State Consumer Disputes Redressal Commission
Marneni Sreenivasa Rao vs 1.Saripalli Vivekananda Kumar Raju on 11 October, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION : HYDERABAD.
C.C.NO.17/2016
Between:
Marneedi Sreenivasa Rao, S/o Venkanna Dora,
Occ.: Business, Aged about 40 years,
R/o H.No.IC-131, Erranmanzil,
Somajiguda, Hyderabad. .........Complainant
And:
1.Saripalli Vivekananda Kumar Raju, S/o Late S.Rajaratnam, Aged about 51 years, R/o Flat No.402, H.No.1-8-566 to 573, EGK Enclave, RTC X Roads, Azamabad, Hyderabad.
2. Dasari Sreenadha Rao, S/o Late D.Rosaiah, Aged about 60 years, R/o Flat No.402, H.No.1-8-566 to 573, EGK Enclave, RTC X Roads, Azamabad, Hyderabad.
3. M/s VEGE Realtors & Building, Rep. by its Y.Raghava Rao, R/o Flat No.488 "F" Block, Sahakaranagar, Bangalore, Karnataka State, presently residing at R/o Flat No.405, EGK, Enclave, Azamabad, Hyderabad -500 020.
4. Sri S.Sudhakar Reddy, S/o Not known, R/o Flat No.407, EGK Enclave, Azamabad, Hyderabad-50020.
5. Y.Raghava Rao, S/o Not known, Aged about 60 years, R/o Flat No.488 "F" Block, Sahakaranagar, Bangalore, Karnataka State, Presently residing at R/o Flat No.405, EGK, Enclave, Azamabad, Hyderabad -500 020. .
.........Opposite Parties Counsel for the Complainant : M/s. KRR Associates, Advocates. Counsel for the Opposite Party No.1 to 5 : M/s M.Hari Babu.
QUORUM:
HON'BLE SMT. MEENA RAMANATHAN, IN-CHARGE PRESIDENT & HON'BLE SRI K. RANGA RAO, MEMBER-JUDICIAL WEDNESDAY, THE 11th DAY OF OCTOBER TWO THOUSAND TWENTY THREE ******* Order : (Per Hon'ble SRI K. RANGA RAO,, MEMBER-JUDICIAL)
1. This complaint is filed by the complainant under Section 17 (1) (a) (i) of the Consumer Protection Act, 1986, praying this State 2 Commission to pass an award in the following terms:-
(a) to direct the opposite parties No.1 to 4 to honour the agreement dated 04.04.2007 and also the subsequent promise and to handover Ac.1-00 of developed land in Survey No.93, situated at Shettarahalli Village, Kasaba, Hubli, Devenhalli Taluk, Bangalore, Rural District, Karnataka State, within the time prescribed by this Commission and to execute necessary documents in favour of the complainant or in the alternative to refund the amount of Rs.37,70,000/- paid by the complainant , with interest at 24% per annum from the date of agreement i.e. 04.04.2007 till the date of realization;
(b) to direct the opposite parties No.1 to 4 to pay damages of Rs.1,00,000/- to the complainant for causing physical and mental agony in not honouring the agreement.
(c) costs of the complaint may be awarded; and
(d) such other relief or reliefs be granted as this Hon‟ble Commission deems fit and proper in the circumstances of the case.
The brief facts of the case are as follows:-
2. The succinct facts of the case of the complainant as per the averments of the complaint is that the complainant entered into an agreement with the opposite parties No.1 to 3 on 04.04.2007 for the purpose of purchasing Ac. 0-10 guntas (1/4th acre) of land out of Acs. 2-00 in Survey No.93, situated at Shettarahalli Village, Kasaba, Hubli, Devenhalli Taluk, Bangalore, Rural District, Karnataka State. The said land was purchased by opposite parties No.1 and 2 under the registered sale deed, dated 30.09.2006 vide document No.5713/2006. Under the said agreement, opposite parties No.3 & 4 are doing business in the name and style "M/s VEGE Realtors and Builders" and have agreed to develop the said land on behalf of the complainant. At the time of agreement itself, the complainant paid entire sale consideration of Rs.9,42,500/- to opposite party No.3 by way of cash. Subsequently, opposite party No.3 requested complainant who is an NRI (Non Resident of India) to purchase an extent of Ac. 1-00 land (40gunts) including 1/4th acre which was already purchased by him.3
3. The complainant being an NRI, at that point of time, agreed to purchase the remaining extent of land and paid the consideration of Rs.25,00,000/- by way of cheque and Rs.3,27,500/- by way of cash. The complainant demanded opposite party No.3 to execute an agreement in respect of the said transaction. But opposite party No.3 told the complainant that the project will be completed within no time and deliver the possession of developed Ac 1-00 extent of land (40 guntas) and that the complainant need not be worried about the money and the land.
4. The complainant left India believing the statement made by opposite party No.3, as he was resident of US at that point of time.
The transaction is supported by way of cheque and cash. The cheque issued by the complainant was encashed by opposite party No.3. The complainant further submits he invested his hard earned money in the project being an NRI working in the United States of America, as he has got intention to come back to India and to settle in Bangalore by constructing a house in Bangalore.
5. It is further case of the complainant that the opposite parties did not complete the development as per the agreement and did not hand over the possession of Ac. 1-00 extent of land as per the terms of the agreement. Eight years have been elapsed, but the opposite parties have not completed the project and handed over the possession of the land to him. The complainant having the close acquaintance with the son of the promoter/opposite party No.3 as a childhood friend and also believing the promise made by the opposite parties about the completion of the project within a short time, he did not insist for receipt for the cash paid by him. The subsequent mail correspondence with the son of 5th opposite party, establish the payment and transaction.
6. The complainant suspected that the opposite parties have no intention to complete the project and handover the possession of Ac 1-00 of the land to him. The complainant has been demanding opposite parties since August 2009 to honour the agreement, but the same was of no use. Then he got issued notice calling upon the 4 opposite parties to honour the agreement dated 04.04.2007 and also the subsequent promise to hand over Ac 1-00 of developed land within 15 days from the date of receipt of the legal notice or return the amount of Rs.37,70,000/- with interest at 24% p.a. from the date of agreement till now. The opposite parties No.1 to 3 though received the said notice they did not give any reply to the same. The notice of opposite party No.4 was returned with an endorsement "addressee not available".
7. The complainant further submits that he suffered huge loss and mental agony for the acts done by the opposite parties, which amounts to deficiency of service on the part of opposite parties No.1 to 4. The complainant after exhausting repeated attempts thought that filing the present Consumer Complaint is his only alternative remedy to get redressal of his grievance. The entire transaction took place at Hyderabad, at the Head Office of the 3rd opposite party, though the property is situated at Bangalore, therefore, he filed the present complaint before this Hon‟ble State Commission, for grant of reliefs which are mentioned at threshold.
8. On service of notices, opposite parties No.1 to 5 engaged the services of an Advocate Sri M.Hari Babu who filed vakalat for opposite parties No.1 to 5.
