Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This appeal is filed by the opposite party (for short O.P.) Nos.1 to 5 and 7 through their power of attorney namely Hariprasad Bisandayal Poddar, feeling aggrieved by an order dated 15/02/2006 passed by the District Consumer Forum Nagpur, in consumer complaint No.335/2004, by which the said complaint has been partly allowed.
2. The case of original complainant/respondent herein as set out by him in the aforesaid consumer complaint in brief is as under.
a) The appellant Nos.1-a to 1-e and original O.P.No.6 Rekha Prakash Kale are the owners of the land described in para No.2 of the complaint. They entered in to an agreement of development and sale dated 10/06/1993 with the original O.P.No.8/appellant No.2 herein and original O.P.No.9/appellant No.3 herein. As per that agreement original O.P.No.8 is a confirming party and accordingly plan of multistoried building was proposed to be constructed on the said land. The map was duly sanctioned by competent authority. The respondent herein/original complainant wanted to purchase three shops bearing Nos.1, 10 and 11 out of the said building. After negotiation, price of the said three shops was fixed at Rs.13,53,100/- and an agreement to sale was accordingly executed. The respondent paid Rs.10,00,000/- by way of two cheques. The original O.P.No.7 Hariprasad Bisandayal Poddar is the power of attorney holder of O.P.No.1-a to 1-e and original O.P.No.6 namely Rekha. He executed an agreement to sale in favour of the respondent.
b) However, the appellants did not make construction of the said multistoried building as per agreement though respondent/original complainant contacted them repeatedly and requested them to complete the construction. The appellants avoided to make construction. The balance consideration was to be paid at the time of execution of sale deed and the respondent was ready to pay the balance consideration. The appellants had agreed that they would give possession of the shops within a period of 18 to 24 months but they did not give the possession even after lapse of so many months beyond said period of 24 months. Thus the appellants committed breach of contract and the terms of the agreement and provided deficient service to the respondent herein. They also adopted unfair trade practice. Hence the respondent herein/original complainant filed consumer complaint under section 12 of the Consumer Protection Act 1986 before the District Consumer Forum Nagpur seeking direction to the appellants and original O.P.No.6 Rekha Kale to execute the sale deed and to give him possession of shop Nos.1, 10, 11 and also to pay him (respondent) Rs.3,15,000/- by way of damages with interest @ 18% P.A. and also to pay him cost of litigation.
3. The said complaint was resisted by the appellant Nos.1-a to 1-d and original O.P.No.6 Rekha Prakash Kale by filing their common reply. The original O.P.No.5 Alka Anil Pusadkar died during the pendency of that complaint. The aforesaid O.Ps. in their common reply admitted that they entered in to an agreement with the original O.P.Nos.8 and 9/appellant Nos.2 and 3 herein for development of their land and construction of multistoried building their on and to sell its units to prospective purchasers. They denied that the respondent No.1 paid Rs.10,00,000/- to them and booked the three shops. Thus they denied the case of respondent herein and submitted that complaint as against them may be dismissed.
4. The complaint was also resisted by original O.P.No.7 and 8 Hariprasad Bisandayal Poddar who is also the power of attorney holder of appellant No.1-a to 1-e and appellant No.3 herein, by filing their common reply. They submitted that the respondent No.3 herein Mahendra Kumar Bisandayal Poddar was the active partner of Shreekrishna Properties and he died much prior to the filing of the complaint. It is their defence in brief that the agreement dated 05/04/1995 was executed infavour of the respondent herein as a security for repayment of loan of Rs.10,00,000/- obtained from him and that said agreement was not to be acted upon. Moreover the said amount of Rs.10,00,000/- has been refunded to the respondent herein/original complainant vide cheque No.918909 dated 05/11/1995 for Rs.2,00,000/- drawn on Shikshak Sahakari Bank Ltd. Nagpur and vide cheque No.918987 dated 29/03/1996 for Rs.8,00,000/- drawn on Shikshak Sahakari Bank Ltd. Nagpur. It is denied by them that the respondent herein had approached to them relating to the transaction mentioned in that agreement. Moreover the shops mentioned under the said agreement have been already disposed of and hence there is no question of execution of the sale deed infavour of the respondent. The entire claim of the complainant is false, frivolous and hopelessly barred by limitation. Therefore it was prayed that the complaint may be dismissed.
