State Consumer Disputes Redressal Commission
M/S.New Shriram Builders Through ... vs Smt. Meena Vijay Jania on 31 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/04/1718 (Arisen out of Order Dated 30/07/2004 in Case No. cc/124/2004 of District Nagpur) 1. M/s.New Shriram Builders through Partner R/o.Tekadi Rd.Sitabuldi, Nagpur NAGPUR 2. Shri Sudhakar Narayanrao Kasgikar (Deleted as per order dated 09/01/2018) Laxmi vilas apartment ravinagar nagpur NAGPUR MAHARASHTRA 3. Prabhakar Govindrao Kasgikar R/o.Subhash nagar,Naik Layout,Shardha Building,,Nagpur Nagpur 4. Shri Kumar Govindrao Kasgikar R/o.Subhash nagar,Naik Layout,Shardha Building,,Nagpur nagpur 5. Shri.Ramesh Madhukarrao Kasgikar R/o.Viveknand Nagar,Aradna Building,op:Traingular Park,Nagpur Nagpur 6. shri.Suresh Madukarrao Kasigikar R/o.Viveknand Nagar,Aradna Building,op:Traingular Park,Nagpur nagpur 7. Shri.Naresh Madhukarrao Kasgikar R/o.Viveknand Nagar,Aradna Building,op:Traingular Park,Nagpur Nagpur 8. Shri.Ganesh Madhukarrao Kasgikar R/o.Viveknand Nagar,Aradna Building,op:Traingular Park,Nagpur nagpur ...........Appellant(s) Versus 1. Smt. Meena Vijay Jania R/o.Plot No.6,S.E.Railway Colony No.2,Pratap Nagar,Nagpur NAGPUR ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MR. S B SAWARKAR MEMBER For the Appellant: Miss. M D Bhambwani, Advocate For the Respondent: Mr S S Joshi, Advocate Dated : 31 Jan 2018 Final Order / Judgement Per Mr B A Shaikh, Hon'ble Presiding Member
1. This appeal is filed by the original opposite party Nos.1 to 8 (who are hereinafter referred to as appellants). In this appeal the appellants have assailed the order dtd. 30.07.2004, passed by Addl. District Consumer Forum, Nagpur, in consumer complaint No.530/2002 (Old), 124/2004 (New), by which the direction has been given to the appellant directing them to execute the sale-deed of flat No.101 of "Shri K P Apartment" in favour of the complainant, within a period of two months and also to pay her compensation of Rs.3,000/- for physical & mental harassment, due to delay in execution of sale-deed and also to pay her litigation cost of Rs.1,000/-.
2. The complainant hereinafter referred to as respondent. The respondent had come with a case before the Forum below that the appellant No.1 is engaged in building construction activity and Mr Rakesh Rameshkumar Pande is its partner. The appellant Nos. 2 to 8 are the land owners. The appellant Nos. 2 to 8 executed power of attorney in favour of appellant No.1 to develop their land described in the complaint and to make construction of the apartment thereon and to sell the flats to the prospective buyers. Accordingly, the complainant entered into an agreement with opposite party No.1 to purchase one flat from the appellant No.1 for a consideration of Rs.4.00 Lacs and agreement of sale was accordingly executed on 17.072001 by the appellant No.1 in favour of the respondent herein. The respondent paid Rs.1.00 Lac at the time of agreement and then paid Rs.3.00 Lacs on 31.08.2001 to the appellant No.1, who also issued receipt of the same. The appellant No.1 also handed over possession of the flat to the respondent. The respondent also incurred expenses of Rs.10,000/- for installation of front door of the flat as the said work was not done by the appellant No.1. The sale-deed of the flat was not executed by the appellants despite of making payments of full consideration of the flat. Therefore, the respondent issued notice to the appellants calling upon them to execute the sale-deed. However, they gave false reply and demanded additional amount of Rs.3,30,900/- from the respondent for executing the sale-deed in his favour. Making of said illegal demand amounts to unfair trade practice on the part of appellants. Moreover, refusal of the appellants to execute the sale-deed, constitutes deficiency in service on their part. Therefore, the respondent filed the complaint before the Forum below seeking direction to the appellants to execute registered sale-deed of the flat in question, in favour of the respondent and to pay him Rs.10,000/- as compensation towards the expenses incurred for installation of front door in the flat and also to pay him Rs.10,000/- towards physical & mental harassment.