9. Opposite party No.3 filed the written version which was adopted by the opposite parties No.1, 2 and 5.
10. Though opposite party No.4 was represented by an Advocate, opposite party No.4 did not choose to file the written version on his behalf, despite completion of the mandatory period for filing the written version. Hence, this State Commission, by recording the same, posted the matter for evidence affidavit of the complainant.
11. Opposite party No.3 filed the written version specifically denying the averments and allegations made in the complaint, except, those which are specifically admitted by opposite party No.3, herein.
12. Opposite party No.3 submits in his written version as follows:- The complainant may be put to strict proof of the averments and allegations made in the complaint which is not maintainable as the same is barred by limitation. The transactions 5 between the parties are commercial in nature as such, the complainant is not a "Consumer" and this Hon‟ble State Commission, has no jurisdiction to entertain the complaint and decide the same under the Consumer Protection Act. There are no merits either on facts or on law, as such, the complaint is liable to be dismissed with exemplary costs.
13. The complainant and the opposite parties were having friendly relation and have various transactions between them. With the said good relation, the complainant with an intention to get the profit, approached the opposite parties No.1 to 3 and expressed his willingness to invest the monies in the business, which they accepted. Therefore, the complainant and the opposite parties No.1 to 3 entered into an agreement, dated 04.04.2007. As per this agreement, the complainant requested the opposite parties to carry out the intended business and he would make financial investments for the same. As per the said agreement, the opposite parties have to purchase land and convert the same into house plots by obtaining lay-out and other required permissions. The complainant will take 70% of the developed approved lay-out plots and the rest are for the developer. Thus, the transaction between the complainant and the opposite parties are commercial which is not permitted to be adjudicated in the Consumer Fora. The present complaint is liable to be rejected on this ground alone.
14. This Hon‟ble State Commission, has not got any jurisdiction to entertain the present complaint, as the same is filed on the contractual agreement dated 04.04.2007 which is barred by limitation, wherein, the land was offered for development to opposite parties No.3 to 5.
15. The complainant has not handed over the land for development under the said agreement, entered into between the complainant and the opposite parties No.1 & 2 herein. Since, the land was not delivered to the opposite parties No.3 to 5, the question of claiming deficiency of service against the opposite parties does not arise at all.
616. Opposite party No.3 represented by opposite party No.5 has already paid an amount of Rs.41,84,700/- (Rupees forty one lakh eighty four thousand and seven hundred only) to the complainant, towards full and final settlement of amount of Rs.25,00,000/- and Rs.3,27,500/-, through a receipt dated 30.08.2009, issued by the complainant. Therefore, in view of the receipt of the amount from the opposite parties No.3 & 5, the present complaint is not maintainable in law and liable to be dismissed summarily.
17. Even the opposite parties No.1 & 2 have already paid/refunded the amount of Rs.11,00,000/- to the complainant, towards the full and final settlement of the amount of Rs.9,42,500/- received by them, in the presence of opposite party No.5, for which the complainant issued a receipt dated 18.08.2014 to opposite parties No.1 & 2. Therefore, the complainant cannot make any claim whatsoever, against the opposite parties No.1 & 2 and the complaint is liable to be dismissed in limini.
18. The complainant suppressed the real facts and got filed the false complaint, to cause loss, hardship and subject this opposite party No.3 to mental agony. The real facts are as follows:-„On 04.04.2007 the complainant entered into an agreement with opposite parties No.1 to 3, whereunder the complainant has agreed to invest an amount of Rs.9,42,500/- to develop the land admeasuring Ac. 0-10 guntas (1/4th acre) from out of Acs.2-00 in Survey No.93, situated at Shettarahalli Village, Kasaba, Hubli, Devenhalli Taluk, Bangalore, Rural District, Karnataka State, which was purchased by opposite parties No.1 and 2 under a registered sale deed dated 30.09.2006 vide the document No.5712/2006 executed at Sub- Registrar, Devanhalli, Bangalore. The opposite party No.3 agreed to develop the purchased land into a residential lay-out as requested by the complainant. At page No.2 of the said agreement it is mentioned that the complainant has paid the sale consideration of Rs.9,42,500/- to opposite parties No.1 & 2 as an investment towards purchase of Ac.0-10 guntas of land (1/4th acre), including conversion and other incidental charges.. As per the recitals of the said agreement at Page No.3, the complainant was supposed to transfer/handover the said land of Ac.0-10 guntas in the name of opposite party No.3 to enable 7 them to apply for conversion, make residential layout and to obtain approval etc. from the concerned authorities of Govt. of Karnataka. Neither the complainant nor the opposite parties No.1 and 2 have so far handed over/transferred the said land to opposite party No.3 firm, for the reasons best known to them.
19. This opposite party No.3 as a developer can only develop the land as per the terms and conditions of the said agreement dated 04.04.2007 and if the land itself is not transferred/handed over/given possession to opposite party No.3 developer, opposite party No.3 cannot do any activity of development on the said land. The opposite party No.3 had no role to play if the possession of the said land is not handed over to the firm and no deficiency of service can be attributed to opposite party No.3, in view of the above.
20. The Acs. 2-00 of land in survey No.93 situated at Shettarahalli Village, Kasaba, Hubli, Devenhalli Taluk, Bangalore, Rural District, Karnataka State, is under litigation with the government, which is pending before the Karnataka Appellate Tribunal, Bangalore, since, the Asst. Commissioner, through his letter No.LRF/SR/(D) 24/09- 10, dated 04.07.2011, declared it as a Govt. Land. Aggrieved by the same, an appeal No.986/2012 is filed and the same is pending before the tribunal. The complainant is aware of pendency of above proceedings and due to the same he did not deliver the possession of the land to the opposite parties and filed the false complaint to cause loss and hardship to this opposite party No.3.
21. On 13.07.2007, the complainant gave a cheque for Rs.25,00,000/- and cash of Rs.3,27,500/- to this Opposite party No.3 towards working capital to run its day to day business on a condition to repay the same with 24% interest per annum. The complainant is indebted to several persons for various amounts, even before going to the USA. In the year 2007, the complainant went to US. The complainant lost his job and came back to India in 2009. The complainant told the opposite parties No.1 to 3 that he has to pay back his dues in cash to the third parties and insisted opposite parties No.1 to 3 to pay back the amounts due to him in 8 cash. Accordingly, opposite party No.5 on behalf of opposite party No.3 paid/arranged the cash on different dates commencing from 02.08.2009 and finally paid the entire principle amount of Rs.28,27,500/- with total interest @ 24% per annum, amounting to Rs.13,57,200/-, which comes to Rs.41,84,700/-, for which the complainant issued the receipt dated 30.08.2009, which is filed with this written version for the kind perusal of the Hon‟ble State Commission. It is pertinent to mention here that even the opposite parties No.1 and 2 refunded the amount of Rs.11,00,000/- in cash to the complainant on 18.08.2014 in the presence of opposite party No.5, which is acknowledged by the complainant through a separate stamped receipt. In view of the payment of the above said amount by the opposite parties No.3 & 5 to the complainant, the complainant has no right to file the present complaint against the opposite parties and the complaint is devoid of merits and is liable to be dismissed. The complainant has no right to file the present complaint since the contractual obligations between the parties to complaint, come into existence only after the possession of the land is handed over, therefore, the complainant cannot have any grievances under the alleged agreement dated 04.04.2007 and he should only approach the Civil Court and file a suit for specific performance of the contract, but not by way of filing the present complaint before this Hon‟ble Commission, alleging deficiency in service towards him by opposite parties.
