AVM J. RAJENDRA, AVSM, VSM (RETD.) MEMBER

1.      The present First Appeal has been filed under Section 21(a)(ii) of the Consumer Protection Act, 1986 (“the Act”) against the Order dated 16.10.2018 passed by the learned State Consumer Disputes Redressal Commission, Maharashtra (“the State Commission”), in Consumer Complaint No.189 of 2012, wherein the Complaint filed by the Complainant (Appellant herein) was partly allowed.

2.      For Convenience, the parties in the present case are being referred to as mentioned in the Complaint in the State Commission. "Mr Anmol Arvind Pawar" is referred as the Complainant (Appellant herein). While "M/s. Dosti Corporation (Vihar) & 2 Ors. are referred to as the Opposite Parties or Builder (Respondents herein).

3.      The brief facts of the case, as per the Complainant are that on 18.02.2009, the Complainant had entered into an agreement to purchase Flat No. 504 in the B wing, with a carpet area of 404 Sq Ft, with car parking, from OPs for total consideration Rs.33,47,000/-. Initially, he paid Rs. 1,00,000/- as earnest money on 18.02.2009 and on 24.12.2009 he paid Rs.3,47,000/- by cheques. An agreement was executed between them on 31.12.2009 and was duly registered on 25.01.2010. The OPs acknowledged receipt of Rs. 4,47,000/-.

4.      On 09.12.2011, he OPs granted him permission to mortgage the flat to Dewan Housing Financial Limited Bank (DHFL) and issued a NOC for loan. To comply with DHFL's requirement of producing original documents for verification before disbursement of loan, he paid an additional Rs. 4,00,000/- to the OPs by DD dated 21.11.2011. However, even on request OPs failed to issue receipt for this payment and only a photocopy. On 28.12.2012, the OPs issued a demand letter, claiming Rs.15,75,300/- and Rs. 28,563/- as balance and service tax. Additionally, they demanded penal interest @ 24% per annum on the outstanding payment and threatened to terminate the agreement. In an attempt to resolve the matter, he approached Mumbai Grahak Panchayat, which corresponded with the OPs on 07.04.2012 and sought original receipt for Rs.4,00,000/- to enable the Complainant to obtain loan from DHFL. However, they failed to provide original receipt. Consequently, DHFL canceled the loan sanctioned to him. The Complainant asserted that he was always ready and willing to pay the balance to the OPs. Therefore, the OPs are guilty of deficiency of service. Being Aggrieved, he filed Consumer Complaint No. 189/2012 seeking the following: -

“a) This Hon’ble forum be pleased to pass an order and decree holding the Opposite Parties jointly and severally guilty of deficiency of services and unfair trade practices u/s 2 (1) (g) and 2 (1) (r).

b) This Hon’ble forum be pleased to pass an order and decree directing the Opposite Parties to jointly and severally hand over the vacant and peaceful Possession of the flat bearing No. 504, situated on 5^th floor in wing 'B' carpet area of 404 sq. ft i.e., 37.53 sq. meters as per the agreement.

c) That this Hon’ble Forum be pleased to pass an order and decree directing all the Opposite Parties to jointly and severally co-operate with Complainant for availing the loan facility from any bank and financial institution enabling the Complainant to materialize the agreement for sale of flat.

d) That this Hon’ble Forum be pleased to restrain all the Opposite Parties by an order and decree directing the Opposite Parties for not to create third party right, title and interest in flat being flat no. 504, situated on 5^th floor in wing 'B' having carpet area of 404 sq. ft i.e. 37.53 sq. meters inclusive of the area of balconies together with facility of one car parking space in the open space.

e) That this Hon’ble forum be pleased to pass an order and decree directing the Opposite Parties to jointly and severally pay Rs. 5,00,000/- as compensation for mental harassment and agony cause to the Complainant.

f) That this Hon’ble forum be pleased to pass an order and decree directing the Opposite Parties to jointly and severally pay Rs.5,00,000/- for the embarrassment faced by the Complainant from his family members, friends and relatives.

