AI Structured Summary
Not yet generated for this judgment
Judgment
Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (for short "the Act") is to the order, dated 03.02.2006, passed by the State Consumer Disputes Redressal Commission, Maharashtra, Nagpur Camp (for short "the State Commission"). By the impugned order, the State Commission allowed the Appeals preferred by the Opposite Party and set aside the order passed by the District Consumer Disputes Redressal Forum, Nagpur (for short "the District forum"), which by its order, dated 30.01.2004, allowed the Complaints directing the Opposite Party to refund the amount of Rs.7,510/-, deposited by each Complainant, along with interest @ 18% p.a. from the date of the last payment, i.e., 07.02.1996 till the date of realization, together with costs of Rs.1400/-. The State Commission had remanded the matter to the District Forum in Appeal Nos. 1304 to 1306 of 2002 vide order dated 28.10.2002 on the ground that the District Forum had not looked into the material documents filed by the Opposite Party.
The brief facts as set out in the Complaint are that the first, second and third Complainants booked plot no.146, 145 and 73 respectively in Khasra no.97/1 admeasuring 600 sq. ft. for a total price of Rs.7,500/- for each plot and the same was to be paid to the Opposite Party by way of instalment of Rs.200/- per month. The Complainants pleaded that the amounts had been paid to the Opposite Party and the relevant receipts and passbooks were also issued to them. While so, on
07.05.1998, the Complainants requested the Opposite Party to execute the Sale Deed and deposited original passbooks and receipts for verification before the Opposite Party in the month of July 1998. Once again, on 18.11.1998, the Complainants requested the Opposite Party to execute the Sale Deed or to refund the amounts, but there was no response. The Complainants got issued three legal notices on 03.12.1998, 14.12.1998 and 04.02.1998 to the Opposite Party for execution of the Sale Deed or to refund the amounts. Despite repeated requests, there was no proper response from the Opposite Party. Hence, the Complaints before the District Forum seeking direction to the Opposite Party to execute the Sale Deeds or to refund the deposited amount of Rs.7500/- with interest @ 18% p.a. from the date of payment together with costs and other reliefs.
Opposite Party, on receipt of notice, sent letter dated 23.08.2000 to the Forum along with the Police Complaints stating that the Complainants had taken refund on 18.11.1998, on deposit of their original pass books and receipts.
The District Forum observed that the Opposite Party did not file any affidavit by way of evidence and none appeared in person at the time of arguments. The State Commission had remanded the matter to the District Forum in Appeal Nos. 1304 to 1306 of 2002 on the ground that the District Forum had not looked into the material documents filed by the Opposite Party.
Thereafter, on remand of the cases by the State Commission, the Opposite Party filed its affidavit stating that the Complainants failed to deposit the instalments before the closure of the Scheme in October 1995 and that the amounts were lying with the Opposite Party without any allotment.
The District Forum observed that the Opposite Party again deprived the Complainants of their legitimate rights by simply stating that the allotment of the plots stand automatically cancelled as the Scheme had completed in October, 1995 and that they had defaulted in their payments.
The Complainants in their affidavit before the District forum stated that they cannot be termed as "defaulters" as the actual cost of the plot was Rs.7500/- and the amount claimed by the Opposite Party in its reply, dated 15.06.1998, to the notice of the Complainants, dated 07.05.1998, was for additional 100 sq. ft., which was brought to the notice of the Complainants only after the closure of the Scheme in October 1995.
District Forum based on the evidence adduced before it allowed the Complaints directing the Opposite Party to refund the amount of Rs.7500/- with interest @ 18% p.a. from the date of last payment, i.e., 07.02.1996 till the date of realization together with costs of Rs.1400/-. While allowing the Complaints, the District Forum observed as follows: "The OP totally failed to prove by way of any documentary evidence or affidavit of the Cashier or any other witnesses to prove that Sou Sobha Timase has booked to prove or to place any document or evidence on record including the affidavit of the cashier on the debit voucher that Kr Mayabai Rewatkar authorised Sou Shobha Timase to receive the payments on her behalf as all the two complainants are the poor person and O.P. taking the advantage of these poor people executed the documents without payments.
On close scrutiny of document No. 3 at page 64 dated 18.11.1998 filed by the O.P. i.e. debit voucher OP which is stamped receipt of Rs. 22,530/- signed by Sou Shobha Timase but O.P. has cancelled the word ?received'' from the words mentioned on Debit Voucher i.e. "Paid/RECD/Rupees". Therefore, it cannot be said that the amount is received by Sou Shobha Timase for her plots or another plot as Ku. Mayabai Rewatkar has not acknowledged the receipt of the amount and complainants since beginning stating that O.P. received documents but did not effect the payments.
Secondly, O.P. is the Co-op. Sanstha and O.P. has not filed any documents of resolution of Society towards cancellation of plots of complainants and refund on record and as per rules and provisions of Income Tax, any payment above Rs.20,000/- is to be made by way of cheque or D.D. The reliability of the document No. 3-Debit Voucher-dated 18.11.1998 is doubtful because in other cases against the O.P., O.P. has opted the same modus operandi to get the original documents and subsequently not to effect the payments as he obtains the signatures in advance and same is the position in the case of Shri K.I. Pekade, one of the respondent in appeal in which, Hon''ble State Commission has remanded the matter along with above three complaints and the matter of Shri K.I. Pekde is pending in appeal before the State Commission and hence Debit - Voucher cannot be relied by the Forum and cannot be termed as debit Voucher as appears to be paid but not received by each complainants separately and hence non-execution of sale-deeds or refund of the amount with interest received from the complainant amount with interest received from the complainant amounts to Unfair Trade Practice and deficiency in service on the part of O.P. Hence O.P. is quality of Unfair Trade Practice and O.P. is liable to refund the amounts i.e. Rs.7,510/- in each complaint with interest @ 18% p.a. from the date of last payment till its realization".
