Bharatkumar Pandya, Member

The revision petition has been filed by the petitioner/complainant against the order of the State Commission, whereby the appeal filed by the respondent/OPs was partly allowed and order of the District Forum was modified. The case of the petitioner/complainant is that the petitioner who was looking for a suitable accommodation contacted the respondents, who were constructing the flats in Neha Saloni Apartments, Solapur. Petitioner paid an advance booking amount of Rs.30,000/- to the respondents and the total sale consideration of the flat was fixed at Rs. 15 lakhs. Petitioner informed the respondent that he will be taking the housing loan and accordingly approached HDFC bank on 13.08.2010 for the same and a housing loan of Rs. 12 lakhs was sanctioned in favour of the petitioner. Respondents demanded balance amount of Rs.3 lakhs from the petitioner. Petitioner also issued three cheques of Rs. 1 lakh each in the name of the respondents. The same were duly encashed by the respondents towards part payment of the flat. After depositing the amount of Rs. 3,30,000/- to the respondents, petitioner requested them to prepare the sale deed and the balance amount of Rs. 11,70,000/- shall be paid to them by way of DD against the said loan amount. The petitioner waited for the same, but no date was given to the petitioner. On 28.10.2010, to the utter surprise of the petitioner, a public notice was issued in a local daily newspaper by the respondents stating that they never issued any allotment letter of flat no. 7 to the petitioner. Petitioner also got issued a counter reply to the said public notice on 31.10.2010 stating that the flat had been purchased by them. Petitioner also made complaint to the Commissioner of Police on 25.10.2010 about the cheating, misrepresentation and breach of trust by the respondents and the said complaint was duly acknowledged by the local police. Being aggrieved by deficiency in service on the part of the respondents, petitioner filed a complaint case before the District Forum. The District Forum, after hearing the arguments of the parties and after perusal of the documents on record, passed the order in favour of the petitioner, directing the respondents to get the sale deed registered in favour of the petitioner and give physical possession to the petitioner after receiving the balance amount i.e. 12 lakhs to the respondents. The relevant portion of the order dated 26.09.2012 passed by the District Forum, Solapur is reproduced below:

