The record is put up by the Bench Clerk with clarification that the Ld. Male Member namly Sri Abinash Ch. Sarkar who heard the argument in this Case in full and already tender his resignation and he will not be available on and from tomorrow to take part in the business of this Commission. Such being the position, the date for delivery of Judgment is prepond from 12.11.2020 to this date for passing Judgment. 

The Judgment is prepapred by Smt. Silpi Majumder, Ld. Member with the concurrence of Mr. Abinash Ch. Sarkar, Ld. Member is delivered in open Ejlas. Free copy of this Judgment are handed over to the parties. 

The Judgment signed by the Ld. Male Member and Female Member is kept with the record. Note in the Diary and Cause List. 

This complaint is filed by the Complainants/s u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair of trade practice against the OPs as the OPs did not take any step to provide physical possession in the flat as well as execute the sale deed in favour of the purchasers inspite of receipt of the entire consideration price of the said flat till filing of this complaint.

The brief fact of the case of the Complainants is that they being the citizens of India have hired the services from the OPs upon payment of consideration amount and service charges and thus this dispute is a consumer dispute within the scope and ambit of the Consumer Protection Act, 1986.

The OP-1 is the developer who had developed the land for the purpose of construction of residential flats as well as commercial spaces to the intending purchasers at large.

The OP-2 is the registered landowner of the said land on which several flats were constructed by the OP-1 and for this purpose the OP-2 had entered into the Development Agreement with the OP-1.

The said land of the landowner on which construction of several flats had been done, falls within the local limits of the OP-3.

The Complainants being intended to purchase one flat from the OP-1 booked the Flat no-E-104 in the Block- KANCHANA on the first floor having super built up area 1000 square feet more or less together with proportionate and undivided imparitable share of land of the said building known as “SUBORNOBHUMI” lying within the local limit of the OP-3.The OP-2 acquired the property by virtue of several deeds of sale and became the owner in respect of the schedule property and the OP-2 is in exclusive possession in respect of the same. The OP-2 intended to make construction over the property being the owner of the same. The landowner had entered into the Development Agreement on 05.10.2007 with the promoter/developer/builder-OP-1 for construction of the project after demolition of the structures comprised of several flats upon the said property and a General Power of Attorney was also executed by the landowner in favour of the developer/promoter/builder to act on his  behalf for construction, sale of the constructed flats together with the power to collect the funds for construction, booking of flats, power to let out, grant lease, execute, signature  for entering into the agreement for sale with the prospective purchasers of the flat and execute the sale deed in favour of the said purchasers along with to provide physical possession in the purchased flat. In pursuant to the Development Agreement dated 05.10.2007 and the Power of Attorney the OP-1 started to construct building in the said project consisting of several flats in accordance with the building plan sanctioned by the OP-3-South Dum Dum Municipality. The Complainants having need of residential accommodation have entered into an Agreement for Sale with the OP-1 on 28.09.2008 being agreed and satisfied with the proposal of the OP-1. The total cost of the said flat was scheduled at Rs.20,00,000/-. Some terms and conditions were mentioned in the said Agreement for Sale and as per the terms of the agreement the Complainants paid the entire consideration price of Rs.20,00,000/- to the OP-1 for the said flat. The land on which the flat is constructed has been described as schedule-‘A’ and the questioned flat as schedule-‘B’. It was settled in the Agreement for Sale that the OP-1 will provide possession of the flat to the purchasers within 03 years from the date of signing of the Agreement for Sale. After completion of 03 years the Complainants have started to request the OP-1 to handover the physical possession in the said flat for which the entire consideration have already been paid along with Execution and Registration of the Sale Deed in their favour time and again. It was mentioned in the Agreement for Sale that the purchasers will bear the cost and expenses of the stamp duty, registration fees and other fees for preparation of the sale deed etc. But due to negligence and laches on the part of the OP-1 the completion of the sale transaction within the stipulated period was not materialized. The Complainants were always ready and willing to perform their part of the contract and presently also they are also ready to comply with the terms and conditions of the Agreement for Sale. As the OP-1 had also put his signature in the said Agreement for Sale, the OP-1 is also legally bound to abide by the terms and conditions of the said agreement. Inspite of several representations on behalf of the purchasers the OP-1 had deferred the matter of Registration of the Sale Deed in favour of them in respect of the ‘B’ schedule flat on several pretext/pleas. The Agreement for Sale was drafted and finally prepared as per the directions and instructions of the OP-1. It is pertinent to mention that as the OP-1 had already received the entire consideration of the said flat, the OP-1 is legally bound and under the obligation to transfer the said flat to the purchasers at the consideration price of Rs.20,00,000/-. So after receipt of the entire consideration amount the OP-1 is not in a position to take any unethical, improper and illegal plea. It is mentioned in the Agreement for Sale that the OP-1 is duty bound to complete the sale transaction by way of Execution and Registration of the Sale Deed and providing physical possession in the said flat in favour of the purchasers. After making payment of the entire consideration amount the Complainants requested the OP-1 for execution of the Deed of Conveyance in their favour and also to approve the draft copy of the Deed of Conveyance in respect of the ‘B’ schedule flat at the cost of the purchasers, but to no effect. In this manner the OP-1 has duped the Complainants, so they are entitled to get compensation from the OP-1 till execution of the Sale Deed in their favour in respect of the said flat. The Complainants have already performed their obligation in respect of the contract and they are always willing to discharge their rest obligation and liabilitiesas per the Agreement for Sale, but the OP-1 has miserably failed to perform his obligation as per the contract. Finding no other alternative the Complainants sent one legal notice to the OP-1 on 08.04.2014 through his Ld. Advocate stating the aforesaid facts and claiming their legitimate claim i.e. Registration of the Sale of the Deed and to provide physical possession in the purchased flat after completion of the entire works as per the specification in habitable condition. Inspite of receipt of the said letter the OP-1 had failed to comply with the same. The OP-1 being an influential and moneyed person in the locality is continuously threatening the peace loving Complainants not to disturb his proposed work in respect of the ‘B’ schedule property and also refused to execute and register any Deed of Conveyance. From the aforesaid facts and circumstances it is palpably clear that the OP-1 is guilty for deficiency in service as defined under the provisions of the Consumer Protection Act, 1986 and thus the Complainants being compelled have filed the instant complaint against the OPs praying for certain reliefs.

Subsequently the Complainants came to know from the said locality that the OP-1 was trying illegally to transfer/alienate the ‘B’ schedule flat at inflated price to another intending purchaser suppressing the Agreement for Sale dated 28.09.2008. Under such compelling circumstances the Complainants sent a notice to the OP-1 through registered post with A/D requesting to provide possession in the said flat along with execution of the Sale Deed in respect of the said flat in their favour. But inspite of receipt of such notice the OP-1 did not bother to pay any heed to it and still the OP-1 is desperately trying to give effect his wrongful design as stated above. Hence the Complainants being compelled has filed a suit before the competent Civil Court for Specific Performance of Contract against the OP-1 and also prayed for Permanent and Temporary Injunction to restrain the OP-1 from alienating/transferring the ‘B’ schedule suit property to any other person/s, in alternative the Complainants have also prayed for refund of the amount to the tune of Rs.20,00,000/-from the OP-1 with statutory interest thereon. The OP-1-defendant is legally bound to execute and register the Sale Deed in favour of the Complainants in terms of the Agreement for Sale dated September, 2008. But finally the OP-1 had refused to act upon as per the Agreement for Sale. In such manner the OP-1 had intentionally, illegally and negligently harassed the Complainants physically and mentally. Till date the OP-1 did not take any initiative or positive steps regarding execution and registration of the Sale Deed nor to give any reply to the bonafide request of the Complainants. The aforementioned facts clearly reveal the gross negligence on the part of the OPs in rendering their service to the customers like these Complainants and also highly deficient in nature. As the OPs have failed to redress the grievance of the Complainants, having no other alternative the Complainants have approached before the Ld. DCDRF, Barasat by filing this complaint praying for direction upon the OPs either jointly or severally to execute and register the Deed of Conveyance after delivering the physical possession in the purchased flat, failing which the Deed of Conveyance may be registered through the machinery of the Ld. Forum, to pay either jointly or severally the enhanced cost of registration determined by the Ld. Forum, to pay either jointly or severally adequate compensation for harassment, mental agony and deficiency in service, to take either jointly or severally the completion certificate with regard to the said multistoried building as per the sanctioned plan and to hand over the same to the Complainants, to handover  either jointly or severally the sanctioned building plan duly approved by the OP-3 and to pay litigation cost to them.

