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TMI Blog2004 (12) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... able under Section 17 Sub-section (1-A) of the Registration Act incorporated through amendment by Act 48 of 2001 with effect from 24th September 2001, since the agreement was entered into thereafter in October 2001. Therefore, according to Mr. Bhattacharya, no relief can be had on the basis of such a document on two fold reasons -- One that the document is impounded and the other that the document is not a registered one, even if it is stamped subsequent to the impounding of the agreement. However, Mr. Talukdar points out that he has no instruction as to whether the document was registered or not. The scope : 2. Whether the document is registered or not, whether any such relief can be had on merit before the Consumer Forum within the scope and ambit thereof, are points to be agitated before the Consumer Forum or the appropriate Forum, as the case may be. We keep all these points, except the point relating to jurisdiction /maintainability, open. 2.1. We would like to confine ourselves only to the question raised before this Court in the writ petition following prayers formulated in the writ petition by the appellant herein, which we would prefer to quote as hereafter : "a. Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 17 of the Registration Act and such deed is also required to be stamped by necessary duty or fees as the case may be. Whereas, the jurisdiction of the District Forum as contained in Section 11 of the 1986 Act confines to entertain complaints relating to goods or services. According to him, it cannot stretch or extend to execution and registration of conveyance relating to immovable property. 3.1. Pointing out to the definition of 'deficiency' in Section 2(g), he points out that the relief which is being asked for before the Consumer Forum does not come within the scope and ambit of the said definition of deficiency. At the same time, he has also pointed out that the definition of 'consumer' under Section 2(d) does not admit a purchaser of an immovable property. Relying on the definition of 'service' under Section 2(o), he contends that even if service includes housing construction even then this particular petition would not be maintainable before the District Forum for the relief, which is conclusively a sale of an immovable property to be effected through the execution and registration of the conveyance. 3.2. He points out that the decision, reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the Consumer Forum. He then relied on the decision in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (Dead) Through LRs. AIR 2004 SC 448 to support his contention that the relief of execution and registration of deed of conveyance is not excluded from the jurisdiction of the Consumer Forum. He also relied on the decision in Olympus Superstructures Pvt. Ltd. v. Meena Vijay Khetan, [1999] 3 SCR 490 wherein it was held that even the Arbitrator can grant the relief of specific performance of sale of an immovable property. According to him, if the Arbitrator can grant such relief, then there is no bar for the Consumer Forum to grant the same relief. 4.2. He points out further that the question of registration and the impounding and payment of stamp duty are the matters which need not be gone into in this appeal and that the presentation by the executant or the holder of power of attorney or otherwise are matters irrelevant for the purpose of deciding as to whether the Consumer Forum can entertain this petition or not. Inasmuch as those are matters, which can be agitated before the Consumer Forum by the parties on the strength whereof the relief c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears to be a composite agreement, which include housing construction and various other services to be rendered by the developer and the owner conjointly under a scheme for consideration. Our attention has been drawn to the terms and conditions contained in various clauses of the agreement. It is apparent therefrom that the agreement, apart from the execution of conveyance, contains various other conditions for services and performances etc. preceding the execution of the conveyance, which is a consequence being fall out of the agreement pursuant to the agreed services, all of which, except the final outcome has already been performed. The execution and registration of the conveyance by the owner is a service to be performed by the promoter. Thus the agreement is not a simple agreement for sale of immovable property, but an agreement /contract for performances of various services including execution and registration of the deed of conveyance. 6.1. Admittedly, the flat has since been constructed; the possession of the flat has since been given to the consumer; the consumer has paid the full consideration therefor; that various other services have been provided in the flat namely su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to a party aggrieved and such relief can be had before the Civil Court. There is nothing in the Specific Relief Act which provides that the relief under the said Act cannot be had anywhere else other than the Civil Court. A contract can very well be enforced before an Arbitrator if it contains an Arbitration Clause. 