SUNDER KASHYAP vs N.PALTA

THIS appeal has arisen out of the Order dated 29th of October, 1993 of the State Commission, Delhi allowing the complaint and directing the Opposite Party, appellant herein, to pay an amount of Rs 90,000/- with interest at the rate of 18 per cent per annum from 30th April, 1992 till the dated! payment along with Rs. 10,000/- within a period of three months and costs of Rs. 2,000/-.

THE complainant alleged, inter alia, that he approached the appellant who is a property! dealer, for locating a potential seller and foil the purchase of a flat in Vasant Kunj. In duel course, a flat bearing No. 4314, first Floor, Sector-8, Pockets 5 and 6, Vasant Kunj in New Delhi I was shown to the Complainant as available foil sale. The price settled was Rs. 10.25 lakhs. The! Complainant paid to the appellant an advance of Rs. 90,000/-against receipt dated 30th April, 1992 for payment to the owner and the balance was to be paid within 30 days on the payment of which the vacant possession of the flat was to be; handed over. The appellant, it is averred, had offered his services for consideration for locating and then arranging the purchase of the flat ail Vasant Kunj, but, the appellant failed to render and perform the. services as promised, as at. result the complaint was filed as Opposite Party neither completed the deal nor refunded the amount. The appellant in his version admitted that he is a property dealer who charges a commission of 2 per cent of the price for the services rendered paid on the completion of the deal in all respects. It is also admitted that the appellant gave information to the Complainant received from one Maj. Gen. Kauchhur that the said flat is for sale. It is also admitted that the Complainant Gen. Kauchhur agreed in the presence of the appellant to settle the total price of the said flat at Rs. 10.25 lakhs and the complainant agreed to pay 10 per cent of the sale price within a couple of days for clinching the deal. The case of the appellant is that since Maj. Gen. Kauchhur and the Complainant knew each other, the parties assured the appellant that they would formalise the deal in respect of said flat on their own and accordingly the appellant kept away from the deal It is denied that the appellant received the sum of Rs. 90,000/- or any other amount. Several legal objections were also raised that the Complainant is not a consumer and this complaint is not maintainable.

THE State Commission, Delhi in the order under appeal came to the conclusion that the services rendered by the property dealer falls within the definition of "service" as the Complainant hired the services of the Opposite Party for consideration. After evaluating the material on record, the State Commission came to the conclusion that the Complainant had proved the payment of Rs. 90,000/- to the Opposite Party and thus the Complainant is entitled to its refund together with interest at 18 per cent per annum with effect from 30th April, 1992, Taking into consideration the facts of the case, the State Commission granted a sum of Rs. 10,000/- as damages for harassment and mental pain and suffering to the Complainant.

