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Sasanka Sekhar Mukherjee & Another v/s Biprendu Chatterjee & Others

    Revision Petition No. 2550 of 2011

    Decided On, 25 October 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE DR. S.M. KANTIKAR
    By, PRESIDING MEMBER & THE HONOURABLE MR. DINESH SINGH
    By, MEMBER

    For the Petitioners: Kunal Chatterji, Maitrayee Banerjee, Advocates. For the Respondents: R1 to R4, Appearance not marked, R5 & R6, Ex-parte.



Judgment Text

This dispute pertains to 2003, we are in 2018.

1. The complaint was allowed by the District Forum on 26.05.2010. The complainants’ appeal was dismissed by the State Commission on 16.05.2011. This revision has been filed by the complainants against concurrent findings of the District Forum and the State Commission.

2. On 02.05.2018 the learned counsel for the respondents no.1 to 4 (opposite parties no. 1 to 4) stated that settlement talks were going on and, hence, some more time may be given. The matter was listed for 20.07.2018. On 20.07.2018 it was noted that a settlement has not been arrived at. The learned counsel for the revisionists (complainants) wanted to refer this matter to mediation. He was directed to file formal application with advance copy to the other side, to be considered on the next date of hearing. The matter was listed for 20.09.2018.

3. Learned counsel for the revisionists filed an application for referring the matter to Mediation Centre attached with Hon’ble Calcutta High Court Mediation Cell, wherein the following was inter alia stated:

“3. It is stated that in Bijoy Sinha Roy (Deceased) by LR vs. Biswanath Das in Civil Appeal No. 4761 of 2009 the Hon’ble Supreme Court has observed that it is necessary to refer another important aspect relating to administration of justice by the Consumer Fora. A person coming to a consumer Court with a grievance of deficiency in serve needs immediate relief. The very object of setting up Consumer Fora was to provide speedy remedy to a consumer. The Consume

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r Protection Act, 1986 (The Act) was brought about in the background of worldwide movement for consumer protection. The framework of the Act is based on Resolution dated 9th April 1985 of the General Assembly of the United Nation to which India was a signatory. The act provided for protection of interest of consumers in the form of quick and speedy redressal of grievances. The provisions of the Act thus in addition to and not in derogation of any other law. The Act provides for additional remedies and the award of damages is aimed at bringing about qualitative change in the attitude of service provider. Thus the Hon’ble Supreme Court observed that there is a need to avail of ADR mechanism which is now regarded as per access to justice. In this regard another judgment of the Hon’ble Supreme Court Sussain … vs. State of UP reported in 2017(5) SCC 702 was relied upon.

4. By Act 46 of 1999, Section 89 has been added to CPC linked down mechanism for settlement of disputes outside the Court. Hon’ble Supreme Court specifically held that even though the said provision is applicable only to the civil courts, there is no reason to exclude its applicability in Consumer Fora having regard to object of the consumer protection law and thus is the case of Vijay Kumar Sinha (Supra), the Hon’ble Court held that the provision relating to alternate dispute resolution ought to be duly invoked by the Forum.

5. In the instance case the dispute within the parties are almost now 17 years old. Looking at the nature of dispute to held with the parties be referred to mediation under the guidance of a proper mediation centre for a trained mediator. As such petitioner submitted that the instant case may be referred to mediation centre attached with the Hon’ble Calcutta High Court Mediation Cell.

6. That the petitioner seeking to the matter be referred to the mediation cell in Calcutta because of both the parties are in Calcutta and they are going old in their age.

(paras no. 3, 4, 5, 6 of the application)

4. On 20.09.2018 we heard learned counsel for the petitioner on the application, and perused the material on record. Learned proxy counsel for respondents no.1 to 4 was present. (The case was proceeding ex parte against respondents no. 5 and 6.)

5. We may first note that voluntary amicable settlement is an integral part of consumer justice under the Consumer Protection Act, 1986. Mediation could be one mechanism for arriving at voluntary amicable settlement. However, whether or not a case requires to be referred for mediation is at the considered wisdom of the bench, in the facts and specificities of the case.

6. In this instant case we note that the dispute relates to 2003. The consumer complaint was filed in the District Forum in 2005, it was decided in 2010. The appeal was filed in the State Commission in 2010, it was decided in 2011. The revision petition was filed in this Commission in 2011, and is still pending. Between 2011 to 2018 this revision was taken up on 27.09.2011, 25.11.2011, 07.03.2012, 10.07.2012, 04.12.2012, 20.02.2013, 24.09.2013, 11.06.2015, 18.01.2016, 20.07.2016, 07.12.2016, 03.05.2017, 22.08.2017, 07.12.2017, 02.05.2018, 20.07.2018 and 20.09.2018. Despite efforts for settlement, no settlement could be arrived at. Immediately after informing that settlement could not be arrived at, learned counsel for the revisionists made a submission that he wanted to refer this case for mediation.

