State Consumer Disputes Redressal Commission
Mr.Vasudev Pyarelal Valecha Thr.L.H. vs M/S National Building Corporation & ... on 20 July, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE CONSUMER COMPLAINT NO.511/2000 Date of Filing:-13/11/2000 Date of Order:-20/07/2010 Mr.Vasudev Pyarelal Valecha ( Since deceased through Legal Heirs ) 1 A) Lata Vasudev Valecha, at present Residing at Sangam, Gulmohar Cross Road No.5, J.V.P.D. Scheme, Mumbai-400 049 1B) Kavita Valecha Sharma, at present residing at 4, Asjoama Road No.10, Juhu Scheme, Mumbai-400 049 1C) Mrs.Alka Sachdeo at present residing at Rock Enclave, 10th Floor, A Wing, Kandivali(West) Mumbai ... Complainants -Versus 1) M/s National Building Corporation, a partnership firm registered under the India Partnership Act, 1932, having its Office at Giriraj, Plot No.385-C, Linking Road, Khar,Mumbai-400 052 2) Devinder Devraj Ghai, 3) Smt.Padmavati Devraj Ghai, both carrying on business from Giriraj, Plot No.385-C, Linking Road, Khar, Mumbai-400 052 ... Opponents Quorum :- Mr.P.N.Kashalkar,Honble Presiding Judicial Member, Mrs.S.P.Lale, Honble Member. Present :- Mr.S.B.Prabhavalkar, Adv. for the Complainants Mr.J.M.Baphna, Adv. for the Opponents O R D E R
Per Mr.P.N.Kashalkar,Honble Presiding Judicial Member
1) This is a complaint filed by the complainant Shri Vasudev Valecha against M/s. National Building Corporation, a partnership firm along with partners Shri Devinder Ghai and Padmavati Ghai/O.P.No.2 & 3. According to the complainant in the month of July-1986 opponents agreed to sell him a Flat No.701 on the 7th Floor in the building known as Devaarti being constructed by opponents on F.P.No.397, C.T.S.764, T.P.S.Scheme No.III, Sitladevi Temple Road, Mahim, Mumbai. The said flat was to have two bedroom, hall and kitchen admeasuring about 1000 Sq.Ft. (herein after referred to as suit flat) The complainant pleaded that the said suit flat was agreed to be sold orally by the opponents to him for total consideration of Rs.5,76,375/-. The payment schedule agreed between the parties orally was as under :-
(i) Earnest Money Deposit to be paid by the complainant to the opponents Rs.20,000/- (ii) Rs.25,625/- to be paid by the complainant to the opponents on the casting of each slab upto the 17th slab (last slab) i.e. Rs.25,625/- X 17=Rs.4,35,625/-. (iii) To be paid one month after the casting of the seventeenth slab Rs.25,625/- (iv) To be paid two months after the casting of the seventeenth slab Rs.25,625/- (v) To be paid on obtaining the Occupation Certificate of the building by the opponents before 31.12.1988 Rs.69,500/- Total Rs.5,76,375/- 2) The
complainant pleaded that O.Ps expressly agreed that before payment of first installment they would execute valid agreement of sale in respect of suit flat as per M.O.F.A. The complainant paid necessary earnest money deposit of Rs.20,000/- by cheque dated 16/7/1986 drawn on Canara Bank, Naigaon, Mumbai to the O.Ps. Even after making payment of earnest money, the O.Ps failed or neglected to execute agreement of sale in his favour. But they had even given an attested typical floor plan of the said building marking out clearly therein the suit flat agreed to be sold to him. According to the complainant though two successive slabs were cast by the opponents, the opponents did not execute any agreement of sale for the suit flat as promised. Therefore, the complainant did not pay due instalments on the casting of first and second slab. The opponents by their letter dated 3/4/1987 called upon the complainant to make payment of first and second instalments amounting to Rs.51,250/-. but no agreement of sale was executed. On 3/4/1987, the complainant approached opponents and asked them why they were not executing agreement for sale. He was orally assured that shortly they would execute agreement and that he can pay instalments thereafter. But instead of executing agreement, the O.Ps sent reminder to the complainant on 18/4/1987 asking complainant to remit sum of Rs.51,250/- within three days. But in this reminder too there was no mention of agreement for sale. He then received another letter dated 25/4/1987 asking him to pay amount of Rs.51,250/- for the first and second instalment and yet another amount of Rs.25,625- by way of third instalment. Again, there was no mention of executing agreement of sale in his