NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 319 OF 2004 (Against the order dated 08/07/2004 in Appeal/ Complaint No.548/1999 of the State Commission, Ahmedabad) KHALID YAKUB DAMAD Prop. of M/s Unicorn Construction Builders & Developers Terrace Flat No.1 Kulsum Manjil, Charnipada Road Kausa, Mumbra, Thane-400612 ........ Appellant (s) Vs. 1. ABDUL HAMID BARMARE 2. MEHRUNISA SALIM EJAZ KHAN R/o 301, Ramlui Apartments 3rd floor, Pitamber Lane, Mahim, Mumbai - 400016 ........ Respondent (s) BEFORE: HON'BLE MR. JUSTICE K.S. GUPTA, PRESIDING MEMBER HON'BLE MR. S.K. NAIK, MEMBER For the Appellant : Mr. S.M.Z. Alam, Advocate with Ms. Anju Dhingra, Advocate For the Respondent : Mr. S.K. Sharma, Advocate Dated :04.04.2008 ORDER
PER S.K. NAIK, MEMBER
This appeal under section 19 of
the Consumer Protection Act, 1986 filed by the
opposite party is directed against order dated 8.7.2004 passed by the
Consumer Disputes Redressal Commission, Maharashtra State (hereinafter referred
to as the State Commission) vide which, allowing the complaint of the
respondents, the State Commission had directed the appellant/OP to refund a sum
of Rs.5,40,000/- to the respondent/complainants with interest @ 9% p.a. w.e.f.
31.3.1997 till realization. The State
Commission had further ordered the
payment of Rs.10,000/- as
compensation towards mental agony and
another sum of Rs.5000/- towards the cost of litigation.
Brief facts of the case ——-
As culled
out from the records of the case the facts are that the respondents entered
into an agreement with the appellant/opposite party who is the proprietor of
M/s Unicorn Construction, for the purchase of seven flats for a total
consideration of Rs.6,30,000/- in a building by the name of Silver Park at
Kausa, Thane. The said agreement was
entered into on 1.2.1997 and as per the respondent/complainants, the entire
total amount of Rs.6,30,000/- was paid to the opposite party-builder in cash on the same day. However, the appellant-builder on 31.3.1997
sent a letter to the respondent/complainants stating that the agreement entered
into on 1.2.1997 will have to be cancelled since there would be delay in
construction of the proposed Silver Park Building. He, however, offered them seven flats alternatively in a newly
constructed building known as Kulsum
Manzil at Kausa. The
respondent/complainants, there upon, were asked to enter into a new agreement
for the sale of seven flats, G1 to G-7 for the same earlier total consideration
of Rs.6,30,000/-. It is the say of the
respondent/complainants that the appellant/opposite party – builder gave
possession of only one flat i.e. G-3, and failed to honour his commitment with
regard to handing over of the remaining six flats. When repeated approach to
deliver possession or in the alternative
refund the balance amount with 50% interest failed to evoke any
response, the respondent/complainants issued a legal notice on the appellants
on 7.11.1997. They were surprised to
receive a reply from the advocate of the appellant builder on 18.12.1997
denying the existence of any agreement or receipt of Rs.6,30,000/-. Respondent/complainant thereafter issued a
second notice to which no reply was received.
To top it all they were shocked to receive a letter of the Dy.
Commissioner of Thane Municipal
Corporation stating that the building on which the Kulsum Manzil has been
constructed was unauthorized. The
complainants further alleged that the appellant/OP-builder had in a clandestine
manner disposed of the other 6 flats.
They felt that they have been completely duped and cheated. Therefore, they filed complaint No.548 of
1999 before the State Commission. The
State Commission accepted their complaint and granted the reliefs already
stated above.
It is this
order of the State Commission that is being challenged in Appeal before us by
the appellant-builder. Learned counsel for the appellant has assailed the order
of the State Commission on the ground that while the appellant/OP-builder had
all along been contending that the so called agreement was a false, fabricated
and forged document, the State Commission without any reference of the document
to the hand-writing expert compared the signature of the appellant at their own
level and concluded that the agreement was a genuine one. The counsel contends that the document
being only a photocopy, it could be
easily manipulated and the course adopted by the State Commission was not
permissible in law. He has further
alleged that the agreement was on a stamp paper which was purchased in the name
of someone else. The State commission
ought to have taken into account the serious objections and allegations of the
appellant that the documents were forged and should have discarded the
same.
The learned
counsel thereafter has referred to the lump sum payment of Rs.6,30,000/- in
cash for all the seven flats and argued that it is improbable that such a huge
amount is paid in one go that too in cash for the seven flats. In the normal
practice only advance is paid and the balance is handed over at the time of
execution of the sale deed and the delivery of the possession. This departure
from the normal practice, the counsel contends should have been noticed by the
State Commission to prove his point that the whole story was concocted.
