1. Challenge in this Revision Petition filed under Section 21 of the Consumer Protection Act, 1986 (for short the ‘Act’), is to the order dated 27.3.2018 in FA/16/41 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur (hereinafter referred to as ‘The State Commission’). By the impugned order the State Commission has dismissed the Appeal preferred by M/s. Vyankateshwara Infrastructure (hereinafter referred to as the ‘Developer’) thereby agreeing with the finding of the District Forum, Nagpur, which has partly allowed the Complaint directing the Developer to execute the sale-deed and handover the possession of the Bungalow by accepting the balance consideration of Rs. 4,75,000 or in the alternative direct the Developer to refund a sum of Rs. 9,50,000 with interest @ 12% p.a. from 31.12.2013 till the date of realisation together with compensation of Rs. 25,000 towards mental and physical harassment and Rs. 10,000 towards litigation expenses.
2. The facts, in brief, are that the Respondent, Complainants, booked a Bungalow No. 13, under the scheme floated by the Developer for a total sale consideration of Rs. 13,21,000 and initially deposited a sum of Rs. 25,000 in the bank account of the Developer vide cheque No. 51015122. Thereafter another cheque No. 162420 for Rs. 25,000 was also deposited. It is averred that the balance amount of Rs. 12,75,000 would be paid in instalments and that the Complainants had paid a sum of Rs. 1,00,000 by cheque on 17.12.2013 and another Rs. 7,00,000 vide cheque dated 31.12.2013 thereby paying a total amount of Rs. 8,50,000. It is averred that only the balance amount of Rs. 4,75,000 was due and payable at the time of registration of the sale-deed.
3. The Developer filed their Written Version stating that the payments which were made by the Complainants were not towards booking of Bungalow but towards renovation work on their home situated at Nagpur. It is averred that the Complainants wanted to purchase a Bungalow under the Scheme of Bhandara and the initial cheque of Rs. 1 lakh was given for that purpose. Thereafter they cancelled the booking of the said Bungalow and the amount which was paid to the Developer for Bungalow was requested to be adjusted towards the renovation charges for the Bungalow they wanted to renovate. It is averred that the Complainants have requested the Developer for renovation of the said house and the amounts thus paid by the Complainants to the Developer were only towards renovation and not towards any other house and therefore there is no deficiency in service on their part.
4. The learned Counsel for the Developer submitted that the Complainants house was renovated as per the renovation plan dated 11.2.2012 and that the documents with respect to the renovation that the bills and estimates could not be filed before the District Forum as the Counsel did not attend the hearing on 1.10.2015 and on 18.11.2015 and that the District Forum passed the order on 30.11.2015 and had therefore, filed the documents before the State Commission. It is the contention of the learned Counsel that the amount of Rs. 7 lakh was paid by the Complainants and the same are adjusted towards the renovation charges; that the Bungalow of Bhandara was not purchased for personal purpose and it was only for investment and that in the Reply to the Legal Notice issued by the Complainants it is very clearly stated that the amount of Rs. 7 lakh was received. He drew our attention to the averments made in the Complaint wherein it was stated that a sum of Rs. 50,000 was transferred from Mumbai by NEFT in two instalments on 16.8.2013. He further drew our attention to the statement of account filed as part of his Revision Petition which evidences that the amounts were credited to the account of Vyankateshwara Infrastructure. The submissions with respect to these transactions do not, in any angle, help the case of the Developer as the statement of account only evidences that the amounts were transferred by NEFT from Mumbai, drawn on Punjab & Sind Bank in the name of the Developer himself, does not establish about payment towards renovation, or otherwise.
5. The contention of the learned Counsel for the Developer that the amount was paid only for renovation and not for construction of the Bungalow is totally unsustainable in the light of the e-mail dated 5.1.2014 sent by the Developer to the Complainants. Though the learned Counsel relies on this very e-mail to establish his case, it is pertinent to mention that in the e-mail, there is no specific mention about any Agreement entered between them for cancellation of the Bungalow and the amount diverted towards renovation, by way of any specific Agreement towards renovation. The e-mail is completely silent about any oral agreement, or otherwise. For better understanding of the facts of the case, the said e-mail is reproduced as under:
“Received with thanks an amount of Rs. 7 lakh against the Bungalow near Project Vyankateshwara Vrindavan, situated at Ghat 404/2, Mouza Parsodi, Tah. and Dist. Bhandara.”
6. A perusal of the written statement evidences that there is no pleading in the Written Version with respect to two distinct legal entities. There is no documentary evidence filed before the District Forum to establish that there were two distinct legal entities meant for two different projects and that the second Opposite Party had taken the amount for a different purpose. It is pertinent to mention here that Rs. 7,50,000 was paid by RTGS way back in the year 2013. The contention of the learned Counsel appearing for the Developer that an oral contract was entered into between both the parties about the Bungalow, the onus is on the Developer to establish that the said oral Agreement was cancelled in view of the subsequent oral Agreement regarding renovation of the house, which the Developer has failed to discharge.
7. The learned Counsel for the Developer drew our attention to the Agreement of construction purportedly entered between both the Parties. The learned Counsel for the Complainants vehemently contended that this Agreement is a forged document as it has not been signed by the Complainants. We find force in the contention of the learned Counsel appearing for the Complainants as the document does not anywhere show that it has been signed by the Complainants and therefore, has no evidentiary value.
8. Lastly, the contention of the learned Counsel for the Developer that the Complainants had booked the Bungalow for commercial purpose is not based on any substantial evidence filed by the Developer and therefore, the
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Judgment of this Commission in Kavita Ahuja v. Shipra Estate Ltd. &Anr., I (2016) CPJ 31 (NC)=CC No. 137 of 2010 Order dated 12.2.2015, squarely applies to the facts of the present case wherein it was specifically laid down that when a plea is raised by the Developer that a specific unit was purchased for commercial purpose, the onus is on the Developer to prove that if the purchaser has purchased the said unit for dealing in real estate, i.e. , in the sale and purchase of the flats/house for investment purpose, which in the instant case, the Developer has failed to establish. 9. For all the fore-noted reasons this Revision Petition is dismissed. There shall be no order as to costs. Revision Petition dismissed.