DISTRICT CONSUMER DISPUTE FORUM,SAMBALPUR

C.C.No. 18/2015

Sheikh Mohammed Tahir Nawaz

S/O- Sheikh Nawaz Mohammed

R/O- Pension Para, Ps- Dhanupali

PO/City/Dist- Sambalpur ,Odisha          ......Complainant   

                        Versus

1. Gpopal  Agrawal,Director

    Varun Developers Pvt.Ltd.

    75 Indumati NiwasOpp. lOC S.M.Road

    Antop Hill Wadala,Mumdbai-400037

2. Rumit Agrawal,Director

    Varun Developers Pvt.Ltd.

   Agrawala Nagar , Dr.Ambedkar Road.

  Matunga (E), Mumbai-400037...............................Opp.Party

       For Complainant                                  : P.P.Panigrahi

       For O.P.s No.1 & 2                               : P.B.Mishra and A.K.Das

        PRESENT:-  SHRI A.P. MUND, PRESIDENT

                                SMT. S. TRIPATHY, MEMBER

                              SHRI K.D. DASH, MEMBER

Date of Order: 09/07/2019

SHRI A.P. MUND, PRESIDENT

1. The case of the complainant is that the total value fixed by the builder is Rs.11,40,800/- for a flat with a super built up area having  1238 Sq.Ft. for the commercial–cum-residential complex titled “Varun Plaza” at Ainthapali, Sambalpur.The breakup of the price  is as follows:

1. Rs. 11,02,300/- price for consideration of flat.
2. Rs.33,500/-     for transformer installation, electric meter expenses, legal fees etc.
3. Rs. 3000/-          for fire fighting equipment charges.

2. The OP realised excess price of Rs. 3, 06,538/-. As against the fixed price of RS.11, 40,800/-, the OP’s have realised RS.14,47,338/-. This is unfair trade practice. The money was received by their Asst. Manager Bikash Goel at Sambalpur from time to time. The OP is liable to refund the excess price with interest. The details of payment is furnished as follows.
3.  
4.  
5.  
6.  
7.  

f) Rs. 3,00,000/-on Dt. 18.02.09 vide SBI Cheque No.310591.

e) Rs. 65, 055/-on Dt. 22.04.09 vide BOI cheque No. 13693.

3. The complainant was allotted flat No.FF-d1 on the floor of complex Varun Plaza.

4) The O.P. defaulted in timely delivery of the possession of the flat. There has

been delay of 8 months .The promised date of delivery of possession was 31.12.2008. The actual time of delivery of possession was  September 2009. Since September 2009, the complainant is in the possession of the flat. His delay of 8 months is deficiency in service depriving the complainant for utilization of the flat for which the O.P. is liable to compensate.

On the basis of the above grounds the complainant Prayers :

1. To execute the sale deed in favour of the complainant purchaser with immediate effect.
2. Refund the excess price of Rs.3,06,538/- with interest@18% P.A w.e.f.22.04.2009 till the actual refund.
3. Rs.1.5 Lakhs-compensation for mental agony, harassment and inconveniences due to unfair trade practice and deficiency in service arising  out of flat, failure  and execution of sale deed and realization of excess price.
4. Rs.25, 000/-towards the legal cost of the proceeding.

Any other relief(s), which is not prayed, as deemed fit and proper by the Honorable forum.

List of documents filed by the Complainant:-

1. Money receipt Dt. 07.01.08 and 08.12.08 for Rs. 52,439 and Rs. 2,47,000/- Scripted by Bikash Goel.
2. Money Receipt Dt. 14.08.08 for Rs. 1,820,244/- issued by Bikash Goal.
3. Money receipt Dt. 11.12.08 for Rs. 3,00,000/- issued by Bikash Goel.
4. Money receipt Dt. 10.01.09 for Rs.  3,00,000/- issued by Bikash Goel.
5. Money receipt Dt.18.02.09 for Rs. 3,00,000/- issued by Bikash Goel.
6. Money receipt Dt22.04.09 for Rs.65,055/- issued by Bikash Goel.
7. Agreement for Sale
8. Annexure 3 production of loan documents of Aruna Agrawal by Bank
9. Decision in R.F.A. No. 13 of 2013 passed in the court of D.J. Sambalpur

