Sharita K. Shah vs Chanchaldas And Sons Mahul

SINCE , facts of the above noted appeals are similar and common question of law is involved, hence these appeals are being disposed of by this common order. F.A. No. 308 of 2014, Dr. Sharita K. Shah M/s. Chanchaldas and Sons Mahul shall be taken as the lead case.

APPELLANTS /Complainants jointly executed the agreement for sale on 03/12/2010 for purchase of flat bearing no. B -1101, admeasuring sq. ft. carpet area on 10th floor, B Wing in the building developed by the Respondents/Opponents known as ''Oceanic Towers'' Total agreed consideration of the said flat was Rs. 22,75,000/ -. The possession was promised to be delivered on receiving of the agreed consideration as stipulated in the registered agreement to sale. Payment of Rs. 22,75,000 was paid through cheque on 22/08/2008 (by four different cheques) Though frantic efforts were made by the appellants to get possession of the flat, but respondents did not respond favourably. Therefore, consumer complaint was filed alleging deficiency in service against the respondents Appellants have claimed possession of the said flat or alternatively refund of Rs. 31,69,950/ -together with compensation of Rs. 15,00,000/ -. Appellants failed to appear before the State Commission though notices were served. Therefore, they were proceeded ex parte on 18.6.2013. However, on 27.11.2013, Shri Arun Maske, Advocate appeared for the respondents and was permitted to make legal submissions only.

THE State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, ''State Commission''), vide impugned order dated 2.4.2014 partly allowed the complaint and ordered as under; "We, therefore, hold accordingly and pass the following order.

ORDER

Consumer complaint is partly allowed.

Opponents are directed to refund an amount of Rs. 22,75,000/ - alongwith interest @ 9% p.a. thereon from the date of filing this complaint i.e. 16/03/2013 till the realization.

Rest of the prayers stand rejected as not specifically admitted."

BEING aggrieved, the appellants have filed these appeals. We have heard the learned counsel for the appellants and gone through the record.

IT is submitted by learned counsel for the appellants that in addition to the sum of Rs. 22,75,000/ -, appellants have also paid a sum of Rs. 5,00,000/ - in cash to the respondents through Dr. Leharchand Lakhamsi Oswal and for which a receipt was also issued. Since, respondents have not given the possession of the flat, therefore appellants are entitled to refund of full consideration amount paid to the respondents.

IT is an admitted fact, that agreement to sale was executed between the appellants and the respondents. This agreement was executed on 3.12.2010 between "M/s. Chanchaldas and Sons Mahul through its authorized signatory, Mr. Suresh Chanchaldas Asrani Mrs. Lalit Bhagwan Kalwani and Ms. Sharita K. Shah and Dr. Kishore C. Shah. As per the agreement, respondents agreed to sell the flat in question to the appellant for a total consideration of Rs. 22,75,000/ As per copy of the receipt (placed at Page No. 56 of the paper book) a total sum of Rs. 22,75,000/ - was received by the respondents by way of four different cheques, dated 22.8.2008. There is no mention in this agreement at all, that in addition to the aforesaid amount, appellants have also paid additional sum of Rs. 5,00,000/ - by way of cash.

IT is well settled that when the terms of the agreement to sale have been reduced into writing, then no oral evidence can be considered in this regard.

NEVERTHELE SS , as per averments made in the complaint, the sum of Rs. 5,00,000/ - in cash was purported to have been paid to Dr. Leharchand Lakhamsi Oswal, on 22.8.2008. In this regard, appellants have relied upon copy of the receipt for the sum of Rs. 5,00,000/ - (placed at Page No. 79 of the paper book). As per this receipt, the sum of Rs. 5,00,000 was received by one Mr. Suresh C. Asrani on behalf of the respondents from Dr. Leharchand Lakhamsi Oswal. However, this receipt does not bear any date nor it bears the signatures of any witness. Be that as it may, appellants in their legal notice 15.12.2010, (Pages No. 85 to 87 of the paper book), sent to the respondents have averred; "My clients have paid to you a total sum of Rs. 30,50,000/ - out of which a sum of Rs. 25,50,000/ - paid by cheque and sum of Rs. 5,00,000/ - paid in cash as on 01.12.2008."

THIS shows that the appellants are taking contradictory stand with regard to the date on which the alleged amount of Rs. 5,00,000/ paid.