g) That this Hon’ble forum be pleased to pass an order and decree directing the Opposite Parties to provide the Intimation of Disapproval (IOD), Commencement Certificate, Occupation Certificate, Building completion certificate.

h) That this Hon’ble forum be pleased to pass an order and decree directing the Opposite Parties to jointly and severally pay Rs. 1,00,000/- towards legal and incidental expenses.

i) That this Hon’ble forum be pleased to pass an order and decree directing the Opposite parties to jointly and severally pay 21% of penal on the award granted by this Hon’ble Commission,

j) For interim reliefs in terms of prayer (d).

k) Any further order as this forum deem fit and proper.”

5.      In their reply, the OPs contended that the flat in question was initially booked by Mr. Ajay Sawant, proprietor of SA Electricals, on 15.02.2009 and Mr. Ajay Sawant deposited Rs. 1 lakh. The OPs forwarded multiple letters to SA Electricals requesting the remaining payment and execution of the agreement. However, on 15.07.2009, Mr. Ajay Sawant informed OPs that he is not interested to purchase the flat and sought the booking to be transferred to his employee, Mr Amol Pawar, the Complainant. Consequently, the flat's booking was transferred to the Complainant. The Complainant had a photocopy of receipt of Rs. 1 lakh, paid by Ajay Sawant. They acknowledged receiving Rs. 3,47,000/- from the Complainant and issued a receipt for the same. An agreement was executed and registered in favour of the Complainant. Thereafter, despite multiple letters, he failed to pay the outstanding amount, breaching the agreement's terms. As regards original receipt for Rs. 1 lakh, the OPs contended to have given it to Ajay Sawant, and requested the Complainant to obtain it from him. As regards DD for Rs. 4 Lakh, OPs clarified that the Complainant took back the DD, previously given to them by surrendering original receipt issued by the OPs. The Complainant, not being the original purchaser, is not a consumer in this case. Mr Ajay Sawant is a necessary party to the complaint and not made party. They sought dismissal of the complaint.

6.      The State Commission on 16.10.2018 directed as follows:

[12] On perusal of these facts, it has become clear that after agreement was executed in respect of flat in favour of the complainant, the complainant has not paid any amount to the opponents towards sale consideration. For that purpose, opponent had given as many as 30 letters to the complainant. Although, loan was sanctioned to the complainant by DHFL, he could not avail the loan and pay balance amount of consideration to the opponents. Hence, opponents required to cancel the agreement executed in favour of the complainant in respect of that flat and sold out the flat to third person. We are of the opinion that opponents were required to cancel the agreement in respect of that flat in favour of the complainant only because of mistake of the complainant who could not pay balance amount of sale consideration to the opponents. As loan sanctioned was cancelled by DHFL, complainant was not in a position to pay the balance amount of consideration to the opponents. Under such circumstances, contention of the complainant cannot be accepted that he was always ready and willing to pay balance amount of consideration to the opponents. As complainant had not paid balance amount of sale consideration to the opponents, opponents were constrained to cancel the agreement executed in favour of the complainant. Under such circumstances, in view of the ruling cited above by the learned advocate for the complainant, complainant is only entitled to get back the amount deposited by him with the opponents. Although it is the contention of the opponents that they were ready and willing to pay the amount deposited by the complainant to him, in that respect they have not taken steps. Hence, we are of the opinion that by not refunding amount to the complainant which he had paid to the opponents, they have given deficiency in service to the complainant. In this case, complainant has proved that he has paid an amount of Rs.4,47,000/- to the opponents as opponents have admitted this amount while executing the agreement of sale of the flat in favour of the complainant. Hence, complainant is entitled to get this amount from opponents along with interest on this amount. We are of the opinion that as opponents were required to cancel the agreement only because of the mistake of the complainant, complainant is not entitled to get any compensation from the opponents. However, he is entitled to get cost of litigation from the opponents. Hence, we answer Point No.1 to 3 in affirmative and proceed to pass the following order.”