5. The respondent herein filed rejoinder to the complaint after the reply was filed to the complaint by original O.P.Nos.7 and 8. He denied the allegations made in the reply of the original O.P.Nos.7 and 8 and submitted that the two cheques for Rs.2,00,000/- and Rs.8,00,000/- respectively were refunded to him by the O.P.Nos.7 and 8 relating to some other loan transaction and they have got no concern with the transaction mentioned under the agreement to sell of the present complaint. He denied that the agreement was executed by way of security for repayment of the loan and it was not to be acted upon. According to him the agreement of sale was not cancelled and hence it is in force. He denied that the shops have been already disposed of.
6. The learned District Forum Nagpur after hearing both the aforesaid parties and considering evidence brought on record came to the conclusion under impugned order that though it is the case of original O.P.Nos.7 and 8 that they refunded back Rs.10,00,000/- to the original complainant, but they have not filed any document to show that they refunded Rs.10,00,000/- to the respondent herein and that the agreement was also not cancelled. Therefore the Forum observed in the impugned order that in the absence of any documents it can not be concluded that the transaction was hand loan transaction and Rs.10,00,000/- have been refunded. The Forum therefore held that the original complainant/respondent herein is entitled to the relief claimed. Hence the learned Forum directed the original O.P.Nos.1 to 4, 6 to 8 and 9 to deliver the possession of the shop Nos.1, 10 and 11 to the original complainant/respondent herein and also to pay him interest over Rs.10,00,000/- @ 12% P.A. from the date of acceptance of that amount by them till the possession of said shops is given to him and also to execute sale deed of the said shops in favour of the said complainant/respondent herein and the order be complied with within thirty days from the date of receipt of copy of the same.
7. As observed above feeling aggrieved, this appeal is filed by the aforesaid original parties. During the pendency of this appeal, an application was made by the appellants seeking permission to produce the documents by way of evidence which were not filed before the Forum. They had also filed alongwith that application, those documents as per list dated 01/10/2015. Those documents are the copies and letter dated 15/09/2006 issued by Shikshak Sahakari Bank Ltd, account statement of M/s.Shree-krishna Properties for the month of April 2006, letter dated 08/07/2006 issued by Shree-krishna Properties, water bill dated 31/10/2012, possession letter dated 18/11/1999, agreement to sale dated 06/10/1999 and three sale deeds dated 16/07/2005, 21/12/2005 and 04/02/2006.
8. This Commission after hearing advocates of both the parties passed an order on the said application on 27 10/2016 and there by rejected the said application and there by refused permission to the appellants to produce the said documents on record by way of evidence, in this appeal. The appellants then filed Revision Petition No.3399/2016 before the Hon’ble National Commission feeling aggrieved by that order. The Hon’ble National Commission allowed that Revision Petition by passing an order on 15/01/2018. The Hon’ble National Commission set aside the aforesaid order dated 27/10/2016 passed by this Commission and directed that the aforesaid documents be allowed to be taken on record by way of evidence in this appeal and thus the application filed by appellant for production of evidence in this appeal was granted by Hon’ble National Commission. The copy of that order is also placed on record of this appeal. The appellant also filed affidavit of Mr. Hariprasad Bisandayal Poddar by way of evidence in the present appeal.
9. Thus as per the order passed by Hon’ble National Commission, all the aforesaid documents are accepted on record in this appeal by way of additional evidence. The opportunity was also granted in this appeal to the respondent to file evidence in rebuttal of the said documents. However though sufficient opportunity was given to the respondent herein to adduce evidence in rebuttal, the same is not adduced by the respondent/original complainant.