The petition of complaint has been contested by the OP-1 by filing written version contending that the petition of complaint along with the documents as served upon this OP are clearly revealed that this complaint is neither maintainable nor entertainable in the eye of law, which requires to be rejected. As the Complainants have approached before the Ld. Forum with dirty and unclean hands by suppressing the material facts for getting an order, they are not entitled to get the same. The OP-1 has stated in the written version that the Complainants have manufactured the ‘Agreement for Sale’ dated 28.09.2008 and also tampered and forged the signature of ‘Prasanta Paul’, being one of the thethen Director of M/s. Bengal D.C. Paul Housing Limited and so that the OP-1 denied and disputed the alleged instrument dated 28.09.2008, so there is no existence any Agreement for Sale at all dated 28.09.2008 by and between the Complainants and the OP-1. The OP-1 is not interested to make any statement regarding the paragraph nos-1-7 of the petition of complaint and he is denying and disputing the contention of the paragraph no-4. In the paragraph no-8 the Complainants have made out a cock and bull story and gave birth one fictitious Agreement for Sale dated 28.09.2008 through which imaginary monetary transaction was brought by the Complainants and this OP is strongly denying the said fact. This OP-1 has categorically denied the contentions of the paragraph nos-9-21 of the petition of complaint. It is further stated by the OP-1 that after entering appearance this OP filed an application seeking for documents on which the Complainants have placed reliance at the time of institution of this complaint and the Ld. Forum was pleased to allow the said application and directed the Complainants to serve the same, but the Complainants have served only the copy of the Memorandum of Agreement dated 28.09.2008 to this OP and was reluctant to serve any copy of Money Receipt, Memo of Consideration, any instrument showing the acknowledgment of the OP-1, Legal Notice dated 08.04.2014 and its acknowledgment and the copy of the Suit for Specific Performance of Contract before the competent Court of Law. The Complainants have wilfully and deliberately flouted the said order of the Ld. Forum and so that the instant complaint is required to be dismissed owing to the non-compliance of the same. The OP-1 has mentioned in the written version that in the alleged, fictitious and manufactured Agreement for Sale it is stated that the developer/promoter is under the obligation to deliver the possession in the purchased flat within 03 years from the date of execution of the Agreement for Sale i.e. 28.09.2008, but no legal action has been taken by the Complainants against this OP after lapse of 03 years and/or did not file any complaint within two years from the date of expiry of 03 years. So the date of legal notice dated 08.04.2014 cannot create any extended period of cause of action, as such this complaint is liable to be dismissed in limini. The OP-1 has alleged that the Complainants did not pay any single amount to the OP-1 for purchasing the flat and the Complainants are also unable to furnish any scrap of papers relating to payment thereof and so the Agreement without any consideration amount is void under the provision of Indian Contract Act, 1872, so this complaint is required to be dismissed. In the petition of complaint it is mentioned that being compelled one suit for Specific Performance of Contract has been filed against this OP. According to this OP-1 it is barred under the provisions of law that regarding the self-same cause of action multiple proceedings can lie, so this instant proceedings is liable to be dismissed. The OP-1 has prayed for dismissal of this complaint with exemplary cost and heavy penalty.

After admission hearing of this complaint notices were issued upon all the OPs. But inspite of receipt of the notice the OP-2 did not turn up to contest the complaint either orally or by filing written version. After expiry of the statutory period for filing written version the Ld. Forum was pleased to pass an order that the complaint will run exparte against the OP-2.

The petition of complaint has been contested by the OP-3 by filing written version denying the entire allegations as made out by the Complainants in their complaint petition. In respect of the paragraph nos-1-8, 16& 18 of the petition of complaint the OP-3 has stated that the said contentions are matter of record and the OP-3 has no role in that respect. Regarding the contentions of paragraph nos-9-15& 17-21 the OP-3 has contended that the disputes are lying by and between the Complainants and the OP-1 &2, hence the OP-3 has nothing to do in this matter. As there is no dispute by and between the Complainants and the OP-3, the Complainants are not entitled to get any relief from this OP as sought for in the prayer portion of this complaint. The OP-3 has prayed for dismissal of the complaint.

The Complainants, the OP-1 and the OP-3 have adduced their respective evidences on affidavit with a copy to the other side. The Complainants were cross-examined by the OP-1 by way of questionnaire and the Complainants have filed replies to the said questionnaire on affidavit. But the Complainants did not cross-examine the OP-1 by filing questionnaire, so scope for filing replies by the OP-1 did not arise at all. Neither the OP-3 cross-examined the Complainants nor the Complainants have cross-examined the OP-3 by filing questionnaire, question does not arise for filing replies to the questionnaire either by the Complainants or the OP-3. The OP-1 has filed Brief Notes of Argument with a copy to the Complainants. But the Complainants did not file any Brief Notes of Argument. The OP-1 has also filed some Rulings on which the OP-1 has placed reliance in support of his contention.

It is pertinent to mention that during pendency of this complaint the Complainant (Sri. GOUTAM SAHA, since deceased) had expired on 26.04.2019. For this reason the legal heirs of the deceased have prayed for substitution of their names in the cause title of the complaint as Complainants. The legal heirs accordingly have filed a petition praying for substitution of their names along with a copy of the death certificate of the deceased. From the petition it is revealed that prayer was made by the legal heirs of the deceased to substitute their names in the cause title. After allowing the said petition the name of the wife of the deceased namely MONIKA SAHA and the name of the daughter of the deceased namely MEGHA SAHA have been substituted in the cause title of the complaint as the COMPLAINANTS. The Ld. Counsel for the Complainants has filed the Amended Complaint with a copy to the other side. As neither the OP-1 nor the OP-3 had prayed for filing additional written version, the Ld. Forum did not give them any time for filing the same. Moreover the Ld. Counsel for the OP-1 and 3 have submitted that such substitution will not change the nature and character of this complaint. So to expedite the matter the OP-1 and 3 did not take any action to waste the time, rather they were more interested to dispose of this complaint as early as possible.

It is necessary to mention that this complaint was filed before the Ld. DCDRF, Barasat. After establishment of the Ld. Additional CDRF, Rajarhat (Newtown) the case record has been transferred from the Ld. DCDRF, Barasat to this Ld. Forum in view of the order passed by the Hon’ble SCDRC as the address of the OP-1 from where the OP-1 is carrying on business lies within the territorial jurisdiction of this Ld. Additional CDRF (now Commission as amended). The office of the OP-3 also situates within the territorial jurisdiction of this Ld. Additional CDRF (now Commission as amended). The record reveals that at the argument stage this complaint is transferred. Before this Ld. Commission the names of the legal heirs of the deceased are substituted and the Complainants have filed the amended complainant showing the names of the two legal heirs of the deceased in the cause title of the complaint as Complainants before this Ld. Commission.

We have carefully perused the petition of complaint, written versions filed by the OP-1 and OP-3, evidences of the Complainants, OP-1 and the OP-3, questionnaire filed by the OP-1, replies submitted by the Complainants, copy of the Agreement for Sale dated 28.09.2008 executed by and between the Complainant-Sri. Goutam Saha, since deceased and one of the thethen Directors of the OP-1, Brief Notes of Argument filed by the OP-1 and several Rulings filed by the OP-1 on which the OP-1 has placed reliance in support of his contention. Upon perusal of the above mentioned in our view the following points should be adjudicated upon.

: POINTS FOR DETERMINATION:

1. Whether the Complainants can be termed as Consumers within the purview of the definition of ‘CONSUMER’ as enumerated in the Section 2(1) (d) (ii) of the Consumer Protection Act, 1986 or not?
2. Whether this complaint is maintainable from the angle of its territorial and pecuniary points of view or not?
3. Whether there is any deficiency in service as well as unfair trade practice on behalf of the OPs or not?
4. Whether the Complainants are entitled to get relief as sought for or not?

