Ravindrasakharam Nagare vs Nivruti Namdeo Wagh

SH . Nivruti Namdeo Wagh, the complainant purchased one row house bearing No.11 constructed on an area of 700 sq.ft which was sold to the complainant vide agreement dated 01.03.2003 for a sum of ? 3,51,000/ - by Sh.Ravindra Sakharam Nagare, the OP. Before entering into the agreement, the complainant had paid a sum of ?1,21,000/ - through cheque, ? 55,000/ - through another cheque and a sum of ?1, 00,000/ -, total being a sum of ? 2,21,000/ -, to the OP. The OP had issued the receipts for the same. The complainant also paid cash of ?15,000/ - on 05.03.2003. Consequently, a total sum of ? 2,36,000/ - was paid. It appears that, although, the complainant was put in possession of the premises in dispute, yet, the construction was not fully completed. The complainant made a request to the OP before the construction of row house for transfer of name in the house tax as well as in the completion certificate, registered deed, etc. Since the needful was not be done, a police complaint was filed with the Police Commissioner. Notice, dated 29.04.2006, through the Advocate, was also sent and thereafter, this complaint dated 28.07.2006 with the following prayers, was filed : - "A. The Respondent is directed to complete the certificate of electricity, house tax and completion certificate of construction of the questioned plot as well as for completion of the registered sale deed in favour of the complainant.

B. Also award Rs. 10,000/ - as mental agony.

C. Also given Rs.1,000/ - as notice expenses

D. In the interest of justice, also requested to pass the order in favour of the complainant".

THE OP, in his reply, has set up the following defences. He has denied all these contentions. He, however, stated that the description of the property as stated in the complaint by the complainant is correct. The payment of the amount on this count, has also been denied. It is alleged that the complainant is working in the Central Jail, Nasik, therefore, it is to be presumed that he will use his services of serving in police department. It is explained that from the documents mentioned in the legal notice go to show that the complainant is the original member of the Society and the house in dispute was allotted to the complainant. However, the Society was not arrayed as a party in this case. The complainant has not paid any amount. The complainant is not able to fulfill the transaction of the agreement and, therefore, the complainant had given the original agreement to the OP. The original agreement is not signed by the OP.

IT is further explained that the complainant is the relative of the OP. The transaction between the complainant and OP was personal general business. The complainant has knowledge of housing construction. OP had taken the above said amount from the complainant on interest basis for his business and for security of such amount, the complainant had time to time, made some agreements with OP. It may be mentioned here that those agreements did not see the light of the day. It is averred that since the complainant was in the Government service, therefore, he was unable to give any loan receipts and therefore, made different agreements relating to construction of building property. It is explained that from the notice, it appears that the complainant had completed the booking formalities on 11.10.1997 and time to time, paid an amount of ?2,36,000/ -. The case of the petitioner that the agreement between the parties was executed on 01.01.2003 and the possession was given to the complainant on 01.01.2003, but the complainant has not produced such possession receipts. It is contended that the petitioner did not pay amount of ?3,51,000/ - as consideration in reference to row house to the respondent. The case is barred by time. The District Forum allowed the complaint, but the State Commission remanded the case back to the District Forum because the complainant had obtained ex -parte decree in his favour. The District Forum came to the following conclusion : -

"In this condition, it has also been mentioned that if the payment was not made within time, then the membership of the complainant will be rejected. In such situation, what reveals that out of the total amount deposited by the complainant wherein Rs.21,000/ - will be deducted and remaining amount will be returned to the complainant as per convenience and this condition was accepted by both the parties. Upon this it was only shows that the agreement was made between both parties with only view to make interest amount and really there is no such sale transaction was executed between both the parties. The complainant was mentioned as Rs.2,21,000/ - was definitely relating to previous transactions and the disputed agreement dated 01.01.2003 was made only for making new transaction and therefore indirectly it was mentioned in Para 5 wherein it was purposefully mentioned that if the amount was paid, then the transaction will be cancelled and if not paid then the amount will be returned as per convenience. The complainant has never paid any amount after dated 01.01.2003 and the amount paid before dated 01.01.2003 was not mentioned in the agreement dated 01.01.2003. Therefore, the complainant has not made any payment to the respondent in respect of the agreement and if so, then the complainant is not the consumer of respondent. The amount which was taken for making interest and for that agreement was made and as such condition was not within the definition of consumer dispute. The last important reason is that it is necessary cause of action to file the consumer complaint but the complainant has not mentioned any specific date as cause of action. It means the complainant has filed this complaint without any reason against the respondent. The complaint of the complainant was not maintainable in the eye of law as well as it was filed without any evidence on illegal grounds against the respondent and it is proper dismiss the same".

AGGRIEVED by this order, the complainant preferred an appeal. before the State Commission, where, both the parties filed the compromise deed on 28.09.2010. The Advocate appearing for the respondent submitted that the respondent was willing to execute the conveyance deed provided that amount as per agreement is paid. The complainant also filed a pursis stating that an amount of ?1,15,000/ - is due and payable and he is ready and willing to pay the said amount, within a period of four weeks. The OP replied that on affidavit, regarding the said amount, that he will accept the amount and execute the conveyance deed, within a period of days. The complainant was directed to deposit an amount of Rs.1,15,000/ - on or before 26.10.2010 in the State Commission by demand draft drawn on a nationalized bank. The matter was adjourned to 26.10.2010.