                   "(3.1) In the dispute, Written Statement has been submitted as their reply to the petition on behalf of the opposite party. In that they have blamed the complainant by complaining that the said complaint is false, mischievous and filed with an intention to mislead the Court. It is wrong too. Rs. 30,000.00 has not been procured by the opposite party members from the said complainant. Only 3 Cheques each of Rs. 1,00,000.00 face value were received by the opponents from the said complainant. Due to frequent requests made to them by the complainant as they have encashed these 3 cheques and as these three cheques have been said to have been returned back to the complainant, due to which no amount has been received in cash from the complainant by the opposite party. The opponents have returned the cheques in exchange of allotment Letter back. Only then, the flat has been made open for sale to other customers. But by deliberately concealing all these, the complainant has issued a mischievous notice which got published in the newspaper in a wrong manner. The complainant has received a letter from HDFC Bank of allotment of loan on date 22.10.2010. But it is false, because no such thing has ever transpired at all. Allotment Letter was issued to avail loan by applying to the Bank. Although no real time cash has ever been received by the opponents, still to assist the complainant to procure loan, the opponents issued Allotment Letter to him without getting any cash from him. But still, the complainant has taken undue advantage from the said allotment Letter issued by them to him for a bonafide reason. Hence is the objection put up against said complainant by the opposite party. Hence it is just, judicious, proper for them to establish each of these issues by the opponents effectively before the Forum to prove their defence with credible, and Indisputable evidence. It is necessary too for them to do so. But, other than submitting an affidavit In support of their written reply nothing else has been filed by them as proof by them before this Forum. Due to lack of credible proof, only affidavit itself cannot be held as an admissible evidence altogether. On the contrary, the sale deed in between both the parties was a registered document. In order to deprive the rights given through the said document to the complainant, by dismissing said sale deed, no action procedurally as necessary has been found to be got initiated by the opponents although it was necessary for them to do so before they could even think of dealing with any other person regarding said flat related to said document which is registered. Thus as long as a registered agreement does not get dismissed, until then, the opponent cannot either transfer the said property to any other person or sell it. The Agreement agreed in between the two sides was equally bound upon both the sides and will remain so until it gets cancelled. The complainant was ready to pay the balance amount of Rs. 12,00,000/- and so got a loan from bank sanctioned in his name from HDFC Bank on date 20 October 2010. But neither the opponents were ready to take the amount as they should have been according to the spirit of the agreement and give the final deed to the complainant. From, this itself, it becomes clearly established that as the opposite party has not taken any action to dismiss the agreement entered by them with the complainant regarding the sale of flat no. 7, until this date, and even if the cheques remained un-encashed, still regarding the same took no action has been initiated by the opponent party due to which it is indispensable to assume that the opponent party has got Rs.3,00,000/- from the complainant in connection with the mutually agreed sale deed transaction related flat no. 7 and even when the complainant is ready to pay the balance of the remaining payment of Rs.15,00,000/-, in such a situation, the duty of the opposite party in the spirit of the sale agreement is to take the amount and execute the agreed sale deed, hand over the flat's possession to the complainant which the opponents have failed to comply although they are bound to do so by virtue of the document. Not only that, they have even refused to do say. Therefore in the light of all the above, it has to be invariably held that this petition is eligible to be entertained by this Forum and is well within its jurisdiction. Therefore this Forum has admitted this petition and the order in it is being passed. On date 16th December 2010, an interim prohibitory order too has been passed. According to said order, the opponent party has been directed not to sell or transfer in any way the said flat no. 7 to any person and it is still in force, and the said order has now having become final, it is bound upon the opponent party. No doubt, the complainant has issued a public notice to which the opponents have given false reply and there are enough grounds to hold that facts stated in said reply are false. According to said reply no possession related proceedings of any kind has been ever initiated against the complainant. Therefore, when it has been decided to get both the parties brought together and decided to culminate the agreed sale-purchase deal, in between for any reason, said agreement itself cannot be rules out. As decided, the opposite party has not executed the final deed of this sale document, which being now a well proven fact, due to which this application of the complainant is being admitted and accordingly the following order is being passed. Along with that, as the opposite party has failed to execute the agreed sale deed, no doubt, their such act has indeed caused psychological, physical and financial loss to the complainant due to which on this account too he is eligible to get compensation for loss. Hence the following Order:

                   ORDER

                   1. The complaint application of the complainant petitioner is herewith partially admitted.

                   2. The opposite party Is hereby directed to get the flat no. 7 of paragraph no. 1 description of the complaint and this order, registered in the name of the said complainant and give its physical possession too. Along with that let the complainant pay the balance payable amount of said flat to the opposite party.

                   3. As the complainant has suffered physical and mental agony as well as financial loss due to the said opposite party without any valid reason for the said opposite party to act as such, due to that let the opposite party also pay an amount of Rs. 10,000.00 towards the compensation of toss on that account as well as also pay the cost of this application/dispute amounting to Rs.3,000/-.

                   Let the above order be complied by the opposite party within 30 days of date of receipt of the certified copy of this order failing which they will be held as responsible to pay additional 9% interest on the above, until the actual date of making said payment. "

2. Being aggrieved, the matter was taken to the State Commission in appeal by the respondent developer by raising various pleas in the first appeal. The matter was heard at length by the State Commission and by its order dated 18.12.2014 State Commission partly allowed the appeal, the relevant portion of which is reproduced below:

