KHALID YAKUB DAMAD vs ABDUL HAMID BARMARE

-THIS appeal under Section 19 of the Consumer Protection Act, 1986 filed by the opposite party is directed against order dated 8. 7. 2004 passed by the Consumer Disputes Redressal Commission, Maharashtra State (hereinafter referred to as the State Commission) vide which, allowing the complaint of the respondents, the State Commission had directed the appellant/o. P. to refund a sum of Rs. 5,40,000 to the respondent/complainants with interest @ 9% p. a. w. e. f. 31. 3. 1997 till realization. The State Commission had further ordered the payment of Rs. 10,000 as compensation towards mental agony and another sum of Rs. 5,000 towards the cost of litigation. Brief facts of the case

AS culled out from the records of the case, the facts are that the respondents entered into an agreement with the appellant/opposite party who is the proprietor of M/s. Unicorn Construction, for the purchase of seven flats for a total consideration of Rs. 6,30,000 in a building by the name of ''silver Park'' at Kausa, Thane. The said greement was entered into on 1. 2. 1997 and as per the respondent/complainants, the entire total amount of Rs. 6,30,000 was paid to the opposite party-builder in cash on the same day. However, the appellant-builder on 31. 3. 1997 sent a letter to the respondent/complainants stating that the agreement entered into on 1. 2. 1997 will have to be cancelled since there would be delay in construction of the proposed Silver Park Building. He, however, offered them seven flats alternatively in a newly constructed building known as ''kulsum Manzil'' at Kausa. The respondent/complainants, there upon, were asked to enter into a new agreement for the sale of seven flats, G-1 to G-7 for the same earlier total consideration of Rs. 6,30,000. It is the say of the respondent/complainants that the appellant/opposite party-builder gave possession of only one flat i. e. G-3 and failed to honour his commitment with regard to handing over of the remaining six flats. When repeated approach to deliver possession or in the alternative refund the balance amount with 50% interest failed to evoke any response, the respondent/complainants issued a legal notice on the appellants on 7. 11. 1997. They were surprised to receive a reply from the Advocate of the appellant-builder on 18. 12. 1997 denying the existence of any agreement or receipt of Rs. 6,30,000. Respondent/complainant thereafter issued a second notice to which no reply was received. To top it all they were shocked to receive a letter of the Dy. Commissioner of Thane Municipal Corporation stating that the building on which the ''kulsum Manzil'' has been constructed was unauthorized. The complainants further alleged that the appellant/o. P.-builder had in a clandestine manner disposed of the other 6 flats. They felt that they have been completely duped and cheated. Therefore, they filed complaint No. 548 of 1999 before the State Commission. The State Commission accepted their complaint and granted the reliefs already stated above. It is this order of the State Commission that is being challenged in Appeal before us by the appellant-O. P. builder. Learned Counsel for the appellant has assailed the order of the State Commission on the ground that while the appellant/o. P.-builder had all along been contending that the so-called agreement was a false, fabricated and forged document, the State Commission without any reference of the document to the handwriting expert compared the signature of the appellant at their own level and concluded that the agreement was a genuine one. The Counsel contends that the document being only a photocopy, it could be easily manipulated and the course adopted by the State Commission was not permissible in law. He has further alleged that the agreement was on a stamp paper which was purchased in the name of someone else. The State Commission ought to have taken into account the serious objections and allegations of the appellant that the documents were forged and should have discarded the same.

The learned Counsel thereafter has referred to the lump sum payment of Rs. 6,30,000 in cash for all the seven flats and argued that it is improbable that such a huge amount is paid in one go that too in cash for the seven flats. In the normal practice only advance is paid and the balance is handed over at the time of execution of the sale deed and the delivery of the possession. This departure from the normal practice, the Counsel contends should have been noticed by the State Commission to prove his point that the whole story was concocted.

