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Judgment
V.K.Jain, J
The learned counsel appearing for the appellants seeks yet another adjournment on the ground that the appellant No.2 Mr. Nandlal Thakkar who is an Advocate by profession, is not well. On the last date of hearing also, adjournment was taken on the ground that Mr. Nandlal Thakkar was suffering from Chikungunya. Another adjournment on the same ground is not justified considering the age of the case. The Consumer Complaint by the respondent was instituted way back in the year 2000 whereas this Appeal itself was filed in the year 2012. Thus, the Consumer Complaint was instituted more than 18 years ago whereas the appeal is pending before this Commission for last more than six years. Considering the age of the case, no further adjournment on any ground is justified. I have therefore, heard Mr. Shighra Kumar, Advocate who appears for the appellants as well as the learned counsel for the respondents.
The case of the complainants/respondents who are a private limited company and its Attorney is that pursuant to the brochure/booklet issued by the appellants in respect of a project namely 'Trishala Luxurious Residential Apartment', they made payment of Rs.7,27,575/- to the appellants in cash and by cheques against the total price of Rs.7,97,785/- for purchase of a residential apartment. Rs.72,210/- out of the agreed sale consideration, was to be paid at the time of delivery of possession. This is also their case that though the possession was to be delivered by April-May 1996, they realized by 04.12.1995 that the promise of delivery of possession by that time was false, the construction having being stopped by the appellants. The complainants therefore, approached the concerned State Commission by way of a Consumer Complaint seeking refund of the amount paid by them alongwith interest and compensation.
The complaint was resisted by the appellants who inter-alia stated in their written version that the land on which a building was to be constructed by them, belonged to a society and the payment received from the complainants were on behalf of the said society for which receipts were duly given to them. It was also alleged in the written version filed by the appellants that there were outstanding bills against the society which the said society had not paid.
The State Commission allowed the complaint by directing the appellants to pay a sum of Rs.7,27,575/- to the complainant alongwith 12% interest w.e.f. 24.11.1994 alongwith compensation and cost of litigation quantified at Rs.45,000/-. Being aggrieved, the appellants are before this Commission.
As noted earlier, it is not in dispute that payments were received by the appellants from the respondents/complainants. In para 5 (c) of the Consumer Complaint, the complainants pleaded payment of Rs.7,27,575/- to the OP and also pleaded issuance of two receipts; one bearing no.19 dated 02.12.1994 for a cheque of Rs.1,86,000/- and the other receipt no.52 dated 04.11.1995 for a cheque of Rs.1,75,000/-. It was alleged that some other receipts were also issued with the other cheques. It was further alleged that though the OPs/appellants had promised to issue receipts for the cash taken by them, those receipts were never issued. In reply to para 5(c) of the complaint, the appellants denied having given any assurance or promise to the complainants to make payment for the said flat with cash of Rs.2,00,000/-. No such figure however had been mentioned in the Consumer Complaint. The appellant further averred that they had received payment on behalf of the society and the question of receipt for cash payment did not arise as neither it was demanded nor it was received from the complainants. It would thus be seen that as against payment of Rs.7,27,575/- pleaded by the complainants, the appellants neither specifically denied having received that much amount from them nor did they plead any other amount as the payment received by them from the complainants.
Two receipts issued by appellant no.1, one bearing no. 19 Rs.1,86,000/- dated 02.12.1994 and the other being receipt no. 52 dated 04.11.1995 for Rs.1,75,000/- were filed before the State Commission and were not disputed by the appellants. During pendency of this appeal, the complainants filed IA/16355/2018 seeking permission to file additional evidence in terms of Section 13(4) of the Consumer Protection Act r/w Order 41 Rule 27 of the CPC. That application was allowed by this Commission vide its order dated 20.09.2018, with liberty to the appellants to file additional documents alongwith additional affidavits to prove those documents. Additional documents filed by the respondents are receipt no. 22 dated 09.01.1995 in respect of payment of Rs.72,210/- vide Demand Draft No. 54644 drawn on Bank of India, receipt no. 26 dated 06.02.1995 for Rs.36,105/- purporting to be in respect of a Demand Draft without bearing any particulars of the said Demand Draft, receipt no.32 dated 20.03.1995 for Rs.36,105/- received vide Demand Draft No.551987 drawn on Bank of India, receipt no. 34 dated 10.04.1995 for Rs.36,105/- in respect of payment made vide Demand Draft No.065045 drawn on Corporation Bank, receipt no. 54 dated 22.12.1995 for Rs.1,13,840/- vide cheque no. 048892 drawn on Bank of India dated 16.12.1995. The learned counsel for the appellants states that no payment was received by cheques and the receipts in fact pertain to Demand Drafts and not to the cheques.