: DECISION WITH REASONS:

1. The petition of complaint is clearly revealed that the Complainants have approached before the OP-1 for purchasing one flat for residential purpose in the project constructed by the OP-1. The total consideration amount was settled at Rs.20,00,000/-. The Complainants and the OP-1 have entered into an Agreement for Sale on 28.09.2008, from where it is evident that on the date of execution of the Agreement for Sale the Complainants paid the total consideration amount for Rs.20,00,000/- to the OP-1. Admittedly no money receipt and acknowledgment is forthcoming from the end of the Complainants and the OP-1 respectively. During argument the Ld. Counsel for the OP-1 has argued that the Complainants did not pay any farthing to the OP-1 for purchasing the flat and in this connection no Agreement for Sale was executed by and between the Complainants and the OP-1. The argument of the Ld. Counsel for the Complainants is that as the Complainants paid the entire consideration amount for purchasing the flat to the OP-1, which is mentioned in the Agreement for Sale, then obviously the Complainants being the legal heirs of the deceased Complainant can be termed as consumers. Upon considering the abovementioned submission as advanced by the Ld. Counsel for the Complainants and the OP-1 we are of the opinion that in the Agreement for Sale dated 28.09.2008 where the Complainants and the OP-1 put their respective signatures, it is mentioned that the Complainants have paid the entire consideration amount for purchasing the questioned flat on the date of execution of the Agreement for Sale. So from the said averment it is crystal clear to us that the Complainants have hired the service of the OP-1 by making payment of the entire consideration amount to the OP-1. Therefore in view of the definition of ‘CONSUMER’ as enumerated in the Consumer Protection Act, 1986 the Complainants can easily be termed as ‘CONSUMERS’ and the OP-1 is the ‘SERVICE PROVIDER’. Thus the point no-1 is decided in favour of the Complainants.
2. From the cause title of the petition of complaint it is evident that the OP-1 is carrying on business at the address which falls within the territorial jurisdiction of this Ld. Forum (Commission as amended).The office address of the OP-3 also lies within the territorial jurisdiction of this Ld. District Commission. Therefore this complaint does not hit the territorial jurisdiction of this Ld. District Commission. It is seen by us that the total cost of the questioned flat was settled at Rs.20,00,000/-. In the prayer portion the Complainants did not seek any amount towards compensation. Therefore the total suit value of the present complaint does not hit the pecuniary jurisdiction of this Ld. District Commission. Therefore this complaint is very much maintainable from the points of its territorial and pecuniary jurisdictions. Thus the point no-2 is decided in favour of the Complainants.
3. Now we are to adjudicate as to whether there is any deficiency in service or unfair trade practice on behalf of the OPs or not. For such adjudication we have to recapitulate the case of the Complainants and the OP-1 briefly. The case of the Complainants is that being intended to purchase one residential flat from the OP-1 the husband and father of the present Complainants, who had expired during pendency of this complaint booked the Flat no-E-104 in the Block- KANCHANA on the first floor having super built up area 1000 square feet more or less together with proportionate and undivided imparitable share of land of the said building known as “SUBORNOBHUMI”.The OP-2 being the landowner of the said landhad executed a Development Agreement on 05.10.2007 with the OP-1 for construction of several residential flats as well as commercial flats on the said property. A General Power of Attorney was also executed by the landowner in favour of the developer/promoter/builder-OP-1 to act on his  behalf  for construction, sale of the constructed flats together with the power to collect the funds for construction, booking of flats, power to let out, grant lease, execute, signature  for entering into the agreement for sale with the prospective purchasers of the flat and execute the sale deed in favour of the said purchasers along with to provide physical possession in the purchased flat. In pursuant to the development agreement dated 05.10.2007 and the power of attorney the OP-1 started to construct building in the said project consisting of several flats in accordance with the building plan sanctioned by the OP-3-South Dum Dum Municipality. The Complainants have entered into an Agreement for Sale with the OP-1 on 28.09.2008, being agreed and satisfied with the proposal of the OP-1. The total cost of the said flat was scheduled at Rs.20,00,000/-. Some terms and conditions were mentioned in the said Agreement for Sale and as per the terms of the agreement the Complainants paid the entire consideration price of Rs.20,00,000/- to the OP-1 for the said flat. It was settled in the Agreement for Sale that the OP-1 will provide possession of the flat to the Complainants within 03 years from the date of signing of the Agreement for Sale. After completion of 03 years the Complainants have started to request the OP-1 to handover the physical possession in the said flat for which the entire consideration have already been paid along with execution and registration of the Sale Deed in their favour time and again. It was mentioned in the Agreement for Sale that the purchasers will bear the cost and expenses of the stamp duty, registration fees and other fees for preparation of the Sale Deed etc. But due to negligence and laches on the part of the OP-1 the completion of the sale transaction within the stipulated period was not materialized. The Complainants were always ready and willing to perform their part of the contract and presently also they are ready to comply with the terms and conditions of the Agreement for Sale. As the OP-1 had also put his signature in the said Agreement for Sale, the OP-1 is also legally bound to abide by the said agreement. Inspite of several representations on behalf of the Complainants the OP-1 had deferred the matter of registration of the Sale Deed in favour of them in respect of the flat on several pretext/pleas. The Agreement for Sale was drafted and finally prepared as per the directions and instructions of the OP-1. According to the Complainants as the OP-1 had already received the entire consideration amount for the said flat, the OP-1 is legally bound and under the obligation to transfer the said flat to themat the settled price. It is mentioned in the Agreement for Sale that the OP-1 is duty bound to complete the sale transaction by way of execution and registration of the Sale Deed and providing physical possession in the said flat in favour of the Complainants. As the OP-1 has duped the Complainants, they are entitled to get compensation from the OP-1 till execution of the Sale Deed in their favour in respect of the said flat. Having no other alternative the Complainants sent one legal notice to the OP-1 on 08.04.2014 through his Ld. Advocate stating the aforesaid facts and claiming their legitimate claim i.e. execution and registration of the Sale Deed and to provide physical possession in the purchased flat after completion of the entire work as per the specification in habitable condition, but inspite of receipt of the said letter the OP-1 had failed to comply with the same. The OP-1 being an influential and moneyed person in the locality is continuously threatening the peace loving Complainants not to disturb his proposed work in respect of the ‘B’ schedule property and also refused to execute and register any deed of conveyance.

Further case of the Complainants is that subsequently the Complainants came to know from the locality that the OP-1 was trying illegally to transfer/alienate the questioned flat at inflated price to another intending purchaser suppressing the Agreement for Sale dated 28.09.2008. Under such compelling circumstances the Complainants sent a notice to the OP-1 through registered post with A/D requesting to provide possession in the said flat along with execution of the sale deed in respect of the said flat in their favour. But inspite of receipt of such notice the OP-1 did not bother to pay any heed to it.Thenthe Complainants being compelled has filed a suit before the competent Civil Court under Specific Performance of Contract against the OP-1 and also prayed for permanent and temporary injunction to restrain the OP-1 from alienating/transferring the suit property to any other person/s, in alternative the Complainants have also prayed for refund of the amount to the tune of Rs.20,00,000/-from the OP-1 with statutory interest thereon as paid by them towards the entire consideration amount for the said flat. But finally the OP-1 had refused to act upon as per the agreement for sale. In such manner the OP-1 had intentionally, illegally and negligently harassed the Complainants both physically and mentally. Till date the OP-1 did not take any initiative or positive steps regarding execution and registration of the sale deed nor to give any reply to the bonafide request of the Complainants. As the OPs have failed to redress the grievance of the Complainants, having no other alternative the Complainants have approached before the Court of Law by filing this complaint praying for certain reliefs as mentioned above.