favour. According to the complainant, since O.Ps had not executed agreement of sale as per M.O.F.A., he wrote letter to the opponents dated 20/5/1987 calling upon them to execute necessary agreement for sale immediately. On the same day, the O.Ps wrote him letter demanding him to pay sum of Rs.76,875/- within three days from the receipt of the notice. The complainant gave reply to the notice on 27/5/1987 and informed the opponents that they had no right to demand payment of instalments unless they executed agreement of sale in his favour. He again wrote letter to O.Ps on 11/7/1987 putting on record terms and conditions of the oral agreement and calling them to execute agreement of sale for the said flat. The complainant however did not get reply nor O.Ps executed agreement of sale. Finally complainant through his advocates letter dated 14/11/1987 put all the facts in respect of agreed to sell of the said flat on record. In the said notice, his advocate clearly informed opponents that he was ready and willing to pay the pending instalments provided valid agreement for sale was executed in his favour by the opponents as per Sec.4 of M.O.F.A. He received no reply from the O.Ps
3) The complainant pleaded that he then filed Civil Suit No.4276/1988 in the City Civil Court seeking declaration that there was valid and subsisting agreement of sale between them in respect of suit flat and praying for direction to the opponents to execute agreement for sale in respect of the said flat. He pleaded that in the year 1992 during the pendency of the said suit, the O.Ps executed back dated agreement for sale dated 5/10/1986 and said agreement was duly registered with the Sub Registrar of Assurances on 11/10/1994. He then by letter dated 15/9/1995 called upon O.Ps to comply with the requisition of the said letter. However, the O.Ps failed and neglected to give reply to the said letter. He further pleaded that through his advocate by notice dated 3/7/1996, he called upon opponents to complete the incomplete work of the said flat and to handover vacant and peaceful possession of the flat by obtaining Occupation Certificate and Completion Certificate. The O.Ps however failed to comply with the said notice. He then also addressed the letter dated 11/7/1996 with similar letters to O.P.No.2 but O.P. No.2 neglected to comply with the said notice. The complainant pleaded that he was observing the progress of the said project and since it was incomplete the complainant was advised to wait till disposal of his Civil Suit No.4276 of 1988 pending in the City Civil Court because advocate told him that till the pendency of the said Civil Suit complaint would not be entertained involving identical issue. According to the complainant the O.Ps filed their written statement in the said suit on 8/8/2000 and falsely alleged therein that agreement dated 5/10/1986 was executed by the opponents to provide collateral security to the loan transaction between the parties. It was further alleged in the said written statement that complainant had received Rs.10 lakhs in cash to give up his right under the said agreement. The complainant pleaded that since complainant had filed suit for limited purpose of procuring agreement in respect of said flat the complainant was advised to withdraw the said suit. However, before withdrawing the said suit the complainant through his advocate sent letter to the advocate of the opponents dated 19/9/2000 and called upon opponents to furnish particulars of alleged settlement. It was further mentioned in the said letter that on opponents failure to furnish proof within seven days from the date of receipt of notice, the complainant would presume that the alleged payment mentioned in the written statement was false. After receiving the acknowledgement of the said notice from opponents advocate, his advocate withdrew the said Civil Suit from City Civil Court with an intention to file present complaint seeking reliefs under Consumer Protection Act. The complainant pleaded that O.Ps advocate did not send reply to the complainants letter dated 19/9/2000.
He pleaded that the allegation of O.Ps about execution of said agreement to provide collateral security is baseless for the simple reason that O.Ps filed affidavit in Writ Petition No.67/1987 wherein O.P.No.2 has admitted that complainant is bonafide flat purchaser.