THE third limb of argument advanced by the learned Counsel relates to the two respondents/complainants buying seven flats in one transaction which the Counsel argues, amounts to commercial transaction not falling within the jurisdiction of the consumer Forum. He has, therefore, submitted that the order of the State Commission be set aside. Learned Counsel for the respondent/complainants on the other hand has contended that the order of the State Commission is well reasoned. The evidence produced by the parties has been examined by the State Commission in-depth. The findings and conclusions arrived at are fully justified and needs no interference. Mr. Sharma, learned Counsel further contended that since the appellant/opposite party has himself admitted that pursuant to an agreement one flat G-3 was delivered to the respondent/complainant, he cannot now take the plea that no agreement existed or that the agreement was fabricated. Further, there is no reason stated by the appellant/opposite party as to why no reply was filed, in response to the second legal notice. The Counsel, therefore, submits that the order of the State Commission be maintained.

WE have also perused the evidence and other records of the case on our file. The appellant/o. P. has assailed the order of the State Commission on three counts. His first contention is that the agreement dated 31. 3. 1997 (page 54) was a false, fabricated and forged document. It was a Xerox copy and the respondent/complainant had avoided producing the original agreement before the State Commission. Additionally, even the Xerox copy of the agreement was in the name of some third person. On this point, it would be relevant to state that the State Commission in its order has dealt with this averment in great detail. Since the complainant had also alleged that the receipt for a sum of Rs. 6,30,000 dated 31. 3. 1997 as also the undertaking dated 28. 6. 1997 are also forged document, the State Commission in its order stated that these were bare assertions made in the written statement. It did not indicate as to how and in what manner the alleged forgery was committed. It had not even been remotely indicated in the pleadings that signatures appearing in the documents were not his. The State Commission has rightly held that the burden to prove lays upon the party who makes the allegations of fraud and forgery which the appellant has not discharged satisfactorily.

ON the point of the original documents not having been produced by the complainants one has to take into account the fact admitted by the appellant that the complainant purchasers are his close relatives. Besides, the appellant himself admits that he had entered into an agreement for the sale of one flat G-3, but he has refrained from producing the sale agreement. During the course of argument, an impression was sought to be created that it was this agreement for the sale of a single flat which has been made through manipulation to appear as if it was an agreement for the sale of seven flats. However, no explanation is forthcoming as to why even this agreement was not produced either in original or its Xerox copy by the appellant. Having not produced the best evidence in his possession, the appellant cannot be allowed to take advantge merely because he alleged the documents produced by the complainants as forged.

THE State Commission has also observed that when the complainant issued a legal notice during November 1997 asking for handing over the possession of the remaining six flats as the full payment of Rs. 6,30,000 had already been made, there was no immediate serious protest/objections raised by the appellant. Even his written statement was very passive inasmuch as it did not refer to any civil or criminal proceedings contemplated or initiated in the matter. In the peculiar facts and circumstances of the case, when the appellant has not explained as to how the transaction with regard to atleast one flat bearing No. G-3 went through, the State Commission was fully justified in coming to the conclusion that there was a deal between the parties. In that scenario, there was also nothing illegal in comparing the signature of the appellant as appearing on the agreement with the admitted signature available in his pleadings and Vakalatnama. It has been the view of the National Commission, expressed in a number of cases that a Consumer Commission need not always be bound by strict rules of pleadings. Procedure before Consumer Fora is inquisitorial in nature and not adversarial. Principle of natural justice and not procedural technicalities would prevail upon its proceedings to dispense complete justice. The other two counts on the basis of which the State Commission should have disbelieved and discarded the claim of the respondents relate to lump sum total payment of flats in cash and purchase of seven flats by two of them. On the question of payment when the appellant/o. P. himself admits that he sold one flat G-3 to the complainants, but he neither produces the agreement for sale nor the part payment receipt of Rs. 25,000 and further he does not effectively rebut the evidence on affidavit produced by the complainant, it cannot but be held that there was a valid payment. Insofar as the transaction being in cash is concerned, it is common knowledge that cash transactions are widely prevalent in the real estate business and in any case this objection would not be sustainable in a dispute of his nature. With regard to purchase of seven flats by the two respondents/complainants again no evidence has been led to prove the same by the appellant. As stated earlier, the appellant himself admits that the respondents/complainants are his close relatives. For reasons best known to them, there has been a deal and agreement from which the appellant cannot riggle out. Accordingly, we are of the view that the objections raised by the appellant on the three counts are not sustainable. The appeal, therefore, fails and is dismissed. We order accordingly. Parties to bear their own costs. Appeal dismissed.