ASHISH CHANDRAKANT SHETH Vs. NEEPA ASHISH SHETH

JUDGEMENT

(1.) HEARD on the point of admission at length. On behalf of the Complainants it is argued that an amount of Rs. 18,00,000/ - was paid to the Opponent against the receipt which indicates number of Flat 1014 and the payment has been made by cheque on 08.09.2008. Thereafter the legal notice was issued in the year 2013 to the Opponents since possession of the flat was not delivered. Opponents have taken a stand that the amount of Rs. 18,00,000/ - paid was a routine practice of investment in the project against the projected allotment of the flat. The consumer complaint has been filed by the power of attorney holder on behalf of the Complainants. The flat was allegedly purchased by the Complainants jointly. However, the Complainant could not submit any proof on the point of agreed total consideration which according to the Complainant was not mentioned in the receipt by the Opponents. During the period of almost five years i.e. from the date of issue of first legal notice Complainants could not demonstrate what action or persuasion was made on their behalf for alleged transaction of purchase of the flat.

(2.) THE Ld.Advocate of the Opponents vehemently opposed the admission by filing written reply and during the course of arguments it was submitted that the power of attorney holder has been staying in the same vicinity where the development project of the Opponents was under construction. The contention of the Complainants that the sale price was agreed at Rs. 60,00,000/ - i.e. @Rs. 5,000/ - per sq.ft., is seriously challenged by the Opponents as there was no such consideration agreed upon between the parties since amount of Rs. 18,00,000/ - was received as an investment in the project of the Opponents. It was further contended that the Complainants invested this amount for good returns in the project of the Opponents. The project has been completed somewhere in the year 2011. Occupation certificate has also been obtained thereafter and the entire flats in the project have been sold including one alleged to have been sold to the Complainants. There is no other document whatsoever adduced by the Complainant to establish that the sale transaction was ever agreed to be entertained between the parties except that the sole reliance on the receipt issued by the Opponents for the amount of Rs. 18,00,000/ - which does not state total consideration, nor there is any further communication demonstrating the agreement between the parties agreeing to sale/purchase of the subject flat. Ironically, there is no any demand in addition for making balance payment issued by the Opponents. On the query from the bench to the power of attorney holder of the Complainants no satisfactory explanation has come forward as to how the Complainants were ignorant about the total agreed cost of the flat and why any efforts were ever made by the Complainants to pay further amounts as per the alleged agreement to sell the said flat.

(3.) IT is also interesting to note that the Complainants have not made any efforts whatsoever to get refund of such huge amount of Rs. 18,00,000/ - which was paid in the year 2008 and suddenly in the year 2013 i.e. after lapse of five years issued legal notice to the Opponents, seeking possession of the flat. There is no reason to disbelieve the arguments advanced by the Opponents that the complainants are not bonafide purchasers, who did not exercise any action and care to incorporate total consideration in the receipt first issued nor persuaded thereafter immediately either for making balance payment in stages or for execution of the registered agreement. Though the amount is paid by cheque and the complaint has been filed almost after five years for claiming possession of the flat no.1404 and showed willingness to pay the balance sale price of Rs. 72,52,176/ - or alternatively seeking compensation of Rs. 94,65,000/ -, there is no documentary evidence to show that there exists bonafide transaction of sale of the said flat between the parties except the receipt available on record, which does not reflect total consideration of the transaction.