4) The complainant pleads that opponents executed agreement for sale dated 5/10/1986 in respect of suit flat. As per the terms of the said agreement, opponents were duty bound to hand over possession of the said flat on or before 31/12/1988 in accordance with the agreement between the parties which had taken place in July-1986. In not doing so, the O.Ps were guilty of deficiency in service within a meaning of Sec.2(1)(g) of the Consumer Protection Act and therefore he is entitled to file consumer complaint and to get reliefs from this Commission. The complainant pleaded that as per agreement dated 5/10/1986 he was duty bound to pay Rs.6,95,500/- towards the consideration of the said flat and he had paid Rs.20,000/- as earnest money deposit and he is liable to pay remaining amount of Rs.6,75,000/- towards balance consideration under the said agreement. The O.Ps are guilty of delay in delivery of possession for more than twelve years. For this delay the complainant is entitled to claim Rs.5 lakhs as compensation on account of mental torture and mental suffering and on account of delay in delivery of possession. He also entitled to get interest on Rs.20,000/- which he had paid on 16/7/1986. Therefore, he pleaded that he is ready to pay remaining balance amount of Rs.1,75,500/- after adjusting Rs.5 Lakhs from the balance consideration payable i.e. Rs.6,75,500/-. He pleaded that alternatively he should be granted compensation of Rs.18,84,500/- in case this Commission is pleased not to give relief of possession to him because market value of the residential flat in the vicinity of the said residential project at Mahim was in the range of Rs.32,000/-. He further pleaded that opponents had agreed to provide him flat admeasuring 800 Sq.Ft. as such present market value of the flat would be in the range of Rs.25,60,000/-. The complainant has yet to pay an amount of Rs.6,75,500/- under the said agreement and therefore to give adequate compensation, the Commission should give him compensation to the tune of Rs.18,84,500/-. He also demanded interest at the rate of 18% per annum on Rs.18,84,500/- from the date of filing of the complaint till realisation. He pleaded that in view of the Honble National Commission ruling in the case of Dr.Rameshchandra Shah & another V/s- M/s. Lata Constructions reported in 1986-96 National Commission and Supreme Court on Consumer Cases II page 2297 as confirmed by Honble Supreme Court in the reported judgment in A.I.R. 2000 Supreme Court 380, the present complaint involves continuous cause of action and therefore it is within limitation. He therefore prayed that he should be given vacant possession of Flat No.701 (suit flat) by accepting balance consideration under agreement dated 5/10/1986. He also prayed that this Commission should be pleased to permit him balance consideration of Rs.1,75,500/- towards agreement dated 5/10/1986 after adjusting Rs.5 Lakhs from the balance as per averment made in para 16 of the complaint. Alternatively, he prayed that this Commission should direct opponents to pay the compensation of Rs.18,84,500/- to enable him to procure suitable decent accommodation at Mahim together with interest at the rate of 18% per annum from the date of filing of the complaint till its final realization. He also prayed for cost of Rs.10,000/-.
5) The O.Ps filed written statement and pleaded that complaint is false, frivolous and vexatious and it has been so filed to extract monies from the Opponents. The Opponents pleaded that the complainant has suppressed material documents and facts from this Commission and has taken a false plea of deficiency in service. He himself is dealing in property and is involved in development of property as builder. He is buying and selling properties. He is de jure developer and de facto property agent who acts on behalf of buyers and sellers and therefore he is not a consumer. The O.Ps also pleaded that he is trying to take benefit of his own wrong.
6) The O.Ps further pleaded that the complaint involves complex and complicated questions of facts and laws and since they have disputed existence of contract itself the issue is involved herein can not be decided without elaborate trial. They further pleaded that complainant is fully aware that his transaction with the opponents was monetary one and since entire loan amount has been returned the complainant has taken shelter under Consumer Protection Act, 1986 on the alleged agreement of sale of flat issued to him as a collateral security of the loan amount advanced by him and just to harass them he had filed consumer complaint though there was no deficiency in service on their part.
7) According to the O.Ps in the month of July-1986, the complainant approached them for purchase of Flat No.701 in Devaarti Building for a consideration of Rs.6,56,250/-. The Complainant also agreed to pay to them a sum of Rs.1,31,250/- as earnest amount on or before 16/7/1986. He further agreed to pay further sum of Rs.4,75,000/- in 19 instalments each of Rs.25,000/-. Out of 19 installments 17 installments were payable with the progress in construction from first slab to 17 slabs. 18th and 19th instalments were payable one and two months after construction of 17th slab. The complainant further agreed to pay sum of Rs.50,000/- at the time of occupation certificate of the building and these terms and conditions were to be incorporated in the agreement of sale which was to be executed in due course of time. The opponents pleaded that the complainant agreed to abide by terms and conditions of the said agreement. The complainant then issued cheque dated 16th July, 1986 for a sum of Rs.20,000/- by way of earnest money and agreed to pay balance amount in due course of time. The Opponents handed over allotment letter dated 16th July, 1986 but complainant deliberately suppressed the same from this Commission.