The O.Ps  filed their show cause to the above case as follows:-

1. There in no cause of action as such to file the instant complain petition against the O.P.s and the instant complain petition has been filed by the complainant with mala fide intention to grab some money from the O.Ps.
2. The complain petition is hit by law of limitation as the case is filed after lapse of 6 years of cause of action.
3. The O.P’s have never realized any excess of promised amount from the complainant nor made any delay in delivery of possession. What ever the O.Ps have realized from the complainant is according to the terms of the exsisting agreement for sale executed between both the parties.
4. It is true that the total value fixed by the builder is Rs. 11,40,800/- but it excludes the stamp duty, registration charges, interests on delay payment and others Govt. levies.
5. The allegation made by the complainant in Para 3 of his complain petition that the Ops relized excess price of Rs. 3,06,538/- as against the fixed price of Rs. 11,40,800/-, is not true.
6. The O.Ps have never realized excess price of Rs. 3,06,538/- nor the O.Ps  have received Rs. 14,47,338/- from the complainant. The amount which was paid by the complainant through cheques as mentioned above has only been received by the O.Ps. The O.Ps have never received any money  from Complainant through cash. As per the clause ‘c’ of allotment letter of annexure 1 submitted by the complainant, it is clearly mentioned that all the payment shall be made strictly by Payee’s Account Cheque or Demand Draft only, Favouring Varun Developers Pvt. Ltd, payable at par. So there is no question of receiving any amount in cash by the O.Ps from the complainant.
7. The money was never received by their Asst. Manager Bikash Goel at Sambalpur from time to time. If at all any such amount is received by the manager then the same must have been a personnel transaction between the complainant and manager. So this O.Ps have no say in the said transactions.
8. The application form dated 12.08.08, allotment letter dated 28.08.08 and agreement for sale dated 08.12.08, the first payment/ advance payment was paid by the complainant and received by the O.Ps on dated 14.08.2008 of Rs. 1,82,244/- against booking of the flat. So the claim by the Complainant to make payment of Rs. 52,439/- on dated 07.01.2008, i.e. before seven months from the date of application form is not at all believable and beyond imagination.
9. The Complainant claimed to make payment of Rs. 3,00,039 ( Rs52,439/- and Rs. 2,47,300/-) by cash till dated 08.12.2008, so here the questions arises why the Complainant has paid Rs. 3,00,000/-  on dated 18.02.2009 vide SBI cheque no. 310591, if according to him excess payment has been made.
10. The allegation made in Para 4 of the complainant petition is true and admitted.
11. The answering O.P. controverted Para 5 by averring that the terms and conditions of agreement for sale executed by both the parties, the delivery of possession shall be given by the O.Ps on or before 31.12.2008 after receiving the amount of Rs.9, 20,056/-. But the complainant failed to make the said payment of Rs. 9, 20,056/- on or before 31.12.2008. Rather the O.Ps in good faith has delivered the possession of the Flat in favour of the Complainant on Dt. 01.03.2009, after receiving an amount Rs. 9,00,000/- (i.e. Rs. 3,00,000/- on Dt, 12.12.08, Rs. 3,00,000/- on Dt, 12.01.2009 and Rs. 3,00,000/- on dated 19.02.2009) and a Post dated Cheque of Rs. 65,055/- of dated 22.04.2009 with a further assurance that the Complainant will clear all the balance outstanding amount with interest as per agreement for sale on or before May 2009. But till date the Complainant has not made any payment of the balance outstanding payment. These O.Ps submit that the total outstanding balance amount to be paid by the complainant is Rs. 74,395.00, details if which is given in a separate sheet attached to this show cause.
12. Denied allegation of Para 6 but in defence avers the O.Ps have failed to execute a sale deed in favour of the Complainant due to non payment of full price for the Flat. The Complainant till date has not cleared up all the outstanding dues with interest as per the terms and conditions of the agreement to sale. Since the O.Ps have already delivered the possession of the Flat to the Complainant from 01.03.2009, the intention of the O.Ps is very much clear to execute the sale deed. The total outstanding amount till 31.03.2015 is Rs. 74,395/- excluding the further interest of 24% P.A. as per agreement.
13. The O.Ps have executed various sale deeds before the DSR, Sambalpur for sale of their flats, Shops and Office premises in favour of many buyers who have Nil outstanding, and the O.Ps are also ready to execute sale deed in favour of the complainant subject to making up to date outstanding payment by the Complainant.
14. The Complainant have not mentioned in his false complain petition anything about his signed application form for booking of flat and also not mentioned anything about the Agreement for sale entered between the Complainant and O.Ps which shows his mala fide intention to harass the O.Ps.

