of Mysore on behalf of the First Princess and the consideration was paid from the personal funds of First Princess. Therefore, the State of Karnataka has no right over the property. [M. Sankaranarayanan v. Deputy Commissioner, Bangalore, 2017 SCC OnLine SC 362, decided on 10.04.2017]