ON 26.10.2010, the OP moved an application for recall of the order passed by the State Commission on 28.11.2010. The complainant wanted to file a reply, however, the complainant deposited a sum of ?1,15,000/ - as directed by the State Commission. The case was adjourned to 11.10.2013. The OP alleged that the above said order dated 28.09.2010 was passed on the basis of wrong representation and this would cause miscarriage of justice and grave injustice. The OP was informed that the State Commission had no power to recall its order and thus the application made in October, 2010 was not maintainable.

THEREAFTER , the matter came up before the State Commission, on 20.02.2014. The matter was adjourned as certified copy of the order dated 11.10.2013 was not obtained by the OP. In order dated 11.10.2013, the application of recall of order dated 26.10.2010 was rejected.

THE main allegation of the respondent is that the above said compromise was not voluntary. The OP was forced to sign the pursis. An affidavit was filed before the State Commission, but the State Commission refused to hear him, on 16.06.2011 and threatened him with imprisonment if he did not make a pursis admitting what has been stated in pursis and in furtherance of threat given and since the constable was standing behind him, he signed the pursis under duress. Proxy counsel, Ms. Archana Padmanabh Pise also filed an affidavit confirming the request made by the petitioner. All these hearings took place before three -members'' Bench of the Commission. The OP took date after date for taking the certified copy of the order dated 11.10.2013 subject to payment of costs. The case was adjourned from 15.12.2013 to 24.03.2014, 17.04.2014 and 04.06.2014, but the revision petition was not filed before this Commission. Consequently, vide impugned order, announced on 15.10.2014, the pursis filed by both the parties was submitted as final and the order was passed according to the said compromise pursis.

THE present revision petition was filed before this Commission on 30.10.2014. We have heard the counsel for the parties. Learned counsel for the petitioner vehemently argued that there was no such transaction between the parties. The parties did not agree to hand over the flat in the sum of ? 3,51,000/ -. The OP had obtained a sum of ? 2,36,000/ - for other purposes. The amount was paid in cash. The learned counsel for the petitioner has, perhaps, not read the file. Most of the amount was paid through cheque(s). The mode of payment was through cheques. If the money was paid through cash, no evidence was available, no date was mentioned. The District Forum came to the conclusion that there were other transactions, which are those transactions? Those transactions were never disclosed. The real facts were kept under the hat. The OP did not approach this Commission with clean hands. He tried to mislead all the fora on one ground or the other.

THE story that the petitioner was forced to sign the compromise pursis, under duress does not just stack up. The Bench was headed by as many as three Members. No reliance can be placed on such like stories. The presence of a police constable in such like Tribunals, is not possible. The name of the constable was withheld. Every constable in this country wears a badge, on his chest, displaying his name. No complaint was made against him before the Police Commissioner. The case of the petitioner is that he was threatened that he could be sent to jail for a period of six months, but there is no such allegation in the affidavit of Ms. Archana Padmanabh Pise. The said affidavit was filed on 16.06.2011 by the Advocate at Bombay when the President, Hon''ble Mr. Justice S.B. Mhase, was present and was likely to be retired in near future. The Commission/ Court cannot be cowed like this. It is also interesting to note that despite this important event, the petitioner kept silent for about one month. He did not take any action from 28.09.2010 to 26.10.2010. For the first time, the application for recall was filed on 26.10.2010. The counsel for the petitioner did not move the National Commission, immediately and the learned counsel for the petitioner further tried to improve the case by arguing that one ''gunman'' was present. A Retired High Court Judge, who is working as Member of this Commission, knows the position of law, very well. It is not expected of him to commit such like mistakes. The story is made by the counsel for the petitioner, out of whole cloth.

IT is apparent that the agreement was made voluntarily. After about one month, the application was made, which is an after -thought. See the view taken in DCM Ltd. Vs. Om Prakash Saini and Ors., Special Leave to Appeal (Civil) No. 4081 of 2013, decided on 01.02.2013, and Satyanarayan Shrikrishan Kalantri Vs. Assistant Engineer, Maharashtra State Electricity Distribution Co. Ltd., Special Leave to Appeal (Civil) Nos. 37328 -29 of 2013, decided on 22.11.2013, both, by the Hon''ble Apex Court.

THE revision petition is without any force and, therefore, the same is hereby dismissed, in limine, with costs in the sum of ?50,000/ -, which be deposited with the Consumer Welfare Fund established by the Central Government under Section 12 (3) read with Rule 10(a) of the Consumer Protection Act, 1986, of the Central Excise Act, 1944, by way of demand draft in favour of Pay and Accounts Officer, Ministry of Consumer Affairs, payable at New Delhi, within a period of 45 days'' from the date of receipt of copy of this order, otherwise, it will carry interest @ 9% p.a., till its realization.