By this consumer complaint, the complainants seek to recover from the OP the possession of villa A-9 with super built up area of 210 sq.mtrs. in the OP’s complex known as D’Silva Residency alongwith proportionate undivided right in the property surveyed  under No. 80/2 of Navelim, by sale deed, under agreement dated 13/10/08 styled as an “agreement for construction and sale of villa.”

2.     As per the said agreement dated 13/10/08 the possession of the villa was to be given  to the complainants within 6 months with further grace period of three plus three months from the date of the execution of the agreement.  The OP was to intimate the complainants once the said villa was ready for occupation by notice in writing and the complainants were to take possession of the said villa within a period of 30 days of the receipt of the said notice. 

3.     The case of the complainants, in brief, is that by the said agreement they had agreed to purchase the said villa admeasuring 210 sq.mtrs and land appurtenant thereto for a sum of Rs. 40 lacs.  The complainants say that a sum of Rs. 63,11,870/- was paid to the OP, by cheques and as per details given in table of para 5 of the complaint. The complainants say that they have paid a sum of Rs. 63,11,870/- and the same was paid on account of inflation, rise in construction costs and other improvements made by the complainants in the said villa.  The complainants say that the time for taking possession was extended from time to time and finally it was extended upto 31/1/14 but even then the OP failed and neglected to hand over the possession of the said villa to the complainants, and, therefore a legal notice was sent to the OP dated 14/3/14 requesting for possession of the said villa and inspite of the said legal notice the OP has failed to hand over the possession of the said villa.

4.     On the other hand, the case of the OP, in brief, is that the complainants have put the facts in distorted manner.  According to the OP the price fixed for the villa was Rs. 63 lacs and not Rs. 40 lacs. Rs. 40 lacs was shown in the agreement as complainant No. 1 had represented that he was an NRI and that he could face technical and taxation problems if the real price is shown in the said agreement.  The OP says that the complainants also took receipts for Rs. 10 lacs from the OP so that they could raise a loan from the bank showing the receipt as their margin money.  The OP says that although the consideration was shown in the said agreement at Rs. 40 lacs,  complainant No. 2, in the absence of Complainant No. 1, executed a demand promissory note dated 5/10/09 for Rs. 23 lacs which fact has been suppressed by the complainants.  The OP says that the delivery of possession of the villa was subject to the complainants making full payment of Rs. 63 lacs within the time schedule and that only after execution of the pronote that the complainant’s belated payment of Rs. 13 lacs was made in the month of January, 2010 (or is it in February  2010?).  The OP has denied that the complainants have made payment of Rs. 63,11,870/-.  The OP also denies that the OP requested the complainants to extend the date of delivery of possession or that it was extended by mutual agreement.  The OP says that the villa was almost built and ready in the year 2009 itself except for changes sought by the complainants.  The OP does not appear to be averse in handing over possession of the villa to the complainants, in case an amount of Rs. 13,04,000/- with interest at the rate of 18% is paid to the OP (see para 9 of the written version).

5. The complainants have filed an application dated 8/10/14 to produce certain documents, including a sale deed and copies of cheques  stating  that  they  could  procure  the  said  documents only after

filing of the complaint.  Although the sale deed dated 4/1/10 executed by the OP in favour of one Gabriel Fernandes and his wife may not be of much relevance, we are inclined to allow the said application for production of documents.  The copies of cheques produced correspond to the receipts already produced on record.

6.     We have perused the record, the written submissions filed by the parties and heard lr. advocates.

7.     The OP has raised the plea of limitation stating that the complaint was required to be filed within two years from the date of agreement as contemplated by Section 24A of the C.P. Act, 1986.  At times the OP contends that the period of two years ought to be computed from the expiry of six months plus 3 months plus 3 months of grace period given to the OP to complete construction.  The OP also contends that the complainants knew that the villa was complete in the year 2009 itself, as they used to pass by the said villa very often.  OP contends that clause 6(b) of the agreement was a empty formality.

