Oral Order: (R. Lakshmi Narasimha Rao, Member.)
1. The complaint is filed claiming registration of the complainant schedule property and for issuance of permanent injunction restraining the opposite parties from alienating the complainant-schedule property to third parties and for compensation of Rs.5,00,000/- as also costs.
2. The averments of the complaint are that the complainant agreed to purchase Flat no.1, Third floor, of Srinivasa Enclave situated at plot no.260 of Bhanu Street, Dabagardens Area, Visakhapatnam for sale consideration of Rs.50 lakhs and the complainant paid Rs.5 lakhs as advance and the opposite parties executed agreement of sale dated 17.2.2012 in favour of the complainant. The balance sale consideration of Rs.45 lakhs is to be paid by the complainant within two months after obtaining loan from LIC Housing Finance Limited. The LIC Housing Finance Limited sanctioned loan of Rs.40 lakhs and released a sum of Rs.22 lakhs by way of cheque in favour of the GPA holder/opposite party no.5, at the first instance as a part payment. The opposite parties did not receive the cheque from LIC Hosing Finance limited and get registered the flat in favour of the complainant.
3. The complainant submitted that he paid Rs.1,30,221/- to LIC Housing Finance towards two EMIs and processing fees as on 10.6.2012 towards housing loan amount. The complainant several times requested the opposite parties to receive the amount and register the flat and the opposite parties failed to do so. Thereafter the opposite parties got issued notice dated 30.7.2012 by enclosing cheque for Rs.5,00,000/- to the complainant by cancelling the agreement of sale dated 17.2.2012 and the complainant gave reply dated 2.8.2012 stating that he is not willing to receive the cheque. Hence, the complaint.
4. The opposite parties resisted the case contending that the sale consideration amount was Rs.60 lakhs and the complainant paid an amount of Rs.5 lakhs towards the advance and the same was reduced into writing by way of an agreement of sale by fixing times schedule for payment of balance sale consideration. It is specifically agreed that the time is the essence of the contract and both the parties shall abide by the time stipulated in the agreement dated 17.2.2012. The complainant requested the opposite parties to have another agreement of sale stipulating the sale consideration as Rs.50 lakhs without specifying any time schedule for the purpose of obtaining loan from the Bank/Financial Institution. It is contended that there is nothing uncommon in the construction business for giving agreement of sale for lesser amount for the purpose of loan. The complainant had not informed the opposite parties that he approached the LIC Housing Finance and got sanctioned the loan amount of Rs.40 lakhs and the first instalment was ready. The complainant has not filed any document to show that the LIC Housing Finance sanctioned loan to him. The LIC Housing Finance also did not inform the availment of loan by the complainant to the opposite parties and the same was clarified by the LIC Housing Finance Limited to the opposite party no.6 on the information sought by him under Right to Information Act vide their letter dated 6.11.2012.
5. The opposite parties submitted that the valuers of the LIC Housing finance visited the flat for the purpose of the valuation and at that juncture the opposite parties came to know that the complainant approached the LIC Housing Finance. The opposite parties completed the construction of the flat and the complainant did not adhere to the terms and conditions of the contract with regard to the payment of the balance sale consideration even though the opposite parties performed their part of obligations. As per conditions No.3 and 3(a) of the agreement sale the complainant failed to perform his part of obligation in not paying the amounts of Rs.5 lakhs by 28.2.2012 and Rs.40 lakhs within two months from the date of agreement sale.
6. The complainant having mentioned in the complaint that the LIC Housing Finance released the 1st instalment and prepared the cheque for an amount of Rs.22 lakhs has not placed on record any document to show that the fact was informed to the opposite parties either by him or by the LIC Housing Finance at any point of time. The complainant has failed to pay the amount of Rs.5,00,000/- on or before 28.2.2012 and the balance sale consideration within the stipulated period. The complainant violated the terms and conditions of the agreement by not filing the agreement together with another construction agreement containing Rs.60 lakhs which he has entered with the opposite parties.