ORDER

(1) Consumer complaint is hereby partly allowed.

(2) Opponents are hereby jointly and severally directed to pay an amount of Rs.4,47,000/- [Rs. Four Lacs Forty Seven Thousand only] to the complainant along with interest on this amount @9% p.a. From the date of agreement till realization of the amount by the complainant.

(3) Opponents are hereby also jointly and severally directed to pay cost of litigation of Rs.1,000/- [Rs. One Thousand only] to the complainant within one month from the date of this order, otherwise amount shall carry interest @9% p.a. From the date of this order till realization of the amount by the complainant.

(4) Copies of this order be furnished to the parties forthwith.

7.      Aggrieved by the Order of the learned State Commission, the Complainant filed the Appeal No. 2276 of 2018 with following prayer:

a) To allow this Appeal.

b) To call for the records and proceedings of Complaints No. 189 of 2012 on the file of the Hon’ble State Commission, Maharashtra, Mumbai, examine the same and after hearing the parties, the impugned order dated 16.10.2018 of the Hon’ble State Commission, Maharashtra, Mumbai, may kindly be quashed, set aside and grant the reliefs as follows:

i) This Hon’ble Commission be pleased to pass an order and decree directing the Respondents to jointly and severally hand over the vacant and peaceful possession of the flat bearing No. 504, situated on 5th Floor in Wing 'B' having carpet area of 404 sq. ft. i.e. 37.53 sq. meters in the building Dosti Vrishti as per the agreement.

ii) That this Hon’ble Commission be pleased to pass an order and decree directing all the Respondents to jointly and severally co-operate with Complainant for availing financial institution enabling the Appellant to materialize the agreement for sale of the flat.

iii) To direct the Respondents jointly and severally to return the Demand Draft bearing No. 571048 of Rs. 4,00,000/- drawn on the SBI to the Appellants and to accept the revalidate DD of Rs. 4,00,000/- from Appellant.

iv) That this Hon’ble Commission be pleased to pass an order and decree directing the Respondents to jointly and severally pay Rs. 5,00,000/- for the embarrassment faced by the Appellant for his family members, friends and relatives.

v) That this Hon’ble Commission be pleased to pass an order and decree directing the Opposite Parties to provide the Intimation of Disapproval (lOD), Commencement Certificate, Occupation Certificate, Building Completion Certificate.

vi) That this Hon’ble Commission be pleased to pass an order and decree directing the Opposite Parties to jointly and severally pay Rs. 1,00,000/- towards the legal and incidental expenses.

vii) That this Hon’ble Commission be pleased to pass an order and decree directing the Respondents to jointly and severally pay 21% of penal on the award granted by this Hon’ble Commission.

c) To grant such other and further reliefs as this Hon’ble Commission may deem fit and proper under the circumstances of the case.

8.      In the Appeal, the Appellant raised mainly the following: -

(a) The State Commission erred by noting that the Respondents failed to provide original receipt for payment of Rs. 4,00,000/- for DD dated 21.12.2011. Due to this, the loan sanctioned by DHFL was cancelled. He was always willing to pay the balance.

(b) The State Commission failed to note that the returning of DD of Rs. 4,00,000/- is fabricated and returning of original receipt is unsubstantiated, which was crucial for the complaint's decision.

(c) The DD for Rs.4,00,000/- DD is still with Respondents and directing refund of Rs. 4,47,000/-is erroneous and against law.

(d) The State Commission failed to note that he did not seek refund in their complaint as accepting refund would not allow them to purchase similar flat in the same area for same price. This decision is manifest injustice and grave losses to him.

(e) The State Commission failed to note that OPs unilaterally cancelled the Agreement, which is illegal. He cited NCDRC "Mr Patrick Gonsalves & Ors. V/s Haven Developers Pvt. Ltd. & Ors" that registered Agreement cannot be unilaterally cancelled.

(f) The State Commission erred by stating that he had sent multiple emails to the OPs for original receipt and approached Grahak Panchayat for assistance. The Respondents did not respond and never objected to these emails until their reply, indicating fraudulent conduct.