22. With the above submissions, the opposite party No.3 prayed to dismiss the complaint with exemplary costs.
23. The complainant filed rejoinder to the written version of the opposite parties, which rejoinder is borne by record.
The complainant in the said rejoinder contended that the alleged repayment pleaded by the opposite parties is nothing but ruse invented for the purpose to present the case. The signatures on the receipts alleged to have been signed by the complainant is not true and those are forged and fabricated, taking advantage of the signature of the complainant available on the agreement, the copy of which is with Opposite Parties. The complainant has got 9 ample evidence to substantiate the alleged signatures on the receipts dated 30.08.2009 and 18.08.2014 do not belong to him. The complainant reserves his right to file the said evidence at the appropriate time. There were hardly two to three meetings at the time of money transactions between the parties after the agreement dated 04.04.2007 and subsequently there was no meeting between him and the opposite parties. The complainant submits that he paid the amount by way of cheques and cash. The opposite parties alleged to have paid the alleged amounts by way of cash under the alleged receipts. There is no whisper in the written version as to when and where the alleged amounts have been paid by the opposite parties to him. The attesters in the alleged receipts do not know him. The said fact itself shows that the alleged receipts are cooked up for the purpose of the present complaint. The complainant also submitted in the rejoinder that he is contemplating to initiate necessary action against the opposite parties with regard to the said alleged receipts. Except, denying the averments of the complaint, the opposite parties did not take any concrete defense to substantiate their case. As admittedly, the transaction took place under the agreement dated 04.04.2007 and part of cause of action arose in Hyderabad, his complaint is maintainable before this Commission.
24. During the course of trial, the complainant filed his evidence affidavit and got marked Ex.A1 to A12 to prove his case. On behalf of the opposite parties, evidence affidavit of Opposite party No.3 and 5 by name Sri Y.Raghava Rao, was filed and Ex.B1 to B4 got marked to prove the case of the opposite parties.
25. In view of the rival pleadings, contentions and evidence, the points that arise for consideration are :-
(1) Whether the complainant is not a "Consumer" and the dispute between the parties i.e. the complainant and the opposite parties is not a consumer dispute and whether the transaction took place between the complainant and the opposite parties under Ex.A1 Agreement is a commercial activity and whether the same falls under the 10 category of the expression "commercial purpose" which figures under the head Explanation in the definition of Consumer u/s 2(d) of the Consumer Protection Act, 1986? (2) Whether this State Commission has territorial jurisdiction to adjudicate upon the present consumer dispute?
(3) Whether the CC is barred by limitation? (4) Whether there is deficiency on the part of the opposite
parties towards the complainant and if so whether the complainant is entitled for the reliefs claimed by him in the complaint.
26. Before going to decide the points for consideration particularly the first point to see whether the complainant falls under the definition of Consumer u/s 2(d) of the Consumer Protection Act, 1986, at the very outset for the sake of clarification, the following few facts would need to be mentioned.
27. The complainant filed the complaint vide CC No.17/2016 as early as on 29.10.2015 against the opposite parties No.1 to 5 seeking the reliefs mentioned in the complaint. The same was numbered as CC No.17/2016 on 01.02.2016.
28. After the evidence on both sides was adduced by filing the respective affidavits and marking the documents and when the Consumer Complaint No.17/2016 was at the stage of hearing the arguments, the opposite parties after lapse of more than six years, being the petitioners filed an IA vide CC IA No.1924/2022 in CC No.17/2016 on 28.11.2022, under order -VII Rule 11 of CPC R/w section 49 of Consumer Protection Act, 2019, for rejecting the CC 17/2016 as not maintainable under Consumer Protection Act, contending that the complainant is not a Consumer and the transaction that took place between the complainant the opposite parties is a commercial activity and false under the expression "Commercial purpose".
29. This State Commission on contest and on merits dismissed the said IA No.1924/2022, vide orders dated 09.12.2022.
30. Paras 2 and 4 of the order in IA 1924/2022 are relevant which are extracted below for ready reference:
11Para 2. Heard both sides. Perused the material on record. The application is filed to decide the question of maintainability of the CC on the ground as to whether the complainant answers the description of consumer so as to attract the jurisdiction of this Commission as a preliminary issue pending disposal of the CC.
Para 4 "In the instant case (i.e. CC 17/2016) as already stated, the CC has been filed as long back in the year 2016 and the petitioner/opposite party has seriously contesting the same on all aspects. A detailed written version has been filed wherein, the present objection has also been taken. Evidence has been concluded and the CC is at the stage of arguments. Therefore, we feel that question of maintainability of the CC on the ground stated above can be decided along with main CC as first issue. With these observations, the application is dismissed".
31. Aggrieved by the same, the opposite parties No.1 to 5 preferred First Appeal No.134/2023 before the Hon‟ble National Consumer Disputes Redressal Commission, (NCDRC) New Delhi. The said appeal was also dismissed by the Hon‟ble NCDRC, vide its orders dated 15.02.2023 holding that "No doubt a plea has been taken in the written version filed by the Appellants/opposite parties herein that the complainant does not come under the definition of the word "Consumer" as defined in the Consumer Protection Act, 1986 but that issue is not required to decide as a preliminary issue under the provision of Consumer Protection Act, 1986. The Consumer Fora can decide that issue at the time of final hearing. The appeal lacks merits and the same is dismissed".
32. Aggrieved by the said orders of the Hon‟ble National Consumer Disputes Redressal Commission, the petitioners/opposite parties filed W.P.No.10900/2023 before the Hon‟ble High Court for the State of Telangana at Hyderabad. The Hon‟ble High Court disposed of the said W.P. holding at para 7 as follows:- "Given the specific observations made by the Commission that the objection raised by the petitioners (Opposite Parties) shall be considered and decided as a first issue while deciding the consumer case, we are not inclined to interfere with the said order (of the Hon‟ble NCDRC, vide Appeal No.134/2023, dated 15.03.2023). This 12 Bench only would like to emphasize that the State Commission shall ensure that a reasoned order be passed on the first issue and only if required, proceed further to decide the other further issues involved in the complaint case".
33. Heard arguments of both sides. The learned counsel for the complainant and the opposite parties have reiterated of their respective cases pressed into service in the complaint, re-joinder and the written version.
