DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 135/2024

QUORUM:

Order By: Shri S.S. Malhotra (President)

Order

Arguments have already been heard.  Matter is at the stage of admission. File perused.

1. Brief facts as stated by the complainant in the complainant are that complainant entered into an agreement to sell on 22.11.2017 with OP through its AR i.e. OP2 w.r.t. residential plot bearing I-162 A, left side, Second Floor, Laxmi Nagar, Delhi-92 along with structure for Rs.47,00,000/- out of which he paid Rs.10,00,000/- by cheque on 23.11.2017 and he was assured that property is free from all sort of encumbrances, sale, gift, lien, legal law, court decrees, court injunctions attachments whatsoever and no agreement to sell has been executed by the OPs prior to the present agreement etc. with further agreement, that if proved otherwise OPs would be liable for the same.  Complainant paid another amount of Rs.15,00,000/- on 02.12.2017 (as stated in para 4) in cash, Rs.5,00,000/- on 02.12.2017 in cash and Rs.2,00,000/- on 30.01.2018 in cash and as such has paid Rs.32,00,000/- in total to the OP however on 29.01.2018 the complainant was shocked to learn that aforesaid property was booked under the category of ‘unauthorized and illegal construction’ and the same was raided by officials of MCD and demolition of unauthorized construction by MCD was carried out and MCD demolished part of the building and thereafter complainant decided not to purchase the said property as it was damaged from the front side and told the complainant to return the amount, as OP has suppressed the material facts from the complainant.  The OP did not return the amount and the complainant despite unauthorized construction requested the OP to execute the sale deed but OP on one pretext or other avoided to execute the sale deed rather on 26.04.2019 the OP by playing fraud executed the sale deed w.r.t. the above mentioned flat fraudulently, mentioning as Property No.I-162, Third Floor, Laxmi Nagar, Delhi – 92 without the knowledge of the complainant in favour of one Insha Khanam, Son of Abdul Wahid and then the said Insha Khanam along with complainant in connivance with each other, filed a suit for possession of the property of third floor, which is actually Second Floor, of which complainant is having the possession on the basis of agreement of sale, before the Civil Court being CS No.1/2020 against the complainant, where complainant filed the written statement denying oral tenancy but ultimately the Court of Sh. Vijay Kumar Jha Ld. ADJ, decreed the suit in favour of Insha Khanam, on the application under order 12 Rule 6 CPC. Insha Khanam then has filed the execution petition which is pending in the Court of Sh. Vijay Kumar Jha Ld. ADJ and bailiff has been appointed for the purpose of execution / to vacate the aforesaid property bearing No.I-162, Third Floor, Laxmi Nagar, Delhi – 92.  It is further stated that complainant has also moved the Court by filing a suit seeking declaration that subsequent sale deed made by M/s Ruby Buildwell i.e. OP1 in favour of Ms. Insha Khanam (it is not clear as to whether Insha Khanam is a male or female as complaint is not clear) as illegal and has no force of law  being Civil Suit No. 556/2020 praying that subsequent to agreement to sell made by the OP, in favour of complainant, OP be directed to execute the sale deed in favour of the complainant, but this Civil Suit was withdrawn by the complainant on technical ground on 27.02.2024. Complainant also filed one police complaint, whereafter he sent a legal notice dated 25.11.2019 to the OP, for either executing the sale deed as per agreement in favour of the complainant or return the amount of Rs.32,00,000/- with interest.
2. It is further stated that the counsel for complainant, who defended the complainant from the Ld. Court to Hon’ble Supreme Court could not disclose the bare fact before any court that complaint is nothing to do with third floor as per the sale deed of Isha Khanam (as stated). 
3. After he received the execution notice issued by the Court of Ld. ADJ KKD courts  he contacted a new counsel to defend his case and then he came to know that the said Insha Khanam is claiming third floor of the property which has no concern with the complainant property and his previous counsel mis-guided the Ld. Court by filing the civil suit as mentioned above to grab the complainant’s property therefore he is facing hardship on account of the wrongful act of the counsel for OP, as Insha Khanam has filed an execution petition and Ld. ADJ has issued warrant of possession of property.
4. The OP is enjoying the property and money received by him and neither has executed the sale deed of the complainant’s property nor has returned the amount and as such there is deficiency in service i.e. by concealing the material facts of unauthorized construction, by not executing / registration of sale deed w.r.t. No.I-162, left side, second floor, Laxmi Nagar, Delhi – 92 and by executing fraudulently the sale deed in favour of Isha Khanam for the aforesaid flat  and as such he has filed the present complaint claiming that OP be directed to return Rs.40,00,000/- along with interest @ 9% p.a.
5. The arguments were concluded by the complainant on 23.04.2024 and matter was fixed for 30.04.2024 for orders but quorum was not complete on 30.04.2024 and it fixed for today and it is being disposed off. 

