S. Balwant Singh vs Kanpur Development Authority

PETITIONER is the brother of late Kalawati who was the complainant before the District Forum, where she had filed a complaint alleging deficiency in service on the part of the respondent Kanpur Development Authority (hereinafter referred to as KDA).

IT is not in dispute that the deceased Kalawati had applied for allotment of a EWS flat in 1983 after depositing a sum of Rs. 1,000 as earnest money. At that time, the price of the house was estimated at Rs. 12,000. IT was stated in complaint that the allotment letter never reached her; in fact it was delivered to some one else and some other person is living in that flat. In the year 1991, the deceased Kalawati received a notice for depositing of Rs.2,400 along with Rs. 2,500 as miscellaneous expenses and Rs. 1,200 towards interest. The complainant deposited only an amount of Rs. 2,425 and did not deposit the amount of interest as according to her she was not a defaulter. Further an amount of Rs. 8,575 was deposited with UCO Bank on 18.1.1992. IT appears, in between the allotment was cancelled, which was restored on application but the price payable by the allottee/complainant was raised to Rs. 31,400, i.e., the current price of the flat. IT is the case of the complainant that price of the house was Rs. 31,400 was not acceptable to her. Arbitration proceedings were initiated at the instance of the complainant and Arbitrator gave the award which was not acceptable to the complainant and since after depositing the total price of the house valued at Rs. 12,000, possession of the house was not being given to the complainant, a complaint was filed in the year 2002 before the District Forum with a prayer for delivery of possession of flat No. B-411, EWS after getting it repaired and praying that allotment be made at the original price Rs. 12,000 and not more. A prayer for compensation of Rs. 1 lac was also made. The matter was contested by the respondent. Several points were raised before the District Forum, who after hearing both the parties, allowed the complaint by directing the respondent to receive Rs. 19,416 along with interest @ 15% p.a. and deliver the possession as also executed the Sale-Deed in favour of the complainant. Aggrieved by this order/not satisfied with this order, both the parties filed two separate appeals before the State Commission, who after hearing the parties dismissed the complaint filed by the petitioner and allowed the appeal of the respondent and set aside the order of the District Forum. It is in these circumstances, this revision petition has been filed before us.

We heard the brother of the deceased complainant. It is not in dispute that as per material on record, the original complainant allottee Km. Kalawati died on 28.5.2005 as per death certificate brought on record. Again as per material brought on record there is an application dated 11.9.2006 filed by the petitioner before the State Commission declaring him to be the sole legal representative of the deceased, there being no other relative. It is not in dispute that the petitioner had filed the appeal way back in 2004 and it is he who has been pursuing the matter before different Consumer Fora. It is also not in dispute that the complainant died in May, 2005 and application for bringing the LRs on record is dated 11.9.2006, i.e., after a period of about 1 year and three months. This application is neither supported by any affidavit nor is there any application for condoning the delay in filing the said application. Appeal filed before the State Commission had already abated.

BE that as it may, we see on record, that an ''Agreement'' had been entered into between the parties whose last printed material reads as follows : "The possession of said house shall not be given to the allottee till the final payment and registration it is sole responsibility of KDA to watch the property to keep safe from encroachment. For which the allottee would pay Rs. 50 p.m. if the allottee wants to watch the encroachment he will furnish an Indemnity Bond it is sole option of JS (Sales) to accept it or not. If any breach of contract is found the action will be taken to back the aforesaid house."

As per this agreement, the price of the flat was Rs. 31,416 and as per the entry in the agreement the possession was to be given after receipt of the final payment. Admittedly, not a penny more has been given over and above Rs. 12,000, given way back upto the middle of 1992.

IT was stated before us by the petitioner that the petitioner and his sister were literally taken to a closed room and were forced to sign this agreement. We are unable to sustain this sort of wild allegation as this is not substantiated by any material on record, nor any such allegation made anywhere in the documents brought on record. To the contrary what we find, is that not satisfied with the ''price'' part, the powers of the Vice-Chairman of KDA were invoked as Arbitrator and to this effect a letter dated 27.8.1992 was filed by the deceased complainant under provisions of para 19 of the sale-cum-lease-agreement, making the Vice Chairman, KDA as a sole Arbitrator. The award passed by the Arbitrator is on the record through which the Arbitrator dismissed the prayer of the complainant that the house be allotted at old price. The allottee was given time upto 31.3.1993 to deposit the total amount as given in the agreement and get the agreement executed and thereafter take possession. Two points arise for our consideration. Firstly, once a ''Consumer'' has invoked the jurisdiction of the Arbitrator, can he still file a complaint against the order of the Arbitrator before a Consumer Fora? In my view, the answer is unqualified ''No''. Section 3 of the Consumer Protection Act, 1986 does provide for additional remedy but it is for the person to decide as to which Forum to opt for. If the petitioner and his ''predecessor-in-interest'' has invoked the provisions of arbitration, then Section 3 of the CPA, 1986 will not help the ''Consumer''. If the complainant was not satisfied with the award of the Arbitrator then the remedy does not lie by way of filing a complaint before the Consumer Forum. Consumer Fora are not Appellate Authorities of the Arbitrator. Forum hopping is not envisaged under the provisions of CPA, 1986. Secondly, it is also to be noticed that between 1992, when the Arbitrator passed the award, and in 2002, when the complaint was filed before the District Forum, not a penny has been deposited in compliance with the order of the Arbitrator or for that matter in terms of the sales-cum-lease agreement. What has been the petitioner doing for almost 10 years between 1992 when the award is passed by the Arbitrator and 2002 is not made known except some correspondence and that too made in 2000 between the parties. It is settled law that the correspondence does not extend the time limit. Complaint filed in 2002 by the complainant was clearly time-barred.

IT is again made clear that if the petitioner was nor satisfied with the award of the Arbitrator then the remedy lies in proceeding against that order of the Arbitrator, as per law. No complaint under Consumer Protection Act is maintainable.

IN the aforementioned circumstances, we find no merit in this revision petition, which is dismissed. Petitioner shall be free to seek relief/ remedy against the order of the Arbitrator as per law on the subject. Revision Petition dismissed.