3. The appellants appeared before the Forum below and filed their common reply and thereby resisted the complaint. They raised preliminary objection about the maintainability of the complaint in view of the refund Rs.2.55 Lacs to the respondent and cancellation of the agreement. Thus, it is the case of the appellants as set out in their reply in brief that though the respondent initially paid Rs.1.00 Lacs at the time of agreement of sale and subsequently paid balance consideration of Rs.3.00 Lacs and though possession of the flat was handed over to the respondent, an amount of Rs.2.55 Lacs has been paid as a hand loan by the appellant No.1 to the respondent and she agreed that she will repay that amount within a period of one year with interest @ 18% p.a. and will also pay Rs.25,000/- for MSEB connection charges and Rs.5,000/- for water connection charges and on failure, she will handover vacant possession of the flat to appellant No.1 and that the amount of loan alongwith interest and aforesaid charges of Rs.30,000/- will be deducted from an amount of Rs.4.00 Lacs deposited by her with the appellant No.1. The respondent has not repaid that amount as agreed and hence the agreement has been cancelled. The respondent has suppressed from the Forum the said material aspect of the case. Thus, intricate question of law & facts is involved in the complaint and it cannot be decided in summary proceedings by the Forum below. Therefore, the complaint is liable to be dismissed.
4. The Forum below after hearing both parties and considering evidence brought on record, came to the conclusion under impugned order in brief that it is unbelievable that the day on which the complainant paid balance consideration of Rs.3.00 Lacs, she would request for loan of Rs.2.55 Lacs to be repaid with interest and with such conditions, from the appellant No.1. Moreover, there is no communication from the appellant No.1 for recovery of the money before filing of the complaint. The civil suit of ejectment has been also filed by the appellant No.1 against the respondent in which interim injunction has been passed restraining the respondent from selling, transferring or creating third party interest in the flat and if the appellants have executed the sale-deed then no harm will be caused to them. The appellants can take recourse of law for recovery of the alleged hand loan from the respondent. The non-execution of the sale-deed by the appellants in favour of the respondent constitutes deficiency in service on their part. Hence, the Forum below directed the appellants to execute the sale-deed and to pay compensation of Rs.3,000/- and litigation cost of Rs.1,000/- to the respondent.
5. As observed above, feeling aggrieved by the said order, the original opposite party Nos.1 to 8 have filed this appeal. During the pendency of the appeal the appellant No.2 died and hence with the permission of this Commission the appellants' deleted the name of the appellant No.2 from the array of the appellants. Advocate Miss. M D Bhambwani appeared for the appellant and Advocate Mr S S Joshi appeared for the respondent in this appeal. We have heard them finally. We have also perused the entire record & proceedings of the appeal.
6. The sum & substance of the submission of the learned advocate of the appellants is as under.
i. The respondent did not come with clean hands before the Forum below as she concealed that loan of Rs.2.55 Lacs having paid by the appellant No.1 to her was not refunded by her with interest and therefore agreement to sell relating to the flat has been cancelled. The appellant's advocate has relied on the receipt dtd.31.08.2001 filed on record in support of the said submission.
ii.Copy of the account statement of the appellant No.1 is also filed to prove that Cheque for Rs.2.55 Lacs given by the appellant No.1 to the respondent has been encashed by her on 04.09.2001. A notice dtd.05.07.2003 was issued by the appellant No.1 through advocate to the respondent calling upon her to refund of Rs.2.55 Lacs with interest and the copy of the same is filed on record.
iii.A civil suit bearing No.779/04 is also filed before the Court of 2nd Joint Civil Judge, Sr. Division, Nagpur by the appellants against the respondent for recovery and the possession of the flat from the respondent and it is pending before the said Court.
iv.The Forum below has not considered the aforesaid documentary evidence and erred in directing the appellants to execute the sale-deed and to pay above mentioned compensation with cost.
v.The jurisdiction of the District Consumer Forum is ousted in view of the above civil suit filed before the Civil Court.
vi.The impugned order is illegal and it deserves to be set aside.
7. On the other hand, the learned advocate of the respondent supported the impugned order and submitted in brief as under.
i. The appellants raised defence of refund of Rs.2.55 Lacs as per receipt dtd.31.08.2001 only after consumer complaint was filed against them before the Forum below and receipt filed on record is a forged and false document and hence the Forum below has rightly not considered the same.
ii. The District Consumer Forum below has got jurisdiction to entertain and decide the complaint since it is relating to deficiency in service on the part of the appellants and hence the Forum below has rightly entertained the complaint and rightly passed the impugned order.
iii. Issues involved in the complaint filed before the Forum below are totally different from those issues involved in the civil suit filed before the Civil Court. Therefore, filing of the civil suit has got no bearing on the present case.
iv.The appeal is devoid of merits and it deserves to be dismissed with cost.
8. Thus, it is not disputed that as per registered agreement to sell dtd.17.07.2001, the appellant No.1 in the capacity of power of attorney holder of rest of the appellants had agreed to sell the flat in question to the respondent for a total consideration of Rs.4.00 Lacs and that the respondent already paid the said consideration to the appellant No.1 and also got possession of the flat from appellant No.1. As per that agreement to sell, sale- deed is required to be executed by the appellants in favour of the respondent, to fulfill the said contract.