9.      Upon being served Memo of Appeal, the OPs have not filed any reply. However, at the stage of Appeal, the Appellant filed IA/5572/2022, to bring a letter from the Bank Manager SBI, Mulund (West) dated 25.05.2022 on the status of DD No. 571048, dated 21.12.2011 for Rs.4 lakhs, in favor of OPs. The portion of the letter is as below:

“We refer to the captioned matter with regard to the status of DD No. 571048, dated 21/12/2011 for Rs. 4.00 lakhs and advise that the status of the DD in our records is showing as issued.

The said DD is still outstanding and is yet to be paid.”

10.    The Appellant contended that the said DD was presented to the OPs Site Office in Thane. The OPs received the DD and provided the Complainant with a photocopy of Receipt. Later, they refused to give original receipt to him. The OPs allegedly concocted a false story claiming that he returned the original receipt and took back the DD, citing an inability to make payment at that time. He asserted that this narrative of the Respondents is entirely untrue.

11.    The OPs filed a reply to IA/5572/2022, contesting his claims and cited the judgment of this Commission in Universal Sompo General Insurance Limited and Ors. Vs. Didwaniya Exmim Private Limited and Anr., 2020 SCC OnLine NCDRC 36(FB), which states that taking additional evidence at the Appeal/Revision stage is permissible, subject to certain conditions. He must establish that, 'notwithstanding the exercise of due diligence,' the letter dated 25.05.2022 was not in his knowledge at the time the Impugned judgment dated 16.10.2018. The OPs raised questions about his due diligence and provided the following timeline of events:

i) 21.12.2011: Appellant made payment of Rs.4 Lakh to OPs via Demand Draft (DD) as mentioned in SBI Letter.

ii) 21.12.2011: The Subject DD dated 21.12.2011 was returned to him by OPs and he returned the original receipt to OPs.

 iii) 20.06.2012: The validity period of the subject DD expired.

iv) 09.07.2012: The Appellant filed Complaint No. 189 of 2012.

v) 25.05.2022: SBI letter confirms that DD was never encashed.

12.    The OPs further contended that it is evident from the State Commission's findings and the SBI letter dated 25.05.2022 that the said DD was never encashed by OPs. They asserted that after the expiry of the validity period of 6 months, the DD is merely a piece of paper. They urged that the Application be dismissed with costs.

13.    In response to the reply filed by OPs to IA/5572/2022, the Complainant filed a rejoinder and contended that the OPs abused their dominant position by denying him the allotment of the flat, despite being a genuine consumer. He alleged that the OPs falsely concocted a story, claiming that he took back his original DD from them because he could not meet the scheduled payments as per the Agreement. He requested for consideration of SBI letter dated 25.05.2022 as important additional evidence in proving his case.

14.    In his arguments, the learned counsels for Appellant reiterated the complaint, grounds of Appeal and the said IA, emphasizing that the Complainant's inability to pay the dues for the flat was primarily due to the Respondents' refusal to provide the Original Receipts. This denial and deficiency in service led to DHFL cancelling the sanctioned loan, causing immense mental agony and financial loss to the Complainant. He argued that the OP stood to gain financially by selling the flat to a third party at a much higher price than the initial booking cost. Thus, they deliberately withheld the original receipts. The OPs actions constitute unfair trade practice. He further argued that the OPs already created third-party rights over the flat before the termination letter was issued. The story about he wanting to withdraw and taking back the DD of Rs 4,00,000/- was fabricated to cover up this illegal act. He emphasized that if he was truly under financial stress, he would have encashed the DD earlier. The refusal to hand over the Original Receipts was seen as a deliberate and malicious act by the OPs, preventing the Complainant from fulfilling his part of the agreement. He asserted the doctrine of causation, stating that "but for" the OPs refusal to provide the Original Receipts, the Complainant's sanctioned loan would not have been cancelled. The deliberate act of withholding the Original Receipts, despite he having an NOC for loan disbursement reflect their Respondents' Mensrea (intent). The OP was liable to be duly compensated for denial, deficiency in service, and unfair trade practices, resulting financial and emotional harm.