8) The O.P.s further pleaded that O.P. subsequently approached the complainant with a request to give them a loan of Rs.5 Lakhs for business purpose. The complainant gave Rs.4,80,000/- in cash and asked to treat Rs.20,000/- which he paid against allotment letter dated 16th July, 1986 as loan. The O.Ps further pleaded that construction in respect of said property was in progress prior to the said agreement arrived at between the parties and commencement certificate was already issued by Corporation for Greater Mumbai on 8th February, 1986.
The O.Ps further pleaded that property on which suit flat was being constructed came to be acquired by income tax authorities by order dated 24th December, 1986. The appropriate authority purchased the said land for Central Government of India for a sum of Rs.1,98,23,738/- which was the amount of consideration for the transfer of said property by M/s.Amritlal Chamoux Limited to the 1st Opponent. The Opponents further pleaded that they filed Writ Petition No.67/1987 in the High Court challenging the order passed by the Income Tax Authorities. In the said Writ Petition, the Honble High Court directed Opponents to file affidavit and give undertaking to the Honble High Court that this Writ Petition was pending and it has been made known to every flat purchaser who had booked the flat. The Opponents were also directed to submit list of allottees to whom flats have been agreed to be sold by the first opponent. The O.P. pleaded that complainant also figured in the said list of allottees which was annexed to the affidavit of the second Opponent dated 26th February, 1987 filed in Writ Petition No.67/1987. The O.P.s further pleaded that the order of acquisition was withdrawn pursuant to the directions given by the Honble High Court on 22nd March, 1990 in Writ Petition No.67/1987. Thereafter, the income tax authorities gave no objection certificate for the transaction which took place between O.P.No.1 and M/s. Amritlal Chamoux Limited to transfer the property in question. According to the O.P.s inspite of appropriate authority releasing the said property in favour of opponents by order dated 27th November, 1990, the complainant failed and neglected to pay balance of consideration amount as well as subsequent instalments in view of the understanding between the complainant and O.P. No.1 as mentioned in para 2(b) of the written statement. The O.P.s pleaded that despite knowledge of acquisition of property and defaults committed by the complainant himself, the complainant filed complaint before Additional Chief Metropolitan Magistrate, Mumbai bearing No.48/S of 1988 U/s 420 of I.P.C. and U/s 4(1)(a) and Sec.13 of Maharashtra Ownership Flat Act. In due course of time this complaint was withdrawn by the complainant voluntarily.
9) The O.Ps pleaded that the complainant had subsequently filed Civil Suit bearing No.4276 of 1988 for a declaration that there is valid subsisting agreement of sale of Flat No.701 on 7th Floor of Devaarti Building and sought decree directing the opponents to execute agreement of sale in favour of the complainant. He had also filed notice of motion in that suit but did not press the said notice of motion on the ground that in the affidavit filed before the Honble High Court, the O.Ps had already showed his name as allottee of the said flat. These civil and criminal proceeding were initiated by the complainant just to pressurize and harass them.
10) The O.Ps pleaded that on 3rd May, 1990, the O.Ps paid sum of Rs.50,000/- to the complainant towards the interest of the said loan. At that time the complainant expressed his desire to record the surrender of his right, title, interest in the Flat No.701 on refund of Rs.5 Lakhs by the Opponents to him. After some days in the year 1992, one Mr.Vijay Chugh mediated between the parties in the matter and a settlement was arrived between the complainant and O.Ps and accordingly back dated agreement dated 5th October, 1986 and back dated letter dated 6th October, 1986 were executed which confirmed that it was a loan agreement and not agreement of sale and that agreement dated 5th October, 1986 was executed only as a collateral security for the said loan of Rs.5Lakhs. The said agreement dated 5th October, 1986 and letter dated 6th October, 1986 are attached with the written statement as Exh.5 colly. Mr.Vijay Chugh has also filed affidavit to confirm the said transaction which is attached at Exh.6 to the written statement.