9. However, the appellants have come with a case that out of Rs.4.00 Lacs, they paid Rs.2.55 Lacs on 31.08.2001 to the respondent as a hand loan respondent and it was to be refunded by her within one year with interest @ 18% p.a. and she had agreed that on her failure she would give back vacant possession of the flat to the appellants and the loan amount with interest and other charges of Rs.30,000/- would be deducted from Rs.4.00 Lacs. Thus, according to the appellants as the respondent failed to refund that amount as above, the agreement to sell is cancelled and they are entitled to get back possession of the flat. They filed a Civil suit for that purpose. However, admittedly the said civil suit was filed by appellants after filing of the consumer complaint before the Forum below, by the respondent.
10. In this context, it is now to be seen as to whether the jurisdiction of the Forum is ousted in view of filing of civil suit as above, by the appellants. The Hon'ble Delhi High Court in the case of M/s Hindustan Motor Ltd Vs. Amardeep Singh Wirk & Ors., III(2009) CPJ 417, clearly observed that civil suit can simultaneously go on with a consumer complaint, even if the issues involved in the two proceedings are substantially similar. It is also held that the remedies are independent of each other in both proceedings. It is further held that the existence of parallel or other adjudicatory Forums cannot take away or exclude the jurisdiction created under the Consumer Protection Act. Moreover, as per provisions of Section 3 of Consumer Protection Act, the provisions of said Act are in addition to and not in derogation of any other provision of any other law for time being enforced.
The Hon'ble Supreme Court in the case of M/s Fair Air Engineers Pvt Ltd Vs. N K Modi, III(1996) CPJ 1(SC) has also observed that The Parliament is aware of the provisions of the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of the Civil Procedure Code, i.e., to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Consumer Protection Act provides the additional remedy. It would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Civil Procedure Code.
Shivkumar Vs. Ansal Housing & Construction, (I)(2006) CPJ 102 (NC) It is observed in the said case by the Hon'ble National Commission that Section 13 of Consumer Protection Act prescribed the procedure of getting evidence by affidavits, cross-examination of witnesses orally or through or interrogatories and therefore, the dispute involved in the complaint of that case can well be decided by consumer Fora. It is the duty of Fora to decide the case relating to deficiency in service, on merits.
11. Thus, from the aforesaid well settled law it can be said though the civil suits subsequently filed in Civil Court by the appellants, the jurisdiction of the District Consumer Forum is not ousted as remedy provided under Consumer Protection Act is in addition of any other remedy available under law.
12. It is also seen that the relationship of the consumer and the service provider is existed in between the respondent and the appellants as respondent pad entire consideration of Rs.4.00 Lacs of the flat to the appellants, who had agreed to develop the land and to make construction of apartment thereon and to provide its one of the flat described in complaint for above consideration to the respondent. It does not appear natural and probable that the respondent, who paid Rs.3.00 Lacs on 31.08.2001 towards part of the balance consideration to appellant No.1, would on the same day i.e. on 31.08.2001, request appellant No.1 to pay her loan of Rs.2.55 Lacs to be repaid with interest and with a condition that she would give back vacate possession of the flat to appellant No.1 in case of her failure of refund of that amount with interest.
13. The appellants simply relied on the receipt dtd.31.08.2001 about giving the said hand loan with condition to the respondent. The respondent by filing a rejoinder before the Forum below denied her signature on the said receipt and came with a case that it is a false and forged document. The appellants did not examine any expert to prove that signature appearing on the said receipt is of the respondent only.
14. Moreover the appellants relied on the bank account statement to show that the Cheque of Rs.2.55 Lacs was encashed by the respondent. However, the said account statement is of the appellant No.1 and not of respondent and hence it is not sufficient to hold that Rs.2.55 Lacs was actually taken as a hand loan by the respondent from the appellant No.1.
15. It is pertinent to note that in the reply dtd.28.08.2002 given by the appellant No.1 to the respondent, it is not stated that the receipt dtd.31.08.2001 has been executed by the respondent in favour of the appellant No.1. The said receipt dated 31.08.2001, which is filed on record, is not executed on any stamp paper. The signature appearing on it also appears to be incomplete. The appellant No.1 has not signed the said receipt though he claimed it to be in document of an agreement. Moreover, the said receipt also does not bear the signature of any witness. Therefore, we are of the considered view that the said receipt relied on by the appellants cannot be said to be genuine document to hold that the respondent had taken hand loan of Rs.2.55 Lacs on 31.08.2001 from the appellant No.1 and that she failed to repay that loan with interest and therefore, the agreement of sale of the flat has been cancelled.
16. In the result of the above discussion, we find no substance in the above submission of the learned advocate of the appellants. We also find that the appeal is devoid of merits and hence it deserves to be dismissed.
ORDER i. The appeal is dismissed. ii. No order as to costs in this appeal. iii. Copy of the order be furnished to both parties free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MR. S B SAWARKAR] MEMBER