8.     We are not impressed with the submissions of the OP as regards limitation.  Admittedly, the villa was to be handed over to the complainants within six months as stipulated in the agreement with a further grace period of 3+3 months.  The OP, on completion of the villa, was required to intimate the complainants that the villa was ready for occupation by notice in writing.  This was no empty formality but one of the obligations cast on the OP in the terms of the said agreement.   Moreover, on being informed in writing, the complainants were required to take possession of the said villa within a period of 30 days from the receipt of such notice and in case they  did  not  do so their claim against the OP was to lapse.  The OP

has not informed the complainants to take the delivery of the villa, assuming it was ready, way back in the year 2009 or 2010. Cause of action in favour of the complainants would arise only after the complainants were informed in writing that the villa was ready for occupation as required by clause 6(b) of the agreement.  Since the OP failed to comply with the said clause, the period of limitation cannot be reckoned from 12 months of the date of the agreement as contended by the OP.

9.     The complainants by registered notice dated 14/03/14 called upon the OP to discharge their obligations under the said agreement dated 13/10/08, not later than 30 days from the date of the receipt of the notice which requisition the OP failed to comply.  The OP also did not reply to the said notice.  Cause of action in favour of the complainants therefore arose 30 days after the receipt of the notice dated 14/3/14.  The complaint which has been filed on 29/5/14 is well within time.

10.     This State Commission in the C.C. No. 05/14 in the case of Smt. Manda Gorakh Rohakale by order dated 9/7/14 has held as follows:

“6. Admittedly,  the possession of the Villa was to be handed over to the Complainants within 5 months i.e. by April ’09  as stipulated in the agreement and has not been handed over till date.  The complaint has been filed stating that the cause of action arose on 12/04/12 when they came to know of the issuance of occupancy certificate by the Panchayat.  As already stated, the OP have also stated that they are willing to hand over the possession of the Villa to the Complainants.  The OP also concedes  that the agreement has not been terminated. This Commission relying on Meerut Development Authority  vs. M. K. Gupta and Lata Constructions and Ors vs. Dr.

R. R. Shah & anr., 2000(1) CPR 81/AIR 2000 SC 380 has reiterated  in C.C. No.16/2013 by order dated 14/05/14  that “since no possession has been handed over to the Complainants of the apartments booked by them on 13/12/06, although the Complainants  claim that they have paid the entire amount due to the OPs  nor the sale deed executed, these would be cases of recurring cause of action.  In other words, the cause of action would continue till such time the possession is handed over to the Complainants and the sale deed is executed.”  In the case at hand, the possession of the Villa has not been handed over to the Complainants nor the same has been denied.  On the contrary, it is stated that the OP is ready to hand over the possession on payment of balance amount.  The first objection as regards limitation therefore needs to be rejected.” 

The above observations are fully attracted to the facts of the case at hand.

11.     The next objection taken by the OP is that the complainants have to adduce detail evidence which can be done only before the Civil Court of competent jurisdiction and as such the complainant ought to be directed to approach the Civil Court to settle the dispute raised by the complainants.

12.     We are not impressed by this submission made on behalf of the OP.  The Apex Court in Dr. J.J. Merchants and Ors. vs. Shrinath Chaturvedi, 2002 (6) SCC 635 has held that  for a trial to be just and reasonable, long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary.  The Apex Court has also held that the Legislature has provided to the consumers alternative, efficacious, simple, inexpensive and speedy remedy and that should not be curtailed on such ground. The  Apex  Court  has also held that it would be totally  

wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided as the C.P. Act, provides sufficient safeguards.  The Apex Court has further held that the National Commission and the State Commission are required to be headed by a retired Judge of the Supreme Court and the High Court respectively, who are competent to decide complicated issues of law or of facts.   Therefore, in our view, no case is made out to direct the complainants to seek the reliefs sought for by them before the Civil Court.