11) The O.Ps.
pleaded that the complainant has deliberately suppressed letter dated 6th October, 1986 which recorded understanding between the complainants and opponents of the fact that Rs.5 Lakhs was paid as loan and agreement of sale dated 5th October, 1986 was recorded as collateral security. The complainant has deliberately suppressed the said letter to establish that this was a flat purchase agreement and builder was not giving possession of the flat. The O.Ps further pleaded that the transaction between the complainant and O.P. was purely monetary transaction and after executing the writing dated 6th October, 1986, the O.Ps proceeded to return entire amount of Rs.5 Lakhs with interest as agreed between the parties. The O.Ps paid Rs.10 Lakhs to the complainant as per details given below Rs.50,000/- On 3rd May, 1990 Rs.1,00,000/- On 10th September, 1996 Rs.1,00,000/- On 7th December, 1996 Rs.1,50,000/- On 11th December, 1996 Rs.3,00,000/- On 30th December, 1996 Rs.3,00,000/- On 20th August, 1997 ___________ Rs.10,00,000/- Total According to the O.Ps the complainant had issued receipt confirming that he had received Rs.6 Lakhs from opponent towards refund which is at Exh.7. The complainant had deliberately suppressed this fact about receipt of Rs.6 Lakhs from this Commission just to misguide it. The O.Ps pleaded that after filing written statement in Suit No.4276/1988 advocate for the complainant informed the court on 17th September, 2000 that agreement dated 5th October, 1986 was executed only as collateral security and in fact the said amount had also been refunded as per understanding executed between the parties and that he desired to withdraw the suit on the next occasion after taking instructions from the complainant and ultimately on 19th September, 2000 complainants advocate handed over letter dated 19th September, 2000 in court and withdrew the said suit unconditionally.
12) The O.Ps further pleaded that in the circumstances the right if any in respect of letter of allotment dated 16th July, 1986 and agreement dated 5th October, 1986 was given up by the complainant himself. The Opponents pleaded that it would rely upon letter dated 19th September, 2000 along with withdrawal of suit on 19th September, 2000. He asserted that this was purely a loan transaction and entire amount of loan was repaid by the opponents and the complaint as filed is false and frivolous just to extract monies from them. They therefore prayed that the complaint should be dismissed with cost. The O.Ps further pleaded the complainant is misguiding this Commission by annexing agreement of sale dated 8th October, 1986 whereas back dated agreement was infact dated 5th October, 1986. The deed of confirmation Exh. I to the complaint was lodged with Sub Registrar Assurances also mentioned that he had lodged an agreement dated 5th October, 1986 for registration. So, the O.Ps pleaded that the complainant has fabricated the documents dated 8th October, 1986 in order to misguide this Commission. The documents produced by the complainant are fabricated and false documents. The O.Ps pleaded that the complaint therefore should be dismissed with cost.
13) Both the parties have filed affidavits and documents in support of their case. We heard Mr.S.B.Prabhvalkar, Adv. for the complainants and Mr.J.M.Baphna, Adv. for the Opponents. Now, the following issues arise for our consideration. The issues and our finding thereon are as under :
ISSUES
1) Whether the transaction between the complainant and O.Ps was a agreement of sale of flat or it was simply a loan transaction between the parties ?
No. It was a loan transaction
2) Whether the complaint as filed by the complainant alleging deficiency in service on the part of O.Ps is tenable in law ?
No
3) What order if any ?
