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CASE NO.: Appeal (civil)  866 of 2007

PETITIONER: M/s Bhandari Construction Company

RESPONDENT: Narayan Gopal Upadhye

DATE OF JUDGMENT: 20/02/2007

BENCH: B.P. SINGH & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  (Arising out of SLP(C) No. 17702 of 2006)

P.K. BALASUBRAMANYAN, J.

                1.              Leave granted. 2.              This appeal challenges the decision of the National  Consumer Disputes Redressal Commission

3.              The appellant is a construction company.  The  respondent sought to purchase an office room in the third  floor of a building being constructed by the appellant.   The  parties agreed to sell and purchase.   According to the  company the purchase price was fixed at Rs.7,75,000/-.    Documentation, registration and other expenses were to be  borne by the respondent Rs.5,00,000/- was paid by cheque.    The balance due, was Rs. 3,41,190/-.   The respondent had  not paid the said sum.   The sale transaction was, therefore,  not complete.   The room was not put in the possession of the  respondent.  The terms of the transaction were reduced to  writing by an agreement dated 27.7.1997.

4.              The respondent approached the District Consumer  Redressal Forum with a complaint.  His case as per his  amended complaint was as follows:

               On 4.7.1997 the company agreed to sell a room  having an area of 260 sq.ft. for a price of Rs.9,00,110/-.  The  amount was paid in a lump.   Receipt for Rs.9,00,110/- was  issued.  The company issued an allotment letter dated  22.7.1997.  On 31.7.1997 the agreement was executed.  In  spite of repeated demands after completion of the  construction, the company did not put him in possession.    The company was demanding extra amounts.  It avoided  handing over of possession.   It issued a notice intending to  terminate the agreement.   Since possession was not given and  the company attempted to sell the premises to someone else,  he suffered losses which were shown as amounting to  Rs.4,84,000.   He was, therefore, entitled to recover a sum of  Rs.4,84,000/- as compensation.  He was entitled to an order  restraining the company from transferring the office room  bearing No.309, to any other person.   The company was liable  to be directed not to create any obstruction in his taking  possession of office room No.309.   The company was to be  directed to remove the lock it had put at the door of the room.

5.              It is seen that on 4.7.1997 the respondent

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handedover two cheques bearing No.299667 and 299678 to  the company for a total sum of Rs.9,00,000/-.  He paid a sum  of Rs.110/- in cash.   He obtained a receipt.  Cheque  No.299667 was for Rs.7,50,000/- and cheque No.299668 was  for Rs.1,50,000/-.   The parties agree that these two cheques  were not encashed, but were returned to the respondent.  According to the company, the respondent agreed to destroy  the receipt for Rs.9,00,110/- issued in that behalf, by the  company.   The case of the company is that the cheques were  returned because the purchase price was something less than  Rs.9,00,000/- and it was found to be only Rs.7,75,000/-.  In  view of this, the respondent on 8.7.1997, issued a fresh  cheque to the company, bearing No.299669, for a sum of  Rs.5,00,000/-.   That cheque was encashed by the company.    The parties reduced the transaction into writing.   As per that  agreement, the payment of Rs.5,00,000/- by cheque dated  8.7.1997 and its receipt was acknowledged.  A sum of  Rs.1,25,000/- was to be paid by 15.8.1997.   Another sum of  Rs.1,25,000/- was to be paid by 19.9.1997.   Rs.25,000/- was  to be paid at the time of transfer of possession.   A sum of  Rs.150/- per sq. ft. by way of deposit for meeting the  maintenance charges, was also to be paid.   The payment by  the purchaser was to be the essence of the contract.   The total  purchase price was shown in the agreement as Rs.7,75,000/-.

6.              Before the District Forum, the company denied the  case of the respondent and set up in defence the written  agreement between the parties.  It pleaded that in spite of  being called upon to do so, the respondent had not paid the  balance amount due.  The company, therefore, terminated the  agreement.   The respondent was not entitled to any relief.    The sum of Rs.5,00,000/- received by cheque had been  returned to the respondent and the cheque issued in that  behalf was received by him.    