13.     Another related argument, advanced on behalf of the OP, is that the complainants have alleged that there is a novation of contract but have failed to prove the contents of such alleged novation of contract and as such the complaint is to dismissed.  We are also not impressed with this submission, as well.  Nowhere, have the complainants pleaded novation of contract.  The expression “novation of contract” suggests that one contract is replaced by another, or in other words, novation means the extinguishment of the terms of earlier contract and the creation of another contract between new persons atleast one of who is a stranger to the original contract and by mutual consent of all the parties concerned.  That is  not the case herein.  The complainants have only pleaded that as the OP was going through financial crisis, the stipulated period of 6 months was extended mutually between the parties from time to time and lastly upto 31/1/14, and that more sums of money then agreed upon, were paid to the OP on account of rise in construction cost and improvements made by the complainants to the said villa.

14.   The parties admit that Rs. 10 lacs were not paid by the complainants to the OP, as reflected in clause 5(a) of the agreement between the parties.  What is admitted need not be proved. 

15.   There is also no dispute that the area of the villa to be constructed and sold to the complainants is 210 sq.mts. i.e. super built up area.  This is not only mentioned in the agreement between the parties but also reflected in a contemporaneous document produced by the OP, namely, the valuation report dated 14/10/08 prepared at the instance of the Branch Manager of Jammu and Kashmir Bank.  The dispute is only as regards the cost of the villa agreed to be purchased by the complainants.

16.     As per the complainants, the complainants agreed to purchase the villa for a sum of Rs. 40 lacs.  According to the OP the villa was agreed to be sold for Rs. 63 lacs.  The complainants claim that they have paid Rs. 63,11,870/- to the OP on account of rise in the price of construction and also improvements.  The OP admits having received Rs. 49,96,000/- but states that a sum of Rs. 13,04,000/- is still due and payable by the complainants to the OP.  This is the centre of the controversy between the parties.  That the OP has made some improvements is an admitted position.  The OP has pleaded that the villa was complete in the year 2009 except for changes sought by the complainants.  In other words, this can be taken as a admission that the complainants had sought for certain changes which the complainants were required to pay.  The OP by letter dated 8/2/10 called upon the complainants that the villa had reached at the stage of the kitchen/toilet/bath fittings.  This letter would falsify the OP’s contention that the villa was ready in the year 2009.  By the same letter the OP informed the complainants that while  in  the process of purchasing the fittings in their presence they

had expressed their desire to have the fittings other than those being provided by them which would involve additional cost but the complainants had expressed their desire not to bear the said additional cost.  The complainants were informed that in case they desired any changes as regards the flooring and fittings or other fixtures in the villa they should request in writing and the same would be considered subject to additional payments, wherever applicable. The story of the complainants that they paid excess price because of the improvements ought for by the complainants is largely corroborated both by the admission in the written version as well as the said letter dated 8/2/10 addressed to the complainants by the OP.

17.     That the cost of the villa was Rs. 40 lacs is not only mentioned in the recital clause of the said agreement between the parties but also at three other places of the said agreement. At times the cost of Rs. 40 lacs is referred to as a cost of construction of the said villa and at other times the said cost is referred as a cost of construction as well as the cost of proportionate land forming part of the said villa.  Either way, as already stated, the cost of the villa has been mentioned in the agreement between the parties as Rs. 40 lacs.  The OP has pleaded that the cost of the villa was Rs. 63 lacs and not Rs. 40 lacs as pleaded by the complainants, and that the price of Rs. 40 lacs was mentioned in the agreement at the request of complainant No. 1 who represented that he was an NRI and that he would face technical and taxation problems if the said real price is shown in the document and pleaded that the same should be shown at lesser consideration at Rs. 40 lacs.  This plea is sought to be supported with the said report of Kamat and associates dated 14/10/08 obtained by Jammu  and  Kashmir  Bank,  wherein the value of the villa is shown

as Rs. 24,78,000/- and value of the land is shown as 35,51,700/-, total Rs. 60,29,000/-.