Documents filed by O.P.’S:-

1. Letter of cancellation of booking of flat no.FF-4 of Smt. Aruna Agrawal Dt.02/04/2018
2. Application form for booking of Flat No. FF-4 Dt. 120/08/2008
3. Agreement for sale executed on Dt. 08.12.2008

Both the sides addressed their respective arguments, filed the written arguments and citations repeated in 2011 (Supp-I) OLR – 797, 2010(2) CPR 421 (NC), 2012 (2) CPR 104. Perused carefully the petition, written version filed and carefully went through the citations filed. On the basis of the above the following issues are framed.

1. Whether  the case filed is hit by limitation as it was filed after a lapse of 7years from the date of payment of cheques.
2. Whether the complainant  paid excess price of Rs.9,999/- which is to be refunded.
3. Whether the  allegation  of payment of Rs.2,60,000/- on Dt. 1.06.08 by  cash for booking  is true. Did  the complainant give any evidence to substantial the same.
4. Whether payment by cash is permissible and that too prior  to booking of flat.
5. Whether the date of delivery of flat   i.e. Dt. 20.07.2008 is maintained by Ops or they have a valid excuse not to deliver on the above date fixed.
6. Whether the complainant is liable  to pay balance outstanding  amount  to the O.Ps,.
7. Whether the OP’s committed deficiency in service by not executing  the sale deed.
8. Whether the complainant has come before the forum with clean hand

Issue No.1 is taken up first

            The  C.P.Act u/s 24-A l(1) has fixed limitation  as 2 years from the date of cause of action. 24-A(2) has enjoined upon the complainant to satisfy the forum that he had sufficient  cause not to file complainant  within such period.

            Sub-section l(2) has a overriding effect over Sub-Sec.d1 but with a rider. The complainant has to satisfy the forum to what prevented the complainant from filing the complaint within the time fix of u/s 24-A (1).

            Examining the present  case on the light  of above observation, we find that the complainant petition  does not have any point  regarding  limitation.

            The O.P’s in their show cause para-4 have alleged that the  case is  filed after a lapse of 7 years and is hit by limitation.

            Though the complainant’s Advocate received the copy of the show cause on 4.2.16, but took no steps to either amend or satisfy this forum on the point  of limitation. He tried to divert the issue by summoning the bank to divulge the loan taken by the Directors and taking up of summoning Bikash Goel.

            On the final day of argument the Advocate’s further argument by stating that it is a continuous cause of action & limitation is saved on that ground. This was objected to by the O.P citing the limitation Act land case loan.

            The O.P.has given their point as follows:-

1. Cause of action to arose on last payment of instalments or delivery of possession. According to O.P the complainant was delivered possession on 1.3.2009. On both count the complainant fails.
2. The Hon’ble N.C.D.R.C in 2011(2) CRP 58(NC) has held  that “Period of limitation  will have to be counted from the date of the possession.......State Commission .Commission committed mistake  in assuring that there was continuous cause of action- complaint  for respondents barred by limitation having been filed beyond statutory period of two years”.
3. On the other hand countering such submission of the O.Ps the learned counsel submitted in Para No.12 of his written argument justifying that the question of limitation in such a belated stage can hardly be raised and in that connection he has relied often a Nos. of decisions of the National Commission as mentioned therein the concerned Para.
4. Under such circumstance we came to the conclusion that the case is well maintainable under the law and such as objection from raised from the side of the O.Ps is not terrible.

Issue No.8 is taken upon next.

1. According to the O.P’s there is an application from  dt.25.06.2008 through which the contract between the parties came into existence.
2. Allotment letter dated 26.6.2008
3. Agreement on sale Dt. 28.6.2008 for flat no. FF 4 of the O.Ps

These were not  disclosed by the complainant.

We examined the plaint carefully we did not find any mention of these in the plaint. The Plaint only disclose that money was paid to the O.Ps and the O.P’s delayed delivery of the flat. The O.P’s have failed to execute sale deed in favour of the complainant. This is unconscionable contract and on the basis prayed for relief. Examining the above documents it is found that the documents contains some information which are detrimental  to the case of the complainant. The complainant avoids the full effect of the above documents have not produced those documents nor mentioned in the plaints. In 2012(2)CPR 14 the chattishgarh  SCDRC, Raipur examined the point  and  in Para 8 came to observe that “........Principle of Natural justice demands  that every one  should come before  District forum with clean hands stating bona fide every fact that is found on the part of any party then, such party cannot be granted any discretion any relief under the  provision of C.P. Act 1986  .

      The Hon’ble S.C. has also time and again applied the above principle. Hence taking in consideration all the facts pressed and produced we come  to the conclusion that these facts are not convincing and therefore the complainant is not entitled to any relief what so ever in the case in hand.

This issue  is answered in favour of the O.P.