7.              In his evidence before the District Forum, the  respondent made a departure from the complaint regarding  consideration.  He admitted that the sum of Rs.9,00,000/-  paid by way of two cheques by him on 4.7.1997,  was returned  to him.  He had agreed to destroy the receipt.  He said that the  cheques were returned because the Director of the company  wanted a portion of the consideration in cash.   He wanted  Rs.5,00,000/- by way of cheque and Rs.4,00,000/- by way of  cash.   The respondent handed over a cheque for  Rs.5,00,000/-, as agreed on all hands.   The same day, he  withdrew from the bank a sum of Rs.4,00,000/- by cash and  handed it over to one Thanekar who was an agent of the  company.   But the respondent produced no receipt for  payment of this amount, though such a payment was denied  by the company.    

8.              Before the District Forum, the respondent gave up  his claim for compensation and pressed only the relief of  getting possession of the building on the basis that he had  paid the entire consideration.   Of course, he tried to say that  he had already been put in possession and his possession was  being interfered with by the company.   The District Forum  took the view that it would be proper to leave the respondent  to approach the Civil Court for relief in view of the nature of  the dispute.   The complaint was, therefore, dismissed.   The  respondent went up in appeal to the State Commission.   The  State Commission remanded the complaint to the District  Forum to decide the dispute.   It took the view that it was not  necessary or proper to refer the complainant to a suit.   Thus,  the matter came back to the District Forum.  

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9.              Before the District Forum, further evidence was  taken.   The complainant and the representative of the  company were cross-examined on the affidavits filed by them.    The District Forum found that the respondent had not  established that he had paid the entire consideration of  Rs.7,75,000/-.   According to the District Forum, the written  agreement governed the relationship between the parties.    There was also no evidence to prove the payment of  Rs.4,00,000/- in cash as claimed by the respondent.   The  payment of Rs.5,00,000/- out of the purchase price of  Rs.7,75,000/- by way of cheque alone was established.    Though the same had been returned to the respondent by way  of a cheque, he had not encashed it.   The District Forum  therefore passed an order giving liberty to the respondent to  pay a sum of Rs.3,40,890/- along with interest at 15% per  annum from 3.9.1999 till the date of payment and to obtain  possession of the office premises in question within a period of  two months from the date of receipt of that judgment and  directed the company to handover vacant possession of the  premises within a period of two months from the date of  receipt of the amount.   But alternatively, it gave liberty to the  respondent to demand from the company the refund of  Rs.5,00,000/- along with interest at 15% per annum from  8.7.1997 till the date of realisation by issue of a notice in that  behalf to the company.  On receipt of such a notice the  amount was to be paid by the company within two months of  its receipt.

10.             The respondent, feeling aggrieved, appealed to the  State Commission.  The company, it is said filed a belated  appeal but the delay was refused to be condoned.   Therefore,  the decision of the District Forum as against the company  became final.

11.             The State Commission proceeded to accept an  affidavit filed by an employee of the bank on which a self  cheque was drawn by the respondent.  The allegation in that  affidavit was that a self cheque for Rs.4,00,000/- was  encashed by the respondent and the amount was handed over  to Thanekar, an agent of the company.  That allegation was  accepted.  No opportunity was provided to the company to  cross-examine the employee.  The State Commission modified  the decision of the District Forum.  It directed the company to  handover the premises to the respondent on the basis that the  entire consideration had been paid.   It also ordered that the  company had to pay interest at 6 % per annum on the sum of  Rs.9,00,110/-.   The order of the State Commission is seen to  be cursory.   It had not even referred to the relevant pleadings  and the evidence, before interfering with the order of the  District Forum.  It is difficult to understand its reasoning.

12.             The company filed a revision before the National  Commission.  The company pointed out the variance between  the case set up by the respondent in his complaint and in his  evidence.  It pointed out that the terms of the transaction  having been reduced to writing, it was not open to the  respondent to lead evidence in variation thereof.  It also  pointed out that the evidence attempted to be given was also  at variance with the case set up.  It pointed out that there was  no receipt evidencing the alleged payment of Rs.4,00,000/- to  the company.   The payment was not proved.  All the other  payments had been acknowledged by receipts.   The State  Forum was, therefore, in error in interfering with the order of  the District Forum.   It was also submitted that during the

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pendency of the proceedings, the premises had been  transferred to some other person and hence the company  should be relieved of its obligation to deliver the premises.  The  respondent reiterated his contention that he had paid a sum of  Rs.9,00,000/- to the company.   He also appears to have made  some general submissions on the tendency of builders to  receive part of the sale price in cash.

13.             The National Commission brushed aside the  contentions of the company.   It did not place due emphasis on  the case set up by the respondent in his complaint and the  total departure from that case made in his evidence.  It  ignored the fact that the agreement between the parties having  been reduced to writing there was a bar against leading  evidence contradicting its terms.  Decrying what it termed the  attitude of builders in demanding part of the sale price in  cash, the National Commission dismissed the revision.   This  is what is challenged in this appeal by the company.

