1. THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 10.02.2008 passed by the Maharashtra State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. 1776/1999, "Shrikand Ramesh Pande versus Shri Prakash Govindrao Mandore " vide which, while allowing appeal, order passed by District Forum, Aurangabad dated 15.5.2012 was set aside and the case was remanded to the District Forum with direction to hear the complaint afresh by giving proper opportunity to both the parties to adduce their evidence.
2. BRIEF facts of the case are that as per the complainant Shrikant Ramesh Pande, he and his wife were intending to purchase a shop, so that the wife of the complainant could start a boutique and earn her livelihood. As per the complainant, he decided to purchase shop No. CR-7, measuring 201 sq. ft. on the first floor in Deep Apartments at Bheempura, Aurangabad, being developed by the petitioner/OP. The complainant had negotiations with the petitioner and he decided to buy the said shop at a cost of Rs.4,42,000/- and also got executed the agreement to sell on 12.12.2008 with the petitioner and paid him an amount of Rs.2,42,200/- in cash. The said agreement mentions boundaries of the said shop and it was agreed that the balance amount of Rs.2 lakh shall be paid at the time of delivery of possession. It is also stated that the petitioner agreed to deliver the possession within a period of 6 months from the agreement. However, the petitioner failed to handover the possession of the shop and consequently the sale deed was not executed. The complainant, alleging deficiency in service and unfair trade practice, filed a consumer complaint against the petitioner/OP. The District Forum dismissed the complaint saying that the said agreement was not registered and since the other party had denied the said agreement, the issue could be decided by the Civil Court only and hence, the District Forum could not entertain the matter. An appeal was filed by the OP before the State Commission. Vide impugned order, the State Commission allowed the appeal, set aside the order of the District Forum and remanded the case to District Forum with direction to hear the complaint afresh by giving opportunities to both the parties to adduce evidence. It is against this order that the present revision petition has been filed.
Heard the learned counsel for the parties and perused the record.
3. LEARNED counsel for the petitioner/OP argued that no such agreement had been executed between the parties and the complainant ''s brother had indeed fabricated the agreement. He stated that the brother of the complainant/respondent is an Advocate, namely, Sh. S.R. Pande, who was engaged by the petitioner in some matter relating to District Court, Revenue Authority etc. and he paid him Rs.2.5 lakh as professional fee. However, the said Advocate demanded a sum of Rs.5 lakh as professional fee and hence, the petitioner/OP had dispute with the Advocate. The Advocate misused the signatures made by the petitioner on some blank papers and prepared the agreement in question. The petitioner has taken this plea in their reply to the complaint before the District Forum. Further, the learned counsel for the petitioner has invited our attention to the grounds of the present revision petition saying that the following issues arise in the present case:-
"i) Whether the alleged agreement to sale dated 12.12.2008 had been executed by the present petitioner? ii) Whether the petitioner had engaged the brother of respondent in various civil litigations? iii) whether signatures of the petitioner were obtained on blank papers? iv) Whether the alleged agreement to sale ought to have been a registered document in view of provision of section 25 of the Bombay Stamp Act? v) Whether the respondent was ready and willing to perform his part of contract? vi) Whether the respondent had paid the amount of Rs.2,00,000/- to the petitioner? vii) Whether the respondent had the capacity to pay the alleged amount? viii) Whether a Single Room can be carved out from the flat as per the alleged agreement? "
4. THE petitioner has also stated in the revision petition that the alleged agreement could be referred to an hand-writing expert under section 45 of the Indian Evidence Act to know the truth. Learned counsel pleaded that the order passed by District Forum was in accordance with law and should be upheld.
The learned counsel for the respondent/complainant further stated that the agreement dated 12.12.2008 has been validly executed between the parties, but the petitioner had developed second thoughts about the handing over the shop to them after the execution of the agreement. He pleaded that if the petitioner felt that the agreement was fabricated by his Advocate brother, they could have taken action against him in accordance with law, but nothing like this had been done by them, so far. The order passed by State Commission, therefore, reflects a correct appreciation of the facts and circumstances on record and the consumer fora have the powers to take decision in the matter after taking into account the evidence of the parties.
5. A careful examination of the facts of the case and the oral arguments before us reveals that in this case, the execution of the agreement as alleged by the complainant has been denied by the OP. In most of other matters coming-up before the consumer courts, the agreement itself is not denied, but the failure to act according to the terms and conditions of said agreement may lead to deficiency in service or unfair trade practice, for which the consumer fora may grant appropriate compensation, looking at the facts and circumstances of the case. However, in the case in question, if the existence of agreement is denied, it becomes a case for filing civil suit for specific performance between the parties. The said agreement is not a registered document and moreover the money supposed to have been given by the complainant to the other party has been stated to be given in cash only. In such a situation, both the parties shall have to lead evidence before a court of competent jurisdiction, which could adjudicate upon the issue whether the agreement is a genuine document or not. We, therefore, agree with the finding of the District Forum that the civil court is the appropriate forum for filing suit for specific performance so that the validity of the agreement in question could be examined. There is no denying the fact that under section 13(4) of the Consumer Protection Act, 1986, the District Forum is armed with the same powers as vested in civil court under the Code of Civil Procedure 1908 but these powers are there for handling specific matters and it is very clear that consumer court cannot take over the functions of the civil courts. In the instant case, we agree with the contention of the petitioner that issues raised in the revision petition as reproduced in this order can be addressed properly by a civil court only.
6. IN the light of this discussion, this revision petition is allowed, order passed by the State Commission is set aside and the order passed by the District Forum upheld, with no order as to costs.