7. The Act 1986 is made to provide speedy and simple redressal through a quasi-judicial machinery. That a case could be referred for mediation does not in any manner imply that it should be referred for mediation on the request of either side. Whether or not a case requires to be referred for mediation has to be decided at the considered wisdom of the bench, in the facts and specificities of the case. In this instant case we note that the revision has been pending for an inordinately protracted period of over 7 years (the dispute relates to 2003, the complaint was filed in 2005, the District Forum passed its Order in 2010, the appeal was filed in 2010, the State Commission passed its Order in 2011, the revision was filed in 2011). Settlement was explored. Settlement could not be arrived at.

8. We find it appropriate and albeit necessary to hear the arguments and decide this case on merit without further delay (rather than, now, referring it for mediation or granting further time for settlement).

9. Learned counsel for the revisionists was informed that the bench did not deem it appropriate or necessary to refer this case for mediation, and was requested to argue its case on merit. Learned counsel did not agree with the request to argue its case on merit, and submitted that he would prefer to agitate the decision of this bench for not referring this case for mediation and further that this decision of this bench was contrary to law. We do not find any merit in his averments, and, specifically, in his averment that not referring the case for mediation was contrary to law (paras 5, 6, 7, 8 above refer).

10. Opportunity to argue its case on merit was afforded to learned counsel for the revisionists.

We perused the material on record.

11. This revision has been filed by the revisionists – complainants against the Order dated 16.05.2011 of the State Commission wherein the State Commission affirmed the Order dated 26.05.2010 of the District Forum.

12. We note that the District Forum has addressed the grievances of the complainants by directing the respondents no. 1 to 5 (opposite parties no. 1 to 5) to register lease of the subject flat in favour of the complainants subject to payment of the balance consideration amount of Rs. 3,00,000/- by the complainants and also awarded Rs. 5,000/- as compensation and Rs. 3,000/- as cost of litigation to the complainants. We also note that the State Commission after again appraising the evidence has affirmed the findings of the District Forum.

13. The District Forum had heard both sides, appraised the case, and through a reasoned Order dated 26.05.2010 allowed the complaint:

…But it is specific case of the o.p.s that the consideration money was increased and it was fixed at Rs. 9 lakhs as mentioned in the w/v of o.p. nos. 1 to 4 in para 8 stating therein that in the evening of 05.03.2001 the consideration money was mutually agreed at and increased to Rs. 9 lakhs in a meeting where o.p nos. 1 to 5 and Shashanka Shekhar Mukherjee and Siddhartha Mukherjee and Soumitra Mukherjee were all present and about the escalation of consideration money it has been specifically stated in the w/v of o.p. nos. 1 to 4 that initially it was settled that the floor of the flat in question will be furnished with mosaic, but thereafter complainant no.1 requested the o.p. no. 5 to fix marble to some portion of his flat and according to the negotiation, complainant no.1 in the same evening paid Rs.2,25,000/- in cash to the o.p. no. 5 and accordingly a money receipt was issued by o.p. no. 5 to complainant no.1 and where it was clearly state that the total consideration money was Rs.9 lakhs and not Rs.4,75,000/-, and it has also been stated that the lessee herein paid Rs.75,000/- and Rs. 2,25,000/- on 05.03.01 in favour of o.p. no.5 and again complainant no.1 paid Rs.2 lakhs to o.p. no. 5 and another Rs.2 lakhs is lying with the S.B.I. being cheque no. 72941 dt. 09.08.01. So the total consideration money is Rs.9 lakhs. ………….So, the sum total amount comes to the figure of Rs.5 lakhs and accordingly, the claim of the complainant that a total consideration money was fixed at Rs.4,75,000/- cannot be accepted. …… So, we have no difficulty to hold that complainant has already paid Rs. 6 lakhs out of consideration money of Rs. 3 lakhs. …….

Hence,

Ordered,

That the petition of complaint is allowed on contest with cost against o.p. nos. 1 to 5 and without cost against o.p. no.6. O.p. nos. 1 to 5 are directed to execute and register the stipulated deed of lease for 99 years in respect of the flat on the second floor measuring 830 sq. ft. more or less super built area (west portion) in the building on the land measuring approximately 3 cottah 8 chatak at premises no. B/19A/H/3, Pratapaditya Road, P.S. Tollygunge, Kolkata-26 positively within forty five days from the date of communication of this order in favour of the complainant nos. 1 and 2 subject to payment of Rs.3,00,000/- (Rs. three lakhs) only from the complainant nos. 1 and 2 at the cost of the complainants and after receiving the balance consideration money, the complainants will submit a draft of the stipulated deed of lease within forty five days from the date of communication of this order for approval of the o.p. nos. 1 to 5. O.p. nos. 1 to 5 are directed to pay compensation of Rs. 5000/- (Rupees five thousand) only and litigation cost of Rs. 3,000/-(Rupees three thousand) only to the complainant nos. 1 and 2 positively within forty five days from the date of communication of this order, failing which it will carry an interest [a] 10% p.a. till full realization.