                   "[12] Opponents, in their written version, have denied that they have received an amount of Rs. 30,000/- from the Complainant. However, as observed earlier, in the allotment letter dated 13/08/2010 issued to the Complainant, the Opponents have admitted receipt of an amount of Rs.30,000/- from the Complainant by way of advance against booking of the flat further, it is also on record that HDFC Limited had provisionally sanctioned housing loan in sum of Rs. 12,00,000/- to the Complainant. It is the contention of the Opponents that as per request of the Complainant, they have returned to the Complainant three cheques rendered by the Complainant, each for an amount of Rs. 1,00,000/-. However, Opponents have not disclosed as to when these cheques were returned to the Complainant. Further, the Opponents are claiming that the Complainant himself told the Opponents that he does not want to purchase the flat as the financial institutions were not sanctioning housing loan to the Complainant. However, evidence on record speaks otherwise. From the evidence on record it is established beyond doubt that initially, the Complainant had booked Flat No.7 on making payment of booking amount of Rs. 30,000/- and thereafter, he tendered three cheques to the Opponents, each for an amount of Rs. 1,00,000/-. There is nothing on record to support the contention of the Opponents that the Complainant himself had told them not to encash those three cheques. Plea taken by the Opponents that as the financial institutions were not sanctioning home loan to the Complainant, the Complainant himself requested the Opponents to cancel the allotment of flat in his favour, cannot be accepted as gospel truth when the record reveals that HDFC Limited had sanctioned to the Complainant, a home loan for Rs. 12,00,000/-. Further, plea of the Opponents that loan sanction letter issued by the HDFC Limited does not specify that loan was sanctioned to the Complainant in respect of Flat No. 7, which is subject matter of present consumer dispute, is also over-ruled as the Opponents are concerned with the payment of consideration amount and how the Complainant pays the consideration amount to the Opponents is not relevant.

                   [13] Similarly, we find no force in the contention raised on behalf of the Opponents that as the case involves complicated questions of law and fact Consumer Fora have no jurisdiction to entertain, try and decide this complaint.

                   [14] There is clear-cut case of deficiency in service on the part of the Opponents.

                   [15] As observed earlier, during the course of arguments, Respondent/Complainant showed his willingness to pay balance consideration amount to the Appellant/Opponents as per prevailing market rates, as shown in Ready-Reckoner. prepared by the Government. In the interest of justice we find that it would be just and proper to direct the Complainant to pay the balance consideration amount to the Opponents as per rules mentioned in the ready-reckoner. A flat admeasuring 1260 sq. ft. is equivalent to 117.05 square meters. As per Ready-Reckoner, presently rates prevailing in the said locality where the flat in dispute is situated is @ Rs.27,030/- per square meter. That is equivalent to Rs.2,512/- per square feet. Thus, as per Ready Reckoner now a flat admeasuring 1260 sq. ft., would cost approximately Rs.31,63,861.50ps. (Rounded off to Rs.31,63,862/-). Admittedly, the Opponents agreed to sold a flat admeasuring 1260 sq. ft. to the Complainant for an agreed consideration of Rs. 15,00,000/ against which Complainant admittedly paid to ' the Opponents a sum of Rs. 30,000/- viz. 2% of the agreed consideration. Thus, as per prevailing market rates 2% of total consideration of Rs.31,63,862/- comes to Rs.63,277/-. Thus, it will have to be held that as against consideration of Rs.31,63,862/-, the Complainant has paid to the Opponents an amount of Rs. 63,277/- leaving balance consideration amount of Rs.31,00,585/-. Complainant shall have to pay this amount to the Opponents.

                   In view of foregoing discussion, present appeal needs to be allowed and order passed by the District Forum deserves to be modified. Hence, we pass the following order:

                   ORDER

                   Appeal is partly allowed.

                   Order dated 26th September, 2012 passed by the District Consumer Disputes Redressal Forum, Solapur partly allowing Consumer Complaint No.672 of 2010 is modified.

                   Order passed by the District Forum as regards payment of compensation and costs is hereby maintained.

                   Respondent/Complainant shall pay to the Appellants/Opponents, balance consideration amount of Rs.31,00,585/- within a period of sixty days from the date of this order. However, Respondent/Complainant is at a liberty to appropriate amounts ' payable to him towards compensation and costs in pursuance of order passed by the learned District Forum towards balance consideration payable to the Appellants/Opponents. In such a case, the Respondent/Complainant shall pay to the Appellants/Opponents, an amount of Rs.30,87,585/- towards balance consideration. Upon receipt of balance consideration amount from the Respondent/Complainant, Appellants/Opponents shall execute and register agreement of sale in favour of the Respondent/Complainant and shall hand-over to the Respondent/Complainant, vacant and peaceful possession of a flat bearing No.7, admeasuring 1260 sq. ft. in area, in the building known as 'Neha-Saloni Apartments' situated at 'Mazrewadi', Old S. No.273/3, New S. No.17/3, Plot N0.42/A, within the territorial limits of Solapur Municipal Corporation, complete in all respect, within a period of forty-five days from the date of receipt of balance consideration amount from the Respondent/Complainant.