THE appeal came up for hearing before this Commission on 4th August, 1994. In view of the controversy between the parties regarding the genuineness of the signatures purported to be of the appellant herein contained in Exhibit-A, it had become necessary to forward the said document, Exhibit-A, to the Examiner of Questioned Documents Bureau of Police Research Development, Shimla, Government of Himachal Pradesh requesting him to compare the signatures in Exhibit-A with the admitted signatures of the appellant contained in appeal memorandum. The memorandum of appeal in original as well as Exhibit-A was forwarded to the Examiner of Questioned Documents with a request that he should give his opinion as to whether the signatures contained in Exhibit-A is the genuine hand writing of the appellant Mr. Sunder Kashyap. The Government Examiner in his letter dated 3rd October, 1994 returned the document with the observation that the only signature available on page 10 is of different model and, therefore, it was requested that further writings and signatures of the appellant should be sent for examination and opinion. When the matter came up before this Commission on 10th November, 1994, the letter of the Government Examiner was considered. The Registrar of this Commission was directed to dictate a short passage in English to the appellant and the appellant was required to handover the transcription to the Registrar for being forwarded to the Government Examiner of Questioned Documents at Shimla as containing his admitted hand-writing. The appellant was also called upon to put three specimen signatures underneath the transcription of the dictation. After the appellant complied with the order dated the 10th November, 1994 the material was sent to the Government Examiner. The Government Examiner in his report dated 22nd November, 1994, returned all the documents with a request that if the signatures of similar model as on Exhibit-A are available, then those may be sent for further examination. It was opined that on perusal of the documents it had been found that the disputed signatures on receipt dated 30.4.1992 on Exhibit-A was not comparable with the specimen signatures on a sheet dated 30th November, 1993, and the admitted signature on prayer dated 30.11.1993. Thus, the Government Examiner of Questioned Documents has failed to make any comparison and give his expert opinion. So, the controversy between the parties regarding genuineness of the signature on Exhibit-A will, therefore, have to be determined independent of the expert opinion. Before going into that question, we may notice the challenge of the Counsel for the appellant that the State Commission is not justified in holding that the service rendered by a property dealer falls within the definition of "service" as it relates to the sales transaction between a buyer and a seller. The non-materialisation of the deal cannot be, says the Counsel, a deficiency as defined under Section 2(1)(g) of the Consumer Protection Act, 1986. This should not detain us. It is the appellant''s own case that he is a property dealer who on the basis of instructions of parties who are desirous to sell or purchase flats, houses etc, keeps information of invitations to offer and arranges to communicate such invitation of offers of sale and purchase who desire to sell or purchase flats of properties in respect of which the invitation to offers are available with him. The main duty is to inform the interested parties about the availability of flats/properties and if the property is liked by the party to arrange between the prospective buyer and the seller. The price and details of the transaction and mode of payment is decided by the parties and the appellant has no role to play on the same. The appellant charges a commission of 2 per cent of the price at which the deal is settled after completing the deal in all respects. The affidavit of Maj. Gen. H.S. Kauchhur (Retd.) also deposed that he and Shri Palta agreed to pay commission at the rate of 2 per cent on the total sale consideration to Shri Shyam Kashyap on finalisation of the deal.

UNDER Section 2(l)(o) of the Act, the word ''service, has been defined to mean the service of any description which is made available to potential users. Generally, the people avail the services in the day to day life of varied descriptions. The Act is intended to provide for better protection of the interests of the people by ensuring that services generally availed by them by hiring do not suffer from any fault, imperfection, short-coming or inadequacy. The Complainant had hired the services of the appellant as an estate consultant and for a consideration of 2 per cent to be paid by the Complainant and the proposed seller, may be on the completion of the deal. When the services provided are found to suffer from deficiency in any respect, then the complaint is maintainable. In our view, the services rendered by the estate consultant and property broker/dealer clearly fall within the definition of the word "service".

THAT takes this Commission to the merits of the controversy. The receipt dated 30th April, 1992 reads as follows: RECEIPT Date: 30.4.1992 Received a sum of Rs. 90,000/- (Rupees Ninety thousand only) from Shri N. Palta, R/o 242, Sector 29, Noida (U.P.) as earnest money for flat No. 4314,Sector-B,Pkt5&6, First Floor, Duplex Vasant Kunj. To deal settle for Rs. 10.25 (Rupees Ten lakhs. Twenty-five thousand only; with possession, electricity and Water. Rs. 8,05,000/- (Rupees Eight lakhs five thousand only) to be paid by Mr. N. Palta within 30 days. The rest on DDA demand of fifth and final instalment.

Sd/xxxxxx Sd/xxxxx Confirm by Mr. N. Palta (Sunder Kashyap) The Complainant has annexed this receipt alongwith his complaint. An affidavit j dated 21st September, 1993 by way of evidence was filed by the Complainant wherein he deposed that after the cost of the said flat was settled at Rs. 10.25 lakhs, he paid to the appellant Rs. 90,000/- in cash as agreed to as earnest money for the purpose of the said flat and the appellant signed the receipt for Rs. 90,000/- on the revenue stamp in his presence and he also signed the same in the presence of the appellant in confirmation. The appellant failed to file his documents in rebuttal or counter affidavit before State Commission despite the opportunity given in the schedule of dates fixed for this purpose. In this state of record before the State Commission, the State Commission expressed, and in our view rightly, that the Complainant is a retired Air Force Officer and there is no ground to disbelieve his I affidavit.