34. It is the specific case of the complainant that he entered into Ex.A1 agreement, dated 04.04.2007 with opposite party No.1 to 3 for the purpose of purchasing 10 guntas (1/4th Acre) of land out of Ac.2-00 of land in survey No.93 situated at Shettarahalli Village, Kasaba, Hubli, Devenhalli Taluk, Bangalore, Rural District, Karnataka State. The said land was purchased by the opposite party No.1 and 2 under Ex.A2 registered sale deed. Under the said agreement, the opposite parties No.3 & 4 are doing business in the name of M/s VEGE Realtors & Builders and they have agreed to develop the said land on behalf of the complainant. The complainant paid the entire sale consideration of Rs.9,42,500/- to opposite party No.3 by way of cash. Subsequently, the opposite party No.3 requested the complainant who was an NRI, to purchase an extent of land of AC.1-00 (40 guntas) including 1/4th acre which was already purchased by him. The complainant accepted the said request of the opposite party No.3 and agreed to purchase the remaining extent of 30 guntas of land and paid the consideration of Rs.25,00,000/- by way of cheque and a sum of Rs.3,27,500/- by way of cash.
35. It is the further specific case of the complainant that he demanded opposite party No.3 to execute an agreement in respect of the said transaction of purchasing further 30 guntas of land but the opposite party No.3 told him that the project will be completed within no time and they deliver the possession of the developed Ac.1-00 (40 guntas) of land and the complainant need not to be worried about the money and the land. Believing the said statement of opposite party No.3, the complainant being the resident of US at that point of time, left India. The cheque issued 13 by the complainant for Rs.25,00,000/- was encashed by the opposite party No.3.
36. It is the further case of the complainant that he put in, his hard earned money in the said project, as he has got intention to come back to India and to settle in Bangalore, so that he can construct a house in Bangalore.
37. It is also the further specific case of the complainant that the opposite parties did not complete the development as per the agreement and did not handover the possession of the Ac.1-00 of the land as per the terms of the agreement. Eight years have been elapsed but the opposite parties have not completed the project and not handed over the possession of the land to him. So he got issued Ex.A4 legal notice dated 24.09.2015 to opposite party No.1 to 5 calling upon them to honour the agreement dated 04.04.2017 and also the subsequent promise to handover Ac.1-00 of the development land within 15 days from the date of receipt of the said notice or in alternative to return to him, the amount of Rs.37,70,000/- with interest @ 25% per annum from the date of agreement i.e. 04.04.2007 till then, failing which he will be constrained to take appropriate action against them as per law.
38. It is also the further specific case of the complainant that opposite parties No.1 to 3 received the said notice but did not issued any reply to the same. The notice of opposite party No.4 was returned with an endorsement "addressee not available". Due to the acts of the opposite parties of not developing the Ac.1-00 of land as agreed upon by them and not handing over of the same to him, he was subjected to loss and untold mental agony and the said acts of the opposite parties, since amount to deficiency of service on their part towards him, he filed the present complaint seeking the reliefs mentioned in the complaint.
39. Now with regard to the stand of the opposite parties to the complaint and the claim of the complainant, the opposite parties admitted Ex.A1 agreement and the amounts mentioned to have been paid by the complainant to opposite parties No.1 to 3, but ofcourse, they have taken the stand that they have repaid the said 14 amounts in the form of cash to the complainant, which aspect need to be examined separately after deciding the preliminary issues.
40. At the very outset, it is to be clarified that the petitioners/opposite parties No.1 to 5 initially filed IA 1924/2022 in CC 17/2016 under order VII Rule 11 of C.P.C., r/w Sec.49 of Consumer Protection Act, 2019 with a prayer to reject the complaint CC 17/2016 as the complaint is not maintainable under Consumer Protection Act. Ofcourse, the said IA was dismissed by this State Commission and consequently, appeal preferred against the said order was also dismissed by the Hon‟ble National Commission and aggrieved by the same, the petitioners filed the Writ Petition before Hon‟ble High Court for the State of Telangana which was disposed of by holding that the State Commission shall ensure to pass a reasoned order on the first issue which is whether the complainant is a Consumer as defined u/s 2(d) of the Consumer Protection Act, 1986. We have referred to the particulars and quint essence of the orders in all the three i.e. Interlocutory Application, Appeal and Writ Petition above for ready reference.
41. At this juncture we want to make it clear that the opposite parties filed the said CC IA No.1924/2022 in CC 17/2016 under order VII Rule 11, r/w Sec.49 of Consumer Protection Act, 2019.
42. Sec.49 of the Consumer Protection Act, 2019 deals about the procedure applicable to State Commission. Sec. 49 (1) makes it clear that the provisions relating to complaints under sections 35, 36, 37, 38 and 39 shall, with such modifications as may be necessary be applicable to the disposal of the complaints by the State Commission. So let us look at what the said sections deal about.
43. Section 35 of Consumer Protection Act, 2019 deals about the manner in which the complaint shall be made;
Section 36 of Consumer Protection Act, 2019 deals about the proceedings before the District Commission;
15Section 37 of Consumer Protection Act, 2019 deals about the reference to mediation;
Section 38 of Consumer Protection Act, 2019 deals about the procedure on admission of the complaint;
Section 39 of Consumer Protection Act, 2019 deals about the findings of the District Commission;
At the cost of repetition with such modifications for the above sections as may be necessary, the State Commissions shall dispose of the complaints filed before it.
44. Sec.38(9) of the Consumer Protection Act, 2019 vests the powers of a Civil Court to a limited extent on Consumer Fora.
Sec.38(9) is extracted below for ready reference:- "For the purpose of this Section, the District Commission, shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, while trying a suit in respect of the following matters, namely:-
a. the summoning and enforcing the attendance of any witness and examining the witness on oath;
b. requiring the discovery and production of any document or other material object as evidence;
c. receiving of evidence on affidavits.
d. the requisitioning of the report of the concerned analysis or tests from the appropriate laboratory or from any other relevant sources;
e. issuing of commissions for the examination of any witness, or document and f. any other matter which may be prescribed by the Central Government.
45. At this juncture, we feel it relevant to refer to and look at Regulation No.26 (1) of the Consumer Protection Act, (Consumer Commission Procedure) Regulations, 2020. The said regulation makes it clear that in all the proceedings before the District Commission endeavor shall be made by the parties and their agent 16 to avoid the use of the provisions of Code of Civil Procedure, 1908 (5 of 1908);
"Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made their under".
46. A keen perusal of Sec.38(9) of the C.P.Act, 2019 and the Regulation 26(1) of the Consumer Protection Act, (Consumer Commission Procedure) Regulations, 2020, shows that Order VII Rule 11 of C.P.C., is not applicable to the proceedings before the Consumer Fora, but however, since the opposite parties raised a preliminary issue with regard to maintainability of the complaint contending that the complaint of the complainant is liable to be rejected at the threshold on the ground that the complainant is not a consumer as defined u/s 2 (d) of the Consumer Protection Act, 1986 and further in view of the direction of the Hon‟ble High Court for the State of Telangana in W.P.10900 of 2023, we are bound to decide the said preliminary issue first by passing a reasoned order on the same.
