9911796707
TMI Blog2025 (3) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... ix Hundred Forty-Four) from ICICI Bank, Malad, East Mumbai Branch. In February 2008, one Mr. Mubarak Vahid Patel (hereinafter referred to as the 'borrower') approached the respondent to purchase the flat for a consideration of Rs.32, 00, 000/- (Rupees Thirty-Two Lakhs). On 09.02.2008, the respondent and the borrower entered into a Memorandum of Understanding (hereinafter referred to as the 'MoU') for sale of the flat. On the same day, a Tripartite Agreement was purportedly entered into between the respondent, borrower and the appellant. Subsequently, the respondent and the borrower entered into an Agreement for Sale dated 12.02.2008 for the sale of the flat for a consideration of Rs.32, 00, 000/- (Rupees Thirty-Two Lakhs). Out of the total consideration of Rs.32, 00, 000/- (Rupees Thirty-Two Lakhs) Rs.1, 00, 000/- (Rupees One Lakh) was paid through a post-dated cheque dated 12.02.2008 and for the remaining Rs.31, 00, 000/- (Rupees Thirty-One Lakhs), the borrower approached the appellant for a housing loan. 3. The appellant and borrower entered into a Home Loan Agreement dated 28.02.2008, by which the appellant agreed to grant a loan of Rs.23, 40, 000/- (Rupees Twenty-Three Lakhs F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent preferred Civil Appeal No.1593 of 2023 Snehasis Nanda v M/s Citicorp Finance (India) Ltd. in this Court against the Impugned Order seeking enhancement of the amount awarded, which was dismissed on 17.04.2023. SUBMISSIONS BY THE APPELLANT: 6. Learned senior counsel Mr. Ritin Rai, for the appellant, submitted that the Impugned Order suffers from several infirmities and ought to be set aside. It was argued that the NCDRC failed to consider that the respondent is not a 'consumer' of the appellant within the meaning of Section 2(1)(d) of the Act. The MoU and the Agreement for Sale were purportedly entered into between the respondent and the borrower. The appellant is admittedly not a party to these and has undertaken no obligations thereunder. Similarly, the respondent is not a party to the Home Loan Agreement entered into between the appellant and the borrower. It was submitted that no service was ever provided by the appellant to the respondent and hence the respondent does not fall under the definition of 'consumer' under the Act. 7. It was argued that in such scenario, the NCDRC had concluded, without any evidence, that the appellant and the respondent were 'possibly' pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without which the appellant was not supposed to process the home loan application on the flat, as the said flat was mortgaged with another bank, i.e., ICICI Bank. The NCDRC has rightly upheld the existence of the Tripartite Agreement, after finding supporting evidence in the complaint. On the question raised by the appellant on the respondent's status as a 'consumer' under the Act, the submission is that this Court in Order dated 06.09.2019 passed in Civil Appeals No.10408-10409 of 2018 held in his favour on this point. 12. It was argued that the appellant has deliberately misled all fora in order to hide the existence of the Tripartite Agreement dated 09.02.2008 and to escape the liability to pay. Prayer was made to dismiss the appeal by the respondent. ANALYSIS, REASONING & CONCLUSION: 13. We have heard learned senior counsel for the appellant and the respondent-in-person at length. 14. The lis before this Court basically can be broadly classified under two distinct heads. Firstly, as to whether the complainant would come under the definition of 'consumer' in terms of the Act. Secondly, assuming the first question is answered in the affirmative, whether any liability rested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er side, they will also be considered before arriving at the final decision. However, the National Commission ought not to have disposed of the matter at the admission stage. We, therefore, allow these appeals, set-aside the orders of the National Commission and restore the matter back to the file of the National Commission, which shall be decided in accordance with law. We have considered the matter only from the perspective whether prima facie it is evident that the appellant is a consumer or not. The entire matter has to be gone into and our prima facie view shall not debar any of the parties to submit material and prove it to the contrary. The entirety of the matter shall be gone into by the National Commission on merits at the appropriate stages. xxx' ( emphasis supplied ) 16. A bare glance at the Order dated 06.09.2019 passed in Civil Appeals No.10408-10409 of 2018 makes it clear that this Court had nowhere conclusively held that the respondent-complainant was a 'consumer' under the Act. All that this Court did was to observe, upon perusing the documents produced before it, that it was of the prima facie view that the appellant was a 'consumer'; that such view w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion that the essential transaction of sale was between the complainant-respondent and the borrower who was the buyer of the flat of the complainant-respondent for an agreed consideration of Rs.32, 00, 000/- (Rupees Thirty-Two Lakhs). In the specific factual setting, the respondent, having no privity of contract with the appellant, cannot be termed a 'consumer' under the Act. This alone was sufficient to dismiss the complaint. In Indian Oil Corporation v Consumer Protection Council, Kerala, (1994) 1 SCC 397, it was held that as there was no privity of contract between the concerned parties therein, no 'deficiency' would arise and the action (complaint) would not be maintainable before the concerned Consumer Forum. In Janpriya Buildestate Pvt. Ltd. v Amit Soni, 2021 SCC OnLine SC 1269, the Court held : '25. We have indicated the scheme of the Act. A claim can succeed in a case of this nature if the consumer establishes deficiency of service. No doubt, the law giver contemplates other elements as contemplated in the definition of the word 'complaint'. The word 'deficiency' has been widely worded. Equally so, is the word 'service'. A statute of this nature must, indeed, if possible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erential findings, as it were, which the District, State and National Commission rendered. The circumstance that a certain kind of argument was put forward or a defence taken by a party in a given case (like the appellant, in the case) cannot result in the inference that it was involved or culpable, in some manner. Special knowledge of the allegations made by the dealer, and involvement, in an overt or