TMI Blog2007 (2) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 9,00,110/-. The amount was paid in a lump. Receipt for ₹ 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 ₹ 4,84,000. He was, therefore, entitled to recover a sum of ₹ 4,84,000/- as compensation. He was entitled to an order res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding consideration. He admitted that the sum of ₹ 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 ₹ 5,00,000/- by way of cheque and ₹ 4,00,000/- by way of cash. The respondent handed over a cheque for ₹ 5,00,000/-, as agreed on all hands. The same day, he withdrew from the bank a sum of ₹ 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 nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 9,00,000/-, especially, in the light of the recitals in the registered agreement. There was also no document to show the payment of ₹ 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 ₹ 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 ₹ 5,00,000/- and the failure of the respondent to encash the cheque for ₹ 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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