7. It is further contended that the complainant never demanded the opposite parties to register the sale deed by receiving the balance sale consideration. As the complainant failed to perform his part of obligation the opposite parties got issued notice dated 30.07.2012 and informed the complainant that they have cancelled the agreement dated 17.02.2012. In order to have cordial relationship and not to cause any loss to the complainant, the opposite parties returned the amount received by them to the complainant.
8. It is further contended that the opposite party no.6 made enquiries with the LIC Housing Finance Limited with regard to repaying the loan amount without getting the property registered in favour of the complainant it was informed by the LIC Housing finance Limited that the complainant himself way back on 10.7.2012 closed the loan account of the complainant and also refunded the EMI already collected from the complainant. The complainant having obtained the statement from the LIC Housing Finance Limited in the month of June 2012, got cancelled the loan without disbursement in the month of July 2012 got issued a reply in the month of August 2012 and immediately filed the complaint with false and baseless allegations and hence the opposite parties prayed for dismissal of the complaint.
9. The complainant has filed his affidavit and the documents, Exs.A1 to A12. On behalf of the opposite parties, the opposite party no.6, the GPA holder filed his affidavit and the documents, Exs.B1 to B8.
10. The point for consideration is whether the complainant is entitled to registration of the Flat?
11. The complainant has stated the sale consideration of the Flat is Rs.50,00,000/- and he paid an amount of Rs.5,00,000/- as advance for the Flat and agreed to pay balance sale consideration of Rs.45,00,000/- within two months from the date of Agreement of Sale by availing loan from LIC Housing Corporation. The terms of Agreement of sale filed by the opposite parties do not support the statement of the complainant.
12. The opposite parties no. 1 to 5 are the owners of Plot No.261 siutate at Bhanu Street, Dabagardens Area, Visakhapatnam and they entered into Development Agreement with the opposite party no.6 to develop their land and construct residential complex over it. The opposite parties no.1 to 5 executed General Power of Attorney in favour of the opposite party no.6 and the opposite party no.6 entered into Agreement of sale with the complainant to sell Flat No.1 in 3rd Floor of the Building. The sale consideration and payment schedule in the Agreement of sale read as under:
âThe vendors accepted to dispose of the said flat to the vendee for a sum of Rs.60,00,000/- (Rupees Fifty Lakhs Only) (including APEPDCL, Transformer MCV Bulk water, Generator charges).
Now therefor this sale agreement Witnesseth as follows:
1. The total sale consideration for the schedule mentioned property is Rs.60,00,000/- (Rupees Sixty Lakhs Only) (including APEPDCL, Transformer, MCV Bulk water, Generator Charges)
2. The Vendee have paid an amount of RS.5,00,000/- (Rupees Five Lakhs only) to the GPA Holder of the Vendors, towards as an advance amount, at the time of execution of this agreement, in the following manner:
Rs.3,50,000/- Â Paidby way of cheque NO.004031 dt.06.02.2012 drawn on The Visakhapatnam Cooperative Bank Ltd., Akkayyapalem, Visakhapatnam
Rs.1,50,000/- paid by way of cheque No.322484 dt.06.02.2012 drawn on State Bank of India, Srikakulam District
The receipt of which the Vendors hereby acknowledge
3. The Vendee shall pay the remaining sale consideration of Rs.55,00,000/- (Rupees Fifty Five Lakhs only) to the GPA Holder of the Vendors in the following manner:
Rs.5,00,000/- Â On or before 28.02.2012
Rs.40,00,000/- Within two months from today by way of obtaining loan from the Bank/Financial Institutions and get it registered
Rs.10,00,000/- On or before 10.05.2012 before handover of the flatâ.
