Plz help me in legal matter.....
Querist :
Anonymous
(Querist) 21 June 2010
This query is : Resolved
Respected Members, I am an advocate, I want an advice for appeal against the National Commission’s order in Supreme Court, Kindly give me fare advice for my own consumer case mentioned below…
Case: - The case is regarding mutation of the my late father’s property which comes under leasehold land Port Trust working under central Govt. for Ministry of Commerce and is managed by a Port Trust with a Chairman as its head.
After completing the due process we have been given permission for transfer from the port trust, and we have made the sale deed on 23/08/2002 of the property including the tenanted portion of the property, copy of the same was sent to trust for mutation in their record but the trust is denying the mutation with the reason that “the civil suit is pending regarding that property in the court between the old landlord (from whom we have purchased the property) and the tenant, so we can mutate the plot after the disposal of the same.” Moreover neither we nor port trust is the party in the suit pending before the court, and tenanted portion is also mentioned in the lease deed with which we have purchased the property.
Against such reply of the trust we have filled complaint for mutation of the property on 08/03/2006 under section 2 d (ii) of Consumer Protection Act, on the ground of consumer “as beneficiary of such services other than the person who hires the services for consideration paid”, as the transfer fees is being paid by us as purchaser to the trust whereof they have issued receipt in the name of the old lease holder vendor.
Consumer Protection Act
section 2 d (ii) [Hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other then the person who 8[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person wo avails of such services for any commercial purpose];
Where An fair and justified order has been passed in our favor from District Consumer Forum the opposite party filled an appeal in state commission, where though legally all points were in our favor, but somehow state commission has issued order against us, while giving reason “the party in the suit cannot be said to be consumer”, due to new plea being taken up by the respondent’s lawyer. I cannot understand that the how state commission can issue such an order on the ground that we cannot be considered as a “consumer”, when the Dist. Consumer Forum has admitted our complain and after looking towards the fact has justified the matter in our favor?
Then after we have filed an appeal before the National Commission, where the National Commission has not looked into the fact of the matter, dismissed the appeal on its admission date itself, without looking towards the documentary proofs, citations & Legal aspects being taken up by us in the state commission. It just relied on the state commission’s order on only one point that “the party in the suit cannot be said to be consumer”. Then we filled review petition before the national commission again to get it justified again, but It was again dismissed by the commission with reason that “ petitioner seek to reargue the matter, which is not the scope of a review petition”.
So, I need an advice whether the ground I have taken for the above matter is right? And what step I should take now for the above matter……
Daksh
(Expert) 21 June 2010
Dear Anonymous,
You have not mentioned as to whether the trust has brought any material on record to the effect that it is being estopped for any reason (that during pendency of the civil suit the property cannot be mutated).
Secondly it seems that the National Comission seems to have acted mechanically without applying its mind considering the facts of the case in totality.
In my opinion before Supreme Court like what has happened in National Commission please do put across your view point that in grounds as well as in prayer clause "in light of the fact that the National Commission" has mechanically dismissed our case without considering the merits of the case and giving reasoned order has failed to render justice hence this petition.
Best Regards
Daksh
Raj Kumar Makkad
(Expert) 21 June 2010
I cannot become agree with you and Daksh on the reason that when remedy is available under specific act deal then general law cannot be invoked. In your matter, Port Trust Act is applicable wherein neither you are not consumer nor trust is service provider. In case mutation has been denied on the ground of pendancy of a civil suit between your earlier landlord and tenant, you can become a party to that suit and can get the pending controversy dissolved as soon as possible so that desired relief may be provided to you.
The decision delivered by State Commission as well as National Consumer Commission are purely legal and justified.
Daksh
(Expert) 21 June 2010
Dear Anonymous,
Even I could have given you advice that all the doors for you have shut.
But there is something which is called the art of court craft you cannot make the clock run anticlock wise let by gone be bygone and you should and must take the final chance before Supreme Court and alternatively in the prayer clause in view of the doubt raised by Raj you may include in the ground and in prayer clause that in case this Apex Court hold that equal efficacious remedy is available in civil law the liberty be granted to the petitioner and as such you will be able to cover up the issue of limitation as well.
Best Regards
Daksh
