Francisco Xavier Rodrigous vs Joseph Menezes

THE factual matrix of this case which are relevant for its disposal may be stated like this. By an agreement dated 20.08.1999, the petitioners/opposite parties agreed to sell flat bearing no.2 with a super built up area of 66.53 sq. mtrs. situated on the first floor of the building called ''Livra Apartments'' within the limits of Margao Municipal Council in South Goa District. The respondent/complainant paid the entire consideration of Rs. 3,90,000/ - and possession of the said flat was handed over by the petitioners to the respondent on 25.04.2002. After taking over the possession, the respondent/complainant has been paying house tax in his name as the occupier of the flat. He has also been paying water bills in his name. However, in spite of repeated requests of the respondent/complainant failed to execute the sale deed and conveyed that they would execute the sale deed subject to three conditions. Firstly, all the expenses in regard to the execution of the sale deed should be borne by the complainant; secondly, in case the complainant desired to sell the flat, the first option should come to the OPs and finally, a sum of Rs. 1 lac was required to be paid by the complainant on account of the OPs having carried out extra works in the flat at the request of the complainant. The OPs requested the complainant to inform them within 15 days so that they could prepare the draft for sale deed. The complainant replied to the letter of the OPs by sending his response on 25.11.2011 agreeing to pay all the expenses towards the execution of the sale deed. Regarding other two conditions imposed by the OPs, the complainant did not agree to the same and pointed out that he had paid all the dues and only after receiving all the payments, the complainant was given the possession of the flat. He denied that he had failed to clear any bill and that the claim of the OPs of Rs. 1 lac was made with malafide intentions. Eventually, the complainant/respondent filed a consumer complaint in this regard alleging deficiency in service on the part of the OPs.

ON notice, the petitioners contested the complaint and filed written statement in which it was stated that the OPs had carried out additional works in the said flat at the request of the complainant for which the complainant had assured the OPs that he shall reimburse all the expenses incurred on such extra works. The complainant failed to reimburse the said amount to the OPs and hence the request for payment of Rs. 1 lac in terms of the provisions of clause 8 of the agreement signed between the parties. Thus, denying any deficiency in service on their part, the petitioners/OPs prayed for dismissal of the complaint with costs.

BOTH the parties led evidence in support of their contentions and on appraisal of the issues and the evidence placed before it, the District Forum, vide its order dated 30.01.2014 partly allowed the complaint in terms of the following directions: - "Complaint is partly allowed. The Opposite Parties are directed to execute the deed of sale of the flat bearing No.2 with a super built up area of 66.53 sq. mts situated on the first floor of the building Livra Apartment in favour of the Complainant. The Opposite Parties are jointly and severally directed to pay a compensation of Rs. 50,000/ - to the Complainant and cost of Rs. 10,000/ - within thirty days from the date of the order failing which an amount of Rs. 50,000/ - and Rs. 10,000/ - shall carry interest of 9% from the date of filing of complaint till its realization."

Aggrieved of the aforesaid order of the District Forum, the petitioners/OPs filed an appeal bearing No.14/2014 against the same before Goa State Consumer Disputes Redressal Commission, Panaji. The State Commission vide its order dated 21.03.2014 not finding any merit dismissed the same with costs quantified at Rs. 5,000/ -.

THE petitioners have now come before this Commission by filing the present revision petition challenging the aforesaid impugned order of the State Commission.

WE have heard learned Mr. J.R. Serrao, Advocate for the petitioners and Mr. Abhijeet Sinha, Advocate for the respondent and perused the record.

THE main contention of learned counsel for the petitioners was that the additional work in the flat was carried out at the specific request of the complainant and in terms of the clause 8 (a) of the agreement signed between the parties and as such, the complainant was bound to pay for the additional items of work. He submitted that both the foras below erred in not considering this fact and have returned their findings which are contrary to the provisions of law and against the principles of equity and good conscience and if the same are allowed to stand it will lead to miscarriage of justice. He pointed out that all the details have been submitted by the petitioners in their written statement before the District Forum. Learned counsel, however, admitted that there is no document in writing containing request of the respondent/complainant for carrying out the additional works and the same were carried out on the oral requests made by the complainant. He also admitted that no demand in this regard had been made by the petitioners before handing over the possession of the flat by the OPs to the complainant. In view of the undertaking given by the complainant/respondent in the agreement signed by him, learned counsel pleaded that the complainant was bound to pay for the additional items of work and hence he requested that the revision petition be accepted and the erroneous orders passed by the fora below be set aside.

