Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) This appeal was lying unattended since 2003. It was placed before this bench on 6th July, 2011. On that day none was present. Hence, we had admitted the appeal and directed office to issue notice to both the parties. Accordingly office had sent the notice to both the parties but the notice sent to Appellant returned with the remark ‘not claimed’. Hence, we presume that the notice is served on the Appellant. Respondent is absent. Therefore, we have proceeded to decide the appeal on merit.
(2) Sou.Sunita Ashok More had filed consumer complaint against Kishore Bhaskar Sonavane, Opponent No.1, against M/s.Bhoir Construction – Opponent No.2 and also against Smt.Kusumawati Bhaskarrao Sonawane – Opponent No.3, alleging deficiency in service on the part of the Opponent NOs.1 to 3. She pleaded that on 27.04.1990 she and her husband had booked flat with the Opponents. She paid `24,450/- in cash and after procuring loan from H.D.F.C. they gave first installment of `50,000/- by cheque to the Opponents. However, Opponents did not give possession. Since last 9 years she was required to repay the bank loan. She tried to settle this matter through mediators but she did not succeed. On 28.10.1998 Shri.Sonawane, had sold the said flat to some other person and told that he would repay the monies to the Complainant but he had not done so. Therefore, she filed consumer complaint claiming amount of `1,60,000/- plus interest she was required to pay on the Bank loan and also demanded `9,550/-, the expenses she incurred for entering into contract with the Opponents.
(3) Initially she had filed consumer complaint only against Shri Sonawane, Opponent No.1. But by amendment she impleaded Opponent Nos.2 and 3. She pleaded that Opponent No.2 left the construction work incomplete and went away and thereafter, cancelled the purchase agreement. Opponent No.3 is the owner of the land. She entered into development agreement with Opponent No.2. As such, all three Opponents were liable to refund her amount of `74,450/- with interest @24% per annum from 27.04.1990 or in the alternative she is entitled to get possession of the flat. She also claimed `5,000/- towards mental harassment and `5,000/- towards costs.
(4) Opponent No.1 Kishore Bhaskar Sonawane contested the complaint by filing written version. First he admitted that he received `74,450/- but since remaining amount of construction was not paid the Complainant was not given possession of the flat booked by her. Moreover, he pleaded that the agreement was between Complainant and her husband and amount of consideration was of `1,24,550/-. The complaint has been filed only by Smt.Sunita Ashok More, whereas Agreement was with herself and her husband. Moreover he pleaded that building was constructed and every flat purchaser had been given possession who had booked the flat but this Complainant did not pay the remaining amount of consideration and they were not giving additional amount as per escalation clause and were asking for possession without any basis. Opponent No.1 pleaded that he is an Advocate by profession and he is not concerned with the transaction in question. He was simply looking after legal side of the transaction between the builder and the flat purchasers. He pleaded that the complaint as filed is barred by limitation and it should be dismissed. He pleaded that Complainant’s husband had already cancelled this transaction. Complainant was residing separately from her husband. She had asked for refund of `40,000/- towards her share but the Complainant owe `2,65,900/-. She could not pay said amount and therefore, Opponent No.2 constructed 40% of the building and 30% work was left incomplete because he had not received monies from the Complainant. All other persons who had paid full amount of consideration have been given flats in their possession. Moreover, he also pleaded that Complainant had already filed Civil Suit No.945/1996 on 04.12.1996 and later on it was dismissed and therefore, for the same cause of action the present complaint is not tenable. Therefore, he pleaded that complaint should be dismissed with costs.
(5) Opponent No.2 filed written version and pleaded that he is not necessary party to this complaint. The complaint is barred by principle of res judicata. It is also barred by limitation. He pleaded that he had not run away. The Complainant had not given monies as per demand and therefore, he was not given possession of the flat. The agreement of sale was cancelled in 1992 and therefore, he was not liable to give any refund to the Complainant.
(6) Opponent No.3 filed written version and pleaded that there was no transaction between Complainant and herself. She was not concerned with the said transaction. She took initiative and got the flats built properly from Opponent No.2 and she had given possession to various flat purchasers. Complainant had not paid full amount of consideration, so there was no question of giving possession to the Complainant. The Complainant had cancelled the agreement of sale and instead of taking refund of `74,450/- she was asking for `1,60,000/- and since she had not paid that amount she was not given possession of the flat and therefore, the complaint filed by the Complainant should be dismissed with costs.
(7) The District Forum at page no.3 of the impugned order categorically mentioned that Applicant/Complainant herself was absent when it was fixed for hearing. She was given notice on 12.09.2002 still she did not attend the District Forum to argue the matter, so they were disposing of the complaint on the basis of documents placed before the District Forum. The District Forum also noted in the following para that Complainant had not filed any supporting affidavit in evidence. The District Forum was of the view that some facts were undisputed and some others could be taken care of on the basis of legal provisions. The District Forum also noted that along with amendment application supporting affidavit has been filed and therefore, that was sufficient to dispose of the complaint on merit. Thus, District Forum on the basis of documents on record simply gave finding against the Opponent Nos.1 and 3 and directed Opponents Nos.1 and 3 to refund the amount of `74,450/- with interest @18% per annum within one month, if the Complainant is not in a position to pay the remaining consideration of the amount to take possession of the flat. The District Forum also imposed costs of `200/- on the Opponent Nos.1 and 3. Aggrieved by this judgement and award the Opponent No.1 has filed this appeal.
(8) Both parties are absent. Sou.Kusumawavi Bhaskarrao Sonawane Appellant No.2 was given intimation by the postal department but she had not collected the envelope. So, postal authority returned the packet with an endorsement that packet is not claimed by the addressee. Since Appellant No.2 and Opponent No.1 are residing at the one and the same address, the Appellant No.1 both parties have knowledge of this appeal. They are absent. Other parties are also absent. So, we are deciding to dispose of the appeal on merit.
(9) We are finding that the District Forum committed grave error of law in passing award in favour of the Respondent for the simple reason that the Respondent No.1 had not filed any affidavit in evidence in support of complaint. The District Forum is duty bound to decide the complaint on affidavit in evidence, if affidavit in evidence is not adduced the District Forum is precluded from passing any award on the basis of complaint and other documents on record. The District Forum should also bear in mind that point has been raised that this complaint is not tenable since Complainant had already filed Civil Suit No.945/1996 on 04.12.1996 and later on it was dismissed. This fact was also overlooked while passing the order by the District Forum. For this purpose we are inclined to remand back the complaint giving an opportunity to the Complainant. Hence, we pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) The impugned judgement and award passed by the District Forum in Consumer Complaint No.162/1999 against the Appellants is quashed and set aside.
(iii) The complaint is remitted back to District Forum with a direction to decide the complaint only after permitting all the parties concerned to file affidavit in evidence.
(iv) Since all the parties are absent we direct the District Forum to issue notice to all the parties after receipt of order from this Commission by it.
(v) Inform the parties accordingly.
Pronounced on 12th October, 2011.