The case of the OP-1 is that this complaint is neither maintainable nor entertainable in the eye of law as the Complainant/s have approached before the Ld. Forum with dirty and unclean hands by suppressing the material facts for getting an order and for such suppression of material fact and non-disclosure of the relevant documents this complaint is liable to be dismissed. The OP-1 has further contended that the Complainants have manufactured the ‘Agreement for Sale’ dated 28.09.2008 and also tampered and forged the signature of ‘Prasanta Paul’, being one of the thethen Director of M/s. Bengal D.C. Paul Housing Limited and so that the OP-1 denied and disputed the alleged instrument dated 28.09.2008, so no agreement for sale dated 28.09.2008 is existing by and between the Complainants and the OP-1. The OP-1 was never entered into such agreement with the Complainants, so the question of any monetary transaction does not arise at all. It is further stated by the OP-1 that after entering appearance this OP filed an application seeking for documents on which the Complainants have placed reliance at the time of institution of this complaint and the Ld. Forum was pleased to allow the said application and directed the Complainants to serve the same, but the Complainants had served only the copy of the Memorandum of Agreement dated 28.09.2008 to this OP and was reluctant to serve any copy of Money Receipt, Memo of Consideration, any instrument showing the acknowledgment of the OP-1, Legal Notice dated 08.04.2014 and its acknowledgment and the copy of the Suit for Specific Performance of Contract before the competent Court of Law. The Complainants have wilfully and deliberately flouted the said order of the Ld. Forum and so that the instant complaint is required to be dismissed owing to the non-compliance of the same. The OP-1 has stated that though in the alleged, fictitious and manufactured Agreement for Sale/instrument it is stated that the developer/promoter shall deliver the possession in the purchased flat within 03 years from the date of execution of the Agreement for Sale i.e. 28.09.2008, but no legal action have been taken by the Complainants against this OP after lapse of 03 years and/or did not file any complaint within two years from the date of expiry of 03 years. So the date of legal notice dated 08.04.2014 cannot create any extended period of cause of action, as such this complaint is liable to be dismissed in limini. The OP-1 has alleged that the Complainants did not pay any single amount to the OP-1 for purchasing the flat and the Complainants are also unable to furnish any scrap of papers relating to payment thereof and so the Agreement without any consideration amount is void under the provision of Indian Contract Act, 1872, hence this complaint is required to be dismissed. The OP-1 has further mentioned that being compelled the Complainantsfiled one suit for Specific Performance of Contract against this OP, so it is barred under the provisions of law to lie multiple proceedings regarding the self-same cause of action, so this instant proceedings is liable to be dismissed with exemplary cost and heavy penalty.

It is seen by us that the OP-1 had filed a petition before the Ld. Forum on 07.07.2015 praying for production or disclosure of all the documents on which the Complainants have relied upon and/or mentionedthe names of those documents based on which averment has been made out in the petition of complaint. The Ld. Forum was pleased to allow the said petition filed by the OP-1 and directed the Complainants to serve the entire documents to the OP-1. But admittedly the Complainants did not provide those documents to the OP-1 apart from the copy of the Agreement for Sale (Memorandum of Agreement) dated 28.09.2008. In the said petition the OP-1 had prayed for production of the documents relating to the suit filed by the Complainant under Specific Performance of Contract, legal notice dated 08.04.2014 etc. Therefore it is clear from the case record that the Complainants did not comply with the direction of the Ld. Forum dated 07.07.2015. The OP-1 took the fact of such non-disclosure of material documents in his written version as well as in the evidence on affidavit and also in his BNA. But till final argument of this complaint the Complainants did not produce the same. Not only that though the Complainants have made out their case mentioning those documents, the Complainants did not bother to file those documents before the Ld. Forum till final argument of this complaint. Such non-compliance of the Ld. Forum’s direction cannot be entertained or encouraged in the eye of Law. We are not in a position to understand as to what prompted the Complainants not to submit those documents and /or why the Complainants became so reluctant to submit the same.

The Document namely the ‘Money Receipt’ of Rs.20,00,000/-is urgently required to adjudicate this complaint inspite of mentioning the same in the Agreement for Sale dated 28.09.2008, wherein it is mentioned that the Complainants paid the entire consideration amount of Rs.20,00,000/- to the OP-1 on the date of execution of the Agreement for Saleto purchase the flat. We have noticed that in the Agreement the Complainants (deceased Complainant) and on behalf of the OP-1 one of the Directors put their respective signatures, but in what mode the said hefty amount was paid by the deceased Complainant, the mode of transaction has not been mentioned in the Agreement for Sale.The Ld. Counsel has also argued that it is not mentioned in the Agreement as to whether the Complainants paid the consideration price for Rs.20,00,000/- either in cash or in any other manner. If the Complainants paid the amount from his bank account then it was the duty of the Complainants to produce the bank statement, in case of payment through demand draft or banker’s cheque, then the number of those instruments along with the photocopy of those instruments were required to be filed and mentioned. But the Complainants did not disclose anything in this regard. It is further submitted by the OP-1 that in case of cash payment of Rs.20,00,000/-, the Complainants is not in a position to pay such hefty amount in cash, which is contrary to law as no person can make payment more than Rs.2,00,000/- in cash, then how the Complainants paid such hefty amount in cash? In this respect we are of the view that no averment is forthcoming from the petition of complaint that in what manner Rs.20,00,000/- was paid by the Complainants to the OP-1. During argument the Ld. Counsel for the Complainants has argued that entire consideration amount of Rs.20,00,000/- was paid in cash. In this respect the ld. Counsel for the OP-1 has relied upon the judgment passed by the Hon’ble NCDRC in the case of Madhumita Mitra & Another vs. Anand Jhawar & Others, in the First Appeal no-620/2019, decided on 30.04.2019. In the said judgment Their Lordship has held in the paragraph no-5, which runs as follows-

5. ‘It would be seen from the legal notice sent by the Complainants/appellants as well as from the Consumer Complaint filed by them before the State Commission; they had pleaded cash payment of Rs.17 lacs to the developer. The said payment however, was not proved by the Complainants since no receipt of the alleged cash payment was produced. No justification was given by the appellants for making cash payments of Rs.17 lacs to the developer, when the initial payment of Rs.1 lac was made by cheque…. Moreover, no details of the alleged cash payment of Rs.17 lacs were given in the Consumer Complaint………The Complainant also did not disclose the source from which the alleged cash payment of Rs.17 lacs was arranged by them for paying to the developer. The State Commission therefore, rightly concluded that the alleged cash payment did not stand proved.’

We have carefully gone through the said Ruling as relied upon by the Ld. Counsel for the OP-1 and in our considered opinion the said ratio of the judgment is very much applicable in the case in hand as in the instant case also no money receipt is forthcoming from the end of the Complainants and no justification has been given by the Complainants for making cash payment of Rs.20,00,000/-. No details of the said cash payment was given in the instant Consumer Complaint. The Complainants also did not disclose the source from which the alleged cash payment of Rs.20,00,000/- was arranged by them for making payment to the OP-1. For this reason as stated herein above the alleged cash payment does not stand proved.

During argument the Ld. Counsel for the OP-1 has mentioned that the OP-1 has been challenging the Agreement for Sale dated 28.09.2008 and according to the OP-1 the said instrument is forged, manufactured and illegal, so reliance cannot be given on the said instrument and as the instrument is illegal in its totality, payment of the entire consideration amount of Rs.20,00,000/- is also fake, false and illegal. In this context we are of the opinion that the OP-1 did not approach before the competent Court of Law praying for declaration of the entire Agreement for Sale dated 28.09.2008 as illegal, fake, manufactured or forged. This Ld. Forum has no authority to declare an Agreement for Sale or any Contract as void, illegal or fake under the Consumer Protection Act, 1986. Therefore we are not in a position to declare the entire Agreement for Sale dated 28.09.2008 as void. Until and unless it is declared as void by the competent Court of Law, we are under the obligation to give some importance to the Agreement for Sale dated 28.09.2008except the cash payment as mentioned above.But it is surprising to us that within the four corners of the Agreement for Sale dated 28.09.2008 there is no mentioning of specification of the questioned suit flat for which the Complainants paid such hefty amount, as claimed. Only the measurement of the suit flat is mentioned, but in the said flat how many bedrooms, toilets, and balcony etc. will be provided to them, the Agreement is totally silent in this regard. What will be the measurement of the bedroom/s, the same is alsonot available. Then one question is cropped up in our mind that on what basis the Complainants paid such hefty amount to the OP-1 where the specification of the said flat is totally absent in the Agreement for Sale. In the petition of complaint the Complainants have mentioned thatthe Agreement for Sale was drafted and finally prepared as per the directions and instructions of the OP-1. So what prompted the Complainants to put signature in the said Agreement and also make payment of Rs.20,00,000/- knowing fully well that the specification of the questioned flat is completely silent in the Agreement.

During final hearing the Ld. Counsel for the OP-1 has argued that as the Complainants have submitted a fake and manufactured Agreement for Sale and through which he is trying to get an order in his favour, but on the fake and illegal instrument the Ld. Forum is not empowered to pass any order in favour of the Complainants. The Ld. Counsel for the Complainants has submitted that if that be so, then what prompted the OP-1 to file a Perjury Petition before this Ld. Forum. Upon hearing the said argument in our opinion that admittedly no Perjury Petition was forthcoming from the end of the OP-1, so we did not get any scope to adjudicate the same, therefore mere submission of the OP-1 cannot create any obstacle to pass any order. It is the settled legal proposition that the submission should be corroborated with the relevant document. It is pertinent to mention that there are some shadow ingredients in the Memorandum of Agreement, inspite of this we are not empowered to declare the entire Agreement as void as also fake, forged or manufactured whatsoever.