14.             We find that the respondent had totally given up the  case set up by him in his complaint while giving evidence.  The  transaction on 4.7.1997 as set up by the respondent was given  up by him.   He also admitted that the two cheques handed  over for Rs.9,00,000/- that day, were not encashed by the  appellant.   He admitted that they were returned.   He further  admitted that the receipt for Rs.9,00,000/- issued to him was  in respect of those two returned cheques.  He also admitted  that he had thereafter issued a cheque for Rs.5,00,000/-.  He   agreed that a sum of Rs.5,00,000/- by way of a cheque was  returned to him by the company.   But he had not encashed it.    He admitted the agreement dated 27.7.1997 and the terms  thereof and the factum of its registration on 31.7.1997.  He  also admitted that he had no receipt to show the payment of  Rs.4,00,000/- in cash.   

15.             When the terms of the transaction are reduced to  writing, it is impossible to lead evidence to contradict its terms  in view of Section 91 of the Evidence Act.  There is no case  that any of the provisos to Section 92 of the Act are attracted  in this case.  Why the case that was sought to be spoken to by  the respondent was not set up by him in the complaint was  not explained.   The case set up in evidence was completely at  variance with the case in the complaint.  There was no  evidence to show that the consideration was to be  Rs.9,00,000/-, especially, in the light of the recitals in the  registered agreement.  There was also no document to show  the payment of Rs.4,00,000/- by way of cash.  Hence, this was  no evidence to show that the balance amount due under the  agreement after the admitted payment of Rs.5,00,000/- was  paid.  The affidavit produced before the State Forum and the  evidence of the colleague of the respondent is clearly  inadmissible and insufficient to prove any such payment.   Thus, the case set up by the respondent in his evidence was  not established.   It is in that situation that the District Forum  taking note of the payment of Rs.5,00,000/- and the failure of  the respondent to encash the cheque for Rs.5,00,000/- that  was returned by the company, ordered the complainant to pay  the balance amount due under the transaction as evidenced  by the written instrument and take delivery of the premises in  question and in the alternative gave him the option to take  back the sum of Rs.5,00,000/- with interest.  Neither the State  Commission, nor the National Commission has given any  sustainable reason for differing from the conclusion of the  District Forum.  A mere suspicion that builders in the country  are prone to take a part of the sale amount in cash, is no

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ground to accept the story of payment of Rs.4,00,000/-  especially when such a payment had not even been set up in  the complaint before the District Forum.   Not only that, there  was no independent evidence to support the payment of such  a sum of Rs.4,00,000/- except the ipse dixit  of the  respondent.   The affidavit of the bank employee filed in the  State Commission cannot certainly be accepted as evidence of  such a payment.   Payment of such a sum had clearly been  denied by the company.  The respondent had, therefore, to  prove such a payment.  His case that the purchase price was  Rs.9,00,000/-, itself stands discredited by the recitals in the  agreement dated 27.7.1997 in which the purchase price was  recited as Rs.7,75,000/-.  Not only that the respondent did not  have a receipt for evidencing the payment of Rs.4,00,000/-  and if the amount was paid on 5.7.1997 or 8.7.1997, as  claimed by him, he would certainly have ensured that the  payment was acknowledged in the agreement for sale executed  on 27.7.1997.  The agreement for sale actually speaks of his  obligation to pay the balance to make up Rs.7,75,000/- after  acknowledging receipt of Rs.5,00,000/-. The respondent is not  a layman.  He is a practising advocate. According to him, he  specialises in documentation.  He cannot, therefore, plead  ignorance about the existence of the recital in the agreement.   He cannot plead ignorance of its implications.

16.             We were taken through the entire material.   The  respondent who appeared in person, brought to our notice the  evidence in extenso.  At the end of it all, we find that we  cannot agree either with the State Commission or with the  National Commission.   Actually, the District Forum had been  indulgent to the respondent in giving him the relief it did.   Suffice it to say, we find it impossible to sustain the decision of  the National Commission.

17.             Hence, we allow this appeal.  We set aside the  decision of the National Commission and that of the State  Commission.   We restore the decision of the District Forum.   Normally, we would have ordered the cost of the appeal to the  company, but since the respondent appeared in-person, we  refrain from ordering it.  The parties will bear their costs in  this Court.