(as translated by the revisionists)

14. The complainants had appealed in the State Commission. The State Commission had heard both the sides, again appraised the case, and through a reasoned Order dated 16.05.2011 dismissed the appeal and affirmed the findings of the District Forum:

The Ops have agreed that initially the price was fixed for Rs.4,75,000/- but later it was fixed for Rs.9,00,000/- based on verbal agreement. Therefore, before the Ld. Forum below it was the only dispute to adjudicate whether the consideration money was for Rs.4,75,000/- or it was increased or enhanced to Rs.9,00,000/- or not.

The Ld. Forum below has correctly observed from the documents and pleadings that the Complainants paid Rs 2,75,000/- and the balance amount for Rs. 2,00,000/- is lying with the OP-6. In the written version of the Ops have mentioned that in the evening of 05.03.2001 the consideration money was mutually agreed at and increased to Rs. 9,00,000/- in a meeting where the Complainant and all the Ops were present. It was settled initially that the floor of the flat in question will be furnished with mosaic, but later the Complainants requested the OP-5 to fix marble and according to such negotiation the Complainant-1 paid a sum of Rs. 2,25,000/- in cash to the IOP-5. On the said evening and accordingly a money receipt was issued by the OP-5 to the Complainant from where it is evident that the total consideration money was fixed at Rs.9,00,000/- and not Rs. 4,75,000/-. It has also been stated that the lessee paid Rs. 75,000/- and Rs. 2,25,000/- on 05.03.2001 in favour of the OP-5 and again Complainant-1 paid Rs.2,00,000/- to the OP-5 and Rs. 2,00,000/- is lying with the OP-6. Therefore, the total consideration money arrived at Rs. 9,00,000/- as per mutual and verbal agreement by and between the parties and out of the said amount Rs. 5,00,000/- has already been paid by the Complainant. The Forum below has arrived at a correct arithmetical calculation that the Complainant-1 has already paid Rs. 3,00,000/- on 05.03.2001, Rs. 1,00,000/- on 26.03.2001 and Rs. 2,00,000/- is lying with the SBI-OP-6. therefore we are also convinced that the Complainant aid a sum of Rs. 6,00,000/- out of the entire consideration and the balance due is of Rs. 3,00,000/-, which the Complainants are liable to pay before execution and registration of the lease deed for 99 years to the OP nos. 1-5.

(as translated by the revisionists)

15. The onus of providing correctly translated copies of the Orders of the two lower fora was on the revisionists.

Notwithstanding the apparent mistakes and errors in translation, it is readily and conclusively evident that the two fora determined the total consideration amount to be Rs. 9,00,000/- and the total amount paid by the complainants to be Rs. 6,00,000/-. Accordingly the balance amount due from the complainants to the respondents no. 1 to 5 (opposite parties no. 1 to 5) was Rs. 3,00,000/-. The District Forum ordered that on payment of the balance amount of Rs. 3,00,000/- lease of the subject flat may be executed and registered by the respondents no. 1 to 5 in favour of the complainants.

16. This revision has been filed by the complainants under section 21(b) of the Act 1986 against the Order dated 16.05.2011 of the State Commission. Section 21 (b) reads as below:

….to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

17. We find the Orders of the two fora below to be well-appraised and well-reasoned. After re-appraising the evidence, the State Commission concurred with the District Forum.

We note in particular the observations of the two fora quoted in paras 13 and 14 above.

We also note specifically that the fundamental issue of fact, of the total amount due from the complainants to the respondents no. 1 to 5 (opposite parties no.1 to 5) and the total amount paid by the complainants to the respondents no. 1 to 5 (opposite parties no. 1 to 5), has been appraised and determined by the two fora below.

Within the meaning and scope of section 21 (b), we find no grave error in appreciating the evidence by the two fora below, as may cause to require re-appreciation of the evidence in revision. On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.

18. There is no reason evident to interfere with the concurrent findings of the District Forum and the State Commission.

19 The application for referring the case for mediation, being misconceived and devoid of merit, is dismissed.

20. The revision petition, being misconceived and devoid of merit, is dismissed.
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