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Nagarwala Construction Co. v/s Suresh Kumar

    First Appeal No. 386, 387 of 1994

    Decided On, 02 May 1997

    At, National Consumer Disputes Redressal Commission NCDRC

    By, S P BAGLA
    By, S S CHADHA

    For the Appearing Parties: Mr. Ram Lampat and Mr. A. A. Bade, Mr. M. N. Krishnamani, Senior Advocate and Mr. Saroj Kumar Verma, Mr. B. K. Satija and Mr. Y. P. Dhingra, Advocates.

Judgment Text

Mr. S. P. Bagla, Member - This appeal is against the order of the District Consumer Disputes Redressal Commission, Nagpur in the case of Mr. Suresh Kumar v. Nagarwala Construction Company. Although the appeal against this order was filed in the State Commission, as it should have been, a letter dated 22nd April, 1994 was received from the President of the Maharashtra State Commission stating that one of the Advocates appearing before him in this case was his relative and, therefore, requesting the President of this Commission to invoke the powers under Section 21 of the Consumer Protection Act, 1986 stating "In view of the circumstances explained in letter dated 22nd April, 1994 of the Resident, State Consumer Disputes Redressal Commission, Maharashtra, Appeal No. 967/93 and Appeal No. 1010/93 pending before the said State Commission are hereby withdrawn to the National Commission for disposal." Accordingly, this appeal was heard.

2. The dispute in this case is in regard to the delivery of a two bedroom flat which the Appellant-Nagarwala Construction Company was to give to Shri Suresh Kumar, the Respondent herein. Shri Suresh Kumar had filed a complaint before the District Forum, Nagpur saying that the Appellant illegally cancelled the agreement of sale of flat on the ground that he did not pay an amount of Rs. 71,000/as per their demand and also forfeited the amount already paid by him. The District Forum after going through the evidence led before them, gave its order on the following four issues :-

(1) Whether the Complainant is a consumer ?

(2) Whether District Forum has jurisdiction to entertain his complaint ?

(3) Whether the Nagarwala Construction Co. was deficient in service causing loss to the Complainant ?

(4) Reliefs to the Complainant.

3. In their order dated 30th October 1993, the District Forum directed the Appellant to treat the agreement dated 24th September, 1990 as subsisting. After awarding an interest @ 18% per annum on the amount of Rs. 69,500/- deposited by the Respondent and Rs. 20,000/- as compensation, the District Forum directed the Respondent to deposit Rs. 42,332/- by way of balance of cost of Rs. 87,267/- within one month from the receipt of their order. They further decided that on such amount being so deposited or paid the Appellant should deliver possession of the flat No. A-3 in Vashists Apartments and execute the sale deed thereof in favour of the Respondent at his cost within 15 days of such deposit, failing which the Respondent will be entitled to get the possession and sale deed executed through the Forum or Civil Court. It is against this order that the present appeal is before us. The main issue in this case is in regard to the agreement of sale dated 24th September, 1990. Both, the Appellant and the Respondent, produced the copies of this agreement. During the proceedings before the District Forum it came to their notice that earlier an agreement was made between the wife of the Respondent and the Appellant in regard to the sale of this flat but the same had been substituted later by an agreement between the Respondent and the Appellant as the Respondent wanted to avail some loan facilities. As both the parties, namely, the Appellant and the Respondent filed different versions of the agreement dated 24th September, 1990, it was argued before the District Forum that since the dispute in this case involves complicated questions of law and facts as regards to the genuineness of the documents, the matter should be referred to Civil Court. However, the District Forum did not accept this plea as in their opinion, it was possible to determine the genuineness of the documents produced before them. The District Forum through elaborate reasoning found the document produced by the Respondent as the genuine one. Apart from many reasons noticed by the District Forum, one reason was that the document produced by the Appellant had the first page typed in a different type set of print and remaining nine pages in another type set throughout. The contention of the Respondent before the District Forum was that they had taken the first page of the earlier document and substituted the remaining nine pages later. The only difference between these two documents is in regard to the mode of payment of Rs. 1,56,767/- as the consideration for the flat in question. In the document produced by the Respondent the balance amount after the initial payment of Rs. 3,500/- was to be paid in lumpsum at the time of delivery of possession of the flat after its completion, whereas in the document produced by the Appellant this amount was to be paid according to a schedule in 11 instalments. The contention of the Appellant is that since the Respondent failed to make the payment as per the agreement in the prescribed instalments, the agreement was liable to be cancelled and the amount already received by the Appellant was liable to be forfeited as per the agreement. Therefore, the question to be decided by us is in regard to the finding on the genuineness of the documents produced before the District Forum. If the document of sale agreement produced by the Respondent is accepted as genuine then the Appellant will have no case because then there would be no default in regard to payment of instalment on the part of the Respondent. Since a doubt has crept in as regards the genuineness of the sale agreement produced by the Appellant before the District Forum because of two type sets of print on one page and remaining nine pages, they were asked by the District Forum to produce the original document which the Appellant did not do. Hence the suspicion mat the sale agreement produced by the Appellant was not genuine and was not genuine and was in fact a manipulated one was strengthened. The District Forum, therefore, held that page Nos. 2 to 9 of the sale agreement produced by the Appellant are the same as were in the initial agreement which was substituted later on 24th September, 1990. It may be mentioned that earlier agreement is dated 18th May, 1990 which was later substituted by an agreement on 24th September, 1990. The District Forum, therefore, held that the sale agreement filed by the Respondent was a genuine document and this does not indicate any schedule of payment in instalments.

4. We have heard the arguments of the learned counsel for the Appellant as well as the Respondent. We do not find anything new in the averments of Appellant that had not been said before the District Forum. We are unable to persuade ourselves to accept the proposition that whenever the documents produced before the consumer redressal agencies are questioned, the matter should be referred straightway to the Civil Court. If it is possible to establish the genuineness of a document based on the evidence, including the circumstantial evidence available, there should be no mason as to why the matter should be referred for prolonged litigation in the Civil Court to the disadvantage of the consumer complainant, as a matter of general rule, We find that the District Forum has given cogent reasons for rejecting the agreement of sale produced by the Appellant and therefore, hold the order of the District Forum to be just and correct in this respect.

5. We also find that the Appellant stated before the District Forum on 26th July, 1993 through their notes of arguments that they had handed over the possession of the flat in question to one, Mr. M. M. Bhaskarrao in pursuance of an agreement dated 12th March, 1993. The District Forum, however, has noted that the Appellant in their reply dated 26th September, 1992 filed before the State Commission had denied that they had any intention to transfer the flat to anybody else and the District Forum by its order dated 27th May, 1993 passed an order directing the Appellant to maintain status-quo, which order continued from time to time. The District Forum further noted that although several applications were filed by the Appellant during the pendency of the case before them, but in none of those applications there wa

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s even a whisper that the Appellant had entered into an agreement of sale of this flat to Shri Bhaskarrao. It was only in their notes of arguments dated 26th July, 1993 that this averment was made before the District Forum for the first time. Finding that no document in support of any such agreement or delivery of possession had been filed, the District Forum held that the Appellant had scant regard for the law and for the Forum. Moreover, they have rightly pointed out that the alleged transfer would be hit by the Rule of lis pendens. We agree with this finding of the District Forum. 6. In view of our conclusion that the State Commission had passed a just and correct order we see no merit in this appeal which we accordingly dismiss. There is no order as to costs. 7. The facts and other related points being the same this order disposes of Appeal No. 367 of 1994 also.