Geetadevi W/O Ashokkumar Agrawal ... vs Monika W/O Rakesh Agarwal And Anr
2022 Latest Caselaw 12783 Bom

                                               1                                 16wp7734.22

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH : NAGPUR
                              WRIT PETITION NO. 7734/2022
       (Geetadevi w/o Ashokkumar Agrawal & ors. Vs. Monika w/o. Rakesh Agarwal & anr.)

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Office Notes, Office Memoranda of Coram,                           Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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                              Mr. H. R. Gadhia, Advocate for petitioners.

                                        CORAM : VINAY JOSHI, J.

DATED : 08/12/2022.

Heard.

2. The petitioners have raised a challenge to the judgment and order dated 15.09.2022 passed in complaint Case No. CC/17/65 by the State Consumer Disputes Redressal. The Commission has allowed the complaint of the respondents, consumer and thereby, directed the petitioners to execute sale-deed within stipulated period of six months.

3. On the point of maintainability of the petition, reliance has been placed on the decision of the Supreme Court in case of Assistant Commissioner of State Tax and others Vs. Commercial Steel Limited, 2021 SCC Online SC 884 to contend that the Commission has exceeded its jurisdiction and thereby exposed to the writ jurisdiction of this Court. It is submitted that there was an alleged simpliciter agreement to sell of open plot on the basis of which Commission has entertained a complaint which itself is untenable. In this regard reliance has been placed on the decision of the Supreme Court in case of Ganeshlal 2 16wp7734.22

Vs. Shyam, (2014) 14 SCC 773 to impress that if the transaction is of sell of open plot simpliciter then the Consumer Protection Act would not apply. On facts, it is submitted that the alleged agreement was executed through power of attorney, however there was no power of attorney as such which has also been admitted by the power of attorney holder in his reply to the complaint. Moreover, it is submitted that though disputed agreement was executed on 22.11.2010, however after lapse of four years, the commission has entertained the time barred claim. It is submitted that since it was a simpliciter complaint seeking specific performance of contract, the jurisdiction lies to the Civil Court. To substantiate the said contention and order passed by National Consumer Disputes Redressal Commission in Revision Petition No. 112/2013 decided on 30.03.2013 has been pressed into service.

4. In view of above, issue notice to the respondents returnable after four weeks.

5. In the meantime, there shall be stay in terms of prayer clause "C" of the petition.

(VINAY JOSHI, J.) Gohane

JITENDRA BHARAT GOHANE Digitally signed by JITENDRA BHARAT GOHANE Date: 2022.12.08 19:32:28 +0530