Unique Developers (P) Ltd. vs Ranjeet Singh & Anr

A. P. Sahi, President Member

The appeal is by a builder - developer questioning the correctness of the Order of the State Commission, Delhi dated 23.12.20220 whereby the claim of the complainant –respondent no. 1 has been allowed in respect of the refund of amount together with interest arising out of a flat-buyer’s agreement.

The complainant is alleged to have approached the appellant for purchasing flat no. 615 situated on 6th floor having super built-up area of approx. 540 square feet for a total consideration of Rs. 5,15,450/-.

On the other hand, the complainant alleged that he had paid in cash Rs. 12,50,000/- in all to the appellant on which the appellant shall pay interest at the rate of 1% per month and that he was compelled to sign an agreement as he was in dire need of a flat. The agreement does not reflect the correct status of the payments made by the complainant to the appellant. In essence, the complainant narrates a different mode of payment of cash of Rs. 12,50,000/-, which has been accepted by the State Commission in the impugned Order on the ground that the appellant was making payment as interest on the said amount at the rate of 1% per month, after deducting TDS to the tune of Rs. 11,250/- per month that were bank payments, and which fact establishes that the sale consideration was Rs. 12,50,000/-. In effect, the State Commission has disbelieved the schedule of payment in the agreement dated 22.10.2012 and has accepted the allegation of the complainant that he was receiving interest on a sum of Rs. 12,50,000/- and therefore the payment of Rs. 12,50,000/- is established.

Paragraph 8 of the impugned Order is extracted hereinunder:

“8. Booking by the complainant and some payment have not been disputed by the OP. The core question is whether complainant paid Rs. 12,50,000/- or Rs. 5,15,540/- including Rs. 15,450/- as service tax. It appears that OP is trying to take advantage of the builder buyer agreement got signed by it from the complainant which shows the consideration as Rs. 5 lakh only. But same does not appeal in mind. I am saying so because OP has regularly paid Rs. 11,250/- p.m. to the complainant from October, 2012 to Feb., 2015 as mentioned in para-11 of the complaint. Interest on Rs. 5 lakhs can never come to Rs. 11,250/- p.m. even @24% p.a. The plea taken by the OP that it paid the amount on the request of the complainant to enable him to meet his expenses is a farce upon farce. I have never come across any case in which builder agreed to pay the monthly expenses of the complainant.”

It is this reasoning contained in the impugned judgment that has led the consumer forum to allow the claim and is challenged in this appeal contending that once there was a registered agreement, it was beyond the jurisdiction of the State Commission to ignore the same when the execution thereof was not denied.

It is the contention of the appellant that recording of the above findings by the State Commission are contrary to record and are repugnant to law. The appellant had also set in a defence that the monthly payments which were tendered to the complainant in his bank account were benefits offered to the complainant as a form of brokerage as the appellant had offered to encourage clients in business with the complainant for purchase of other flats. It is this amount which was paid to him and was not a form of interest as alleged by the complainant against any payment of Rs. 12,50,000/- in cash. The claim of the complainant of making cash payment of Rs. 12,50,000/- was denied outright by the appellant builder.

We have considered the submissions raised and we find that there was no evidence of the transaction of cash payment of Rs. 12,50,000/- at all. It was only an inference that was drawn that since some payments had been made to the complainant on monthly basis, therefore, the same could be co-related to the alleged cash payment of Rs. 12,50,000/-. This, in our opinion, was an inference based on no actual evidence of the transaction of Rs. 12,50,000/-. There was neither any oral or documentary evidence of the passing of the consideration of Rs. 12,50,000/- in cash from the complainant to the appellant builder. The State Commission suspected the payment of Rs.11,250/- to be a reimbursement of interest of Rs. 12,50,000/- and accepted it without proof of actual payment of the alleged cash transaction. The complainant has not even disclosed the source from where he collected Rs. 12,50,000/- to arrange the cash.

The second legal error that seems to have been ignored by the State Commission is that the existence of the agreement dated 22.10.2012 is not denied by the appellant. To the contrary, the plea taken is that the respondent who is a responsible Punjab National Bank official alleged that he was compelled to sign the agreement. The said agreement has neither been challenged nor it is disputed nor is there any evidence to support any charge of coercion or compulsion.

In the absence of any such material, it was not open to the State Commission to ignore the flat–buyer’s agreement which is on record. The payments referred to therein and the schedule are categorical which state that a cheque of Rs. 50,000/- dated 19.09.2012 was the first payment received and then the other cash payments dated 22.09.2012 and 20.10.2012 were tendered by the complainant. This recital in the agreement, therefore, is documentary evidence of the actual payments that was neither denied by the appellant nor was it challenged before any forum to get it annulled. It is in this background, we are inclined to accept the contention raised on behalf of the appellant that the parties were bound by the said agreement and any oral claim of passing on of Rs. 12,50,000/- could not be inferred from some payments made for a few months to the complainant in his bank account treating it to be interest on this amount of Rs. 12,50,000/-. Such an inference as against documentary evidence, the contents whereof could not be dislodged, has been erroneously ignored by the State Commission.

Given the background above, the appeal deserves to be allowed. We accordingly do so, and set aside the Order dated 23.12.2020 of the State Commission.