18.     When the OP states that the agreed price of the villa was Rs. 63 lacs and not Rs. 40 lacs, the OP is trying to contradict or vary the written term of the agreement which cannot be permitted in view of the principle underlying Section 92 of the Evidence Act, 1872.  Section 91 of the said Act is based on what is sometimes known as “best evidence rule.”  The best evidence about the contents of a document is the document itself and it is the production of the document that is required by Section 91 in proof of the contents.  In this case the complainants have produced the document i.e. agreement.  It is well established that when the terms of the contract have been reduced to writing, extrinsic evidence as what transpired subsequent to the contract is not admissible for ascertaining the terms.  In view of Section 91 of the Evidence Act, no extrinsic evidence oral or documentary can be admitted to prove the terms of the contract except the document itself or secondary evidence of its contents where admissible under the relevant provision of the Act. (emphasis supplied, see page 1237 of Sarkar & Ejaz’s Law of Evidence, 5 Edition).  The complainants have produced the agreement itself which, as already stated, shows the agreed price at more than one place of the said agreement, to be Rs. 40 lacs.  The OP cannot be allowed contradict the very term of the said agreement either by oral evidence or documentary evidence, such as the said valuation report.  Moreover, the said valuation report also does not say that the value was Rs. 63 lacs.  It refers to the value as Rs. 60,29,000/-.  That is not the case of the OP, apart from the fact that it is common knowledge that valuation is done sometimes on the higher  side  whenever  loans are obtained from the banks. The Apex

Court in M/s. Bhandari Constructions, AIR 2007 SC 1441, has held that when the terms of the transaction are reduced to writing, it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act.  Therefore, the OP cannot be allowed to contradict or vary the said term and say that the agreed price was Rs. 63 lacs and not Rs. 40 lacs.  This State Commission in CC No. 06/08 in the case of Mr. Joao Bosco Fernandes, by order dated 25/7/13 has held as follows:

“27.  It is  now well settled that the Indian Contract Act applies to all including consumers under C.P. Act, 1986 as held by the Apex Court in Marine Container Services South Pvt. Ltd., vs. Go go Garments , AIR 1999 SC 80.  It is also well settled that when a person signs a document which contains certain contractual terms such person is bound by the said terms and it is for such a person to show that there was exception, if any, not to be bound by such terms (see Bharati Knitting Company, AIR 1996 SC  2508). It is also well settled that when terms of a transaction are reduced in writing no amount of evidence can be led, and if led can be accepted, either to contradict the terms or to vary or to add to its terms (see M/s. Bhandari Construction vs. Gopal Upadhya, AIR 2007 SC 1441).”

19. In the circumstances, therefore, the plea of the OP that the cost of the villa was agreed to be Rs. 63 lacs and not Rs. 40 lacs needs to be rejected. The plea of the complainants that the cost of construction was Rs. 40 lacs needs to be accepted.  The OP accepts having received Rs. 49,96,000/-. The OP seems to invoke Section 91 to the case of the complainants of extension of time for completion of the villa and increase in the cost of construction.  However, we may note that these subsequent agreements are covered by the provisos to  Section 92  of  the  Evidence  Act,  particularly  proviso  (4)  of Section 92  of  the   Evidence   Act.   It  is  certainly  not  the  case of the OP that the

complainants have forfeited their right to take possession of the villa because it was not given by the OP within the stipulated period of 6+3+3 months.

20.   The OP claims that the villa was complete in the year 2009.  Assuming that the villa was complete, after completing the improvements/changes sought for by the complainants in the year 2010 or thereabout, and in case the complainants still  owed Rs. 13,04,000/- to the OP, we fail to understand as to why the OP did not call upon the complainants to pay the said amount of Rs. 13,04,000/- and take the possession of the bungalow, assuming for a moment the said sum was still due and payable by the complainants to the OP.  We also fail to understand, as to why the OP did not react to the complainant’s legal notice dated 14/03/14 and tell the complainants to pay the said amount of Rs. 13,04,000/- and take possession of the bungalow.  We are inclined to believe that the OP has put the said plea about the complainant’s liability to pay Rs. 13,04,000/- clearly  by way of an afterthought.