                   It is hereby made clear that in case of failure on the part of the Respondent/Complainant to pay the balance consideration amount to the Appellants/Opponents within the stipulated lime order as regards handing over the possession shall automatically stands vacated and in such a case, Appellants/Opponents shall pay to the Respondent/Complainant an amount of Rs.63,277/- within a period of forty-five days from the date of expiry of stipulated period of sixty days granted to the Respondent/Complainant and failing which amount shall carry interest @ 9% p.a., as from the date of expiry of forty-five days till realization of entire amount by the Respondent/Complainant.

                   It is also hereby made clear that in case of failure on the part of the Appellants/Opponents to hand-over possession of the flat to the Respondent/Complainant inspite of receipt of balance consideration amount within the stipulated time limit then, in such a case, shall also liable to pay to the Respondent/Complainant an amount of Rs. 1,000/- per day as from the date of expiry of stipulated period of forty-five days till the possession of flat is actually handed over to the Respondent/Complainant.

                   Parties shall bear their own costs in appeal. "

3. Being aggrieved and dissatisfied by the above order of the State Commission, petitioner/complainant filed the present revision petition. Petitioner, being aggrieved by the impugned Order, is challenging the same on the following grounds:

                   (i) That the State Commission, while modifying the orders passed of the District Forum, has failed to give its own independent reasons, that too, contrary to the record and, therefore, the said judgement is liable to be set aside.

                   (ii) State Commission has failed to appreciate that both the parties are bound by the terms and conditions of the contract and the said contract is binding on both the parties.

                   (iii) State Commission has given its finding that there is a clear cut deficiency in service on the part of the respondents, but despite that State Commission has modified the order and enhanced the price, that too, totally ignoring the fact that the petitioner has paid Rs.3,30,000/- to the respondents and without adjusting the same has directed to pay more than the amount, hence, the said judgement Is bad in law.

                   (iv) Petitioner has always showed willingness to pay the balance amount of sale consideration to the respondents and the same has been duly recorded by the State Commission, but taking the balance amount as per prevailing market rate is incorrect.

                   (v) State Commission has failed to appreciate the fact that an amount of Rs.3,30,000/- was lying deposited with the respondents since 2010 and respondents had been utilizing the said amount, hence, the said judgement is bad in law and liable to be set aside.

4. We have heard the learned counsels for the parties and have carefully gone through the entire material on record. The fora below have concurrently found deficiency in service on the part of the respondent-builder and directed for handing over the possession and executing the registered sale deed. The dispute remains only with regard to balance consideration to be paid by the petitioner. The bone of contention is with regard to three cheques of Rs. 1 lac each which the petitioner had given to the respondent. The petitioner's contention that these cheques were encashed by the respondent and hence only 11.70 lacs balance consideration needs to be paid has been accepted by the District Forum by observing that there is nothing on record to support the OP's contention that the complainant had demanded, and the OP had accordingly returned the cheques. However, the State Commission has held that there is no evidence produced by the complainant substantiating actual encashment of these three cheques. However, thereafter, the State Commission proceeded to observe that the complainant-petitioner is ready to make the "balance payment" which the State Commission quantifies after applying "ready reckoner rates". The petitioner is aggrieved that the credit for Rs. 3 lacs allegedly paid by the petitioner through three cheques has not been given by the State Commission and further that the ready reckoner rates have not been properly applied by the State Commission, and if applied properly, the total amount of consideration as per the ready reckoner rates would work out to an amount only of Rs. 25.03 lacs and not around 31 lacs arrived at by the State Commission.