Complaint stands dismissed FINDINGS
14) Issue No.1 :- The case as filed by the complainant is inherently weak and is on sticky wicket. The complainant is relying upon allotment letter dated 16th July, 1986 which no doubt reveals that Mr.Vasudev Valecha agreed to purchase flat for Rs.6,56,250/- from O.Ps and earnest amount payable for the flat was Rs.1,31,250/- and remaining amount was payable in 19 installments each of Rs.25,000/- and Rs.50,000/- was payable at the time of possession after occupation certificate is obtained by the O.Ps. Then there has been litigation wherein the property acquisition by income tax authorities was challenged by the Builder in Honble High Court which gave rise to the filing of the Writ Petition and ultimately at the suggestion of the Honble High Court in W.P. No.67/1987, the acquisition was withdrawn and no objection certificate was given to the Builder and in this process lot of time was wasted. It appears that thereafter there was further agreement between the parties to this complaint with the help of Mr.Vijay Chugh who was mediator between the parties to resolve the dispute and somewhere in 1992 settlement was arrived at between the complainant and the O.P. and back dated agreement dated 5th October, 1986 and back dated letter dated 6th October, 1986 were executed and it was confirmed in that agreement the agreement of sale between complainant and O.Ps was a loan agreement simplicitor and not a agreement of sale of flat and that agreement of sale of the flat was simply executed by way of collateral security for the said loan of Rs.5 Lakhs. This is testified by Mr.Vijay Chugh whose affidavit was filed by the O.Ps in support of the written statement and their own affidavit. Mr.Chugh in his affidavit clearly mentioned that he was qualified electrical engineer and he knew both the parties. He was carrying on electrical contracts and was supplying electrical material to the buildings and projects of both the above persons and he came to know of intense dispute between National Building Corporation and Mr.Vasudev Valecha in or about 1992 in respect of Rs.5 Lakhs advanced by Mr.Valecha to National Building Corporation and the latter issuing allotment letter of the Flat No.701 of Devaarti Building under construction on Sitladevi Temple Road, Mahim, Mumbai and he had mediated to resolve this dispute and it was then mutually agreed by both the parties that a back dated agreement for sale dated 5th October, 1986 for Flat No.701 was executed as collateral security towards repayment of sum of Rs.5 Lakhs advanced by Mr.Valecha to M./s.National Building Corporation as loan and this understanding mutually arrived at was recorded in a back dated letter dated 6th October, 1986 as on that day only a sum of Rs.50,000/- had been paid to Mr.Vasudev Valecha. In para 5 of his affidavit, he further stated that Mr.Devinder Ghai had subsequently paid Rs.9,50,000/- to Mr.Vasudev Valecha in his presence on following dates :
Rs.50,000/- On 3rd May, 1990 Rs.1,00,000/- On 10th September, 1996 Rs.1,00,000/- On 7th December, 1996 Rs.1,50,000/- On 11th December, 1996 Rs.3,00,000/- On 30th December, 1996 Rs.3,00,000/- On 20th August, 1997 ___________ Rs.10,00,000/- Total In para 6 he testified that
Mr.Vasudev Valecha has also acknowledge receipt of Rs.6,00,000/- vide receipt dated 30th December, 1996. The said receipt is also produced as Exh.7 attached to written statement which is on the face of it is appearing to have been signed by Mr.Vasudev Valecha. At Exh.5 colly there is agreement of sale executed allegedly on 5th October, 1986 between O.P. firm and complainant in respect of Flat No.701 agreed to be purchased by the complainant from O.P./Builder. These two documents are back dated agreement and it is clear from the pleading made by the complainant in his complaint.
15) It is pertinent to note that it is the case of the complainant that in July-1986 he had agreed with O.P./Builder to purchase Flat No.701 in Devaarti Building on Sitladevi Temple Road, Mahim, for the total consideration of Rs.5,76,375/- and initially he had paid earnest money deposit of Rs.20,000/- to the Builder by cheque dated 16/7/1986. But thereafter since there was no agreement executed by the Builder he had simply not paid any amount towards this agreement of sale to the Builder. He had approached Builder on 3rd April,1987 to execute agreement of sale but he had not executed agreement of sale. He wrote letter to the opponents on 20th May, 1987 calling upon them to execute necessary agreement of sale immediately but Builder was not executing agreement of sale but was insisting to pay instalments as per agreed payment schedule. Since, he was not executing the agreement of sale initially he had filed Criminal Case No.48/S of 1988 U/s 420 of I.P.C. and U/s 4(1)(a) and Sec.13 of Maharashtra Ownership Flat Act. Under M.O.F.A. applicable to the State of Maharashtra a duty is cast on the Builder/Developer to execute agreement of sale and register it immediately after receipt of first installments of the amount out of total consideration. Act provides that after accepting 20% of the total consideration of the flat no amount should be accepted by the Builder unless he executes agreement of sale in favour of flat purchaser and get it registered as per Registration Act. The O.P./Builder was not prepared to execute agreement of sale in favour of complainant therefore complainant had filed criminal prosecution (private complaint case) against the Builder but it is surprising to note that the said complaint was withdrawn by the complainant voluntarily without getting any agreement duly executed from the Builder in respect of Flat No.701. This circumstance alone throws voluminous light on the real nature of the transaction between the parties. We have got reasons to believe that non prosecution of private complaint filed for cheating and for violation of provisions of M.O.F.A. Act is a strong circumstance demonstrating that the real nature of transaction between the parties was a loan transaction and it was not a transaction involving agreement of sale of Flat No.701 in Devaarti Building on Sitladevi Temple Road, Mahim Mumbai as alleged by the complainant. Secondly, not content with the filing of prosecution in Criminal Court in 1998 complainant also filed Civil Suit No.4276/1988 for declaration that there is valid subsisting agreement of sale of Flat No.701 of Devaarti Building between the complainant and O.P.s and that the Court should direct Opponents to execute agreement of sale in favour of the complainant. The complaint had also moved notice of motion for urgent relief. But what is shocking to note is the fact that complainant did not press notice of motion and did not pursue the said civil suit in the City Civil Court and ultimately he withdrew it unconditionally by simply telling the court that in the Writ Petition No.67/1987 the Builder on affidavit stated that he had allotted Flat No.701 in Devaarti Building to the complainant. In that Civil Suit the complainant had not asked for possession of the flat. He had simply asked for decree to direct O.P./defendants to execute agreement of sale in respect of Flat No.701 in favour of the complainant.