10. It is pertinent to note that the appeal was initially filed before the learned State Commission Mumbai in the year 2006. Notice was issued by the learned State Commission Mumbai to the respondent and in pursuance of that notice advocate Mr.J.V.Wadhwani had appeared before the learned State Commission Mumbai and filed power on 22/09/2006. On that date the appeal was admitted and adjourned for final hearing. Thereafter the appeal came to be transferred to this Circuit Bench of Nagpur after it was newly established. Advocate Mr.J.V.Wadhwani then appeared before this Circuit Bench on 21/03/2014 when it was taken up for the first time before this Circuit Bench. The direction was given to issue notice to the appellant about transfer of this appeal to this Circuit Bench. Accordingly the notice was issued to the appellants. The advocate of the appellants appeared after receiving the notice. Thereafter either advocate Mr.Wadhwani appeared for the respondent or on his behalf advocate Mr.G.S.Agrawal had appeared before this Commission from time to time. Direction was given to both the parties on 29/07/2015 to file written notes of arguments. Thereafter no one appeared for the respondent and written notes of arguments are also not filed by the respondent or his counsel. The appellants’ advocate filed written notes of arguments.
11. It is also pertinent to note that at the time of final hearing we heard the appellants’ advocate on 12/10/2018. No one appeared for the respondent for final hearing. Today also no one appeared for the respondent. Hence we proceeded to decide the appeal on merits.
12. The learned advocate of the appellants submitted in brief that the documents filed on record during appeal substantiate the aforesaid defence of the appellants that it was actually hand loan transaction and agreement to sell was executed as a security for refund of that loan and actually the loan has been refunded by way of two cheques, of which details are given in reply filed to the complaint. He also submitted that original complainant/respondent herein has not filed any evidence in rebuttal of the said documents in appeal. Hence he requested that the said documents may be believed and impugned order may be set aside. He also submitted that otherwise also it was purely a commercial transaction and hence the respondent does not fall within the definition of consumer given under Consumer Protection Act 1986 and thus the complaint is not maintainable under Consumer Protection Act, 1896. He therefore requested that the appeal may be allowed.
13. The learned advocate of the appellant relied on the decision in the following cases.
- Mandatai Sambhaji Pawar and Another……V/s…..State of Maharashtra and others, reported in 2011(5) All MR.731. It is held in the said case that every Court or Tribunal before whom a contention is raised that it lacks jurisdiction on account of an existence or non existence of a jurisdictional fact, would be required to adjudicate upon the question of the existence or non existence of the fact on which it jurisdiction depends.
- Indrajit Dutta…….V/s……Samriddhi Developers Pvt.Ltd and others, reported in 2015(6) All MR (Journal) 4. In that case complainant purchased two flats and therefore it can not be said to be for his residential purpose and same amounts to be an investment for commercial purpose and hence the complainant does not fall within the purview of consumer and complaint is thus not maintainable.
- Janta Land Promoters Limited……..V/s……Rajiv Dhawan, reported in first appeal No.827 of 2008 decided by Hon’ble learned State Commission Chandigarh by an order dated16/09/2013. It is held by the learned State Commission that it is very much clear from explanation appended to section 2(1)(d) of Consumer Protection Act that the phrase ‘commercial purpose’ does not include the service availed of by a person exclusively for the purpose of earning his livelihood by means of self-employment. It is further observed that no doubt, the complainant averred in the complaint that he purchased the plot to start industry for the purpose of earning his livelihood but he did not aver nor produced any evidence that the earning of that livelihood was by means of self-employment. Therefore, it is to be held that he does not fall under the definition of consumer as contained in the Act.
