J.M. Malik, Presiding Member
1. The complainant, M/s. Libord Infotech Ltd., (Formerly, known as 'Libord Finance Ltd.'), through its Director, Mr.Lalit Kumar Dangi, took one office premises, measuring 5200 sq.ft., on 2nd floor in Software Park, situated at Block No.C-15, Road No.16, Wagle Industrial Estate, Thane, for a consideration of Rs.52.00 lakhs with Sharpmind Consultancy Services (P) Ltd., the OP, by paying a sum of Rs.5.00 lakhs as booking amount, on 23.03.2000, i.e., prior to the Amendment of the C.P. Act, 1986, in 2003. The OP represented to the complainant that the plans were almost sanctioned by the concerned authority and the construction would commence soon, expecting the premises to be completed by March, 2003. The balance amount was to be paid as per progress of the construction. The complainant wanted to pay the amount but the OP put off the matter, on one pretext or the other.
2. To our mind, the letter dated 11.07.2000 issued by the OP, the only one, is crucial. The entire letter is reproduced here, as under :-
M/s. Libord Finance Ltd.
104, M.K. Bhavan
Shahid Bhagat Singh Road
Fort, Mumbai – 400 001.
Ref : Our letter dated 23.03.2000 regarding booking of premises.
We refer to our letter dated 23.03.2000 in respect of booking of premises for computer operations at Plot No.C-15, Road No.16, Wagle Industrial Estate, MIDC, Thane – 400 604, by you and whereby you have paid to us a sum of Rs.5,00,000/- as deposit and the balance sum of Rs.47.00 lakhs was due and payable by you to us on or before 30.04.2000, time in that regard being of the essence.
We regret that in spite of the clear understanding you have failed and neglected to make the payment of the balance sum and hence with a view not to give you any cause of grievance, we give you this final notice to pay the balance sum within a week from the receipt of this notice by you [ though legally not entitled], failing which we shall forfeit the deposit in terms agreed and you shall thereafter have no right, title or interest into or upon the said premises of which, please note.
For Sharpmind Consultancy Services Pvt. Ltd.
The evidence shows that the amount of Rs.47.00 lakhs was not paid on or before 30.04.2000.
3. According to the complainant, he has received letter dated 11.07.2000 sent by the OP, wherein demand of the entire balance amount was to be made within 7 days, failing which, it was threatened to forfeit the booking amount, paid. In that letter, reference was made to letter dated 23.03.2000, which the complainant never received. The complainant sent a response to the OP vide letter dated 17.07.2000 denying the issues raised by the OP.
4. Letter dated 17.07.2000 was refused by the OP through its Director, Mr. Madanlal Jain. It was sent by registered Acknowledgment Due, on 19.07.2000.
5. In the meantime, the complainant filed the instant complaint before the State Commission with the following prayers :-
'a) execute the Agreement for Sale of the premises;
b) complete the construction and handover possession on or before March, 2003 and till then, not to create third-party interest or charge in the said premises;
a) make available another premises of the same size in a software park within the vicinity of the present location, as per the choice of the complainant and execute the agreement for sale of the premises;
b) arrange to handover possession of the alternate premises on or before March, 2003 and till then not to create a third-party interest or charge in the said premises;
And in either case also
c) not forfeit the said amount of Rs.5.00 lakhs received by them but to appropriate the same towards the consideration amount and receive the balance amount of Rs.47.00 lakhs as per the progress of the construction.
d) pay a sum of Rs.50,000/- towards cost and expenses incurred by the complainant in pursuing with the OP and for the financial inconvenience to the company and the anxiety caused to the directors;
e) the cost of Rs.25,000/- towards this complaint.
f) any other grant or relief the Hon’ble Commission may deem fit and proper in the circumstances'.
6. The complainant listed the following defences in its written statement. This is a commercial transaction between the parties. Again, the complainant was permitted to occupy and use a part of the GF structure on plot No.C-15, Road No.16, Wagle Estate, MIDC, Thane, for a period of five years as a licence and subject to terms and conditions, more particularly, set out in the letter dated 23.03.2000 attached to the complaint and there is no question of any sale of any premises by OP to the complainant. The OP had only offered to allow the complainant to occupy and use a part of the premises bearing 72 sq.ft. in the GF structure of the said property for the term of five years subject to payment of compensation and subject to terms and conditions, more particularly, set out in the letter dated 23.02.2000. The jurisdiction of this Commission has also been called into question.