tacit manner, by the appellant, had to be proved to lay the charge of deficiency of service at its door. In these circumstances, having regard to the nature of the dealer's relationship with the appellant, the latter's omissions and acts could not have resulted in the appellant's liability.' ( emphasis supplied ) 19. Further, the purported Tripartite Agreement, relied upon by the complainant-respondent himself, states that the appellant would only pay the foreclosure amount, out of the total loan amount sanctioned to the borrower, to ICICI Bank for or on behalf of the borrower towards foreclosure of respondent's loan facility with it. No further liability to pay any amount directly to the complainant-respondent was even envisaged in the Tripartite Agreement. Thus, ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay. ' ( emphasis supplied ) 22. Therefore, while the NCDRC is competent to condone any period of delay in filing a complaint beyond two years from the date when the cause of action arises, the discretion is circumscribed by twin conditions: (i) that the complainant satisfy the NCDRC that he had sufficient cause for not filing his complaint within such period, and; (ii) that the NCDRC record the reasons for condoning such delay. We have perused the ordersheets of the NCDRC pertaining to the complaint at hand. Neither reasons nor a formal order condoning delay is forthcoming, either in the ordersheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... si-judicial functions. It is not necessary for the purpose of this appeal to notice the distinction between a writ of certiorari and a writ in the nature of certiorari: in either case the High Court directs an inferior tribunal or authority to transmit to itself the record of proceedings pending therein for scrutiny and, if necessary, for quashing the same. It is well settled law that a certiorari lies only in respect of a judicial or quasi-judicial act as distinguished from administrative act. The following classic test laid down by Lord Justice Atkin, as he then was, in King v. Electricity Commissioners [(1924) 1 KB 171] and followed by this Court in more than one decision clearly brings out the meaning of the concept of judicial act: "Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs." Lord Justice Slesser in King v. London County Council [(1931) 2 KB 215, 243] dissected the concept of judicial act laid down by Atkin, L.J., into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for, not being a party, it will not be liable to contempt. In these circumstances whoever else is a necessary party or not the authority or tribunal is certainly a necessary party to such a proceeding. In this case, the Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition. 9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasijudicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it. Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any or that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be named in the petition. The relevant Rules read thus: Rule 3. Application under Article 226 of the Constitution shall be registered as Miscellaneous Judicial Cases or Criminal Miscellaneous Cases, as the case may be. Rule 4. Every application shall, soon after it is registered, be posted for orders before a Division Bench as to issue of notice to the respondents. The Court may either direct notice to issue and pass such interim order as it may deem necessary or reject the application. Rule 5. The notice of the application shall be served on all persons directly affected and on such other persons as the Court may direct. Both the English rules and the rules framed by the Patna High Court lay down that persons who are directly affected or against whom relief is sought should be named in the petition, that is all necessary parties should be impleaded in the petition and notice served on them. In "The Law of Extra-ordinary Legal Remedies" by Ferris, the procedure in the matter of impleading parties is clearly described at p. 201 thus: "Those parties whose action is to be reviewed and who are interested therein and affected thereby, and in whose possession the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint before the judicial authority, or go for arbitration. This option is not available to the builder, as they are not "consumers", under the 2019 Act. It is the respondent here Smt B. Udayasri who has to make a "choice" between submitting before the private fora i.e. the Arbitration Tribunal or to make a complaint before the Consumer Forum, which is a public fora. She has chosen to go to the latter. Her reply before the Telangana High Court on the Section 11 application of the builder is not her submission to the arbitration process. In her reply, she informs the High Court of the complaint made by her as a consumer before the District Consumer Forum, which is a "judicial authority" and hence Section 8 of the Arbitration Act, 1996 would come into play and not an application under Section 11 of the Arbitration Act, 1996. xxx 35. It was held that the 1986 Act was enacted to provide better protection of the interest of consumers and for providing a redressal mechanism, which is cheaper, easier, expeditious and effective. For this purpose, various quasi-judicial forums were set up at district, State and national level with a wider range of powers vested in these Judicial A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng which legislation never intended cannot be accepted as side wind to override the settled law. The submission of the petitioner that after the amendment the law as laid down by this Court in National Seeds Corpn. [National Seeds Corpn. Ltd. v M. Madhusudhan Reddy, (2012) 2 SCC 506: (2012) 1 SCC (Civ) 908] is no more a good law cannot be accepted. The words 'notwithstanding any judgment, decree or order of the Supreme Court or any court' were meant only to those precedents where it was laid down that the judicial authority while making reference under Section 8 shall be entitled to look into various facets of the arbitration agreement, subject-matter of the arbitration whether the claim is alive or dead, whether the arbitration agreement is null and void. The words added in Section 8 cannot be meant for any other meaning." Emaar-3 [Emaar MGF Land Ltd. v . Aftab Singh, (2019) 12 SCC 751: (2018) 5 SCC (Civ) 652] though ends with a caveat, where it leaves the option with the party who may have an option to choose between a public or private forum, may consciously choose to go for private fora. This is what it says: (SCC p. 783, para 63) "63. We may, however, hasten to add that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