THE State Commission also referred to the two notices dated 25.5.1992 and 11.6.19921 served by the Complainant on the Opposite Party. In our view these deserve more detailed discussion. The service of the notices dated 25th May, 1992 and 11th June, 1992 by registered post is averred in the complaint. In the corresponding paras of the written statement the appellant has denied that the Complainant ever sent by letters dated 25.5.1992 or 11.6.1992 or any other letter as alleged to the appellant. The affidavit of the Complainant deposed that he sent a registered letter on 25.5.1992 to the respondent making written request for the meeting to formalise the deal, that this request has remained unreplied, that a copy of this letter is attached with this affidavit as Annexure-C and that the acknowledgement due receipt of this letter is at Annexure-D. The acknowledegment due receipt gives the correct address of Shri Sunder Kashyap and the registered A.D. letter is delivered to the addressee under signatures. There is a presumption that this letter dated 25th May, 1992 was duly delivered to the appellant. The affidavit further deposed that on 11.6.1992 the Complainant wrote another registered letter to the appellant herein with a copy to Gen. Kauchhur, that there has been no reply to this letter as well from him, that a certificate of delivery of this letter by postal authorities is attached as Annexure-E and that a copy of this letter is attached as Annexure-F. Again this letter is correctly addressed to the appellant and there is a presumption that it would have been delivered to the addressee as per the certificate of the post

THE contents of the notice dated 11th June, 1992 are significant. An allegation is made that the deal was formalised for 10.25 lakhs and to enable the appellant to proceed in the matter, the Complainant paid Rs. 90,000/-. as earnest money. The said receipt document of 30th April 1992 has specifically been mentioned in this letter. A copy of this registered letter is addressed to Maj. Gen. Kauchhur who has also received the same. It is highly improbable that the Complainant would create evidence in his own favour by forging receipt dated 30th April, 1992 and then issuing the notice dated 11.6.1992 to the appellant with a copy to Gen. Kauchhur Mentioning the existence of the receipt document dated 30th April, 1992 and the payment of Rs. 90,000/- made to the appellant as earnest money, unless the facts were true. It is presumed that this letter dated 11th June, 1992 was duly received by the appellant and there is no rebuttal. The appellant has chosen to keep silent and not responded to the serious allegations made against him as to the receipt of the payment of Rs. 90,000/- as earnest money against the receipt dated 30th April, 1992. The normal course of human conduct would be to controvert these allegations immediately and rebut the same, if not true. The copy of the notice dated 11th June, 1992 was delivered to the addressee on 15th June, 1992. The copy of his affidavit dated 4th April, 1993 on records gives the same address in the affidavit as given in the notice. There is a presumption that this registered letter was duly received by Maj. Gen. Kauchhur and he has not replied to it. In the affidavit of Maj. Gen. Kauchhur dated 7th April, 1993 the deal struck in respect of said flat on the terms and conditions as contained in the receipt is admitted, but, he has denied the receipt of any payment. It appears from the affidavit that the appellant wanted Gen. H.S. Kauchhur to depose that no money was paid by the complainant to the appellant and a typed affidavit was presented to Man. Gen. Kauchhur (Retd.). Maj. Gen. Kauchhur was not willing to oblige the appellant. The appellant in para six of the affidavit erased the words "to my knowledge" to change the word knowledge (clearly visible in the photocopy) to that "I am not aware". Even Maj. Gen. Kauchhur is not supporting the appellant that he did not receive Rs. 90,000/- when he deposed that he was not aware. The cumulative effect of the facts and circumstances noticed above, persuades us to uphold the findings and conclusion of the State Commission that the complainant has proved the payment of Rs. 90,000/- to the appellant. For the above reasons the appeal fails and is hereby dismissed. The order of the State Commission is upheld. The appellant is burdened with costs assessed at Rs. 2,500/-.