National Consumer Disputes Redressal
Dr. J.L. Chaudhary vs Ashok Thakkar & Anr. on 23 October, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 266 OF 2008 (Against the order dated 29.02.2008 in Complaint No. 28/2005 of the U.P. State Consumer Disputes Redressal Commission) Dr. J.L. Chaudhary S/o Shri M.L. Chaudhary R/o B-697, MIG Flats East of Loni Road, Shahdara Delhi-110093 Appellant(s) Versus 1. Ashok Thakkar Prop. Of M/s Thakkar Builders C-91, Preet Vihar Delhi-110092 2. K.C. Kapoor S/o Late Shri S.D. Kapoor R/o Ground Floor, C-104 Ramprastha Colony, Sahibabad District Ghaziabad, U.P. Respondent(s) BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER HONBLE MR. VINAY KUMAR, MEMBER For Appellant(s) : Dr. J.L. Chaudhary, Appellant in person For Respondent(s) : Mr. Anup Kumar, Advocate for R-1 Mr. Astender Kumar, Advocate for R-2 Pronounced on 23rd October, 2013 ORDER
PER VINEETA RAI This First Appeal has been filed by Dr. J.L. Chaudhary, Appellant herein and Original Complainant before the U.P. State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred to as the State Commission) being aggrieved by the order of the State Commission which had disposed of the case by concluding that since the reliefs being claimed fall within the provisions of the Specific Relief Act, it would be appropriate for the case to be adjudicated before a competent Civil Court.
2. BRIEF FACTS:
In his complaint before the State Commission, Appellant/Complainant who is a Doctor in the Municipal Corporation of Delhi had stated that he had approached the Respondents/Opposite Parties No. 1 and 2, who are involved in the business of constructing and selling flats, for purchase of a residential flat in property no. C-104, Ramprastha Colony, Sahibabad, District Ghaziabad, U.P. Thereafter a Tripartite Agreement between the parties was entered into by which Appellant/Complainant was offered a fully furnished second floor flat with covered area of 297 sq. meters besides roof rights and certain other amenities for a total sale consideration of Rs.34,00,000/- as part payment. Appellant/Complainant paid Rs.6,51,000/- vide two cheques dated 07.05.2004 and 09.08.2004.
However, the flat finally offered to the Appellant/Complainant was contrary to the terms and conditions of the Tripartite Agreement since instead of 5 bedrooms only 4 bedrooms were constructed and several amenities and facilities like safety railings, car park etc. as also roof rights were not given. Being aggrieved, Appellant filed a complaint before the State Commission on grounds of unfair trade practice and claimed a sum of Rs.10,00,000/- towards mental agony and pain.
3. Respondents/Opposite Parties challenged the above contentions through a written rejoinder and stated that the Appellants complaint before the State Commission was based on a tampered, manipulated and forged agreement, particularly the first page of the document. It was contended that the flat in question was constructed as per the approved plan of the Ghaziabad Development Authority and the details were contained in the actual Agreement dated 31.05.2004 which was handed over to the Appellant/Complainant for signing which the Appellant/Complainant retained without signing it and instead sought reliefs before the State Commission on the basis of a forged and manipulated document, to which Respondents/Opposite Parties were never a signatory.
4. The State Commission, as stated earlier, had dismissed the complaint on the ground that since the reliefs claimed by the Appellant/Complainant fall within the Specific Relief Act, he may file the case before the competent Civil Court. The State Commission further observed as follows :
Whether the agreement dated 09-06-2004 is a forged one or not, whether there is an agreement as alleged by the opposite parties at all or not, whether the complainant has committed default in performing his part of the contract or not and whether there has been default on the part of the opposite parties in fulfilling the terms and conditions of the contract or not, all these matters can only be decided on the basis of the detailed evidence and its appraisal which is obviously not possible before the Fora.
5. Being aggrieved by the order of the State Commission, the present First Appeal has been filed.
6. Appellant/Complainant in person and the Counsel for Respondents/Opposite Parties essentially reiterated the submissions made by them before the State Commission.
7. We have considered the submissions made by the parties as also the order of the State Commission. We note that the Appellant and the complaint filed by him on grounds of unfair trade practice is covered under Sub-Sections (b), (c) and (d) respectively of Section-2 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act). The State Commission has not decided the case mainly on the grounds that elaborate documentary evidence is required and since specific relief is sought, the case may be decided by a Civil Court. However, in this connection, it may be noted that in cases filed under the Consumer Protection Act the first Court of fact is often required to record both oral and documentary evidence, permit cross-examination of the witnesses and seek expert opinion whenever considered necessary. Further, Section-3 of the Act provides an additional remedy to consumers besides those that may be available under other laws. The Consumer Fora have also been admitting and deciding cases of this nature where consumers have filed complaints against builders/developers on grounds of deficiency in service/unfair trade practice, as in the present case and as such no complex issues of law or fact are involved which cannot be decided by the Consumer Fora.
8. In view of the foregoing reasons, we do not agree with the order of the State Commission and set aside the same. The case is, accordingly, remanded back to the State Commission to decide it afresh in accordance with law. Nothing stated herein may, however, be treated as a comment on the merits of the case. Parties are directed to appear before the State Commission on 27.01.2014 for further directions.
Sd/-
(D.K. JAIN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Sd/-
(VINAY KUMAR) MEMBER Mukesh