PATRICIA ROBERTS & ANR. vs M/S. WIBRO CONSTRUCTION

An agreement for sale dated 01.04.1998 was executed between the parties namely Mrs. Patricia Roberts and Mr. Pathrose Roberts on one hand and the respondent/complainant M/s Wibro Constructions, a company registered under the Provisions of the Companies Act on the other hand, on 01.04.1998 whereby the petitioners purportedly agreed to sell one flat situated on the ground floor of a building to the respondent for a total sale consideration of Rs. 2,25,000/-. It was recorded in the aforesaid agreement that an amount of Rs. 2 lacs had been received by the petitioners as advance payment and the balance payment of Rs. 25,000/- shall be paid on the date of execution of sale deed. Since no sale deed in favour of the complainant was executed, it approached the concerned District Forum by way of a complaint, seeking the following reliefs: (a) This Hon''ble Forum by an order may be pleased to direct the Ops to immediately execute the sale deed of suit flat No.2 in favour of the complainant and hand over peaceful possession to the complainant;

(b) This Hon''ble Forum may be pleased to direct and order the Ops to pay to the complainant an amount of Rs.3000/- per month by way of interest for each months delay in executing the sale deed from the date of signing the sale agreement to the date of actual sale deed;

(c) This Hon''ble Forum may also be pleased to direct the Ops to pay an amount of Rs.50,000/- by way of damages for the trouble and mental tension caused to the complainant including the trouble of filing the complaint and legal notice.

The complaint was resisted by the petitioners primarily on the ground that the transaction between the parties was a loan transaction whereby a sum of Rs. 2 lacs was agreed to be lent to

them by the complainant/respondent. It was further stated in the reply that the complainant/respondent paid only a sum of Rs. 1.5 lacs to the opposite parties/petitioners by way of a cheque of that amount in favour of Karnataka Bank, balance amount of Rs. 50,000/- was never paid.

The District Forum, vide its order dated 30.07.2007, directed the petitioner no. 1/opposite party no. 1 to execute the sale deed of flat in question in favour of the complainant and hand over possession of the said flat to it. A sum of Rs. 10,000/- was awarded as compensation to the complainant.

Being aggrieved from the order passed by the District Forum, the petitioners/opposite parties approached the concerned State Commission by way of an appeal. Initially, the appeal was heard by a bench of two members who differed in their respective verdict. One of the members of the State Commission allowed the appeal and dismissed the complaint on the ground that the transaction between the parties was only a loan transaction and a sum of Rs. 1.5 lacs only was received by the opposite party which had been duly paid. The other member, however, dismissed the appeal thereby affirming the order of the District Forum. In view of the difference of opinion between the members of the bench, the matter was referred to the President of the State Commission who, vide his order dated 08.04.2010, allowed the appeal and set aside the order by the District Forum, but directed the petitioners/opposite parties to pay an amount of Rs. 2 lacs to the complainant alongwith interest on that amount @ 9% per annum.

An application seeking review of the aforesaid order was filed by the petitioners but the said review petition was dismissed. Being aggrieved, the petitioners/opposite parties are before this Commission by way of this revision petition.

The complainant has not challenged the majority order passed by the State Commission, thereby accepting the finding that the transaction between the parties was a loan transaction and the petitioners had not agreed to sell their flat to the complainant. In other words, the complainant, by not challenging the majority verdict of the State Commission, admitted that the agreement to sell was a sham document having been executed only with a view to secure the money lent to the petitioners.

The only dispute in this revision petition is as to how much money if any the petitioners are required to pay to the complainant/respondents. The learned counsel for the complainant/respondent fairly admits that he is not disputing the receipt of Rs. 1.5 lacs from the petitioners and he is pressing only for payment of interest on the amount of Rs. 1.5 lacs alongwith payment of the balance amount of Rs. 50,000/- with interest on that amount.

As regards interest on the amount of Rs. 1.5 lacs, the learned counsel for the petitioners/opposite parties fairly states that he is not disputing the payment @ 9% per annum on the aforesaid amount with effect from the date the aforesaid amount was received i.e. from 01.04.1998 till 13.07.2000 when the aforesaid amount was refunded.

As far as payment of Rs. 50,000/- is concerned, as noted earlier, case of the petitioners is that the aforesaid amount was never received by them from the complainant whereas, case of the complainant is that the aforesaid amount was duly paid to the petitioner. As noted by the State Commission, in the complaint, the complainant did not disclose as to what was the mode of payment of Rs.2,00,000/- to the petitioners / opposite parties. The complainant did not state in the

complaint that a sum of Rs.1.50 lacs was paid by way of a cheque through Karnataka Bank and Rs.50,000/- was paid in cash. The plea of cash payment of Rs.50,000/- came to be taken for the first time in the affidavit filed by the complainant by way of evidence. No evidence was led before the District Forum to prove the source from which the aforesaid cash amount of Rs.50,000/- was drawn by the complainant for paying to the petitioners. Neither the account books of the complainant company were produced to prove that the complainant had Rs.50,000/- lying in cash with it on the relevant date nor did the complainant produce any bank record to prove the withdrawal of Rs.50,000/- from a bank account for paying to the petitioners. Moreover, there is no explanation as to why Rs.1.50 lacs was paid by way of a cheque and why Rs.50,000/- was paid in cash. In my view, considering that the petitioners had denied the receipt of Rs.50,000/- from the complainant, it ought to have led evidence to prove either that it had with it cash available on the date it was allegedly paid to the petitioners or that the said amount was withdrawn by it from a bank account. Considering the conduct of the complainant, which had gone to the extent of dubbing the loan transaction as a transaction for sale of immovable property, not much reliance can be placed upon his affidavit by way of evidence as regards the alleged cash payment. Therefore, I have no hesitation in holding that the complainant failed to prove the alleged cash payment of Rs. 50,000/- to the petitioners.

For the reasons stated in above, the order passed by the Fora below are modified by directing that the petitioner shall pay interest to the complainant/respondent, on the amount of Rs. 1.50 lacs @ 9% per annum for the period from 01.04.1998 to 13.07.2000, within four weeks from today. The Revision Petition stands disposed of.