13. The terms of the Agreement of sale filed by the complainant would lend support to the case of the complainant that the sale consideration of the Flat is Rs.50,00,000/- and the complainant paid an amount of Rs.5,00,000/- towards advance and agreed to pay balance sale consideration of Rs.45,00,000/- by way of obtaining loan from Bank or Financial Institution. The Agreement of sale read as under:
âThe vendors accepted to dispose of the said flat to the vendee for a sum of RS.50,00,000/- (Rupees Fifty Lakhs Only)
Now therefor this sale agreement Witnesseth as follows:
1. The total sale consideration for the schedule mentoned property is Rs.50,00,000/- (Rupees Fifty Lakhs Only)
Towards the sale deed cost  Rs.42,15,000/-
Towards the construction agreement cost  Rs.01,50,500/-
Towards the additional agreement cost Rs.06,34,500/-
2. The Vendee have paid an amount of rS.5,00,000/- (Rupees Five Lakhs only) to the GPA Holder of the Vendors, towards as an advance amont, at the time of execution of this agreement, in the following manner:
Rs.3,50,000/- Â Paid by way of cheque NO.004031 dt.06.02.2012 drawn on The Visakhapatnam Cooperative Bank Ltd., Akkayyapalem, Visakhapatnam
Rs.1,50,000/- paid by way of cheque No.322484 dt.06.02.2012 drawn on State Bank of India, Srikakulam District
The receipt of which the Venors hereby acknowledge
3. The Vendee shall pay the remaining sale consideration of rS.45,00,000/- (Rupees Forty Five Lakhs only) to the GPA Holder of the Vendors within two months from today by way of obtaining loan from the Bank/Financial Institutions and cash and get it registered.
14. Thus, there are two Agreements of sale providing different sale consideration in respect of the same Flat and the documents had been entered into between the same parties, viz., the complainant and the opposite parties no.1 to 6. The opposite parties have submitted that on request of the complainant and to enable the complainant obtain loan from LIC Housing Finance Corporation and lessen stamp duty and registration charges, they had entered into another Agreement of sale with the complainant showing the sale consideration of the Flat as Rs.50,00,000/-. The opposite party no.6 has stated :
âIn fact, the sale consideration amount is Rs.60,000/-(Rupees Sixty Lakhs only), and the complainant paid an amount of rS.5,00,000/- (Rupees Five Lakhs only) towards the advance and the same was reduced into writing by way of an agreement to sale by fixing the time schedule for the payment of the balance sale consideration. In fact in the said agreement, it is specifically agreed that the time is the essence of the contract and both the parties shall abide by the stipulated in the said agreement dated 17.02.2012 and for the payment of the balance amounts, it is specifically agreed to pay the balance amounts as agreed in the said agreement and the construction has to be completed as per the agreed time stipulated by both the parties. It is submitted that at that juncture, the complainant represented to the opposite parties that if the total sale consideration is shown in the agreement and he is intending to avail the housing loan from the Bank/Financial Institution for which the requested to have another agreement of sale stipulating the sale consideration as Rs.50,00,000/- (Rupees Fifty Lakhs only) without specifying any time schedule and the complainant has agreed that the agreement of rS.50 lakhs is only for the purpose of obtaining loan from the Bank/Financial Institution only but not for any other purpose representing that if the total amount is shown in the agreement, the bank will insist for showing the entire amount in the registered sale deed and the stamp duty and registration charges will become very heavy and it only for that purpose he is seeking in the said agreement. It submitted that as there is nothing uncommon in the construction business for giving a agreement to sale for lesser amount for the purpose of loan, this opposite party signed the agreement with rS.50 lakhs without any time schedule and this factum was also mentioned in the original agreement to sale of an amount of Rs.60,00,000/- (Rupees Sixty lakhs only) dated 17.02.2012 as clause 10 of the said agreement and the complainant signed the said agreement.