The additional documents filed by the complainants include some letters sent to them by the appellants. One is the letter dated 15.05.1995 requiring respondent no.1 M/s Argus Investment Private Limited to send the installment for the month of May and enclosing therewith receipts no. 22 and 26. Second letter is dated 14.08.1995 enclosing therewith receipts no. 32 & 34 and demanding installments for the month of May to August. The third letter is dated 08.01.1996 requesting complainant no. 1 to send installment for January 1996 amounting to Rs.36,105/-. Though reply to IA/16355/2018 was filed by the appellants, they did not deny the execution of the aforesaid receipts in the reply filed by them nor did they deny issuance of the letters referred hereinabove.
The learned counsel for the appellants referring to the decision of the Hon'ble Supreme Court in Union of India Vs. Ibrahim Uddin and Another (2012) 8SCC 148 submits that additional documents could not have been allowed by the Commission except at the time of final hearing of the appeal and therefore, the order allowing these additional documents is nonest and consequently, the said additional documents cannot be taken into consideration. I however, find no merit in this contention for two reasons. Firstly, the application for additional evidence was allowed after this appeal had already been listed for hearing vide order dated 05.06.2018 and after the learned counsel for the parties had been heard by this Commission on 24.08.2018. Therefore, it is evident that the application was filed and allowed by this Commission after the Commission had already applied its mind to the merit of the case. Moreover, the provisions of Order 41 Rule 27 of the CPC do not strictly apply the proceedings before this Commission. Therefore, in my view, there can be no valid legal objections to the said documents being considered by this Commission particularly when in the written version filed by the appellants, neither they expressly denied receipt of Rs.7,27,575/- from the respondents nor did they plead a lesser amount as the payment received by them from the respondents.
The total sum of the amount paid by the complainants to the appellants, as evidenced by the documentary evidence in the form of receipts and letters sent by the appellants to the respondents, comes to Rs.7,27,575/-. Therefore, the aforesaid payment to the appellants in my opinion, stands duly proved.
As regards the plea that the payments were made by the complainants on behalf of a society, there is no documentary proof of any contract between the appellants and a society and the complainants having made the payment on behalf of a society. There is no such indication in any of the receipts issued by the appellants. Moreover, the letters sent by the appellants to the complainants requiring them to make further payments also demolish their case that the complainants had made payment on behalf of a society. Had the payments been made on behalf of a society, it would have been recorded so in the receipts issued by the appellants and the demand letters would not have been addressed directly to the complainants.
It is not in dispute that the construction of the flat subject matter of the transaction between the parties, was not completed and its possession was never offered to the complainants. Therefore, the direction of the State Commission for refund of the said amount with interest and token compensation and cost of litigation does not call for any interference by this Commission in exercise of its appellate jurisdiction to the aforesaid extent.
However, since the payment was made by the complainants to the company M/s P.K. Thakkar Construction Pvt. Ltd., by way of Demand Drafts drawn in favour of the company and its Directors did not give any personal guarantee in respect of the transaction between the complainant and the Company, it is only the Company which is liable to make refund of the principal amount with compensation and interest. The learned counsel for the complainants submits that the receipts were signed by appellant no.2 Mr. Praful Thakkar. That however, would make no difference since he signed the receipts on behalf of the company and admittedly the payment went to the account of the company by way of a Demand Draft in favour of the company.
For the reasons stated hereinabove, the order passed by the State Commission is modified only to the extent that the entire amount awarded by the State Commission including the interest and compensation shall be paid only by appellant no.1 M/s P.K. Thakkar Construction Pvt. Ltd. to respondent no. 1 M/s Argus Investment Private Limited. The appeal stands disposed of accordingly. The amount if any, deposited by the appellants with this Commission, shall be paid to the complainants alongwith interest which may have accrued on that amount.