National Consumer Disputes Redressal
M/S. Shewalkar Developers Limited & ... vs Madanmohan on 16 July, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 249 OF 2015 (Against the Order dated 24/12/2014 in Appeal No. 08/2013 of the State Commission Maharastra) 1. M/S. SHEWALKAR DEVELOPERS LIMITED & ANR. HAVING ITS OFFICE AT LAXMI BHAWAN SQUARE, WHC ROAD, NAGPUR - 440 010 MAHARASHTRA 2. MR.ASHUTOSH , S/O RAM SHEWALKAR, R/O 80, DAGA LAYOUT, N.A NAGPUR -440 010 MAHARASHTRA ...........Petitioner(s) Versus 1. MADANMOHAN PROP OF M/S DAGA INVESTMENT & CONSULTANT, R/O 12-A " KAMANYA" DANDIGE LAYOUT, SHANKAR NAGPUR, NAGPUR - 440 010 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MRS. M. SHREESHA, MEMBER For the Petitioner : For the Petitioners : Mr. Gagan Sanghi, Advocate For the Respondent : For the Respondent : Ms. Vandana Sehgal, Advocate Dated : 16 Jul 2015 ORDER D.K. JAIN, J., PRESIDENT This Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), by a Developer and its Managing Director, questions the correctness of an interlocutory order, dated 24.12.2014, passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Nagpur (for short "the State Commission") in Complaint Case No. CC/08/13. By the impugned order, the State Commission, while rejecting the prayer made by the Petitioners in their application, seeking permission to cross-examine the Complainant, the Respondent herein, has permitted them to submit suggestive questions by way of interrogatories by the next date, with a direction to the Complainant to reply to the questions on affidavit.
2. Succinctly put, the facts leading to the present Revision Petition, as culled out from the Complaint are: that on 10.01.2004 and 01.09.2006 the Complainant had agreed to purchase from the Petitioners, two Penthouses, the first being numbered A-601-602 and A-701-702, 6th and 7th Floor, Block-A and the other E-603-604 and E-703-704, 6th and 7th Floor, Block-E, both in the building known as "Shewalkar Garden", Gopal Nagar, Opposite VNIT, South Ambazari Road, Nagpur, for total consideration of ₹30,00,000/- and ₹40,00,000/- respectively. Agreements for sale and building construction, dated 10.01.2004 and 01.09.2006 respectively, providing for construction linked payment Schedule, were executed between the parties. The said Penthouses were to be constructed within a period of 36 months and 9 months and were to be made available to the Complainant by January, 2007 and May, 2007 respectively. As on the date of filing the Complaint, the Complainant had already paid to the Petitioners ₹57,00,000/- (₹33,00,000/- and ₹24,00,000/- respectively in respect of both the Penthouses). However, the construction work was not completed by the scheduled time.
3. Having failed to elicit any positive response from the Petitioners to his legal notice, dated 01.05.2008, the Complainant filed the afore-noted Complaint before the State Commission, praying for refund of a total sum of ₹95,03,000/- (i.e. ₹30,00,000/- and ₹40,00,000/- as cost of both the Penthouses; ₹25,00,000/- as damages/compensation for mental agony, harassment and deficiency in service; and ₹3000/- as notice charges).
4. At this juncture, it would be worthwhile to note that present case is in the second round of litigation during the pendency of the Complaint before the State Commission. In the first round of litigation, the matter went up-to the Hon'ble Supreme Court, as the Petitioners were aggrieved by the orders passed by the lower Fora, on the preliminary objection raised by them with regard to the maintainability of the Complaint. Vide order dated 22.11.2013 in SLP (C) No. 38412-38413/2012, the Apex Court had directed the State Commission to decide the question as to whether or not the Complainant is a "consumer" while deciding all other issues raised before it after recording the evidence.
5. In furtherance of the said order by the Hon'ble Supreme Court, when the State Commission took up the Complaint, an application was filed by the Petitioners seeking permission to cross-examine the Complainant. It was contended by the Petitioners that the Complainant was not a "Consumer" under the Act as the agreements being relied upon by him were actually executed by way of security to secure repayment of the loan raised by them from him; many complicated questions were involved in the Complaint; the Complainant had played fraud; and therefore, all these facts could be brought on record only by subjecting the Complainant to cross-examination.