15. The opposite party no.6 has submitted that they had mentioned about the other Agreement of sale entered into, on request and insistence of the complainant in regard to payment of lesser stamp duty and registration charges was mentioned in the rejoinder issued by them to the notice of the complainant. He has stated:
âThe complainant is very much aware of the same and by suppressing the said fact and to cause wrongful loss particularly to the opposite party no.6 and other opposite parties he has not stated the same and not filed the said agreement. Further, the same was also informed to the complainant in the rejoinder notice issued to him for the reply dated 02.08.2012 which was also suppressed by the complainant and a copy of both the agreement to sael and the rejoinder notice were not filed by the complainant intentionally to get an order form this Honble Commission. Therefore, the various averments and contusions as contained in the para III (b) of the complainant are false and far from the truth and the complainant has approached this Honble Commission with unclean hands by suppressing the various facts which are within his knowledge and on this sole score alone, the complaint filed by him is liable to be dismissed.â
16. The complainant has stated that the Agreement of sale filed by the opposite parties is fabricated and the opposite parties and the LIC Housing Finance Corporation pressurized him to sign additional agreement. He has stated:
âThe opposite parties created another document for sale price as Rs.60,00,000/- and sub mitted along with his counter is not tenable under law. As per law there should be one sale agreement for petition schedule property has to be maintainable. And the witnesses of the forged sale agreement are not known to this complainant. The complainant while entered into agreement of sale for Rs.50,00,000/- for the petition schedule property, the opposite parties forced to sign other blank papers for the purpose of correspondence with the GVMC. It is clear that the opposite parties intentionally created another sale deed for rs.60,00,000/- for illegal gains to the opposite parties and heavy loss to this complainant. And more over the fake and forged sale deed for Rs.60,00,000/- is created one with blank signed paper by the complainant is a fact. And the clause 10 in page no.4 of the fake document produced by the opposite parties is vague and nothing details are incorporated in the said clause No.10 regarding the amount is silent, which speaks volumes of the ill intention of the opposite parties. Hence the fake and forged sale deed for Rs.60,00,000/- is not maintainable under law. And the opposite parties sent rejoinder dated 6.9.2012 is belated, because the complainant field the complaint to this Honble Forum on 17.8.2012. it is not true that the LIC Housing Finance Companys proceedings is not known to this opposite parties. When I represented LIC Housing Finance Ltd., for return of certified copy of the loan proceedings on 25.6.2012, they did not issue me certified copy the loan proceedings, which speaks volumes influence made by the opposite parties. And the LIC Housing Finance Ltd returned me the some documents only, which is pertaining to me. And the LIC Housing Finance Limited and the opposite parties colluded and allowed the opposite parties to sign the witness signature highhandedly in the additional agreement for Flat in phase No.2.
17. Thus, the complainant is claiming the documents filed by the other party as forged and created for the purpose of the case and the complainant, apart from making the allegation of forgery; he has stated that the opposite parties have exercised undue influence and misrepresentation on him. The opposite parties have contended that they refunded the amount received from the complainant. The complainant has sought for relief of permanent injunction under the provisions of Specific Relief Act. The complainant disputed execution of one of the agreements of sale. All such complex and complicated questions of facts cannot be decided in summary proceedings before this Commission.
18. The matter involves examination and cross examination of witnesses and appreciation of documentary evidence as also finding out whether the documents are fabricated for the purpose of the claim. As such, the parties are required to be relegated to civil court for proper adjudication of the matter.
19. Â In Oriental Insurance Company Limited vs. Munimahesh Patelâ IV (2006) CPJ 1, the insurance company disputed the genuineness of the documents and the Honble Supreme Court held that where the matter involves adjudication of issues involving disputed factual questions, Consumer Forum cannot adjudicate the matter and the complainant was entitled to seek relief in court of competent jurisdiction. The Apex Court held:
â9. The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondents wife was a teacher which as now appears is not the correct position. It also accepted that she was really not a teacher.
10. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.
11. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured should not have granted the relief in the manner done.
12. The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.
13. Above being the position, the Commission was not justified to deal with the matter in the manner as was done. In our view, the directions of the State Commission were more appropriate keeping in line with the nature of dispute. Accordingly, the appeal is allowed but with no order as to costsâ.
20. The National Commission in âTransport Corporation Employees Provident Fund Trust vs Orissa small Industries and another â III(2007) CPJ 316(NC) and âOmprakash vs Allahabad Bank III(2206)CPJ 418, held that the matter involving adjudication of disputed questions of facts has to be tried by competent court. Thus, we are inclined to give opportunity to the complainant to approach competent court for adjudication of the matter.
21. Â In the result, the complaint is disposed of by giving liberty to the complainant to approach appropriate and competent court. In the event complainant approaches the court the period spent between the filing of the complaint and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Honble Supreme Court in âTrai Foods Ltd vs National Insurance Company Ltd and othersâ reported in III (2012) CPJ 17â.