At the time of argument the Ld. Counsel for the OP-1 has tried to attract our attention to the several provisions of Code of Civil Procedure, 1908. Relying on those provisions the Ld. Counsel for the OP-1 has submitted that this Ld. Forum has no authority to try with this case and this complaint should be tried by the competent Civil Court. According to the OP-1 this complaint having complex question of law, this Ld. Forum cannot properly adjudicated upon this complaint. The Ld. Counsel for the Complainants has raised vehement object to such submission mentioning the Section 26(1) of the Consumer Protection Regulations, 2005, We have perused the said Section, wherein it is enumerated that ‘In all proceedings before the Consumer Forum, endeavor shall be made by the parties and their Counsel to avoid the use of provisions of Code of Civil Procedure, 1908 (5 of 1908)’ Having regard to the abovementioned Section we are of the view that the Consumer Forum being a Summary Trial Forum shall follow the way of Natural Justice at the time of adjudication of any complaint, therefore the use of provisions of the CPC at every step in the proceedingshould be avoided.

During argument the Ld. Counsel for the OP-1 has submitted that the Complainants did not submit Brief Notes of Argument, which is mandatory in view of the Regulation, 2005, so adverse presumption should be drawn against the Complainants. In this respect we are of the view that inspite of providing scope to the parties for filing BNA, only the OP-1 has filed the same. No BNA is forthcoming from the end of the Complainants. The Ld. Counsel for the OP-1 has attracted our notice to the Section 13 of the Consumer Protection Regulations, 2005. We have gone through the same very carefully and it is seen by us that in the Section 13(2) of the CPR, 2005 it is enumerated that ‘Where a party is represented by a Counsel, it shall be mandatory to file a brief of written arguments two days before the matter is fixed for arguments.’ Admittedly the Complainants are represented through their Ld. Counsel. Therefore it is mandatory to file BNA/WNA two days before the matter is fixed for arguments. But in the instant case no BNA/WNA is forthcoming on behalf of the Complainants. Section 13(3) of the CPR, 2005 also speaks that ‘in case of default to file briefs, the cost shall be imposed at the same rates as laid down for granting of adjournments’. As no adjournment was sought for on behalf of the Complainants for filing BNA/WNA, we were not inclined to impose any cost. But admittedly the Complainants have violated the specific Section of the CPR, 2005, which cannot be entertained.

During final hearing argument of this complaint the Ld. Counsel for the OP-1 has attracted our notice to the clauses 4 & 6 at the page-7 of the Memorandum of Agreement. Upon perusal of the same it is noticed by us that in the written version the OP-1 simply denied the averment of the said clauses, not denied the same in an expressed manner. Therefore without dealing the averment in the written version in brief, the expressed plea cannot be taken at the stage of argument as per settled law. However the clause no-4 of the Memorandum of Agreement has already been dealt with by us beforehand. The Ld. Counsel for the OP-1 has also invited our notice in the last page of the Memorandum of Agreement stating that there is/are no signature/s of the witnesses, hence the said agreement dated 28.09.2008 does not carry any evidentiary value. As the OP-1 did not take any step to declare the entire Memorandum of Agreement as void. So such argument cannot be accepted at this juncture. Moreover this point is also not available in the written version of the OP-1, though has mentioned in the BNA. It is the settled law that the OP-1 cannot travel beyond his pleading i.e. written version.

The Ld. Counsel for the OP-1 has argued on the paragraph no-16 of the petition of complaint stating that from which person/s the Complainants came to know that the OP-1 was trying illegally to transfer/alienate the questioned flat to any third party at inflated price suppressing the Agreement dated 28.09.2008, the name/s has not been disclosed and no affidavit is filed from the said person/s. In the said paragraph mentioning of a notice is made, which was issued to this OP, but no copy of the said notice is filed by the Complainants at the time of institution of this complaint. So according to the OP-1 mere pleading without corroborating the same with the cogent document does not stand at all. But upon perusal of this part of the petition of complaint we did not find out any pleading on behalf of the OP-1. For the first time the Ld. Counsel for the OP-1 has raised this point at the time of argument without challenging the same in the written version. So such argument cannot be entertained. But it is noticed by us that the paragraph no-16 of the petition of complaint has two parts. The first part is mentioned above. In another part the Complainants have stated that as the OP-1 did neither reply to the notice of the Complainants nor take any positive step, rather desperately tried to give effect his wrongful design, hence being compelled filed a suit for Specific Performance of Contract against the OP-1 and also for permanent and temporary injunction to restrain the OP-1 from alienating/transferring the schedule property to any other person/s, to damage the nature and character of the suit property, in alternative prayer was made by the Complainants for refund of the earnest money to the tune of Rs.20,00,000/- from the OP-1 with statutory interest thereon. It is further mentioned that the defendant is legally bound to execute and register the Sale Deed in favour of the petitioner in respect of the schedule suit property. Challenging this part of the paragraph no-16 of the complaint the OP-1 has mentioned in the written version that it is barred under the provisions of lawthat regarding the self-same cause of action multiple proceedings cannot lie, so that the instant proceedings is liable to be dismissed. We have carefully gone through the averments of the Complainants and the OP-1 and in our considered opinion that it is crystal clear that before filing this complaint before this Ld. Forum the Complainants have approached before the competent Civil Court by filing a suit for Specific Performance of Contract against this OP-1 and also for permanent and temporary injunction to restrain the OP-1 from alienating/transferring the suit property to any third party. But unfortunately the Complainants did not file the relevant papers of the said suit along with this complaint at the time of institution of this complaint. Not only that, after appearance of the OP-1 the OP-1 filed a petition praying for production of all the documents which are mentioned in the petition of complaint. We have noticed that though the Ld. Forum by allowing the said petition dated 07.07.2015 was pleased to direct the Complainants to handover all the documents to the OP-1, but inspite of specific direction of the Ld. Forum the Complainants did not bother to comply with the said direction till final argument of this complaint. In our view the said suit related papers and the orders of the Ld. Civil Court are very much necessary and required for proper adjudication of this complaint. But the Complainants did not bother to file the said documents till final argument of this complaint. In the interest of Natural Justice even after closure of the final argument liberty was given to the Complainants for production of the said suit related papers and documents before this Ld. Forum with a copy to the OP-1 prior to filing, but the Complainants have miserably failed to file those suit related papers till 02.11.2020. After completion of argument date was declared for delivery of the judgment on 12.11.2020. For this reason until and unless the said cogent documents are forthcoming the instant complaint cannot be properly adjudicated upon by this Ld. Forum.

During advancing argument the Ld. Counsel for the OP-1 has attracted our notice to some questionnaire filed by him and the replies to the said questionnaire submitted by the Complainants on affidavit. The OP-1 has argued on the question nos-4, 7, 10 and 12. For smooth adjudication the said questions and answers are required to be mentioned.

Q. 4. Whether you being the Complainants have filed the original copy of documents or not with the affidavit-in-chief dated 09.10.2015?

A. 4. No.

Q. 7. Whether you being the Complainants have filed any documents in order to show that you being the intending purchasers have to pay any consideration amount or not?

A. 7. Firstly I do not understand your question. As far as my knowledge goes, I have documents to show with regards to payment of consideration money.

Q. 10. Whether in the said Agreement for Sale dated 28.09.2008 mentioned any Memo of Consideration or not?

A.10. Yes.

Q. 12. Whether have you gone through the written version and Evidence-in-Chief filed by the OP-1 or not? If you gone through, is it admitted by you or not?

A. 12. Yes

Firstly we are to analyze the abovementioned questions and answers on which the OP-1 has placed his argument. In respect of the question and answer no-4 the OP-1 has submitted that it was the bounden duty of the Complainants to file the original copy of the documents either at the time of filing this complaint or at the time of adducing evidence on affidavit and as the Complainants did not file the same, adverse presumption should be drawn against the Complainants. The Ld. Counsel for the Complainants has raised objection in respect of such submission. In our view that before this Consumer Forum/Commission filing of the original documents is not mandatory due to non-availability of volt/locker or chest. For this reason the parties are used to bring and place the original documents at the time of final argument, if requires. In the instant complaint also at the time of final argument the Complainants placed the original Agreement for Sale and we have compared the said original with the copy as filed by the Complainants and thereafter it was returned. So non-filing of the original Agreement for Sale cannot attract the adverse presumption. Be it mentioned that apart from the Agreement for Sale, no other documents are forthcoming from the end of the Complainants either in original or photocopy though the Complainants have mentioned the names of several documents in the petition of complaint. As those documents are not before us and/or not filed, we are not in a position to pass any order regarding question no-4 of the OP-1 in respect of the rest documents.