7. After giving the opportunity of being heard, the State Commission passed the following order :-
'1. Complaint is allowed.
2. Opponent is directed to execute an agreement of sale in respect of shop admeasuring 5200 sq.ft. on 2nd floor, Software Park situated at Plot No.C-15, Road No.16, Wagle Industrial Estate, Thane, in favour of the complainant and to handover possession of the said shop within a period of six months from the date of this order by appropriating Rs.5 lakhs paid by the complainant as booking amount towards total consideration and accepting Rs.47 lakhs as remaining consideration from the complainant by giving intimation about readiness of the shop and the agreement to be executed in favour of the complainant.
ALTERNATIVELY AT THE OPTION OF THE COMPLAINANT
Opponent is directed to execute an agreement of sale in respect of another shop of the same size within the vicinity of the same location and to handover possession of the same to the complainant within a period of six months from the date of this order by appropriating Rs.5 Lakhs paid by the complainant as booking amount towards total consideration and accepting Rs.47 lakhs as remaining consideration from the complainant by giving intimation about the readiness of the shop and the agreement to be executed in favour of the complainant.
3. Opponent is directed to pay Rs.75,000/- towards costs and expenses incurred by the complainant in pursuing with the opponent and for the financial inconvenience and cost of this complaint'.
8. We have heard the counsel for the parties. The learned counsel for the Appellant/OP vehemently argued that there was no concluded contract. The above said letter dated 11.07.2000 is conspicuously silent about the area, floor or possession. The complainant has smartly filed this case against it. It was pointed out that despite such clear-cut denial, Hon’ble State Commission has failed to consider that the initial burden of proving the case, such as to area, floor, number, rate, per sq.ft., was on the complainant. This letter cannot be said to be a concluded contract. In the written arguments, it was also mentioned that the State Commission has omitted the basic principle of law that in view of the specific denial of the proposed construction, floor, number, sanction of plan, builder, complainant ought to have produced an iota of evidence supporting of its case. The State Commission wrongly incorporated the letter dated 11.07.2000 as concluded and the cogent piece of evidence. The letter shows that the complainant’s had deposited a sum of Rs.5,00,000/- towards the premises for computer operation. It was also contended that the entire order passed by the State Commission directing the appellant’s/OP to execute the agreement and handover the premises is contrary to the document on record. On the contrary, the OPs have proved their case.
9. It was pointed out that the OP, vide their application dated 23.10.2015, placed on record the original title deed, namely, Lease Agreement dated 27.11.1995 from where it is evident that the said lease was for the period of balance period of 95 years, computed from March, 1973. The said lease was confirmed by the Maharashtra Industrial Development Corporation’s letter dated 16.12.1996 subject to the terms and conditions, mentioned therein. Again, there is condition No.3 which runs as follows :-
'This consent is restricted to the transfer and assignment of the said lease in favour of the Transferee(S) propose/s to make any further transfer or assignment or parting wholly or partially with the possession of the plot of land demised under the said lease or any part thereof the transferee(s) will have to make fresh application for consent'.
10. It is not out of place to mention that these documents were placed before us at the time of final arguments. These documents are deemed to be admitted and would be read in evidence. There is no evidence on record that these documents were shown to the complainant at any previous stage.
11. It was also argued that the complainants had filed interim applications in 2003 and vide Affidavit dated August, 2003, stated that the OP had completed the construction. Similarly, in the affidavit, dated February, 2010, it was stated that the said premises is in dilapidated condition, since March, 2003 and again, in the affidavit dated 03.06.2013, the complainants state that the OP’s have now, i.e. in 2013, have started the construction.
12. All these arguments have left no impression upon us. It rather goes to show that how the OP led the gullible consumers, up the garden path. Document dated 11.07.2000 is crucial, important and determinative of the present controversy. In Special Leave to Appeal (Civil) 36667-68, titled Samarth Associates Engineers & Builders & Ors. Vs. Ramesh Ramchandra Lokhande, decided on 16.12.2013, filed against the order passed by this Bench in Revision Petition No. 4729 of 2012, on 10.09.2013, the SLPs were dismissed, confirming the order passed by this Bench.