Aggrieved by the said order, the Opposite Party filed the Appeals before the State Commission which has allowed the Appeals observing as follows: "We carefully perused the relevant documents, the application for cancellation of booking and debit voucher of the three purchasers informing the appellant (O.P.,) to cancel the booking and refund the money. The order of cancellation of booking is signed by Shobha Timase who had booked two plots. She is real sister of Mayabai Rewatkar who has booked one plot. The prayer for cancellation of booking is accepted by the O.P. The O.P. asked the complainant to remain present on 18.11.1998 along with original cards. It is not disputed that the original receipts and cards were returned to the O.P. The termination voucher is signed by Shobha Timse. In the debit voucher, Shobha timase and Maya Timase are shown receipts of the refund of consideration amount. The debit voucher would clearly show that the total amount of Rs.22,530/- was returned to the complainants in response to the prayer of cancellation. The debit voucher is dated 18.11.1998. The original booking receipt and original cards which were given to the complainants are in the custody of the O.P. The custody of the original documents after prayer of cancellation coupled with debit voucher would establish genuineness of defence version. The Forum below has not considered these documents in proper perspective. The order under challenge is therefore suffers from illegality."
Dissatisfied with the said order, the Complainants preferred this Revision Petition.
The only point which falls for consideration in this Revision Petitioner is whether the amounts, admittedly, received by the Opposite party towards sale of the plots had been refunded to the Petitioners herein as the Sale Deed was not executed?
Mr. Ritesh Khare, Advocate was appointed as Amicus Curiae on behalf of the Petitioners.
A brief perusal of the record shows that the District Forum had clearly observed, after a remand, that the Opposite Party did not file their reply with an affidavit ; that the Opposite Party had automatically cancelled the plot without issuing any notice to the Complainants and this tentamounts to ignoring the principles of natural justice ; that the Opposite Parties did not file any evidence to establish that the Complainants were defaulters ; Respondents failed to prove by way of an affidavit of any cashier or authorised person that Sou Shobha Timase had booked one plot for Ku Mayabai Rewatkar ; that there is no evidence on record that the said Ku Mayabai Rewatkar authorised Sou Shobha Timase to receive the payments on her behalf.
Hence, the brief point that falls for consideration is whether the Debit Voucher evidences the refund of the amounts of the Complainants herein as the sale deed was not executed. The Petitioner had filed a copy of the Debit Voucher alongwith an application before this Commission, strongly disputing her signature on the Debit Voucher and submits that the Opposite Parties had fraudulently created this voucher and have neither executed the sale deed nor refunded the amount which they are entitled to. There is force in the contention of the learned Amicus Curie that the plots were cancelled without adhering to the principles of natural justice. No notice was issued to them and that the balance amounts were to be paid by the Complainants only at the time of execution of the sale deed that that the document filed before the District Forum does not even demonstrate the actual cost of the plot.
A perusal of the record shows that in the rejoinder filed by the Complainant before the District Forum on 12.11.2003 alongwith the statement of payment and also the notice of the Complainants dated 7.5.1998 and the reply of the Opposite Party on 15.6.1998 shows that the notice for additional 100 sq. ft. was brought to the knowledge of the Complainants after the scheme was closed by the Opposite Parties and the conditions in column 2 stipulate that the payment is to be done at the end and therefore, the allegations of the Opposite Parties that the Complainant had defaulted, is unjustified. A copy of the Debit Voucher for Rs. 22,530/- dated 18.11.1998 has been filed here and this shows that it was issued in the name of the Petitioner herein i.e. Sou Shobha Timase who has strongly disputed signing any such voucher. There is no evidence on record to substantiate the plea of the Opposite Parties that the Petitioner herein had accepted the amounts on behalf of all the Complainants. In the legal notice dated 3.12.1998 got issued by the Complainants to the Opposite Parties, it is clearly stated that on 18.11.1998, the originals were handed over to the Opposite Parties on the promise that the amounts paid would be refunded to them and in this notice an amount of Rs. 15,020/- was demanded for the two plots and therefore, vide this notice it can be construed that the refund was sought for two plots only. In their reply, it is pertinent to note that the Opposite Parties did not mention the receipt nos. or the amounts except for baldly stating that the amounts have been paid. The State Commission had not taken into consideration that the Complainant had issued notice on 3.12.1998, 14.12.1998 and 4.2.1999 seeking refund of the amounts paid to her with respect to two plots only. It is pertinent to note that the Debit Voucher, which the Petitioner/Complainant is disputing, is for refund of the amounts of three plots. The District Forum had rightly observed that the Opposite Parties did not file any authorisation of the Petitioner herein to collect the refund of the third Complainant also and that to reiterate, their reply filed before the District Forum is not accompanied by any affidavit.
For all the afore-mentioned reasons, and also the Judgments of the Hon''ble Apex Court in Ghaziabad Development Authority vs. Balbir Singh reported in (2004) 5 SCC 65, wherein the Hon''ble Apex Court held that the grant of interest @ 18% p.a. was justifiable as the party suffered loss in as much as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore, the compensation in such cases would necessarily have to be higher.
Recently, the Hon''ble Supreme Court K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012, held that the refund of the amounts to the Complainants along with compensation in the form of simple interest @ 18% from the date of deposit till the date of payment is justifiable for the mental agony and harassment undergone by the Complainants in cases where delivery of possession of plots has not been given.
In the instant case, the Opposite Parties had automatically cancelled the allotment without issuing any notice and also did not file any documentary evidence by way of any affidavit to establish that the amounts were refunded. Hence, this Revision Petition is allowed and the order of the State Commission is set aside confirming the order of the District Forum.