47. Point No.1 Before going to decide the preliminary issue which is whether the complainant is a consumer as defined u/s 2(d) of C.P.Act, 1986, we are of the considered view that the following material facts are relevant:
The opposite party No.3 filed written version to the complaint of the complainant and the same was adopted by the opposite party No.1, 2 and 5.
At para No.2 of the written version, it is mentioned that the complainant and the opposite parties were having friendly relation and having various transactions between them.
48. The complainant at para No.2 of his complaint stated that he has close acquaintance with the son of opposite party No.3 i.e. they are childhood friends.
49. In the case on hand Ex.A6, original agreement dated 04.04.2007 between the complainant and the opposite parties No.1 17 to 3 is crucial document which is expedient for deciding the 1st point. Ex.A1 is the Photostat copy of the said agreement. Hence Ex.A1 and A6 are one and the same.
Ex.A2 is an absolute sale deed, dated 30.09.2006 which was executed by and between Sri Muralidhar and Sri C.Dharmendra, being the vendors in favour of the opposite parties No.1 & 2.
50. A keen perusal of Ex.A2 sale deed shows that the above vendors being the absolute joint owners of land admeasuring Ac. 2-00 in survey No.93 sold the said land to opposite parties No.1 & 2 for a total sale consideration of Rs.3,60,000/-. The said Ac.2-00 of land in Survey No.93 is situated at Shettarahalli Village, Kasaba, Hubli, Devenhalli Taluk, Bangalore, Rural District, Karnataka State and the same is bounded by :-
On East : the part of the same property bearing survey No.93; On West : the part of the same property bearing survey No.93; On North : the property bearing survey No.73; On South : the property bearing survey No.94.
51. In the written version, it is mentioned that "the opposite party No.3 agreed to develop the purchased land into a residential layout as requested by the complainant".
Ex.A1 agreement dated 04.04.2007 is the sheet anchor of the whole issue/Lis involved in the present CC. We have scrupulously and meticulously scanned Ex.A1 agreement and the same shows that the said agreement was entered in between the complainant and the opposite party No.1 to 3.
52. The complainant was referred to as a 1st party and the opposite party No.1 to 3 were referred to as 2nd party.
At para No.3 on page No.2 of Ex.A1 agreement, it is stated that "whereas, the party of the first part (complainant) have paid a sum of Rs.9,42,500/- to party of the second part (opposite party No.1 to 3) towards the sale consideration of 10 guntas (1/4 acre) purchased by party of second part in survey No.93 admeasuring 18 Ac.2-00 situated at Shettarahalli Village, Kasaba, Hubli, Devenhalli Taluk, Bangalore, Rural District, Karnataka State, including conversion and other incidental charges".
At para No.4 on page No.2 of Ex.A1 agreement, it is mentioned that "whereas, M/s VEGE Realtors & Builders, represented by Mr.Y.Raghava Rao (Opposite party No.3) and Mr.S.Sudhakara Reddy (opposite party No.4) ensures the legal aspects of the land purchased by the parties of the 2nd part and party of the first part is indemnified from the legal defects if any".
At para No.5 on page 2 of Ex.A1 agreement it is mentioned that "whereas M/s VEGE Realtors & Builders undertake to get conversion of land use from agriculture to residential from the authorities concerned, Government of Karnataka.
53. The contents of Ex.A1 agreement are mentioned from points No.1 to 4 under the heading "NOW THIS AGREEMENT WITNESSETH AS FOLLOWS":-
1. That the party of first part requests M/s VEGE Realtors & Builders (hereinafter called as Developing Firm) represented by Y.Raghava Rao and S.Sudhakara Reddy to develop the land into a residential layout and the developing firm accepts for the same. The development of land includes laying of BT Roads, Water supply, Electricity Supply, Construction of Compound wall etc.,
2. That in lieu of developmental expenses, that it has been mutually agreed upon between M/s VEGE Realtors and the party of first part, to share the developed and approved plots, after the approval obtained by M/s VEGE Realtors & Builders from BIAPPA/BMRDA, Government of Karnataka, in the ratio of 30:70 i.e. 30% of the developed and approved layout plots/area in sft, to the share of developing firm and 70% of developed and approved layout plots/area in sft. to the share of first part.
3. That it has been agreed by the first party to transfer the land in the name of M/s VEGE Realtors and Builders, Bangalore to enable them to apply for residential layout for approval with the concerned authorities of Government of Karnataka.19
4. That it is mutually agreed to choose the developed and layout plots being allotted by M/s VEGE Realtors & Builders, Bangalore after approval of layout from Government of Karnataka, as per the ratio aforementioned under Clause -2, along with others by lottery system, It is the responsibility of the developing firm to get the developed and approved plots registered in favour of the party of the first part.
54. The points No.1 and 2 of the above points are crucial that decide the preliminary issues raised by the opposite parties.
55. The point No.1 makes it abundantly clear that the complainant requested opposite party No.3 & 4 to develop the land into residential layout and the developing firm (Opposite party No.3) accepts for the same. The development of the land includes laying of BT roads, water supply, electricity supply, construction of compound wall etc. Thus from the same, it is clear that opposite parties agreed to render their service to the complainant for the development of the land for the things mentioned supra.
56. The point No.2 makes it stoutly clear that for the services rendered by the opposite parties particularly the opposite parties No.3 firm and the opposite party No.4, the complainant agreed to give 30% of the developed and approved plots towards consideration to them. It is needless to say that consideration for any service rendered can be in the form of cash or kind.
57. The learned counsel for the complainant vehemently submitted in his arguments that the Ac.2-00 of land was already purchased by opposite party No.1 & 2 under Ex.A2 sale deed and prior to the Ex.A1 agreement and opposite parties induced the complainant to purchase 10 guntas of land initially and 30 guntas of land subsequently form the said Ac.2-00 of land already purchased by the opposite parties No.1 & 2, the complainant paid amounts mentioned in the complaint for purchasing the said land. Further Ex.A1 agreement very clearly shows that opposite party No.3 & 4 agreed and have undertaken the responsibility of the developing the land by laying BT roads, getting water supply, electricity supply and constructing the compound wall to the said 20 purchased land. As per Ex.A1 agreement since the complainant availed the services of opposite party No.3 firm and opposite party No.4 for developing the land into residential layout for consideration of 30% of the developed and approved layout plots, the complainant falls under the ambit of the definition of a "Consumer". He also submits that the opposite parties though cleverly got drafted Ex.A1, the points No.1 & 2 of Ex.A1 agreement, fix them as developers of the land purchased by the complainant and they cannot contend that the complainant is not "Consumer" and the transaction taken place between the complainant and the opposite parties is a commercial transaction and the same falls to the ground when the definition of "consumer" u/s 2(d) and definition of "deficiency" u/s 2(g), of Consumer Protection Act, 1986 are examined.