13. Vide order dated 10.09.2013 (in RP 4729/2012), we made the following observations :-
'The following deficiencies are apparent on the face of the record. First of all, it is not understood why the agreement was not executed at or about the execution of receipt of Rs.25,000/-. In Belaire Owners’ Association Vs. DLF Ltd. & Ors., Case No.19/2010,vide supplementary order dated 03.01.2013, the Competition Commission of India, held :-
'31.The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment. These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allottees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications'.
14. It is, thus, clear that accepting Rs.5.00 lakhs without informing the terms and conditions of the agreement by the OP, to the complainant, is clear-cut deficiency of service on the part of the OP.
15. The lease agreement with the company, saw the light of the day when the case was to be finally decided before this first Appellate court. There is no evidence that it was shown to the complainants. This further points out the deficiency on the part of the OP. Furthermore, now, the OP has come up with a new case. They themselves admit that the total area of the premises was 7200 sq.ft. The truth is the annoying habit of not being suppressed for too long. It is difficult to fathom, why this fact finds no mention in the letter dated 11.07.2000. Letter dated 11.07.2000 was smartly drafted. It is the OP and nobody else who is to explain why it does not mention the whole contract. The malafide intention of the appellant / OP springs out from this letter itself.
16. Again, it is note-worthy that the letter dated 23.03.2000 was sent through UPC. This is the most important document. It should have been sent through registered A/D. The letter dated 23.03.2000 is not available on record, despite it was pointed out at the time of final arguments. It cannot be said, whether, it was sent at the correct address or wrong address. The complainant has categorically denied its receipt. Moreover, it is very easy in this country to procure UPC letter/requisite stamp.
17. Again, the case of the Appellant/OP is wee bit confusing. In the letter dated 23.03.2000, it stipulates that the agreement was of 7200 sq.ft. In the result, the order passed by the State Commission cannot be faulted and all these arguments deserve no consideration.
18. The second argument raised by the counsel for the Appellant/OP is that the State Commission had no pecuniary jurisdiction to deal and decide the present case. During those days, the jurisdiction of the State Commission extended upto Rs.20.00 lakhs. This case should have been tried by this Commission.
19. The arguments urged by the counsel for the Appellant/OP appear to be correct in a measure. However, two things are to be noted. The Hon’ble Apex court in the case of Civil Appeal No.5721 of 2006, dated 12.12.2006, titled Hasham Abbas Sayyad Vs. Usman Abbas Sayyad & Ors., held, as under :-
'So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The laws is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage'.
20. The counsel for the Respondent/complainant has al
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so cited other authorities reported in (1) Empire Builders Vs. Anthony Xavier Andrade, CDJ 2009 (Cons) NCDRC, dated 11.02.2009 (2) Gandhimathi & Ors. Vs. P. Baby & Ors., CDJ 2013 MadHC 4417, dated 30.09.2013 (3) Sunita Rajput & Ors. Vs. Yogender Ratawal & Ors., CDJ 2010 DHC 1042, decided on 31.05.2010 (4) G. Soman, Managing Partner, Kottarakkara Vs. M/s. ECE Industries Ltd., & Anr., CDJ 2012 KerHC 967, 20.09.2012. 21. Again, it was held in National Insurance Co. Ltd. Vs. Harjeet Rice Mills, CDJ 2005 SC 537, that if the limit of pecuniary jurisdiction is raised, then authority is allowed to pass the order. 22. Last, but not the least, the Appellant/OP has failed to prove on record that any prejudice was caused to it in this context. 23. The last contention urged by the counsel for the Appellant/OP is that the complainant is not a ‘consumer’, because, in the year 1993 there was also amendment to section 2(1)(o) of the Act. The definition of the word ‘service’ was amended. 24. We find no force in this argument. It is, only after 15.03.2003, the complainants are not treated as ‘consumers’, in such like cases. 25. However, it must be borne in mind that a sum of Rs.47.00 Lakhs was not paid by the complainant since 30.04.2000. We hereby modify the order of the State Commission and direct that, in addition to the order of the State Commission, the complainant will also pay interest at the rate of 10% p.a., from 30.04.2000, till the date of this order, in both the eventualities, specified in the order of State Commission.