DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No. 97/2007

1. Shri Dalip Singh,

Son of Shri Roshan Lal,

2. Smt. Jagjit Kaur,

Wife of Shri Dalip Singh

Both C/o

E-5/12 IIIrd Floor

Malviya Nagar,

New Delhi-110017.                              ..….Complainants

Versus

M/s Capital Developers Ltd.

C-105, Namdhari Chambers,

9/54 Desh Bandhu Gupta Road,

New Delhi                                                           .….Opposite Party

                                                  Date of Institution      :         2007      Date of Order            :         19.01.19

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

Brief facts as pleaded by the complainant are that:-

1. The complainants purchased a flat measuring 136.50sqft in Anchal Plaza vide flat no. 303 at a total consideration of Rs.1,59,915/- from M/s Capital Developers Limited (OP).
2. It is averred that out of the total consideration amount, a sum of Rs.5,000/- was paid as advance to the respondent at the time of booking of the flat on 27.03.1993 in cash. It is further stated that except for the part payment no formal agreement was executed between the parties. The entire balance consideration / payment of Rs.1,54,915/- was made to the respondent on 14.04.1993 vide cheque No. 842153 drawn on the Punjab and Sindh Bank Green Park New Delhi.
3. It is further stated that few days later, the complainants received a telegram dated 14.04.1993 in which the complainants were asked to contact the OP in their office to avoid cancellation. 17^th and 18^th April being holidays, complainants contacted the respondent office on 19^th April wherein OP asked the complainants to pay Rs.17,859/- by way of registration charges etc. The respondent also gave the receipt for the cheque previously given in which it was mentioned that the cheque received was part payment. It is averred that on protest by the complainants, the OP told him that this is a mere formality and they have received full and final payment for which the receipt will be given only after the complainants makes the payment of Rs.17,859/-. The complainants gave another cheque on 19.04.1993 for the said amount.
4. To the utter surprise of the complainants, they received another telegram dated 03.07.1993 from OP, by which the registration of the said flat was cancelled. On receiving the telegram the complainants immediately visited the office of the OP where he was told that the market price of the flat has gone higher and either the complainants should pay the higher price or surrender the flat and get his refund. The higher price demanded by the respondent is Rs.3.50 lacs. However, both the conditions were not acceptable to the complainants and therefore, he refused to pay more money and requested the OP to handover the physical vacant possession of the said flat. Thereafter, complainants received another telegram dated 14.07.1993 by which the OP again told the complainants that the flat in favour of the complainants had been cancelled.
5. The complainants made several visits to the office of the OP and requested them to handover the possession of the said flat but all in vain.
6. It is next averred that the complainants received a registered letter dated 08.08.1993 from the OP in which the OP mentioned that the flat of the complainants has been cancelled and the complainants were asked to withdraw the amount and OP also threatened to transfer his flat to some other person.
7. Aggrieved by the circumstances above, the complainants approached the Hon’ble State Commission with the following prayer :-

1. Hand over the physical possession of Flat No.303 in Anchal Plaza at Plot No. 7, Vasant Kunj, New Delhi.
2. Make payment of Rs.3.50 lacs being demanded by the respondent as the higher market price as alleged by the respondent.
3. Make payment of Rs.1 lakh as damages on account mental agony suffered by the complainants on the hands of the respondent for not handing over the possession of the said flat and black mailing the complainants for additional payments such as Rs.17,859/- which may also be refunded to the complainants.
4. Cost of the suit may also be awarded in favour of the complainants and against the respondent.    

2. OP resisted the compliant inter-alia raising preliminary objections submitting that the complaint is not maintainable with Hon’ble State Commission for want of pecuniary jurisdiction.
   1. It is next submitted that the complainants had entered into a written agreement dated 27.03.1993 thereby booking flat no. 303 in Aanchal Plaza at plot No. 7 Vasant Kunj New Delhi measuring 136.5 sq. ft. for a total consideration of Rs.4,19,915/- besides other allied charges. As per the agreement, complainants paid sum of Rs.5,000/- on 27.03.1993 by way of cash against which proper receipt was issued by the OP.
   2. The OP next submitted that the complainants were required to pay the second installment of Rs.1,54,915/- on 13.03.1993 which the complainants did not pay on time. OP sent a reminder by way of telegram dated 16.04.1993 upon receipt of which the complainants paid a sum of Rs.1,54,915/- by way of cheque dated 13.04.1993. It is admitted that the complainants paid sum of Rs.17,859/- as part payment towards the allied charges by way of cheque dated 19.04.1993.
   3. It is further submitted that the complainants were to make the last and final payment of Rs.2,60,000/- on 13.04.1993 as per the agreement along with the balance allied charges of Rs.16,000/- before the possession of the flat could be handed over to him. Further the OP gave the statement of account of the complainants till 19.04.1993 along with demand of possession containing therein, all the details as well as payments made / to be made pertaining to the said booked flat. The complainants accepted the same and signed them, and accepted his liability to pay the agreed dues on 30.04.1993, before claiming the possession of the booked flat.
   4. It is next averred by the OP that the complainants did not make the balance payment of Rs.2,60,000/- and Rs.16,000/- till 30.04.1993. Therefore, on non-payment of balance consideration by the complainants the OP gave a reminder telegram dated 02.07.1993 against which the complainants neither replied the same nor made any balance payment. OP issued another reminder telegram dated 14.07.1993 against which the complainants again did not make any endeavor to make the balance payment. Thereafter the OP cancelled the said booking of the flat vide registered letter dated 08.08.1993. Thus, OP submitted that there is no deficiency in service on the part of OP as OP was ready and willing to handover the possession of the said flat as per the agreement executed between the parties. Hence, it is prayed that the present complaint be dismissed with cost.  
3. Before we proceed with the merits of case certain facts regarding the case need to be noticed:-

