Consumer Protection Act, 1986 – s.2(1)(d) – Respondentcomplainant took a housing loan of Rs.17,64,644/- from ICICI Bank and purchased a flat – Respondent and the borrower entered into an Agreement for the sale of the flat for Rs.32,00,000/-, Rs.1 Lakh paid by borrower – Appellant and the borrower entered into a Home Loan Agreement wherein the appellant agreed to grant a loan of Rs.23,40,000/- to the borrower – On request of the borrower, Rs.17,80,000/- were transferred by the appellant to the Bank – Respondent filed Complaint praying for directions to the appellant to pay compensation due to the loss caused to him for non-payment of the balance Rs.13,20,000/- under an alleged Tripartite Agreement – NCDRC allowed the complaint – Sustainability: Held: Impugned order not sustainable, set aside – A conjoint reading of all the agreements concludes that the essential transaction of sale was between the respondent and the borrower – Respondent, having no privity of contract with the appellant, cannot be termed a ‘consumer’ under the Act – Even the purported Tripartite Agreement, relied upon by the 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 – Appellant’s liability under the Agreement for sale was restricted only to satisfying the dues of the respondent with Bank which sum was in fact quantified at Rs.17,87,763/- and in anyway, could not have exceeded Rs.23,40,000/- – NCDRC could not have held that the appellant was liable to pay Rs.31,00,000/- both to the Bank as well as to the respondent, who was not a party to the ultimate sanction of the loan by the Home Loan Agreement between the appellant and the borrower. [Paras 17, 19, 20] Consumer Protection Act, 1986 – Non-joinder of borrower in proceedings before NCDRC – Effect of:
Held: In the instant case, if the borrower had been arrayed as an Opposite Party in the NCDRC, the question of whether a Tripartite Agreement was duly executed and existed or not, could perhaps have been answered – In view of the borrower being the purchaser of the flat in question and party to the MoU, the Agreement for Sale, the Home Loan Agreement and the purported Tripartite Agreement, he was, at the very least a proper party, but looked at from the lens where the appellant denied the very existence of the Tripartite Agreement, the borrower being the sole link between the respondent and the appellant, the borrower would be a necessary party in the complaint. [Para 23]
Consumer Protection Act, 1986 – s.24A – Limitation period – Discretion of NCDRC in condoning delay – Scope – On facts, purported Tripartite Agreement was dated 09.02.2008 – Cause of action statedly had arisen in/by April/May, 2008 – Respondent filed complaint under the Act on 16.04.2018:
Held: 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 – In the present case, despite the appellant raising the issue of limitation, the impugned order is silent on it – Respondent was agitating the dispute before, inter alia, the Banking Ombudsman, Reserve Bank of India and even the High Court – Thus, at the initial stage(s) of hearing, he ought to have satisfied/attempted to satisfy the NCDRC on the delay and the NCDRC ought to have passed a reasoned order condoning the delay or refusing to condone the delay. [Para 22]
Consumer Protection Act, 1986 – Consumer Protection Act, 2019 – Arbitration and Conciliation Act, 1996 – Consumer dispute – Arbitration, if provided under the agreement/document, to be resorted to at the choice of the ‘consumer’ only:
Held: Even in a consumer dispute under the 1986 Act, or for that matter, the 2019 Act, arbitration, if provided for under the relevant agreement/document, can be opted for/resorted to, however, at the exclusive choice of the ‘consumer’ alone. [Para 23]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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