- Vipin Batra……..V/s……State Bank of India and another, reported in I (2010) CPJ 82. In that case it is observed that if there is any grievance of having cheated him by committing some forgery on the document presented before the bank, that would require a great deal of evidence and can be decided only by the Civil Court as rightly observed by the learned District Forum by making reference of observations already made by the said Commission in Ranu Zadoo Khurana…….V/s…….H.D.F.C.Bank, reported 2009 CTJ 681 (CP).
- B.Vijaya Bharathi……..V/s…….P Savitri and others, decided by Hon’ble Supreme Court as per order dated 10/08/2017. Reported in 2017(9) SCALE 411. In that case the plaintiff did not ask for cancellation of two conveyances of the same property. It is held that this would stand in the way of a decree of specific performance for unless the same made by defendant No.1 to defendant No.2, and thereafter by defendant No.2 to defendant No.3 are set aside, no decree for specific performance could possibly follow.
14. At the out set we find that no documents were placed before the Forum below by the appellants to prove that they had refunded Rs.10,00,000/- to the original complainant/respondent herein. However as per the permission granted in Revision Petition No.3399/2016 by Hon’ble National Commission, the documents about refund of Rs.10,00,000/- filed in the appeal by the appellants are allowed to be accepted by way of additional evidence. Moreover Hariprasad Bisandayal Poddar (appellant No.1) who is also the power of attorney holder of appellant Nos.1(a) to 1(e) also filed his affidavit in this appeal by way of evidence which is also accepted. The respondent has not filed any evidence in rebuttal of the said documents and affidavit in this appeal though opportunity was given to him to file the same. Therefore the said documents and the affidavit went unchallenged as filed by the appellant in this appeal.
15. The aforesaid documents of which details are given in above para No.7 are sufficient to our mind to hold that the appellants refunded Rs.10,00,000/- by way of two cheques to the respondent. The certificate dated 15/09/2006 produced in appeal has been issued by Shikshak Sahakari Bank stating there in that the cheque bearing No.918987 for Rs.8,00,000/- has been cleared from the current account of M/s.Shree-krishna Properties (respondent No.2 herein) which was issued in the name of B.K.Duddalwar (respondent herein). The account statement of M/s.Shri-Krishna Properties (respondent No.2 herein) also shows that Rs.8,00,000/- have been debited in the month of April 1986 to the said account.
16 It is also worthy to note that the original complainant/ respondent herein in his rejoinder filed to his complaint, admitted that two cheques for Rs.2,00,000/- and Rs.8,00,000/- were given to him by O.P. Nos.7 and 8, but they were given relating to some other transaction. But he has not given detail particulars of the said other transaction. He has also not filed any document relating to the said other transaction to support his aforesaid defence. Hence in the absence of any evidence to prove that aforesaid two cheques for Rs.2,00,000/- and 8,00,000/- were given by O.P.Nos.6 and 7 to the original complainant/respondent herein towards some other transaction, said defence of complainant cannot be accepted and it is to be presumed that said two cheques were given towards refund of Rs.10,00,000/-, as contended by appellants.
17. Moreover the copies of the registered sale deeds are also produced by the appellant in the appeal which prove that the appellants already sold the aforesaid shop Nos.1, 10 and 11 to other parties. The affidavit of Hariprasad Bisandayal Poddar (appellant No.1) filed in appeal by way of evidence also went unchallenged which also shows that the appellants refunded Rs.10,00,000/- by way of aforesaid two cheques to the respondent and that the said shops have been sold out to other parties.
18. Thus we find that alleged agreement to sell stood cancelled due to refund of money and hence there is no question of deficiency in service or adoption of unfair trade practice on the part of the appellants by not acting upon the agreement to sell. Hence the impugned order deserves to be set aside.
// ORDER //
- The appeal is allowed.
- The impugned order is set aside.
- The consumer complaint stands dismissed.
- No order as to cost in appeal.
- Copy of the order be furnished to both parties, free of cost.