The present complaint was initially filed before the Hon’ble State Consumer Dispute Redressal Commission, Delhi on 19.08.1993. OP duly contested the case OP filed the written statement wherein he prayed to the Hon’ble State Commission to first decide preliminary objection raised on the ground of pecuniary jurisdiction but the request of OP was declined. Thereafter, the OP filed (CM) (M) 3/97 before the Hon’ble High Court of Delhi wherein an order dated 01.04.1997 was passed by the Hon’ble High Court giving direction to the Hon’ble State Commission to first decide the preliminary objection. However, with the consent of the parties Hon’ble State Commission decided the whole case on merit.

The Hon’ble State Commission framed following points for investigation:-

1. Whether the case for leading secondary evidence by the OP is made out?
2. Whether the complainants executed the dispute documents?
3. This would require examination and cross examination of the marginal witnesses.
4. Examination of the disputed signatures and their comparison with the admitted or specimen signature of Mr. Dalip Singh etc.

The Hon’ble State Commission concluded the matter and observed in its order dated 05.06.1997 as under:-

“We have carefully considered these submissions but it is necessary to go into the question of the written agreement set-out by OP which purports to be signed by Dalip Singh, Complainant No.1 and is witnessed by two witnesses. As the complaint is being finally disposed of, it is not necessary to go into the preliminary objection regarding lack of pecuniary jurisdiction. For these reasons, the complaint is disposed of leaving it open to the complainants to have their remedy in the Civil Court.”

4. Aggrieved by the order of the Hon’ble State Commission, the complainants approached the Hon’ble National Commission. The Hon’ble National Commission vide its exparte order dated 31.07.2006 remanded back the case before this Forum. Pursuant to the said order this Forum wrote a letter to the Registrar of the State Commission to send the complaint case file to this Forum. Registrar, State Commission vide letter dated 21.12.2015 has informed that the file could not be traced in the State Commission. Hence the complainants moved an application for placing the copies on the record.  
5. The complaint file was reconstructed and the matter started afresh in this Forum on 11.07.2016. The key issues to be decided by this Forum are :-

1. Whether the present case is maintainable on grounds of pecuniary jurisdiction in this Forum?
2. Whether the subject property is a commercial property?
3. Whether any agreement / sale deed was signed by the parties for the disputed property?

6. As regards the first issue, the complainants have claimed an amount less than Rs.5,00,000/- which squarely falls within the pecuniary jurisdiction of the District Forum. Therefore, the case is maintainable in the present Forum as regards the pecuniary jurisdiction.  
7. As regards the second issue, the complainants sought to have purchased a flat measuring 136.50 sq. ft. The covered area of the disputed property is 102 sq. ft. which seems little too small to be used for residential purposes. Otherwise also, there are shops / commercial offices in Aanchal Plaza, the building in question. Complainants have given an affidavit to the effect that the complainants have purchased the unit in question for the purposes for earning his livelihood. OP has given a counter affidavit denying the same. Further the Forum is of the opinion that if the said unit was for the purpose of earning livelihood which is in dispute since 2007, the complainants are mute about their other sources of livelihood. Therefore, this Forum is unable to accept the complainants affidavit that the shop in question is purchased for his livelihood. Complaint is thus not maintainable in the present Forum because the complainants have failed to prove that the disputed property was not sought to be purchased for commercial purpose.
8. The key issue that is to be decided to resolve the dispute is whether any written agreement / sale deed was executed between the parties regarding the disputed unit. The complainant has denied that any written agreement dated 27.03.1993 or of any other date was ever executed between the parties. In the written statement filed by the OP, OP has stated that the complainants had entered into a written agreement with regard to the sale dated 27.03.1993. Photocopy of the agreement along with related documents were filed with the written version of OP.
9.  In the rejoinder, complainants denied the same and prayed that OP be directed to file the original agreement dated 27.03.1993. OP was unable to produce the original documents and submitted that the original documents were found to be missing from the OP’s office on 22.01.1994 for which an FIR was lodged with the police. The complainants sought to cross examine MD of the OP company Mr. R.K. Mittal but later was allowed to deliver interrogatories to the OP to be replied on oath. It seems though the OP had replied to the interrogatories but the same is not placed on record.  
10. Therefore, this Forum cannot record a finding on alleged deficiency in service, in the absence of proof of existence, execution and genuineness regarding the agreement of sale. It will not be fair to record a finding with regard to the execution or otherwise of the agreement without affording the parties to lead necessary evidence. The case of the complainants rest on not having executed the agreement and his entitlement to the possession of the flat alongwith suitable compensation. The OP’s contrary stand about the agreement having been executed cannot be brushed aside; as sale of immovable property cannot be accepted to have taken place orally. The two contrary stands need to be adjudicated upon.  

But the above exercise cannot be undertaken by this Forum as Consumer Protection Act deals with the cases exercising summary procedure for detailed investigation and for leading of the evidence the complainants are at liberty to approach the Civil Court. Therefore, we are of the view that the complainants will have the remedy to the present complaint in a Civil Court.

11. Thus, the complaint is disposed off with no order as to costs.    

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 19.01.19.