Regarding question and answer no-7 the Ld. Counsel for the OP-1 has argued that the Complainants did not file any money receipt against payment of Rs.20,00,000/- towards the entire consideration amount for the said flat. The Ld. Counsel for the Complainants has submitted that the Complainants paid in cash to the OP-1 and it is mentioned in the Memorandum of Agreement. In reply the Complainants have replied that they have documents to show with regards to payment of consideration money, but neither any document showing payment of consideration amount is filed nor produced during final argument. If the Complainants have any document apart from the Agreement for Sale, admittedly the said document is not forthcoming from the end of the Complainants and in our view the Complainants have concealed the said document. So there is some ambiguity in the reply no-7.

In respect of the question no-10the Complainants have replied that the said Agreement for Sale dated 28.09.2008 mentioned Memo of Consideration, but on careful perusal of the Agreement for Sale we did not find that Memo of Consideration is mentioned therein. Therefore the reply of the Complainants does not match with the terms and the conditions of the Agreement for Sale.

Regarding question no-12 the Complainants have replied in the affirmative which reveals that the Complainants have gone through the written version and evidence-in-chief filed by the OP-1 and they have admitted the averment of the OP-1. Be it mentioned that the Complainants have filed their reply on affidavit, so they cannot travel beyond the same. Therefore if the Complainants are admitting the contention of the written version and the evidence of the OP-1, then the Complainants has no case/no legs to stand upon because the OP-1 has mentioned in the written version that the suit under Specific Performance of Contract has been filed by the Complainants and this complaint is also filed by the Complainants, so two complaints instituted by the same party cannot go simultaneously. Moreover the Complainants did not file the said suit related documents and orders of the Ld. Civil Court and hence the OP-1 did not get any scope to challenge the same. In the averment as well as order sheet dated 07.07.2015 it is also evident that inspite of specific direction by the Ld. Forum the Complainants did not bother to submit the entire documents either before the Ld. Forum or to the OP-1 and in this manner admittedly the Complainants have intentionally flouted the order of the Ld. Forum, which cannot be legally/lawfully entertained or encouraged. In the Brief Notes of Argument the Ld. Counsel for the OP-1 has mentioned that admission of the adverse party need not to be proved as per the Section 58 of the Indian Evidence Act, 1872 and on admission of the stated averment of the written version of the OP-1, the instant complaint deserved to be dismissed. We have perused the Section 58 of The Indian Evidence Act, 1872, which runs as follows:-

58. ‘Facts admitted need not be proved. No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.’

We have carefully gone through the aforementioned Section of The Indian Contract Act, 1872. In our view the said Section is very much applicable in the case in hand as the Complainants have replied that after going through the written version as well as the affidavit-in-chief of the OP-1 they have admitted the averment of the same. If we turn up our eyes to the written version and the affidavit of the OP-1, then it will be seen that the OP-1 has stated that no amount was paid by the Complainants to this OP for purchasing the questioned flat, no Memorandum of Agreement was entered into, without the signature of the witness in the Agreement, the same is void, the Agreement is manufactured, forged etc., Civil suit and this complaint cannot go concurrently as both cases have been filed by the Complainants etc. If the Complainants have admitted the said allegations and the contentions of the written version and the affidavit of the OP-1 in writing on affidavit (Reply), then obviously the Complainants have no case against this OP as also the other OPs. Moreover the payment of Rs.20,00,000/- to the OP-1 have not been proved by the Complainants by adducing any cogent document, which gave birth suspicion in accordance with law.

Apart from the abovementioned questions, mentioned by the OP-1, we are inclined to mention some other questions put by the OP-1 and answers given by the Complainants on affidavit. The questions and answers are mentioned herein below:-

Q. no-8. Whether you being the intended purchaser as alleged have any acknowledgment in your possession in order to show that the OP-1 has received the notice dated 08.04.2014?

A. no-8. Yes.

Q. no-9. Whether have you disclosed the number of the Title Suit which is pending or disposed of or not, as per the paragraph no-17 of the Affidavit-in-Chief?

A. no-I do not remember.

Q. no-11. Whether have you mentioned in the complaint as well as Affidavit-in-Chief the specification of the flat as alleged to be alienated in favour of you?

A. no-11. I do not remember.

Now we are to discuss on the abovementioned questions and answers. In respect of question no-8 we are to state that in the pleadingsas well as in the evidence the Complainants have mentioned the notice dated 08.04.2014. But we could not trace out the said document within the four corners of this case record. Though as per petition filed by the OP-1 the Ld. Forum was pleased to direct the Complainants to serve all the documents on which the Complainants have relied upon, but the Complainants have intentionally ignored the said specific direction of the Ld. Forum till final argument of this complaint. Therefore we are also not in a position to discuss on the notice dated 08.04.2014 due to its non-availability. At the time of filing this complaint the Complainants did not file the said document also. Therefore it is proved that on affidavit the Complainants have taken shelter under falsehood. The reply to this question given by the Complainants reveals that they have concealed the said notice intentionally with ulterior motive.

Regarding question no-9 the answer given by the Complainants is very much surprising as both in the page no- 7, paragraph no-16 of the petition of complaint as well as in the paragraph no-17 of the Evidence-in-Chief the Complainants have mentioned on affidavit that he had approached before the Ld. Civil Court by filing a suit under the Specific Performance of Contract and seeking for permanent and temporary injunction restraining the OP-1 not to alienate/transfer the suit property to any third party, in the alternative prayer was made to refund the total consideration amount of Rs.20,00,000/- to them. But in the reply submitted by the Complainants on affidavit it is mentioned that they cannot remember, which reveals that the Complainants have willfully and intentionally avoided the said question put by the OP-1. As the averment has already been made by the Complainants on affidavit, as per settled legal proposition the Complainants cannot go beyond his pleading. Moreover the said pleading has been strengthened by the Complainants in their affidavit. So in the cross-examination if the Complainantsare going beyond their pleading and affidavit, then their affidavit will be meaningless and should go. Furthermore as the said suit related papers are not forthcoming from the end of the Complainant, we are also not in a position to go through the same. However in this reply also the Complainants did not unearth the actual truth as if the Complainants have approached before the Ld. Civil Court, then it is quite impossible for them to forget the matter. This reply is clearly revealed that the Complainants have tried to mislead this Ld. Forum fraudulently by not disclosing the material truth, which is very much unfortunate, illegal, unlawful and unethical.

Regarding question and answer no-11 it is also surprising to us that the Complainantsare also not in a position to remember as to whether the specification of the questioned flat has been mentioned in their complaint as well as in the evidence-in chief. Admittedly the specification of the questioned flat has not been mentioned either in the complaint or in the affidavit. The Complainants have put their (his) (signature of the deceased Complainant) signature in both the documents, then what prompted him/them not to remember? The answer is not satisfactory to us. The Complainantsare under the obligation to remember what they mentioned in those documents, but in this manner the Complainant has avoided the question of the OP-1. Such avoidance cannot give birth genuinenessof thefact in accordance with law.We are inclined to mention that in case of non-recollection of the fact regarding specification of the questioned flat, it was the bounden duty of Complainants to go through their petition of complaint as well as the affidavit. But without doing so the Complainant have replied in a very casual manner, which law does not permit. Truly speaking that the specification of the questioned suit flat is also absent in the Memorandum of Agreement, so there is no source/scope to mention the specification of the flat in their pleadings.

