JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

1.      The appellant entered into a joint development agreement with     Mrs. Mahajabeen Nazri on 05-02-2004 under which residential apartments were to be constructed by the appellant on the property of                       Mrs. Mahajabeen Nazri. The complainants, Sri N.M. Jayaram and             Sri Sanjay Jayaram, booked one apartment whereas the complainants,                     Sri Bangalore R. Suresh and Smt. Arati Suresh, booked another apartment in the building which the appellant was to construct pursuant to the aforesaid joint development agreement. The flat buyers paid a sum of Rs.25,00,000/- each to the appellant and were issued separate letters of allotment dated 13-07-2005. Admittedly, the aforesaid booking was made through one Mr. Nicky Sawhney. The case of the complainants is that      Mr. Nicky Sawhney was the agent of the appellant whereas the case of the appellant is that Mr. Nicky Sawhney was the agent of the complainants.

2.      At the time the letters of allotment were issued to the complainants, the property in question was wholly vacant. The letter of allotment, therefore, inter alia, stipulated as under:

“2.     If Vacant possession of the land not obtained within a period of six (6) months from today’s date (13-07-2005), the purchaser will have the option:

1. Having his money refunded within fifteen (15) days.
2. Being allotted an apartment of any other project of M/s. Ashed Properties & Investments (P) Limited as purchaser so desires on such terms & conditions as may be mutually agreed upon.
3. Waiting for the construction of the existing apartment.”

3.      It is an admitted position that the amount which the complainants had deposited with the appellant was refunded along with interest to them through Mr. Nicky Sawhney on 14-02-2006 by way of cheques which were duly encashed.

4.      The case of the complainants is that as a matter of fact, the tenant in the property namely, Mrs. Mary French and Mr. Infant Sunil Kumar, had vacated the portion occupied by them on 17-12-2005 by executing a declaration on the said date by way of an affidavit and the aforesaid fact was concealed from them by Mr. Nicky Sawhney, agent of the appellant. In other words, the case of the complainants is that had they been told that the portion occupied of by Mrs. Mary French had been vacated on           17-12-2005 they would not have accepted the refund of the money which they had deposited with the appellant.

5.      Before the State Commission, the complainants filed a photocopy of the declaration dated 17-12-2005. Para 6 of the said photocopy reads as under:

“6.     Taking into consideration all the relevant factors                    Mrs. Mahjabeen Naziri through her General Power of Attorney Holder Mr. Sameer A. Khan has offered us to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as compensation by way of bankers cheque bearing No.123124 drawn on the Jammu & Kashmir Bank, Infantry Road Branch, Bangalore dated the 15^th December, 2005 which we have consented and agreed to receive out of our own free will and accord and have undertaken to  hand over possession of the building on the No.15, Alexandra Street, Richmond Town, Bangalore 560025 without any further claims whatsoever.”

6.      The appellant has also placed on record with the appeal, a copy of the above referred declaration dated 17-12-2005 and para 6 of the document reads as under:

“6.     Taking into consideration all the relevant factors                    Mrs. Mahjabeen Naziri through her General Power of Attorney Holder Mr. Sameer A. Khan has offered us to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as compensation by way of bankers cheque bearing No.123124 drawn on the Jammu & Kashmir Bank, Infantry Road Branch, Bangalore dated the 15^th December, 2005 which we have consented and agreed to receive out of our own free will and accord and have undertaken to  hand over possession of the building on the No.15, Alexandra Street, Richmond Town, Bangalore 560025. As we need time to find alternate suitable accommodation, we shall definitely handover vacant possession on or before           01-06-2006.”

7.      It would be seen from a comparison of the two photocopies referred above that the words “without any further claims whatsoever’, which appear in para 6 of the photocopy filed by the complainants does not appear in para 6 of the photocopy filed by the appellant. It would also be seen that last sentence “As we need time to find alternate suitable accommodation, we shall definitely handover vacant possession on or before 01-06-2006” which appear in para 6 of the photocopy filed by the appellant does not appear in the para 6 of the photocopy filed by the complainants.

8.      The question that arises for our consideration is as to which of the above referred two copies is the true and correct copy of the original declaration.