58. The learned counsel for the complainant would submit that the complainant specifically stated that he has an intention to get back to India from US and to construct a house for himself and it is not unusual that as per the individual taste the persons who can afford can built a spacious house with the amenities of having a swimming pool, a shuttle court or a tennis court and gardening with several plants for which much space such as the land purchased by the complainant is required. Constructing such a spacious house for personal use of the complainant, cannot be termed as a commercial transaction. He also submitted that the complainant intends to earn his livelihood also on some plots besides, constructing a house for his residence. Nowhere it is mentioned in Ex.A1 agreement about the so called alleged commercial transaction. Further the case law i.e. Morgon Structural Mutual Fund vs. Kartick Das (1994) 4 Supreme Court Cases 225 is with regard to investment of money in shares, for future profits and therefore, the same is a commercial transaction and the said case law is not applicable to the case on hand.
59. The other case law relied upon by the opposite parties i.e. "Chairman and Managing Director, the Citi Union Bank Ltd., and another vs. R.Chandramohan, 2023 Supreme Court cases Online SC 21 341, and the other case "Laxmi Engineering Works vs. PSG Industrial Institute (1995) 3 SCC 583", supports the case of the complainant and ultimately as opposite parties have failed to develop the land as agreed upon and handed over the same to the complainant, the same is deficiency of service, as such the complaint of the complainant deserves to be allowed".
60. But on the other hand, it is the retaliating contention of the opposite parties that the complaint is not maintainable as complainant is not a „Consumer‟ and the transaction that was taken place between the complainant and the opposite parties is commercial in nature and further there is no deficiency of service on the part of the opposite parties towards the complaint. There is no cause of action for the complainant to file the complaint which is barred by limitation. Moreover, the entire transaction took place at Bangalore as such this State Commission has no territorial jurisdiction to entertain the complaint of the complainant. The counsel for the opposite parties further submits that in view of the above aspects, the complaint is liable to be rejected as prayed for in CC IA 1924/2022.
61. Since the whole controversy revolves around the meaning of expression "Commercial purpose", we feel it apt to look at the settled law as to the same.
The Hon‟ble Supreme Court of India, in the case of Lilavati Kirthilal Mehta Medical Trust vs. M/s Unique Shanti Developers & others in the Civil Appeal No.12322/2016, after an elaborate discussion, having examined several rulings of the Hon‟ble Supreme Court, such as :-
(i) Spring Meadows Hospital vs. Harjol Ahluwalia through K.S.Ahluwalia, I (1998) CPJ 1 (SC)
(ii) Laxmi Engineering Works vs. PSG Industrial (1995) 3 SCC 583;
(iii) Paramount Digital Colour Lab vs. Agfa India Private Limited (2018) 14 SCC 81.
(iv) Cheema Engineering Services vs. Rajan Singh (1997) 1 SCC 131 and 22
(v) Kalpavruksha Charitable Trust vs Toshniwal Brothers (Bombay private Limited) (2000)1 SCC 512, framed the following broad principles for determining whether an activity or transaction is "for a commercial purpose":
(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, „commercial purpose‟ is understood to include manufacturing/ industrial activity or business-to-business transactions between commercial entities.
(ii) The purchase of the good or service should have a close and direct nexus with a profit generating activity.
(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.
(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of „generating livelihood by means of self-
employment‟ need not be looked into.
In the above Lilavati Kirthilal Mehta Medical Trust vs. M/s Unique Shanti Developers & others (in the Civil Appeal No.12322/2016), the facts are that the Respondent No.1/OP No.1 had developed two buildings „Madhuvan‟ with 32 „1 BHK flats‟ in colony „Shanti Park‟ in Thane, Maharashtra. Out of these the appellant/complainant trust took possession of 29 flats for provision of hostel facilities to the nurses employed by the Lilavati Hospital. 29 agreements to sell were executed in respect of each flat on 25.11.1995, which were registered on 16.03.1996 and entire consideration amount was paid for the same. The architect issued completion certificate in respect of flats on 17.02.1997. The flats were used for the purpose of hostel facilities till 2002. However, within 2-3 years of completion of the project, because of alleged poor building quality, 23 the structure dilapidated. The Appellant/complainant vacated the flats in 2002 and since 2004 the flats are lying unused.
The complainant trust filed a consumer complaint No.117/2006 against the opposite party before the Hon‟ble National Commission claiming Rs.7,65,95,400/- in compensation on account of annual loss of rent from 2002 to 2015, costs of reconstruction of building "Madhuvan" and future loss of rent of Rs.35,00,000/- per year along with Rs.5,00,000/- in damages.
The Hon‟ble National Commission, dismissed the said complaint on the ground that the appellant/complainant trust was not a „consumer‟ within the meaning of sec.2(1) (d) of 1986 Act, as aforesaid section excludes a person who obtains goods and services for a „commercial purpose‟; that since providing hostel facility to the nurses is directly connected to the commercial purpose of running the hospital and is consideration for the work done by them in the hospital, the appellant would not be „consumer‟ under the 1986 Act.
Aggrieved by the said order, the complainant trust preferred the Civil Appeal No.12322 of 2016 vide the case Lilavati Kirthilal Mehta Medical Trust vs. M/s Unique Shanti Developers & others.
The Hon‟ble Supreme Court after examining the facts and circumstances of the said case held at para No.4 as follows:-
"Taking into account the material on record and the relevant jurisprudence on this issue, we are of the considered opinion that the purchase of flats by the Appellant for the purpose of providing hostel facilities to the hospital nurses does not qualify as meant or a „commercial purpose‟. Though the term „commercial purpose‟ as referred to under section 2(1) (d) has nowhere been defined under the provisions of the 1986 Act, this Court has expounded upon it based on its lateral dictionary meaning in various decisions".
By holding so, the Hon‟ble Supreme Court allowed the appeal by setting aside the impugned judgment of the Hon‟ble National Commission and restored the Consumer Complaint of the 24 appellant/complainant before the Hon‟ble National Commission and requested the Hon‟ble National Commission to hear the matter on merits and decide the same at an early date.
62. In Laxmi Engineering Works vs. PSG Industrial (1995) 3 SCC 583; (iii) Paramount Digital Colour Lab vs. Agfa India Private Limited (2018) 14 SCC 81, the Hon‟ble Supreme Court, held "that "commercial purpose" is to be looked into, in the facts and circumstances of each case to consider the purpose for which the goods and services are bought or availed. If it is availed with a view to carrying out large scale commercial activity with profit motive, then the buyer would not qualify as a „consumer‟ and the Consumer Protection Act, 1986 would not be applicable".
63. Keeping in mind of the above settled law as to what is "commercial purpose", now let us look at the definition of "Consumer" :
Definition of Consumer U/s 2 (1)(d) of Consumer Protection Act, 1986, is as follows:-
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for release or for any commercial purpose or
(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 than the person who (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 who avails of such services for any commercial purpose);25
Explanation :- For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earing his livelihood by means of self-employment.