6. The application was resisted by the Complainant, inter alia, on the pleas that no complicated questions were involved in the matter warranting his cross-examination. It was also pleaded that cross-examination of a witness or a party before a Forum under the Act was not the rule. It could be resorted to as an exception, when the reputation of a person, like a medical practitioner in the case of alleged medical negligence, is involved. In support of his contention, the Complainant relied upon the order of this Commission in Con Décor Vs. Smt. Smritikhana Ghose & Anr., rendered in Revision Petition No. 518 of 2002, decided on 16.04.2002.
7. By the impugned order, the State Commission has come to the conclusion that in the present case there was no need for cross-examination of the Complainant. However, partly allowing the application, the State Commission has permitted the Petitioners to serve interrogatories on the Complainant, which are to be replied to by the Complainant on affidavit. Still dissatisfied, the Petitioners have preferred the present Revision Petition.
8. Having perused the pleadings and the documents on record, including the Agreement of Sale and Building Construction (Annexure P-1), we are of the opinion that there is no merit in the Revision Petition. It is yet another attempt by the Petitioners-Developer to delay the adjudication of the Complaint filed almost seven years ago, on merits.
9. In the present case, the short question for consideration is whether or not the Complainant is entitled to the possession of the Penthouses, noted above, in terms of the two main documents, dated 10.01.2004 and 01.09.2006, styled as Agreement of sale and Building Construction, supported by other ancillary documents? In the written version filed on behalf of the Petitioners, their specific stand on the said agreements is as follows:-
"It is pertinent to mention here that the alleged agreements on the basis of which the complainant has approached this Hon'ble Forum, are the security agreements and at no point of time they were meant to be agreements of sale of the property and therefore, the instant complaint is out of the jurisdiction of this Hon'ble Forum. The complainant is asserting his right on the basis of alleged agreement of sale which were executed merely for the purpose of security of loan amount advanced by the complainant who is a professional money lender and a finance broker of the opponents. It was never agreed to transfer any rights to the complainant in respect of the property. The agreement of the sale was simply a token for security and as such the relation between the complainant and the opponent has been always that of a money lender/financer and a borrower and not as a purchaser/consumer and vendor."
10. In the following paragraphs of the written version, the Petitioners have narrated and tried to explain the real nature of the transactions with the Complainant. The averments in the written version show that the execution of the said agreements is not in dispute. Hence, the only issue to be adjudicated at the trial is the purpose for which these documents came into existence. In other words, the question in issue would be the interpretation of the document and not the factum of its execution and therefore, the cross-examination of the Complainant may not be of much avail to the Petitioners, as it is trite that a document has to be primarily construed on the basis of the terms & conditions contained therein. Besides, Section 91 & 92 of the Evidence Act, 1872, also provide that no evidence dehors the terms of the agreement, whether documentary or oral, can be led by the parties to get out of the express terms thereof.
11. Furthermore, proceedings before a Consumer Fora, constituted under the Act, are essentially summary in nature, wherein the rigors of the Evidence Act, 1872 or the Code of Civil Procedure, 1908 are to be strictly applied, like in a trial under the said Code. As observed by a three-Judge Bench of the Hon'ble Supreme Court in Dr. J.J. Merchant & Ors. vs. Shrinath Chaturvedi (2002) 6 SCC 635, a Forum under the Act is entitled, and would be justified, in evolving a procedure of its own and also by effectively controlling the proceedings so as to do away with the need of a detailed and complicated trial and arrive at a just decision of the case by resorting to the principles of natural justice and following the procedure consistent with the principles thereof, also making use of such of the powers of the Civil Court as are conferred on it. It is also observed that for the trial to be just and reasonable, long-drawn delayed procedure, giving an opportunity to the litigant, which results in harassment to the aggrieved party, is to be avoided.
12. In our opinion, in the light of the pleadings of the parties in the Complaint, the State Commission was fully justified in declining the prayer of the Petitioners to summon the Complainant for his cross-examination and directing them to serve interrogatories on him for being answered on affidavit. We do not find any jurisdictional error in the impugned order warranting interference in our Revisional jurisdiction. Consequently, the Revision Petition is dismissed with costs, quantified at ₹25,000/-. In addition to the said costs to be paid to the Complainant, the Petitioners shall also deposit a further sum of ₹25,000/- in the Consumer Welfare Fund, by means of a Bank draft, to be drawn in favour of PAO, Ministry of Consumer Affairs, New Delhi, within four weeks from today.
13. Before parting with the case, we clarify that we have not expressed any final opinion on the veracity of the documents, or the terms thereof, referred to above or on merits of the Complaint.
14. Parties/their Counsel are directed to appear before the State Commission on 19.08.2015 for further pleadings.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER