JUSTICE SUDIP AHLUWALIA, MEMBER The present Revision Petition under Section 21 of Consumer Protection Act, 1986 has been filed against the impugned Order dated 18.10.2019 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in Appeal No. RBT/A/18/1004 in A/14/717 vide which the Appeal filed by the Respondents was partly allowed. - Brief facts of the case are that the Respondent No. 1 is a partnership firm, registered under the Indian Partnership Act, 1932, and the Respondent Nos. 2 to 4 are partners of the firm carrying on the business of Builders and Developers. The Respondents had taken property lying at Village Khadegolawali, Taluka Kalyan, Distt. Thane for development from Smt. Rukhmabai Arjun Patil, and 25 others under the Development Agreement dated 10.08.2006 for construction of a Building known as “Gajanan Samrudhi”. The Petitioner decided to purchase a flat of 565 Sq. Ft. in House No. 205 for Rs. 11,30,000/- for which he paid Rs. 1,90,000/- between the period from 02.03.2010 to 01.01.2011. He also paid Rs. 50,000/- towards Stamp Duty and Registration, and also availed housing loan of Rs. 9,00,000/- from LIC Housing Finance Ltd. The Petitioner had paid Rs. 50,000/- in cash and the balance amount of Rs. 79,000/- was to be paid at the time of Agreement. The Petitioner had repeatedly requested the Respondents to execute the Sale Agreement but they did not give any response. The Petitioner claims that the Respondents have committed breach of the Maharashtra Ownership of Flats Act (MOFA), 1963 by not executing the Sale Agreement. The Petitioner therefore sent a Legal Notice dated 23.02.2012 to the Respondents regarding the Sale Agreement. It is the case of the Petitioner that the Respondents have committed breach of the contractual obligation, deficiency of service as well as unfair trade practice. Aggrieved by the act of the Respondents, the Petitioner filed Complaint before District Forum, Thane.
- The District Forum vide its Order dated 19.08.2014 partly allowed the Complaint. The relevant extracts of the Order of the District Forum are set out as below –“1. Complaint No. 322/2012 is partly decided
2. It is declared that, the Opponent had accepted the amount from the Complainant regarding sale transaction, then also as per the provision in MOFA Act Sec. 4 he had not made any sale agreement, Hence the Opponent is guilty in providing service to the consumer. 3. It is order that that the Opponent make registered sale agreement of Flat No. 205, area 565 Sq. Ft. (Super built up) with the Complainant within the 45 days from this order with his own expenses. If the Opponent not follow this order, then he will pay Rs. 200/- per day till the completion of this order.” Aggrieved by the Order of the District Forum, the Respondents filed Appeal before the State Commission. The State Commission partly allowed the Appeal of the Respondents vide impugned Order dated 18.10.2019. The relevant extracts of the Order of the State Commission are set out as below - “After clause (3), clause (3a) is added as follows:- “Registered Agreement for Sale in respect of flat no. A-205 admeasuring about 565 sq. ft. (super built up) be executed in favour of the Complainant upon payment of balance consideration as agreed between the parties. We also clarify that in the event balance consideration is not paid or deposited by the Complainant within one month from the date of this order, the Appellant shall be entititled to refund the amount accepted by them in the sum of Rs. 1,90,000/- and sum of Rs. 50,000/- together with interest @ 9% p.a. from the date of payment made till realization. We also direct that if no Agreement for Sale is executed upon payment of balance consideration, in default, the Opponent shall pay heavy default charges in the sum of Rs. 200/- per day until Agreement for Sale is executed in favour of the Complainant. We maintain the Order in the Clause Nos. 4,5 & 6 as it is. Accordingly Appeal is partly allowed. Parties shall act upon this modified Order. Copies of the order be furnished to the parties.” 5. Aggrieved by the Order of the State Commission, the Petitioner filed the present Revision Petition raising the following key issues - a.That the State Commission wrongly passed the Order for execution of the Sale Agreement upon payment of the balance amount by the Petitioner; b.That the State Commission failed to appreciate the payment of the receipts of about Rs. 1,90,000/- by cheque and Rs. 50,000/- by cash which is 15% of the total consideration amount of flat as agreed by the parties; c. That the State Commission failed to notice that the impugned Order is in violation of principles of natural justice. 6. Ld. Counsel for Petitioner argued that the Petitioner is deprived of property for any use which he had purchased from the Respondents for a sale consideration of Rs. 11,30,000/-, out of which the Petitioner has already paid Rs. 1,90,000/- between 02.03.2010 to 01.01.2011. The Petitioner further paid Rs. 50,000/- in cash towards Stamp Duty and Registration Charges; That the Petitioner has shown his readiness and willingness towards the Agreement in contrast to the Respondents; That it is significant to point that the District Forum had allowed the Complaint and observed that there is a deficiency of service on the part of the Respondents; That the State Commission has wrongly directed the Petitioner to pay the remaining balance within one month in one go; That the said direction is totally erroneous in as much as the State Commission ought to pass the impugned Order while keeping in mind the equity and principles of natural justice. 7. Ld. Counsel for Respondent No. 1, 2 and 4 has argued that the Revision Petition filed by the Petitioner is false, frivolous, vexatious; That the Petitioner failed to comply with the Order passed by the State Commission, failing which the Respondents were at liberty to refund the amount to the Petitioner; That the Respondents waited for a month for the receipt of the balance consideration but there was no receipt of payment from the Petitioner, and hence the Respondent No. 1 firm deposited a sum of Rs. 4,52,000/- in the account of the Petitioner; That now when the entire sum is refunded to the Petitioner, the entire controversy stands put to a quietus; That in view of the aforesaid circumstances, the present Petition deserves to be dismissed in the interest of justice. 8. The Ld. Counsel for Respondent No. 3 has argued that the Petitioner is guilty of “suppresio very” and “suggestio falsi” as he has suppressed the true facts of the case; That the Petition filed by the Petitioner is not maintainable in law as it is not notarized with proper affidavit in accordance to Section 21(b) of the Consumer Protection Act, 1986; That it is pertinent to mention that an Affidavit is not a mere sheet of paper but it is a solemn statement made before an authority and false affidavit is against the rule of Sec. 21(b) of the Act; That since there is no written and registered Agreement between the parties and without consideration, so any oral Agreement is null and void according to Sec. 25 of the Indian Contract Act, 1872. The Ld. Counsel for Respondent No. 3 has also relied upon the case of “Padia Timber Company (P) Ltd. v. The Board of Trustees of Vishakapatnam Port Trust”; That the Respondent No. 3 had retired from M/s Gajanan Properties on 28.12.2017 through Retirement Deed and as per Clause 11 of the Retirement Deed it was decided that whatever the losses, profits, liabilities, all types of responsibilities shall be taken by the existing partners of the Firm and hence the Respondent No. 3 has no liability whatsoever as regards to the Firm. 9. This Commission has heard the Ld. Counsel of both parties and have gone through the material available on record. 10. As is seen, the Appeal filed on behalf of the Respondents/Developers was partially allowed by the Ld. State Commission after modifying the Order of the Ld. District Forum to the extent that the Petitioner/ Complainant was required to pay the balance consideration price within a month from the date of the said order, although his main prayer of directing the Respondent/ Opposite Parties to execute the Registered Sale Agreement in his favour, which was also allowed by the Ld. District Forum, had been upheld by the State Commission. 11. The Petitioner/Complainant is aggrieved with this part of the Order which requires him to make payment of the balance consideration money. 12. This Commission finds no impropriety in the aforesaid Order of the Ld. State Commission since it was the own case of the Petitioner/Complainant in Paras 4 (a) and 8 of his own Complaint (Annexure- R 14) that he was willing to pay the balance consideration amount of Rs. 12,19,000/- which was due against him towards consideration price of the Flat. The Petitioner can therefore not be allowed any indulgence which could enable him to wriggle out of his own specific commitment/willingness pleaded in his own complaint. 13. Consequently, this Commission finds no grounds to interfere with the decision of the Ld. State Commission. The Revision Petition is therefore dismissed. Parties to bear their own costs. 14. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
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