The issue No.2,3, 4, 5, 6 & 7 are taken together as they involved similar point on excess payment  in one form or another.

To examine the issue let us first examine the dispute.

The complainant only avers that he has paid around Rs. 3,06,538  as excess. He has given detailed list of payment . Two payments are in cash and rest by cheques. Altogether he has paid Rs.14,47,338/- extra and wants  the Forum to  pass judgement  in his favour. The documents filed is cash receipt  (Annexure -1) is issued by Bikash Goel.

The O.P’s contested this claim. They averred that payment of any money is strictly prohibited. They acknowledged the payment  made by cheques but they dispute the case payment  and claim that  it was not paid  to them.

Let us  examine some points of Evidence Act regarding burden of proof. Meaning of burden of proof is given the Evidence Act as follows:-

i)The point in issue is to be proved by the party who asserts the  affirmative. According to maxi on   incumbit probation que dicit  non qui negat; acti ori incumbit onus probara and affirmanti non-neganti incumbit probatio. The  burden of proof lies on the person who has to support his case by proof of a fact which is  peculiarity within  his own knowledge of  which he is  supposed to be cognizant.

Proof:- If, logically defined, is sufficient  reason for assignment   to a  proposition as true. Practically considered, it is the establishment  of facts in issue  by proper legal means to the satisfaction of Court. This is  done  by the production of evidence, the law relating to  which  is to all legal principles what logic is to reasoning. Proof is the effect or result of evidence,  while evidence is medium of proof.

Proved:- A fact is  said to be proved when after considering the matters before it. The court  either believs it to exist, or  considers the existence  so probably that a prudent  man ought to act upon the supposition that it exists. A fact is said to the disproved, when after considering the matters before it, the court believes that  it does not  exist.

Burden of Proof :- The burden is never on the O.P. to show  that he did not  accept the money. He is not called upon to  rebut the case made against him until evidence has been introduced sufficient to prove the fact in issue.

Taking into consideration the all above factors it can be logically held that the complainant is cast with a burden to prove that he had paid cash on demand  by the Director & towards installment  for the flats.

This above observation is supported by S-101 of the evidence Act which says “ whoever desires any court to give judgement  as to any legal right  or liability dependant on the existence of facts which he asserts, must prove that those facts exist”

S-102 say “the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”

These are the guiding principles which will determine the out come  of these issues.

Let us examine what evidence is adduced by the complainant.

I) One letter of outstanding dues along with payment details.

The O.P.s files

1. Copy of allotment letter cum money receipt.
2. Copy of application form applied by complainant.
3. Details of balance out standing against complainant  with interest till 30.09.2015

The averment in concerned Para averse that excess price of Rs.10,499 was paid which is excess and gives the break down as follows:-

a) Rs.2.60,000/- on 21.06.2008 by cash for booking. He has not produced any other evidence.

            During the course of argument the Advocate for complainant enumerated a theory that the complainant  is muslim and for  what reason he will pay Rs.2,60,000/- to Bikas Gosel  who is Marwari. He asserted that the money was prayed only for  the booking/ instalment for the flat land for no other purpose.

            He also produced money receipt  Dt.21.06.2008 executed by Bikas Goel for Rs.2,60,000/-

The OP’s have filed Annexure-1 which is the allotment letter cum money receipt dt.26.6.2008 which shows that Rs.1,78,575 by cheque was paid on dt.25.06.2008 was paid towards this.

            Annex-2 - Application form mentioning above along with some terms and condition.

            According to the OP’s Advocate the complainant  did not object at the first instance of application form or allotment letter that she had paid Rs.2,60,000/-in cash. The complainant has for the first time made the above allegation paid in cash in the C.C. case. Never she has raised the issue before the Directors or O.P.’s earlier.

            Taking all above into consideration we gave our considered opinion that, the matter of payment by case is not proved to the satisfaction of this Forum. Hence these issues are held against the complainant.

            Hence the O.P is not liable to register the flat as there is  a dispute regarding  payment .

            Taking the overall view as mentioned in answering the issue it is held that the complainant is lax in filing the case. It has suppressed facts and withholds information from the Forum.  All the issues are answered against the complainant. She has no issue against the O.P.’s

Hence the case is dismissed. No cost.

                                                                                                                              Sd/- 

                                                                                                             SHRI A.P.MUND

                  Sd/-                                                                                       PRESIDENT.

SMT S.TRIPATHY. Member I agree.

                  Sd/-                                                                                                            Sd/-          

   SHRI K.D.DASH.  Member    I agree.                                                     Dictated and corrected by me.

                                                                                                                                PRESIDENT