The petition of complaint and the evidence-in-chief are clearly revealed that the Complainants have approached before the Ld. Civil Court under Specific Performance of Contract and seeking for temporary/permanent injunction for restraining the OP-1not to alienate/transfer the suit property to any third party, in the alternative refund of the entire consideration amount of Rs.20,00,000/- as paid by them to the OP-1 for purchasing the questioned flat. But we have noticed that the Complainants did not submit any suit related papers/documents either before this Ld. Forum or to the OP-1. For getting all the documents on which the Complainants have placed reliance the OP-1 filed a petition praying for disclosure of those documents and service upon the OP-1. Order sheet dated 07.07.2015 reveals that the Ld. Forum was pleased to allow the said petition dated 07.07.2015 and directed the Complainants to produce and service of those documents/papers on which they have relied on and/or which have been mentioned in the petition of complaint. Inspite of specific direction the Complainants have miserably failed to comply with the said direction and did not bother to submit the same with a copy to the OP-1 till final argument of this complaint. Surprisingly in the reply to the questionnaire on affidavit the Complainants have replied that they do not remember about the suit under Specific Performance of Contract filed by them before the Ld. Civil Court. Such attitude and action of the Complainants denotes that they are trying to hide the material facts and documents before this Ld. District Commission. The averment is clear that on the self-same cause of action the Complainants approached before the Ld. Civil Court as well as the Consumer Forum. But they are very reluctant to disclose the material documents before this Ld. District Commission. Due to such reluctant attitude we are of the view that the Complainants did not approach before this Ld. Forum with clean hands. The cardinal principle of law is that the party should approach before the Ld. Court with clean hands. Due to some reasons the Complainants have suppressed those documents, but the reasons are best known to them. Through such suppression of material and cogent documents the Complainants have acted fraud upon this Ld. District Commission. Hiding and suppression have given birth of suspicion and suppressing the relevant document the Complainants has filed this complaint to get a favourable order in their favour, which the settled Law does not permit. As the Complainants have filed the said suit before the Ld. Civil Court, then it is very much well within their knowledge, therefore in the reply it is not desirable that they do not remember the same, through such reply the Complainants have tried to mislead this Ld. District Commission by producing misrepresentation. Though the Complainants have mentioned the fact, the fact have not been corroborated with the cogent documents, which have been fraudulently suppressed by the Complainants. In this respect we are to mention some judgments passed by the Hon’ble Supreme Court in the case of P.C. Chacko & Another vs. Chairman, LICI, in the Appeal (Civil) 5322/2007, decided on 20.11.2007, Mithoolal Nayak vs. LICI, reported in 1962 AIR 814, decided on 15.01.1962. In those cases Their Lordships have held that due to non-disclosure of the material facts by the insured or withheld the material information fraudulently by the insured to the insurer at the time of taking out the policy, the insurance contract should be declared as void. In the instant complaint the Complainants have suppressed the material documents with mal-intention or fraudulently, which were required to be produced/disclosed. Due to this reason and having regard to the abovementioned judgments this complaint does not stand.

We may mention to the paragraph no-14 of another judgment passed by the Hon’ble High Court, Gujrat in the case of Larsen &Toubro Limited Ecc vs. Inspector of Motor Vehicles, dated 13.09.2006, wherein Their Lordships have held which runs as follows-

14. ‘There is no manner of doubt that the material facts were suppressed by the petitioner as well as by the Ld. Advocate for the petitioner. The expression ‘material facts’ has not been defined anywhere. However, there is no doubt that all the facts upon which the petitioner’s cause of action or the respondent’s defense depends, are the material facts. In other words, all those facts which must be proved by the petitioner in order to establish right to relief can be said to be the material facts. A fact is material if it goes to the root of the matter or has an important bearing on the main point raised in the petition and is material to the relief claimed. On the facts and in the circumstances of the case, this Court of the firm opinion that filing of the earlier petitions and dismissal of the same by the Ld. Single Judge was a relevant fact, which goes to the root of the matter or has an important bearing on the main point raised in the petitions and is material to the relief claimed in the petitions.’

Upon perusal of the said judgment in our opinion the same can be applicable in the case in hand as in the instant complaint also the Complainants have withheld the papers and documents on which they have relied upon. They did not file the notice dated 08.04.2014, any acknowledgment from the OP-1, though claimed, the notice containing the intimation to the OP-1 to provide possession and execution of the Sale Deed in respect of the said flat after knowing from the locality that the OP-1 was trying to alienate or transfer the questioned suit flat to any third party at inflated price and the copy of the suit (Specific performance of Contract) related papers at the time of institution of this complaint. In view of the application filed by the OP-1 on 07.07.2015 though the Complainants were directed to serve the entire documents to the OP-1, but unfortunately till hearing of the final argument the Complainants were very much reluctant to comply with the said direction of the Ld. Forum. Law does not permit such suppression of material documents. Moreover after going through the entire record it is seen by us that the suit related papers and documents will go at the root of the instant complaint, but it is not produced by the Complainants either before this Ld. Forum or to the OP-1.

In another judgment (Rajesh Kumar vs. M/s. Speed Motors) the Hon’ble SCDRC, U. T. Chandigarh decided on 03.02.2014 in the First Appeal no-31/2014, wherein it is mentioned that ‘…….. The Complainant was required to disclose the factum, in the complaint, out of the decision whereof, the instant appeal has arisen. The Complainant did not disclose the factum, in the complaint, out of the decision whereof, the instant appeal has arisen, but on the other hand, he suppressed this material fact, from the District Forum. He, thus, approached the District Forum with unclean hands. Such a person, who approached the District Forum, with unclean hands, by suppression of material facts, was required to be thrown out at the very threshold. In this judgment the Hon’ble SCDRC was pleased to rely on the judgment passed by the Hon’ble Supreme Court in the case of S.P. Chengalvaraya Naidu vs. Jagannath (supra), reported in 1994 AIR 853/1994 SCC (1) 1, decided on 27.10.1993, wherein it has been held by Their Lordships that Courts of law are meant for imparting justice between the parties. One, who comes to the Court, must come with clean hands. A person whose case is based on falsehood or concealment of material facts, is not entitled to any relief, and can be thrown out at any stage of litigation. In the said judgment it was also held that ‘Fraud avoids all judicial acts, ecclesiastical or temporal’ observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and nonest in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings……’

The above-mentioned judgment is also applicable in the case in hand as the Complainants have concealed the material documents on which they have relied upon. So in view of the said judgment the Complainants are not entitled to any relief.

Further case of the Complainants is that subsequently the Complainants came to know from the locality that the OP-1 was trying illegally to transfer/alienate the questioned flat at inflated price to another intending purchaser suppressing the Agreement for Sale dated 28.09.2008. Under such compelling circumstances the Complainants sent a notice to the OP-1 through registered post with A/D requesting to provide possession in the said flat along with execution of the sale deed in respect of the said flat in their favour. But inspite of receipt of such notice the OP-1 did not bother to pay any heed to it.

In respect of the aforesaid averment of the Complainants we cannot pass any order to the extent that the OP-1 inspite of receipt of the said notice, kept himself silent over the matter as the copy of the said notice is not forthcoming from the end of the Complainants. Not only that the Complainants also did not file the copy of the notice dated 08.04.2014 as stated in the petition of complaint. It is mentioned by the Complainants that inspite of receipt of the said notice the OP-1 did not bother to take any positive step. No acknowledgment of the said notice is also forthcoming from the end of the Complainants.

In our view the principal law as laid down in the aforesaid cases is fully applicable to the facts and circumstances of the instant complaint.

Now we are to adjudicate the most important point as to whether the suit filed by the Complainants under Specific Performance of Contract and seeking for permanent or temporary injunction before the Ld. Civil Court against the OP-1 restraining him to transfer/alienate the questioned flat to any third party, in the alternative refund of the entire paid amount and the instant complaint filed by the Complainants under the Consumer Protection Act, 1986 against the OPs including the OP-1 can run concurrently or not?