LASTLY , as observed above the agreement to sale was executed only between the appellants and the respondents, Dr. Leharchand Lakhamsi Oswal to whom the appellants are purported to have made the payment of Rs. 5,00,000/ - in cash is not a party to the agreement to sale at all. Thus, the privity of contract is only between the appellants and the respondents. It is well settled, that persons can tell lie but documents cannot. In the case in hand, appellants have taken a sham plea of having paid a sum of Rs. 5,00,000/ - to one Dr. Leharchand Lakhamsi Oswal, who admittedly has no concern with the present litigation, since he is not a party to the agreement to sale.

THE State Commission in its impugned order observed; "3. We perused record and documents relied upon by the parties. There is no dispute about receipt of agreed consideration of Rs. 22,75,000/ - prior to execution of registered agreement to sale. However, learned advocate of the complainant tried to make out case for refund of Rs. 5,00,000/ - paid by cash through power of attorney holder of the complainants, namely Dr. Laherchand Laxmi Oswal. According to the complainants, cash amount of Rs. 5,00,000/ - was paid on 22/08/2008 through their power of attorney holder. However, learned power of attorney holder of the opponents submitted that cash amount of Rs. 5,00,000/ - was not received on account of consideration for the subject flat and recipient, M/s. Chanchaldas & Sons, who issued receipts, is not party to the agreement. On carefully going through the registered agreement to sale, we observed that the agreement has been executed between Messers Chanchaldas and Sons Mahul and Miss Sharita K. Shah & Dr. Kishore C. Shah on 03/12/2010. Receipt of Rs. 5,00,000/ - paid in cash is issued by the different firm who are not party to the agreement to sale nor they have been impleaded as a party to the present consumer complaint. Simple receipt of one line acknowledging Rs. 5,00,000/ - in cash does not show details as to how and why payment in cash has been made and the receipt has been issued.

It was abundantly made it clear by the learned advocate and the power of attorney holder of the opponents across the Bar that the project could not be completed for the reasons beyond their control and there is no hope of completing the same in near future. Opponents have expressed willingness to refund the amount of Rs. 22,75,000/ - with interest received as total consideration under the registered agreement.

Complainants have not made any statement in the complaint stating that the purchase transaction of the flat is for bonafide use. From the perusal of the record, we observed that entire agreed consideration has been paid on 22/02/2008 by four different cheques. However, registered agreement to sale was executed much later i.e. on 03/12/2010. Transaction does not appear to be for the bonafide use as it is most likely to be an investment purpose. However, the opponents have not contested the consumer complaint and appeared only after when the case was ordered to be proceeded ex parte. Therefore, we do not go in details and intention of the complainant to buy the subject flat for investment or otherwise. There is no stipulation under the registered agreement to charge interest on delayed payment as admittedly entire agreed consideration has been paid well before execution of the agreement and possession of the flat was to be delivered on receiving the entire consideration.

Since it is the case of the opponents that they are unable to proceed to complete the project and deliver the subject flat, there is no point in dealing with the complainants'' prayer about seeking direction for peaceful possession of the flat. However, the opponents are willing and ready to refund the agreed consideration. Complainants, therefore, will be entitled to get the refund of the amount paid as per registered agreement with reasonable rate of interest for the deficiency incurred on the part of the opponents to complete the project and deliver the possession. As regards payment of Rs. 5,00,000/ - in cash through power of attorney holder, the complainants have failed to demonstrate from the record that the said amount was paid as an additional consideration over and above agreed one for the subject flat. Receipt available on record has not been issued by the opponent partnership firm. Therefore, complainants are not entitled to get refund of Rs. 5,00,000/ - paid in cash. However, complainants have made out case of deficiency in service against the opponents in not fulfilling the terms and conditions of registered agreement for delivering possession of the subject flat. Therefore, present consumer complaint deserves to be partly allowed with directions to the opponents to refund agreed consideration received against the subject flat."

THUS , after perusal of the entire material on record, we have no hesitation in holding that the appellants have failed to establish their claim that they had paid a sum of Rs. 5,00,000/ - in cash to the respondents, in addition to sum of Rs. 22,75,000 - which was paid by way of cheques. Accordingly, we do not find any infirmity or illegality in the impugned order passed by the State Commission. Hence, there is no merit in these appeals. Consequently, all the appeals stand dismissed in limini. No order as to costs.