64. We have referred to the definition of „Consumer‟ u/s 2(d) which has two limbs, one is with regard to purchase of goods and the other is hiring or availing of services for consideration. Both the limbs exclude a person to purchase the goods for resale of any material purpose and a person who avails of service for commercial purpose from the ambit of the definition „consumer‟. Explanation u/s 2(d) provides clarification that "commercial purpose does not include use by a person of goods bought and used by him and services availed by him. Exclusively for the purpose of earning his livelihood by means of self-employment".
65. In the case on hand, the land purchased by the complainant is not for resale as he consistently averred and deposed that he being an NRI and resident of US has got the intention to get back to India from US and construct a house in Bangalore for a living. Similarly, the services of the opposite parties availed by him are only for the development of the purchased land for the purpose of constructing a house in the same for his living, but not for doing real estate business, as such the same in our considered view cannot be held as commercial purpose as contended by the opposite parties. The expression „commercial purpose‟ is not defined in the Act. The ordinary meaning of „commercial‟ is pertaining to commerce; it means "connected with, or engaged in commerce; Mercantile: having profit as a main aim", whereas the word „commerce‟ means „financial transaction especially buying and selling of merchandise on a large scale". The law is no more res-integra that whether the purpose for which a person has bought goods is for "commercial purpose" within the meaning of the definition of expression "consumer" in Sec.2(1)(d) of the Act, is always a question of fact to be decided in the facts and circumstances of each case and similarly a person who buys goods 26 and use them for himself, exclusively for the purpose of earning his livelihood by means of self-employment is within the definition of the expression „consumer‟.
66. The learned counsel for the opposite parties in support of the case of the opposite parties placed reliance on the case Morgan Stanley Mutual Fund vs. Kartick Das (1994) 4 Supreme Court Cases 225 in Civil Appeal No.4584 of 1994. In the said case, "the Hon‟ble Supreme Court examined the question was whether the prospective investor in the shares of a Company is a „consumer‟ as defined in Sec.2(f) and held that he was not".
67. When the facts and circumstances of the present case are examined nothing appears to us that the complainant purchased a land for doing large scale business with the aim of getting profits but to construct a house for himself and also to earn his livelihood if same land is given on lease or rent to others, besides constructing his house. Hence, we are of the considered view and hold that the above case Morgan Stanley Mutual Fund vs. Kartick Das, doesn‟t apply to the present consumer complaint as the facts of the said case are absolutely different to the case on hand, and the said case law would be of no use to support the case of the opposite parties.
68. The learned counsel for the opposite party also placed reliance on the case law "Chairman & Managing Director, City Union Bank Ltd., and another vs. R.Chandramohan, in 2023 SCC OnLine SC 341". In this case the Hon‟ble Supreme Court discussed the definition of the word "service" as defined u/s 2(1)(o) and also the word „deficiency‟ as defined u/s 2(1)(g) and held that the service of supply of electricity is covered under the old service. It is also held in the said case inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise, in relation to any service falls under the ambit of the word „deficiency‟ .
27Having examined the facts and circumstances of the present complaint, we are of the considered view and hold that the above case law relied upon by the opposite parties in support of their case would be of no use to the case of the opposite parties but on the other hand it supports the case of the complainant.
69. In the case on hand, if the facts and circumstances are examined, it is established that the opposite parties No.1 & 2 have already purchased Ac.2-00 of land under Ex.A2 sale deed much prior to Ex.A1 agreement and made the complainant to enter into Ex.A1 agreement for selling 10 guntas (1/4th acre) of land from out of the said Ac.2-00 of land and the complainant purchased the same by paying sale consideration of Rs.9,42,500/- to the opposite parties No.1 to 3. The opposite parties admitted that the complainant paid the above amount as consideration for purchasing 10 guntas of land from the opposite party No.1 & 2, and admittedly opposite party No.3 & 4 doing business in the name of M/s VEGE Realtors and Builders and they have agreed to develop the land on behalf of the complainant. The opposite parties also admitted that complainant paid a sum of Rs.25,00,000/- by way of cheque and cash of Rs.3,27,500/- to opposite party No.3 and the same in the facts and circumstances of the case is for the purchase of another 30 guntas of land from the opposite party No.1 & 2. The opposite party No.3 & 4 admitted that they have accepted the request of the complainant to develop the land into a residential layout by laying BT roads, getting water supply, obtaining electricity connection and constructing the compound wall to the land purchased by the complainant. When the opposite parties accepted for developing the land of the complainant by their services for the consideration of 30% of developed and approved plots in the said land and when they have not developed the same and handed-over the same to the complainant, the same in our considered view amounts to deficiency of service, for which the complainant is entitled to file a consumer complaint against them, being a consumer of availing services of the opposite parties.
2870. In view of the aforestated discussion, we are of the considered view that the complainant is a consumer and the dispute between the complainant and the opposite parties is a consumer dispute and the transaction that took place between the complainant and the opposite parties under Ex.A1 agreement is not a commercial activity and the same does not fall under category of commercial purpose. Point No.1 is accordingly answered in favour of the complainant and against the opposite parties.
71. Point No.2 :-
Now with regard to whether this State Commission has got territorial jurisdiction to adjudicate upon the consumer complaint filed by the complainant, the complainant in his complaint stated that this State Commission has got jurisdiction to entertain his complaint, since the Head Office of the opposite parties carries on their business avocation in Hyderabad and further all the opposite parties are the residents of Hyderabad. As per Sec.17 (2) (a) of the Consumer Protection Act, 1986, "A complaint shall be instituted in a State Commission within the limits of whose jurisdiction, the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain".
72. As seen from the cause title of the consumer complaint, all the opposite parties are the residents of Hyderabad and the opposite party No.3 office is located in Hyderabad and admittedly the opposite parties No.3 & 4 are together doing business in the name of M/s VEGE Realtors & Building and in view of the same, we hold that this State Commission has got territorial jurisdiction to adjudicate upon the complaint of the complainant.
73. Point No.3:-
Now with regard to the aspect whether the consumer complaint in case on hand is barred by limitation, admittedly the opposite parties No.3 & 4 have agreed to develop the land of the complainant for developing the same into a residential layout by 29 laying BT roads, obtaining water supply, electricity supply and constructing a compound wall around the said land. But they did not develop and did not hand over the same to the complainant as such we are of the considered view that as long as the opposite parties did not develop the land as agreed upon by them and did not hand-over the same to the complainant, the complainant has got a continuous cause of action as such, we hold that the complaint of the complainant is not barred by limitation. `
74. The other aspect that need to be considered is the opposite parties have admitted that they have received a sum of Rs.9,42,500/- from the complainant towards the sale consideration of 10 guntas of land. They also admitted in their written version that they also received a sum of Rs.25,00,000/- by way of cheque and a sum of Rs.3,27,500/- by way of the cash from the complainant. But they stated in their written version that they have repaid the said amounts along with interest and for the same, they relied upon Ex.B2 & B3 cash receipts stating that they have repaid the said amounts in the form of the cash to the complainant as the complainant requested them for the repayment of the said amounts as the complainant was indebted to several persons and he had to clear the said debts.