PER contra, learned counsel for respondent supported the impugned order and submitted that there is no substance in the revision petition and as such, the concurrent findings of the fora below passed on the basis of evidence adduced before them be confirmed.

WE have considered the submissions made by the respective parties.

THE only question which arises for decision before us is regarding payment of Rs. 1 lac by the complainant to the OPs on account of the carrying out of the additional works as claimed by the OPs. The District Forum in para 20 of its order has observed thus: - "Now the issue remains whether, the complainant had to pay sum of Rs. 1,00,000/ - to the Opposite Parties for doing additional work. We have observed that the Complainant have produced Xerox copies of the bills amounting to Rs. 45,000/ - dated 24 -09 -2001 duly signed by one Sattar Nadaf and another receipt dated 29 -03 -2002 for amount of Rs. 48,000/ -, and one receipt from Das Furniture Works dated 13 -04 -2002 for and amount of Rs. 7,000/ -. While perusing these receipts we have observed that the first receipt of Rs. 45,000/ - is of the year 2001 and the other receipt for amount of Rs. 48,000/ - is drawn in the month of 2002 which in fact is drawn before handing over possession of suit flat to the Complainant. The third receipt which is of the amount of Rs. 7,000/ - is drawn on 13th April 2002 in the month and the year in which the possession of the flat was handed over to the Complainant. Now, the question before us is what precluded the Opposite Parties to make demand for Rs. 1,00,000/ - from the Complainant before handing over possession to the Complainant . We find that there is no demand from the Opposite Parties of Rs. 1,00,000/ - before handing over possession of the suit flat to the Complainant. We are forced to presume that the Complainant must have paid the said amount to the Opposite Parties before handing over possession of the flat, therefore Opposite Parties have not raised any demand for said Rs. 1,00,000/ - from the Complainant and whatever stated in the written version and by way of evidence in the affidavit in evidence of the Opposite Party is afterthought."

CONFIRMING the finding returned by the District Forum in favour of the complainant in this regard, the State Commission has recorded the following reasons in support of the impugned order in para 18 thereof: - "One of the question put to the complainant was that what made the complainant ask for the sale deed after lapse of 13 years from the date of the agreement Rs. The right question to be posed to the OPs would have been as to what made the OPs to raise the said claim of Rs. 1 lac for the first time only in answer to the complainant''s letter dated 01/11/11 and after almost a decade Rs. The bills produced by the OPs in relation to the alleged payments to be made by the complainant, are of the years 2002, atleast two of them, and pertain to a period prior to the possession was given to the complainant on 25/04/02. It is extremely difficult to accept that the OPs would have given possession of the suit flat to the complainant without the complainant having made the payment for the said additional works carried out by the OPs or in any event the OPs would have remained silent for almost a decade without demanding the same from the complainant orally or in writing. It is, therefore, obvious that the said demand for the first time in answer to complainant''s letter dated 01/11/11 is by way of an afterthought, with a view to compel the complainant to pay the said amount before the sale deed is executed. The Ld. District Forum has rightly not accepted the said claim of the OPs for the said amount of Rs. 1 lac which in any event would have otherwise become clearly time barred."

THUS , we find that both the fora below have returned their concurrent findings in favour of the respondent while non -suiting the defence putforth by the petitioners. Mere presence of clause 8 (a) cannot be accepted as the reason to allow the additional demand of Rs. 1 lac made by the petitioners. It was just an enabling provision to deal with additional items of work, if any. The petitioners have not produced anything before us which would call for a different view than the one concurrently returned by both the fora below. There is no other legal issue involved in the matter. It has to be appreciated that Section 21 (b) of the Consumer Protection Act under which this revision petition has been filed confers very limited jurisdiction on this Commission and when both the fora below have returned their concurrent findings of fact, there is no case for our interference unless there is some material irregularity, illegality or jurisdictional error. This is in line with the ratio laid down by their Lordships of the Apex Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., 2011 3 Scale 654.

IN view of the above, we do not find any substance in the revision petition and hence dismiss the same with cost of Rs. 10,000/ - (Rupees Ten Thousand only), which shall be deposited by the petitioners in the Consumer Legal Aid Account maintained by this Commission within a period of four weeks failing which they shall be liable to pay interest @ 9% p.a. for the period of delay.

LIST on 08.05.2015 for compliance.