15.    The learned counsel for the Respondents reiterated the facts of the case and argued that the State Commission rightly observed that despite sending 30 letters/reminders to the Appellant, he failed to pay the balance amount towards the sale consideration of the subject flats. According to the Respondents, this justified the termination of the agreement with the Appellant. They also pointed out that the subject flat was subsequently sold to a third party, who is now in possession of the said flat. The learned Counsel asserted that in compliance with the Order dated 16.10.2018, they forwarded a cheque for Rs. 7,37,639/- to the Appellant on 13.11.2018 and 22.11.2018. However, the Appellant returned the cheque vide letter dated 27.11.2018, stating the intention to file an Appeal against the said order. Based on these points, the counsel argued that the present appeal should be summarily rejected.

16.    We have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.

17.    It is an admitted position that the Appellant and Respondents have entered into an agreement to purchase Flat No. 504 in the B Wing, with a carpet area of 404 Sq Ft, along with car parking space, from the OPs for Rs.33,47,000/-. Initially, he paid Rs.1,00,000/- as earnest money on 18.02.2009, and he paid Rs.3,47,000/- on 24.12.2009, both by cheques, as part payment. An agreement was executed between them on 31.12.2009 and it was registered on 25.01.2010. The OPs acknowledged receipt of Rs. 4,47,000/- from the Complainant. After booking the flat from OPs and making partial payments, he wanted to secure a loan from DHFL. However, a dispute arose over the non-provision of original receipts by the Respondents, leading to the cancellation of the loan and subsequent termination of the agreement. The Appellant claimed that the Respondents' refusal to provide original receipts caused the loan cancellation caused financial losses and mental agony. The Appellant claimed unfair trade practices, denial of service, and deficiency in service by the Respondents. The Respondents argued that the Appellant failed to pay the balance amount despite multiple reminders, justifying the termination of the agreement. The Respondents also contended they had sent a cheque in compliance with the impugned order, but the Appellant returned it, expressing the intention to file an appeal.

18.    It is clear that, after the said Agreement between the parties was executed in respect of flat in question, the Complainant has not paid any further payment to OPs towards the sale consideration. The OPs had forwarded about 30 letters over a period of time to him for payments. When the Complainant failed to make the payments due, the OPs cancelled the said agreement and sold the flat to a third party. Clearly, the agreement was cancelled due to non-payment of the balance sale consideration, despite multiple notices. The main and apparent reason for the inability of the Complainant to pay the balance consideration due was that the loan sanctioned to him by DHFL was cancelled as he could not provide certain records including receipt for payment of Rs. 4 Lakhs to OPs. Therefore, the contention of the Complainant that he was always ready and willing to pay balance amount of consideration to OPs is untenable. It is because of failure to pay balance of sale consideration despite multiple communications, the agreement was cancelled. Therefore, the deficiency in service of the OPs is to the extent of not refunding amount deposited to the Complainant immediately after cancellation of the said Agreement in question. As regards DD No. 571408 for Rs. 4 Lakhs dated 21.12.2011 made by the Complainant in favour of the OPs, it is the admitted position of the Complainant himself that the said DD was never encashed by the OPs. It is in common knowledge that a DD drawn on a Bank is valid and negotiable at face value for only six months. Even then, intriguingly, the Appellant allowed such high value instrument to lapse for over 10 years at the same value for which it was made on 21.12.2011 and took no effective steps to secure the same. In any case, as the said DD not being encashed, OPs could not have issued any receipt for Rs. 4 Lakhs to the Appellant. Therefore, the contentions of the Appellant in this regard are untenable.

19.    In view of the foregoing, in our considered view, no case is made out by the Appellant and the order passed by the learned State Commission does not warrant any interference. FA No. 2276 of 2018 is, therefore, dismissed.

20.    There shall be no order as to costs. All the pending Applications, if any, are disposed of accordingly.