5. It is the contention of the petitioner that he had deposited an amount of Rs.3,30,000/- in the year 2010 and was ready to pay balance amount of Rs. 11,70,000/- by way of DD against the loan taken from the bank. Petitioner kept on waiting for response from the respondent builder but to his utter surprise, he found that a public notice was got issued by the respondents in a local Marathi daily newspaper, in which they stated that they have not issued any allotment letter of the alleged flat. Despite the fact that District Forum directed the respondents to get the sale deed registered in favour of the petitioner after receiving the balance amount i.e. 12 lakhs, the respondents chose to move to the State Commission against that order of the District Forum. It is the averment of the petitioner that during pendency of the appeal before State Commission, he produced an agreement to sale dated 09.09.2010 with regard to flat no. 8 of the said building to show that the actual cost of the said flat is Rs. 15 lakhs only. As per petitioner, they also produced the documents on record issued by the Government authorities which showed the value of the alleged flat to be Rs.25,03,008/-. Still State Commission modified the order of the District Forum by enhancing the balance amount to be paid by the petitioner, without even adjusting the amount of Rs.3,30,000/- already paid by him. Further, it is stated that the flat No. 9 booked in favour of the petitioner was still lying vacant with the respondents and the respondents have not sold the said flat to anybody. Hence, the State Commission's order is such that it cannot justify in holding that an enhanced balance amount has to be paid by the petitioner especially when there is no document on record to show that the market value of the flat is more than Rs.31 lakhs.

6. On the other hand, it is the contention of the respondent no. 1 builder. M/s. B.Y. Construction Pvt. Ltd. that the disputed flat no. 7 is owned by Respondent no. 2 Shakira Vijay Savaskar. As per the Power of Attorney and Development Agreement M/s. B.Y. construction Pvt. Ltd. constructed Neha Saloni Apartment and as per Agreement the Flat No. 7 was handover to the Shakira Vijay Savaskar(R-2) by the M/s B.Y. Construction Pvt. Ltd.(R-1) and R-2 is the owner of the said Flat No. 7. R-2 executed the Agreement to Sale in favour of the complainant/petitioner. Even the Allotment letter dated 13.08.2010 was given by R-2 to the complainant in person and not on behalf of the R-1 builder and also the Agreement to Sale dated 14.08.2010 in favour of complainant in person and not on behalf of M/s. B.Y. Construction Pvt. Ltd. Hence when there is no direct relationship between R-1 builder and the petitioner, the revision petition is not maintainable and is liable to be dismissed.

7. Respondent no. 2 Smt. Shakira Vijay Savaskar has filed her written synopsis wherein it is stated that there is no any documentary evidence to verify the version of the petitioner to show that he had paid any consideration amount to the present Respondent No. 2 as a part payment. As per R-2, petitioner approached her stating that he is unable to purchase flat as he could not procure the loan. Hence, three cheques were returned back to the petitioner. Petitioner had filed Xerox copy of the allotment letter before the District Forum as well as State Commission. There is no any privity of contract between the parties, therefore, Respondent No. 2 is not at all under any liability either to pay compensation or to hand over the possession to the petitioner. The State Commission has rightly observed that nothing remains to be adjudicated and order of the State Commission, which has balanced the interests of both the parties, do not require any interference.

8. After careful consideration of the entire material on record, including the explanations filed by the parties in compliance to this Commission's order dated 1.04.2019, we are of the considered opinion that no interference with the State Commission's "re-working" of the consideration amount is called for. The alleged error in applying the ready-reckoner rates has not been duly demonstrated before us so as to make us interfere with the working. With regard to encashment of three cheques of Rs. 3 lacs, we decline to interfere with the State Commission's order for the simple reason that the best evidence to establish the encashment of the cheques is the Bank Statement showing transfer of such amounts to the respondent's accounts which evidence was not only not filed by the petitioner in the District Forum, the same or any other credible evidence of such transfer to, or, receipt by the respondents could also not be produced before the State Commission or before us. The recording of details of cheques given by the allottee in the registered document itself cannot be the evidence of the payment of the amount when the encashment of the cheques is disputed by the recipient. Therefore, the State Commission rightly reversed the finding of the District Forum in this behalf.

9. Revision petition is dismissed. However, the petitioner shall have liberty of obtaining possession and registration by making payment in terms of State Commission's order within 3 months from the date of this order.