21.     The complainants, admittedly, had paid to the OP by cheques a sum of Rs. 30 lacs as on 24/11/09.  Complainant No. 2, the wife, in the absence of complainant No. 1 on board the ship, then executed a demand pronote in favour of the OP in the sum of Rs. 23 lacs.  This was on 5/10/2009.  Both the parties admit, though the complainants are silent in their evidence, that this pronote was obtained by the OP to secure the balance payment which was required to be paid by the complainants.  The complainants subsequently paid a sum of Rs. 13 lacs as on 12/2/10.  If the cost of construction of the villa was, as per OP, Rs. 63 lacs, the OP does not explain as to what was the cost of additional works or changes carried out on behalf of the complainants.   Again,  if  the  OP has received so far Rs. 49,96,000/-,

the OP has not explained as to what right it had not to return to the complainants the demand pronote dated 5/10/09 for Rs. 23 lacs.  It is certainly not the case of the OP that the complainants are due and payable to them a sum of Rs. 72,96,000/- that being the total value of the amount received and the value of the pronote.  The least which was expected of the OP after receipt of the legal notice is to reply to the same asking for Rs. 13,04,000/- or returning the said pronote.  Not returning the pronote by the OP to the complainants only shows that OP is out to extract more money from them.

22.     The OP has received Rs. 9.96 lacs more than the agreed price of the villa of Rs. 40 lacs.  The OP has not stated what is the value of the improvements made at the request of complainants.  In other words the OP has received more money than it was due to the OP. 

23.     The complainants have set out in the table in para 5 of the complaint about the payments made by them to the OP in the sum of Rs. 63,11,870/-.  The OP has admitted the payments at Sr. Nos. 1 to 7 and 15 amounting to Rs. 49,96,000/- (Page 248) but has disputed the payment of Rs. 13,04,000/- (or is it Rs. 13,15,870/-?).  Some of the payments are made by the complainants on self drawn cheques but the money is received not by any of the complainants but by parties to whom it was meant.  For smaller payments the complainants have taken a note on a book maintained by them.  Why should the complainants have bought granite, taps, tiles, grills, electric switchboards, if they were not meant to the villa of the complainants? And why should the complainants made payments to Peter Khazas; if the same are not in connection with their villa?    The case of the complainants have a ring of truth and is supported by documents.  On balance of probabilities, therefore,   we are inclined to accept the version of the complainants and hold that the complainants have indeed paid to the OP the sum of Rs. 63,11,870/- as set out by them in the table to para 5 of the complaint.  The OP having received Rs. 49,96,000/- as admitted or Rs. 63,11,870/-, as proved over the agreed price of Rs. 40 lacs is not justified in with holding the possession of the villa to the complainants.  As already stated, in case the OP had completed the villa either in the year 2009 or 2010 it was certainly expected of the OP to inform the complainants about the completion of the villa, as required under the agreement, and in case there was any balance to be paid, demand the same from the complainants before delivery of possession of the villa.  The  claim of the OP that the complainants are still due and payable to them a sum of Rs. 13,04,000/- or any other sum is a false plea, clearly raised by way of an afterthought.

24.     The complainants have claimed compensation, in terms of prayer (c) in the sum of Rs. 15 lacs.  We direct the OP to pay to the complainants interest at the rate of 14.5% p.a by way of compensation on the sum of Rs. 63,11,870/- from 15/4/14 till the date the possession is handed over to the complainants, with additional compensation of Rs. 25,000/- for mental trauma, agony and stress undergone by the complainants.  The complainants are also held entitled for cost of Rs. 5000/- in terms of prayer (d). 

25.     For reasons aforesaid, we allow the complaint and direct the OP to handover the possession of the villa to the complainants in terms of prayer (a), (b) and (ba) and to pay to the complainants compensation in terms of prayer (c) and (d) as stated hereinabove.  This order shall be complied by the OP within a period of 30 days.