7.2. This principle is recognized in the decision in Olympus Superstructures Pvt. Ltd. [1999] 3 SCR 490 (supra) wherein the Apex Court had held that the Arbitrator has every jurisdiction to grant relief of specific performance for sale of an immovable property. The Apex Court in the said decision had held in no uncertain term that the right to the specific performance of an agreement of sale deals with contractual rights and it is certainly open to the parties to agree, with a view to shorten litigation in regular Courts, to refer the issues relating to specific performance to arbitration. There is no prohibition in the Specific Relief Act, 1963 that issues relating to specific performance of contract relating to immovable property cannot be referred to arbitration. The Apex Court had occasion to deal with the decision in Lakshmi Narain v. Raghubir Singh, by Punjab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of deeds and documents and presentation and registration thereof on consideration, which, admittedly, the consumer had already paid. The consumer has also paid the stamp duty payable on the deed of agreement. By reason of the attempt to seek relief before the Consumer Forum, he has expressed his readiness and willingness to perform the part of the contract he is supposed to perform. The major part of the contract is already performed leaving only a minor part to complete the performance of the contract. Therefore, we do not think that it could not be taken out of the jurisdiction of the Consumer Forum relying on the definition of the words and expressions defined in the 1986 Act, as noted hereinbefore. 7.5. We may deal with those definitions as hereafter. But before doing so. we may refer to Section 11 of the 1986 Act, in order to construe the jurisdiction of the Consumer Forum. Section 11 confers on the District Forum jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed Rs. 20 lakhs. Thus it is not only the grant of Specific Relief but also the compensation in lieu thereof is well within the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of a house with an agreement for execution and registration of a conveyance then, after the delivery upon full payment of consideration, such execution and registration of a conveyance would be a service. It would still remain a service, even if it is contended that because of the amendment of Section 17 of the Registration Act, the agreement was unenforceable since practically for all reasonable purposes and fictionally the possession of the property has been delivered to the consumer pursuant to the agreement for the sale intending to convey title to the property and the formalities relating to the execution and registration of the conveyance, a service obligation remains to be performed. In such a case where the contract is almost performed in other respects and only the formalities for legally conveying title remains to be performed pursuant to the scheme formulated, as involved in the present case, the obligation of execution and registration of conveyance would be a 'service' within the meaning thereof as defined in Section 2(o). 7.10. Now coming to the definition of 'deficiency' as defined in Section 2(g), as rightly pointed out by Mr. Talukdar, it mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f legislation creating specific Forum for specific purpose in relation to specific matters. The Court is not supposed to limit the jurisdiction conferred upon it by the wisdom of the legislature unless it offends any statute or some oilier law. We are, however, of the view that these provisions of 1986 Act do not offend any statute or any other law. Our attention has not been drawn to any such situation. On the other hand, Section 3 of the 1986 Act provides that the provisions of the said Act shall be in addition to and not in derogation of the provisions of any other law. 7.13. From the discussion made above, it is clear that the proceeding is maintainable before the Consumer Forum. The decisions cited: 8. The decision in France B. Martins AIR 1999 SC 3243 (supra) was sought to be distinguished by Mr. Bhattacharya on the ground that the Apex Court was not called upon to decide the impact of Specific Relief Act in relation to the question raised before it. The Apex Court had answered the question simply in relation to the applicability of the limitation and as such this cannot be taken to be a decision binding when the provisions of Specific Relief Act is set up against it. A de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words 'in derogation of the provisions of any other law for the time being in force' would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure i.e. to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy. *** *** *** 16. It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction of civil Courts must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Further, where there is an express bar on the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. The remedies that are available to an aggrieved party under the 1986 Act are wider. For instance, in addition to granting a specific relief the forums under the 1986 Act have jurisdiction to award compensation for the mental agony, suffering etc. which possibly could not be given under the Act in relation to dispute under Section 90 of the Act. Merely because the rights and liabilities are created between the members and the management of the society under the Act and forums are provided, it cannot take away or exclude the jurisdiction conferred on the forums under the 1986 Act expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act, reference to which is already made above. When the decision of Dhulabhai case was rendered, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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