9.      The copy of the declaration which the complainants had submitted before the State Commission was exhibited as Exhibit C-16. In the complaint, there is absolutely no reference to the aforesaid declaration, meaning thereby that the document was not filed along with the complaint. The learned counsel for the appellant has drawn our attention to the affidavit of Mr. N.M. Jayaraj filed by way of evidence. In the aforesaid affidavit there is no reference to the copy of the aforesaid declaration, Exhibit C-16. Admittedly, the affidavit of the other complainant was identical to the affidavit of Mr. N.M. Jayaraj. It is not known to us on what stage and how the aforesaid document came to be filed and exhibited as Exhibit C-16 when it was not filed along with the complaint nor was it referred in the affidavit of the complainants by way of evidence. However, it is not in dispute that the document exhibited as Exhibit C-16 was there on the file of the State Commission at the time the complaints came to be decided.

10.    Though the appellant did not file any copy of the aforesaid declaration dated 17-12-2005 before the State Commission, they have filed a copy along with the appeal. When these appeals came up for hearing on         18-02-2014, and the learned counsel for the appellant sought to refer to the copy which the appellant had filed along with appeal, the learned counsel for the respondents/complainants objected on the ground that it was not a correct copy of the document filed before the State Commission. The appellant was directed to place on record certified copy of the said declaration. Pursuant to the aforesaid direction the appellant filed a copy of the declaration dated 17-12-2005 and the said copy was the same which the complainants had filed before the State Commission.

11.    It would, thus, be seen that the original declaration dated 17-12-2005 was not available to the State Commission. Though the complainants filed a copy of the document, as is evident from its having been considered by the State Commission, they did not give any notice to the appellant to produce the original documents, before the State Commission. As far as the appellant is concerned it did not at all file any copy of the aforesaid declaration dated 17-12-2005 before the State Commission. The contention of the learned counsel for the appellant is that since the document was neither referred nor relied in the complaint, they had no opportunity to dispute its authenticity.

12.    The learned counsel for the appellant has drawn our attention to para 5 of the document which is common in the copy filed by the complainants as well as in the copy relied upon by the appellant and her contention is that in view of the above referred para 5 of the declaration, there could be no question of the tenants vacating the property in question on 17-12-2005. She submits that para 5 of the declaration clearly falsifies the copy filed by the complainants before the State Commission.

13.    During course of the arguments on 19-08-2014 we asked the learned counsel for the complainants/respondents to disclose to us the source from which the said copy was received. No such information, however, is forthcoming from the complainants even today. In these circumstances, when we find that (1) the original document was not available with the State Commission, (2) The copy filed by the complainants before the State Commission is different from the copy filed by the appellant before this Commission along with the appeal, (3) the complainants have not disclosed to us the source from which they received the copy which they filed before the State Commission and the date on which the said copy was received from them, (4) the original which the appellant has produced for our perusal is as per the copy filed by the appellant and not as per the copy filed by the complainants and (5) there was no reference to the copy filed before the State Commission in the complaints, we are of the considered view that the matter need to be remanded back to the State Commission with a direction to examine the tenants namely, Mrs. Mary French and Mr. Infant Sunil Kumar as to find that (1) whether the copy filed by the complainants or the copy filed by the appellant is the true and correct copy of the declaration executed on 17-12-2005 and (2) on which date they vacated the property in question. Only on examination of the tenants, truth can be verified by the State Commission.

14.    It was pointed out by the learned counsel for the appellant that in his affidavit, Mr. Nicky Sawhney clearly stated that he was the agent of the complainants. She also pointed out that no dispute with respect to the refund was raised by the complainants, for quite some time after encashment of cheque, whereby the refund was made. However, since we are remitting the matter back to the State Commission, for a fresh adjudication, we need not examine the aforesaid contentions.

15.    For the reasons stated hereinabove, the impugned order dated      12-12-2007 passed by the State Commission is hereby set aside and the matter is remanded back to the State Commission with a direction to summon and examine Mrs. Mary French and Mr. Infant Sunil Kumar and then pass a fresh order in the light of their depositions. We also make it clear that the State Commission while passing a fresh order shall not in any manner be influenced by any observation made by us in the present order. We also direct the State Commission to pass a fresh order in terms of this direction within three months of the parties appearing before it. The parties are directed to appear before the State Commission on 22-09-2014.

16.    The original declaration is kept on record and can be requisitioned by the State Commission from the Registry of this Commission as and when required by it.

17.    Two applications, one filed by the appellant and the other filed by the complainants under Section 340 of Cr.P.C. are pending. Since the photocopy relied upon by the complainants was filed before the State Commission and we are remanding the matter back to the State Commission, for a fresh decision, the aforesaid applications are also dismissed with liberty to file similar applications before the State Commission, if so advised.