The third limb of argument
advanced by the learned counsel relates to the two respondent/complainants
buying seven flats in one transaction which the counsel argues; amounts to
commercial transaction not falling within the jurisdiction of the consumer
forum. He has therefore, submitted that
the order of the State Commission be set aside.
Learned counsel for the
respondent/complainants on the other hand has contended that the order of the
State Commission is well reasoned. The
evidence produced by the parties has been examined by the State Commission in
depth. The findings and conclusions
arrived at are fully justified and
needs no interference. Shri Sharma,
learned counsel further contended that since the appellant/opposite party has
himself admitted that pursuant to an agreement one flat G-3 was delivered to
the respondent/complainant, he cannot now take the plea that no agreement
existed or that the agreement was fabricated.
Further, there is no reason stated by the appellant/opposite party as to
why no reply was filed, in response to the second legal notice. The counsel, therefore, submits that the
order of the State Commission be maintained.
We have
also perused the evidence and other records of the case on our file.
The
appellant/OP has assailed the order of the State Commission on three
counts. His first contention is that
the agreement dated 31.3.1997 (page 54) was a false, fabricated and forged
document. It was a Xerox copy and the respondent/complainant had avoided
producing the original agreement before the State Commission. Additionally, even the Xerox copy of the
agreement was in the name of some third person.
On this
point, it would be relevant to state that the State Commission in its order has
dealt with this averment in great detail.
Since the complainant had also alleged that the receipt for a sum of
Rs.6,30,000/- dated 31.3.1997 as also the undertaking dated 28.6.1997 are also
forged document, the State Commission in its order stated that these were bare
assertions made in the written statement.
It did not indicate as to how and in what manner the alleged forgery was
committed. It had not even been
remotely indicated in the pleadings that signatures appearing in the documents
were not his. The State Commission has
rightly held that the burden to prove lays upon the party who makes the
allegations of fraud and forgery which the appellant has not discharged
satisfactorily.
On the
point of the original documents not having been produced by the complainants
one has to take into account the fact admitted by the appellant that the
complainant purchasers are his close relatives. Besides, the appellant himself admits that he had entered into an
agreement for the sale of one flat G-3, but he has refrained from producing the
sale agreement. During the course of
argument, an impression was sought to be created that it was this agreement for
the sale of a single flat which has been made through manipulation to appear as
if it was an agreement for the sale of seven flats. However, no explanation is forthcoming as to why even this
agreement was not produced either in original or its Xerox copy by the
appellant. Having not produced the best
evidence in his possession, the complainant cannot be allowed to take advantage
merely because he alleged the documents produced by the complainants as forged.
The State Commission has also
observed that when the complainant issued a legal notice during Nov., 1997
asking for the handing over the possession of the remaining six flats as the
full payment of Rs.6,30,000/- had already been made, there was no immediate
serious protest/objections raised by the appellant. Even his written statement was very passive in as much as it did
not refer to any civil or criminal proceedings contemplated or initiated in the
matter. In the peculiar facts and
circumstances of the case, when the appellant has not explained as to how the
transaction with regard to atleast one flat being No.G-3 went through, the
State Commission was fully justified in coming to the conclusion that there was
a deal between the parties. In that scenario, there was also nothing illegal in
comparing the signature of the appellant as appearing on the agreement with the
admitted signature available in his pleadings and Vakalatnama. It has been the view of the National
Commission, expressed in a number of cases that a Consumer Commission need not
always be bound by strict rules of pleadings.
Procedure before Consumer Fora is inquisitorial in nature and not
adversarial. Principle of natural
justice and not procedural technicalities would prevail upon its proceedings to
dispense complete justice.
The other
two counts on the basis of which the State Commission should have disbelieved
and discarded the claim of the respondents relate to lump sum total payment of flats in cash and purchase of seven
flats by two of them. On the question
of payment when the appellant/OP himself admits that he sold one flat G-3 to
the complainants, but he neither produces the agreement for sale nor the part
payment receipt of Rs.25,000/- and further he does not effectively rebut the
evidence on affidavit produced by the complainant, it cannot but be held that
there was a valid payment. In so far as
the transaction being in cash is concerned, it is common knowledge that cash
transactions are widely prevalent in the real estate business and in any case
this objection would not be sustainable in a dispute of his nature. With regard to purchase of seven flats by
the two respondent / complainants again no evidence has been led to prove the same
by the appellant. As stated earlier,
the appellant himself admits that the respondent/complainants are his close
relatives. For reasons best known to
them, there has been a deal and agreement from which the appellant cannot
riggle out. Accordingly, we are of the
view that the objections raised by the appellant on the three counts are not
sustainable. The appeal, therefore
fails and is dismissed. We order
accordingly. Parties to bear their own
cost.
Sd/
(K.S.GUPTA, J)
PRESIDING MEMBER
Sd/
(S.K. NAIK)
MEMBER
St/23