The proceedings before Consumer Protection Act are summarily triable and the concept of leading evidence, (examination in chief and cross examine) is generally out of the purview of the Consumer Courts.  Here is the case where complainant in his complaint has mentioned proceedings w.r.t. various cases i.e. one suit filed by Insha Khanam against the present complainant which has been decreed, of which the execution is pending, and warrant of attachment has been issued.  The complainant also stated that he has gone upto the Hon’ble Supreme Court but has not been able to get any relief and then he claims that the suit property has been sold to Insha khanam by giving a different number.

6. Before reaching any conclusion, whether the property in dispute is No.I-162, Third Floor, Laxmi Nagar, Delhi – 92, or whether the property in dispute is No.I-162, left side, second Floor, Laxmi Nagar, Delhi – 92 has to be adjudicated, and same is the core issue to be decided first. The complainant himself is not sure w.r.t. the property number and all the pleadings before the Hon’ble Court of Sh. Vijay Kumar Jha, Ld. ADJ and all the pleadings w.r.t. his own case filed by him, which was subsequently withdrawn, are required to be looked into and all such cases would be requiring an evidence in detail which is not feasible before the Consumer Commission as proceedings before the Consumer Commission are summarily triable in nature.
7. Further the complainant himself claims that a fraud has been played upon the complainant by the OP and if complainant himself claims to be a victim of fraud then also the adjudication of such aspect would requires a details evidence, including detailed cross examination which is not feasible before the Consumer Commission where the matters are decided on the basis of affidavits. 
8. Above all the complainant himself is in confusion as to which property is in dispute, where the same is situated i.e. at which floor and which side. No site plan is attached either of the whole property or of the disputed portion which again would be subject matter of evidence. All the pleadings filed by the OP, by the complainant or by Insha Khanam, are required to be proved/disproved by the respective parties for which a details cross examination would be required, and if that has to be done, it will be a complicated question of facts, which cannot be decided on the basis of mere affidavits of evidence. The complainant has stated in his complaint that he entered into an agreement w.r.t 2^nd floor, left hand side property i.e. I-162 A, then he claimed that the said property was booked by MCD and was demolished, then he stated that he demanded his money back, then he stated that he requested for executing the sale deed, then he stated that he is in possession of property in dispute without mentioning the floor, then his pleadings state that the suit has been decreed by the court of Ld. ADJ, without disclosing as to for which portion, the suit has been decreed. The complainant has gone upto the Hon’ble Supreme Court as per his pleadings and those pleadings have also to be gone through. Then he pleaded that he is in the possession of 2^nd floor left side, and OP has sold the property and then he wrote ‘aforesaid property’. Therefore, pleadings of all the suits/complaint/ execution, police complaint are required to be gone into in depth, for ascertaining the true facts and all these are complicated issue of facts, which would require in depth cross-examination on each point.

          Therefore, keeping in view the totality of circumstances the Commission   is of   the opinion that the issue as explained by the complainant in the         complaint    cannot be decided in summary manner before this     Consumer Commission and therefore without referring any opinion on          merits, the complaint is liable to be rejected and is being returned to the complainant to be filed before the court of appropriate jurisdiction.    

The Complaint is ordered to be returned to the complainant by retaining a photocopy of the same on the record.  It is made clear that this Commission is not referring any opinion on the merits of the case.   

Copy of the order be supplied / sent to the complainant free of cost as per rules.

File be consigned to Record Room.         

Announced on 13.05.2024.