Regarding this aspect we are to mention the petition filed by the OP-1 dated 08.09.2015 challenging the maintainability of this complaint. On careful perusal of the said petition it is noticed by us that two fold averments was mentioned therein i.e. the complaint is barred by limitation in view of the Section 24A of the Consumer Protection Act, 1986 and another is as the Complainants have already approached before the Ld. Civil Court under Specific Performance of Contract, hence it is barred under the provisions of law that on the self-same cause of action multiple proceedings cannot lie and thus prayer was made by the OP-1 for dismissal of this complaint. Scope was given to the Complainants for filing written objection against the petition dated 08.09.2015 filed by the OP-1. In respect of second fold averment the Complainants have stated on affidavit that the Complainants/Petitioners have never instituted any civil proceedings before the competent Court of Law, so question of copy of the Civil suit does not arise at all and the Complainants have already handed over the copy of the Agreement to the OPs. The written objection was filed by the Complainants on 16.02.2016. During argument though the Ld. Counsel for the OP-1 has attracted our notice to the petition filed by him challenging the maintainability of this complaint, but the Ld. Counsel for the Complainants has argued that as the maintainability petition has already been disposed of by the Ld. DCDRF, Barasat and subsequently it was challenged by filing Revision Petition before the Hon’ble SCDRC by the OP-1 and the Hon’ble SCDRC was pleased to dismiss the said Revision Petition, hence the order dated 29.02.2016 passed by the Ld. DCDRF, Barasat has reached in its finality, at this juncture the Ld. District Commission is not empowered to reopen the matter. Upon hearing such submission advanced by the Ld. Counsel for the Complainants we got much substance in it. But upon perusal of the order dated 29.02.2016 it is noticed by us that the Ld. Forum, Barasat did not adjudicate upon the second fold averment as mentioned in the petition. So this portion of the petition is still open for adjudication and it can safely be re-opened. As regarding second fold averment no order was passed by the Ld. DCDRF, Barasat, hence the OP-1 did not get any opportunity to challenge the same before the Hon’ble SCDRC.

It is very much surprising to us that there is ambiguity in the contention of the Complainants regarding filing of Civil suit under Specific Performance of Contract against the OP-1. In the petition of complaint filed on 02.03.2015 on affidavit as well as Affidavit-in-Chief filed on 09.2015 by the Complainants it is mentioned that being compelled the Complainants have preferred the said Civil suit under Specific Performance of Contract against the OP-1. But in the written objection filed on 16.02.2016 on affidavit by the Complainants against the maintainability petition, it is stated that theydid not institute any Civil proceedings before the competent Court of Law and in the reply to the questionnaire on affidavit filed on 12.12.2018 the Complainants replied that they cannot remember as to whether they have approached before the Ld. Civil Court or not. Lastly the Complainants have filed amended complaint on 08.10.2020 and we have noticed that in the amended complaint it is mentioned that being compelled they have approached before the Ld. Civil Court under Specific Performance of Contract. Therefore it is crystal clear from the above-mentioned that on different time the Complainants have mentioned/replied from different angle and through such action it is also clear to us that by representing different averment the Complainants have tried to mislead this Ld. District Commission. Due to such twisting action of the Complainants it is very much difficult for us to unearth the actual truth.

In this respect we are to mention another recent judgment passed by the Hon’ble NCDRC passed in the FIRST APPEAL NO. 1229 OF 2017 (YASHWANT RAMA JADHAV vs. SHAUKAT HUSSAIN SHAIKH & ANR), FIRST APPEAL NO. 1230 OF 2017 (RANJAN R. DESAI vs. SHAUKAT HUSSAIN SHAIKH & ANR.), FIRST APPEAL NO. 1231 OF 2017 (KAPIL ANAND CHANDRA JOSHI vs. SHAUKAT HUSSAIN SHAIKH & ANR.) and FIRST APPEAL NO. 1232 OF 2017 (GANESH SHIVAJI PATIL & ANR. vs. SHAUKAT HUSSAIN SHAIKH & ANR.) on 10 Nov 2017. In the interest of clear explanation the entire judgment is hereby mentioned as follows:-

“These appeals are directed against the order of the State Commission dated 05.05.2017, whereby the complaints filed by the appellants were dismissed. The appellants/complainants had entered into agreements with the respondents for purchase of residential flats, which the respondents were to construct. The grievance of the complainants is that despite them having paid substantial amount to the respondents, the construction of the flats had not been completed. The complainants, therefore, approached the concerned State Commission, seeking possession of their respective flats along with compensation etc.The complaints were resisted by the respondents, which inter-alia, pleaded that they had alreadyfiled civil suits for cancellation of the agreements executed with the complainants and therefore, the consumer complaints on the basis of the said agreements were not maintainable.

The State Commission having ruled in favour of the respondents, the complainants/appellants are before this Commission by way of these separate appeals.

Section ‘3’ of the Consumer Protection Act, to the extent it is relevant provides that the provisions of the Act shall be in addition and not in derogation of the provisions of any other law for the time being in force. Thus the remedy available under the Consumer Protection Act is an additional remedy, which Parliament has made available to a consumer. Even if two remedies, one before the Civil Court and the other before the Consumer Forum are available, it is for him to decide as to which remedy he wants to avail. Admittedly, the respondents had entered into agreements with the complainants/appellants, agreeing to construct flats for them and give possession of the said flats. Therefore, a relationship of consumer and service provider came to be created between the parties as soon as the aforesaid transaction was entered into. In fact, the agreements were later got registered also. The relationship of consumer andservice provider does not come to end on account of one of the parties cancelling the said agreement. Ifdeficiency on the part of the respondents in rendering services to them is proved, the complainants/appellants would be entitled to appropriate relief in terms of the provisions of the Consumer Protection Act. In fact, this is not even a case where a person having already approached a Civil Court, at a later date decided to approach a consumer forum. Here the remedy before the Civil Court was initiated by the respondents and not by the complainants/appellants. The jurisdiction of the consumer forum is not ousted on account of a Civil suits having been instituted by the respondents, even if the subject matter of the said suits is the same agreement which is the foundation of the consumer complaint. For the reasons stated hereinabove, the impugned orders are set aside and the matters are remitted back to the State Commission to decide the matter on merit. The parties shall appear before the State Commission on 15.03.2018. The State Commission shall decide the complaints within a period of sixweeks of the parties appearing before it.”|

The aforementioned judgment in our opinion is clearly applicable in the instant complaint as this complaint is initiated by the Complainants and it is available from the petition of complaint that the same Complainants have approached before the Ld. Civil Court under Specific Performance of Contract against the OP-1 prior to filing of this complaint. So in view of the aforementioned judgment after filing Civil Suit as Plaintiffs, the same persons cannot avail of the remedy on the self-same subject/agreement as Complainants before District Consumer Commission under the Consumer Protection Act. So as the Complainants of this consumer complaint is the Plaintiffs of the earlier filed Civil Suit, then in view of the judgment Complaint is not maintainable. Forum hunting is not permissible under law.

Regarding deficiency in service on behalf of the OP-2 we are to say that firstly the OP-2 did not contest the complaint either orally or by filing written version inspite of receipt of the notice, so no averment of the OP-2 is forthcoming on his behalf. Secondly within the four corners of the petition of complaint no allegation has been made out by the Complainants in respect of the OP-2, though sought relief against the OP-2. Upon careful consideration of the petition of complaint as well as the affidavit-in-chief adduced by the Complainants, we do not find any deficiency in service on behalf of the OP-2. So in our opinion this complaint should be dismissed in respect of the OP-2 and we are also not inclined to impose any cost on this OP-2. Be it mentioned the complaint is dismissed against the OP-2 exparte without any cost.

In respect of the OP-3 we also do not find any deficiency in service in providing service to these Complainants. Being the Municipality it was the duty to sanction the building plan, which the OP-3 had successfully discharged. No specific allegation has been made out by the Complainants in the petition of complaint against the OP-3. So the Complainants are not entitled to get any relief from the OP-3 and hence this complaint is also dismissed on contest against the OP-3. Considering the facts and circumstances there is no order as to cost. So the point no-3 is decided against the Complainant.

4. Let us to see as to whether the Complainants are entitled to get any relief or not from the OPs. The above-mentioned discussion has clearly revealed that firstly, as the Complainants have admitted the contentions of the OP-1, then the Complainants have no case. Secondly, as the Complainants have not come before this Ld. District Commission with clean hands, they are not entitled to any relief as sought for. Thirdly as the monetary transaction have not been proved by adducing cogent document as well as source of payment not furnished, the Complainants cannot get any relief through this Consumer Complaint. Fourthly, the Civil Suit under the Specific Performance of Contract filed by the Complainants/Plaintiffs cannot go concurrently with this Consumer Complaint filed by the Complainants under the Consumer Protection Act. For this reason in our considered opinion the Complainants are not entitled to get any relief from this Ld. District Commission as sought for. Thus this point is decided against the Complainants.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT/CC/147/2019 is hereby dismissed on contest against the OP-1 and 3 and dismissed exparte against the OP-2. However considering the facts and circumstances there is no order as to cost.

Let plain copy of this final order/judgment be given to the parties free of cost as per CPR.

Dictated and Corrected by 

Hon’ble Mrs. Silpi Majumder