16) Under order 2 rule 2 of C.P.C., when any suit is being filed, the Plaintiff is supposed to seek all the reliefs and make all such prayers which he can legally get from the defendant while filing the suit. If he abandons some of the reliefs though entitled to claim them while filing suit, then he is precluded from claiming those reliefs in a subsequent suit or proceeding. This is the crux of the provision contained in order 2 rule 2 of C.P.C. As per oral agreement between the parties allegedly agreed in July-1986 the flat was to be given in possession of the complainant after obtaining occupation certificate before 31st December, 1998 and by that time whole of the payment of Rs.5,76,375/- should have been paid by the complainant to the O.P./Builder, When this is payment schedule as given by the complainant in his complaint itself when he filed Civil Suit No.4276/1988, he had simply asked for declaration that there is valid subsisting agreement of sale of Flat No.701 of Devaarti Building and sought decree directing opponents to execute agreement of sale in favour of the complainant. He withdrew this suit in September-2000 unconditionally and advocate for the complainant informed the Court on 17th September, 2000 that agreement dated 5th October, 1986 was executed only as a collateral security and in fact the said amount has also been refunded as per understanding arrived at between the parties and that he desired to withdraw the suit on the next occasion after taking instruction from the plaintiff (Complainant) and ultimately on 19th September, 2000 complainants advocate handed over letter dated 19th September, 2000 in Court and withdrew the said suit unconditionally. This is the another circumstance which is clearly demonstrating that complainant/plaintiff in September-2000 withdrew the complaint unconditionally and did not press for a decree against the defendant National Building Corporation/the O.P. herein since it was told to the Court by the counsel for the plaintiff that there was understanding between the parties that agreement of sale executed back dated on 5th October,1986 was a collateral security for the loan advanced by the plaintiff/complainant to the defendant/O.P. Infact, in this pending complaint when possession was not at all given as per back dated agreement the plaintiff should have sought amendment for adding prayer of possession in that pending civil suit for Flat No.701 as per agreement and should have pressed for decree of possession. But instead of doing so, he was content with the back dated agreement executed by National Building Corporation/the O.P. herein and he withdrew the said suit unconditionally. He was prompted to do so after defendant National Building Corporation had filed detailed written statement mentioning therein that this agreement of sale of Flat No.701 was a security for the loan given by the complainant to the O.Ps. So withdrawal of the suit unconditionally from City Civil Court without obtaining decree for agreement of sale and without adding in the pending suit prayer for possession of Flat No.701 would clearly go to show that the instant transaction if any between the complainant on the one side and O.P./Builder on the other side was simply a loan transaction. It was not an agreement of sale of Flat No.701 of Devaarti Building as alleged by the complainant in the complaint. The affidavit of O.P. and affidavit of Mr.Vijay Chugh further establishes this fact by cogent and convincing evidence. It is also brought on record that O.P. had already refunded amount of Rs.6 Lkahs besides initially giving Rs.50,000/- to the complainant towards this loan transaction. Thus, in the light of these circumstances, we have no doubt in our mind in recording the finding that instant transaction between the parties was simply a loan transaction and agreement of sale which is allegedly back dated was executed by way of collateral security to the loan of Rs.5 Lakhs advanced by the complainant to the National Building Corporation. There are other attending circumstances which clearly point out that this was simply a loan transaction between the parties supported by a back dated agreement of sale by way of collateral security. We, therefore, record our finding on issue no.1 accordingly.