The complainant filed a re-joinder to the written version of the opposite parties denying the alleged payment of the said amounts under Ex.B2 & B3 cash receipts. The complainant in his re-joinder submitted that the alleged repayment of the amounts said to have been made by the opposite parties is nothing but ruse invented for the purpose of the present case. The signatures on the said receipts alleged to have been signed by him are not true and those signatures are forged and fabricated.
At this juncture, it is pertinent to mention that the complainant filed an Interlocutory Application, vide CC No.1200/2018 in CC No.17/2016 to obtain the forensic expert/hand writing expert opinion about the disputed signatures on Ex.B2 & B3 cash receipts with his admitted signatures vide Ex.A6 to A12.
30This State Commission allowed the said Interlocutory Application and sent the disputed signatures on Ex.B2 & B3 cash receipts along with the admitted signatures of the complainant on Ex.A6 to A12 to the Central Forensic Laboratory, Directorate of Forensic Sciences Services Ministry of Home Affairs, Government of India, Ramanthapur, Hyderabad, Telangana State.
75. One P.Venogopal Rao, who is Asst. Director and Scientist of the said Central Forensic Laboratory, examined the admitted signatures on Ex.A6 to A12 with the disputed signatures on Ex.B2 & B3 cash receipts and submitted his opinion by way of report to this State Commission. The said Forensic expert opined that the person who wrote the red enclosed signatures stamped and marked Ex.A6 to A12, did not write the red enclosed signatures similarly stamped and marked Ex.B2 and B3.
76. The said Central Forensic Laboratory expert report is borne by the record. We have examined the same and also the opinion of the said expert, mentioned in the said report which we referred to supra and the same shows that the opposite parties forged and fabricated Ex.B2 & B3 cash receipts, as such they failed to establish their contention that they have repaid the amounts shown in Ex.B2 & B3 receipts, to the complainant. It is noteworthy to mention here that the opposite parties have not challenged the said Central Forensic Laboratory report nor they chose to cross examine the said expert to rebut the said opinion. In view of the same, it is inevitable to conclude that the opposite parties have not repaid the amounts paid by the complainant to them. Of course, it is for the complainant to initiate proper criminal action against the opposite parties for forging his signatures on Ex.B2 & B3 cash receipts.
77. At this juncture, we feel it relevant that the opposite parties have submitted a ridiculous argument to the effect that the complainant did not transfer the land in favour of the opposite party No.3 firm as such opposite parties No.3 & 4 did not obtain necessary permission from the concerned authorities and did not 31 develop the land as agreed upon and did not hand over the developed land to the complainant. Moreover, the said land is in litigation as the Government of Karnataka, declared that the said land belongs to Government of Karnataka. Admittedly, the land of Ac.2-00 was purchased by Opposite parties No.1 and 2 and opposite parties No.1 to 3 entered into Ex.A1 agreement with the complainant and in the said agreement it is categorically mentioned that the complainant paid consideration for the land. So it is opposite parties No.1 & 2 in whose name the said land lies by the registered sale deed, that have to transfer the required extent of land as established from the material borne by the record by the scale of preponderance of probabilities. Hence, we are unable to fathom the said ridiculous and unreasonable argument of the opposite parties about the non-transfer of the said land in favour of the opposite party No.3 firm.
78. On examination of the totality of the facts emanated from the material evidence borne by record, we are of the considered opinion that the complainant is entitled for refund of the amounts paid by him to the opposite parties with reasonable interest, as the complainant in alternative claimed for the refund of the amounts paid by him, in view of the fact that the subject land is in litigation and an appeal is pending before the Tribunal in the State of Karnataka.
79. In the result, the complaint is partly allowed directing the opposite parties No.1 to 4 jointly and severally to refund to the complainant, a sum of Rs.37,70,000/- paid by the complainant to the opposite parties No.1 to 4, with interest at 12% per annum from the date of Ex.A1 agreement i.e. 04.04.2007 till the date of realization and they are further directed to pay a sum of Rs.1,00,000/- to the complainant towards damages for causing physical and mental agony, by their acts of deficiency of service to the complainant. Opposite parties No.1 to 4 are also directed to pay costs of Rs.50,000/- to the complainant. Time for compliance is six (6) weeks from the date of receipt of this order Sd/- Sd/-
I/C PRESIDENT MEMBER (JUDICIAL)
Dt: 11.10.2023
32
Witnesses Examined
For the complainant :-
PW1 : Marneedi Sreenivasa Rao.
For the Opposite Parties:
DW1 : Y.Raghava Rao.
Exhibits marked for the complainant :
Ex.A1 - is the Photostat copy of Agreement, executed on 04th day of April, 2007 by and between the complainant and the opposite parties No.1 & 2.
Ex.A2 - is the Photostat copy of Absolute Sale Deed, executed on the 30th day of September 2006 at Bangalore, by Sri C.Muralidhar and Sri C.Dharmendra and the opposite parties No.1 & 2.
Ex.A3 - is the Photostat copy of Bank Statement of Account for the period from 01.01.2007 to 13.09.2013 of the complainant.
Ex.A4 - is the Legal Notice, dated 24.09.2015.
Ex.A5 - is the Photostat copy of Acknowledgments (3 in number), dated 26.09.2015.
Ex.A6 - is the original Agreement executed on 04th day of April, 2007 at Bangalore between the complainant and the Opposite Parties No.1 & 2.
Ex.A7 - is the original of Sale Deed, executed on 23rd day of January‟ 2008 by and between Smt.Vegesna Krupa, W/o V.Srinivasa Raju and the complainant.
Ex.A8 - is the original Sale Deed, executed on 07th day of June‟ 2010 by and between Sri Akkineni Venkata Ranga Rao, S/o Sri Venkateswara Rao and the complainant.
Ex.A9 - is the original Trust Deed, executed on 14th February‟ 2013.
Ex.A10 -is the original Release Deed, executed on 21st day of November 2015 by Smt. Dhana Kumari, W/o Sri L.Siva Rama Krishna Rao and the complainant.
33Ex.A11 - is the copy of certificate "To whomsoever it may concern", dated 15.12.2020.
Ex.A12 - is the copy of certificate "To whomsoever it may concern", dated 15.12.2020.
Exhibits marked for Opposite Parties:-
Ex.B1 - is the Photostat copy of Agreement executed on 04th day of April‟ 2007 at Bangalore City between the complainant and the opposite parties No.1 & 2.
Ex.B2 -is the original Cash Receipt, for Rs.41,84,700/-
(Rupees forty one lakh eighty four thousand and seven hundred only) dated 30.08.2009.
Ex.B3 - is the original Cash Receipt, for Rs.11,00,000/-
(Rupees eleven lakh only) dated 18.08.2014.
Ex.B4 -is the Photostat copy of affidavit, before the Karnataka Appellate Tribunal Court Hall-I, at Bangalore, Appeal No.986/2012.
Sd/- Sd/-
I/C PRESIDENT MEMBER (JUDICIAL)
Dt: 11.10.2023
*AD