17) Issue No.2 :-
In a consumer complaint involving deficiency in service based on agreement of sale we have to simply see whether the service provider has defaulted in giving services in terms of agreement. For that purpose agreement should precede the services to be rendered by the service provider. In the present case we are finding that initially it is alleged there was oral agreement of sale, some payments were made by the complainant to the O.P. and then parties decided to treat the agreement of sale as loan transaction. But since there was letter of allotment issued by O.P./Builder the complainant had filed initially criminal prosecution under M.O.F.A. for non execution the agreement of sale in favour of complainant since the same invited prosecution U/s 13 of M.O.F.A. For the reasons best known to the complainant in the midst of trial he withdrew the said prosecution and then in 1988 he had filed Civil Suit No.4276/19888. When in or about 2000 written statement was filed in that civil suit, the plaintiff in that suit and complainant herein thought that he would not be in a position to procure decree and then his advocate sought permission to withdraw the suit and on 19th September, 2000 the advocate for the complainant withdrew the said suit unconditionally. It is asserted by the counsel for the complainant before us that he withdrew the civil suit because back dated agreement was executed between the parties and on the basis of that back dated agreement the present complaint seems to have been filed. We cant permit ourselves to be a party to such back dated agreement allegedly executed between complainant on one hand and the O.P. on the other. The Consumer Protection Act can not be pressed into service for the benefit of such complainant who is content with getting executed back dated agreement during the pendency of civil suit between the parties mentioned supra. In the circumstances, the truthfulness of the said document has become doubtful. From the contents of written statement and affidavit filed by O.P., it is clear that this was probably a loan transaction between the parties and from the arguments made by the O.P. the loan amount had already been paid to the complainant. There is receipt on simple paper recorded by the complainant that he had received Rs.5 Lakhs from the O.P./Builder. This receipt was amongst other documents sent to handwriting expert and we have received his comments but we are not required to discuss the same for the simple reason that such a complaint involving back dated agreement which is not clearly disclosing or establishing deficiency in service on the part of Builder can not be entertained by this Commission in its original jurisdiction U/s 17 of Consumer Protection Act. This is surely not a simple case of flat purchaser booking a flat, paying consideration and builder/developer not giving possession within a reasonable time and committing default. If a simple case of this nature would have been involved in this complaint we would have certainly entertained it. But this complaint involves a back dated agreement to procure which the initially complainant had to filed Complaint No.48/S of 1988 U/s 420 of I.P.C. and U/s 4(1)(a) and Sec.13 of M.O.F.A. which he abandoned for the best reasons known to him without getting any relief. Then he had also filed Civil Suit No.4276/1988 in the City Civil Court for the direction to the defendant to execute the agreement of sale in his favour in respect of Flat No.701 of Devaarti Building which suit he again withdrew unconditionally without seeking any relief from the Civil Court and got himself satisfied with the execution of agreement of sale back dated. So, all these circumstances taken together are shrouded in a mystery and are not inspiring any confidence in our judicial mind and it is for this reason we are not inclined to hold that this complaint can be allowed by us, on the alleged deficiency in service on the part of Builder tried to be so made out in the fashion mentioned above and therefore we hold that the complaint as filed by the complainant is not tenable in law. We, therefore, record our finding on issue no.2 in the negative.
18) Before parting with this judgment, we may mention the fact that initially the complaint was filed by Mr.Vasudev Valecha but, during the pendency of complaint, said Mr.Vasudev Valecha expired and his legal heirs were brought on record on 21/11/2009 vide M.A.No.1487/2009 allowed by this Commission. Hence, in the title of judgment legal heirs of Mr.Vasudev Valecha/original complainant have been mentioned as complainants. In the circumstances, we pass following order.
O R D E R
1) Complaint stands dismissed.
2) Parties are left to bear their own costs.
3) Copy of this judgment be sent to the parties free of cost.
( Mrs.S.P.Lale ) ( P.N.Kashalkar) Member Presiding Judicial Member A.Malve/-