IMPORTANT POINTS
1. When the terms of the transaction are reduced to writing, it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act.
2. In case of purchase of buildings, mere suspicion that builders in this country are prone to take a part of the sale amount in cash, is no ground to accept the case of payment of cash by the purchaser especially when there is no independent evidence to support the payment of such a sum.

Headnote:Consumer Protection Act, 1986 — Sections 2 & 14 — Agreement for allotment of office space — Failure on part of builder to give possession — Non payment of balance amount — Respondent entered into an agreement with appellant, a construction company for purchase of an office room in a building constructed by appellant — According to the company, purchase price was fixed at Rs. 7,75,000/- and Rs. 5,00,000/- was paid by cheque and that the balance due was not paid — Company terminated the contract — Respondent’s case that a sum of Rs. 9,00,000/- was paid as Rs. 5,00,000/- by cheque and Rs. 4,00,000/- as cash — Respondent admitted that he had no receipt to show payment of Rs. 4,00,000/- in cash — No evidence to show that according to the agreement, consideration was to be Rs. 9,00,000/- — No evidence to show that balance amount due under the agreement was paid — Affidavit produced before the State Forum held inadmissible and insufficient to prove such payment — District Forum ordered the complainant to pay the balance amount due under the transaction as evidenced by the written instrument — Respondent was also given option to take back sum of Rs. 5,00,000/ — State Commission directed construction company to handover premises to respondent on basis that the entire consideration had been paid — Revision filed by company dismissed by National Commission while decrying what it termed attitude of builders in demanding part of sale price in cash — Whether State Commission as well as National Commission were justified in interfering with order of District Forum — (No) — Evidence Act, 1872 — Sections 91 & 92.
       Held : The respondent had totally given up the case set up by him in his complaint while giving evidence. The transaction on 4.7.1997 as set up by the respondent was given up by him. He also admitted that the two cheques handed over for Rs. 9,00,000/- that day, were not encashed by the appellant. He admitted that they were returned. He further admitted that the receipt for Rs.9,00,000/- issued to him was in respect of those two returned cheques. He also admitted that he had thereafter issued a cheque for Rs.5,00,000/-. He agreed that a sum of Rs.5,00,000/- by way of a cheque was returned to him by the company. But he had not encashed it. He admitted the agreement dated 27.7.1997 and the terms thereof and the factum of its registration on 31.7.1997. He also admitted that he had no receipt to show the payment of Rs.4,00,000/- in cash. (Para 14)
       When the terms of the transaction are reduced to writing, it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act. There is no case that any of the provisos to Section 92 of the Act are attracted in this case. Why the case that was sought to 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 Rs.9,00,000/-, especially, in the light of the recitals in the registered agreement. There was also no document to show the payment of Rs.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 Rs.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. (Para 15)
       Neither the State Commission, nor the National Commission has given any sustainable reason for differing from the conclusion of the District Forum. A mere suspicion that builders in the country are prone to take a part of the sale amount in cash, is no ground to accept the story of payment of Rs.4,00,000/- especially when such a payment had not even been set up in the complaint before the District Forum. Not only that, there was no independent evidence to support the payment of such a sum of Rs.4,00,000/- except the ipse dixit of the respondent. The affidavit of the bank employee filed in the State Commission cannot certainly be accepted as evidence of such a payment. Payment of such a sum had clearly been denied by the company. The respondent had, therefore, to prove such a payment. His case that the purchase price was Rs.9,00,000/-, itself stands discredited by the recitals in the agreement dated 27.7.1997 in which the purchase price was recited as Rs.7,75,000/-. Not only that the respondent did not have a receipt for evidencing the payment of Rs.4,00,000/- and if the amount was paid on 5.7.1997 or 8.7.1997, as claimed by him, he would certainly have ensured that the payment was acknowledged in the agreement for sale executed on 27.7.1997. The agreement for sale actually speaks of his obligation to pay the balance to make up Rs.7,75,000/- after acknowledging receipt of Rs.5,00,000/-. The respondent is not a layman. He is a practising advocate. According to him, he specialises in documentation. He cannot, therefore, plead ignorance about the existence of the recital in the agreement. He cannot plead ignorance of its implications. (Para 15)
       We set aside the decision of the National Commission and that of the State Commission. We restore the decision of the District Forum. Normally, we would have ordered the cost of the appeal to the company, but since the respondent appeared in-person, we refrain from ordering it. (Para 17)

JUDGMENT

P.K. Balasubramanyan, J. — Leave granted.

2. This appeal challenges the decision of the National Consumer Disputes Redressal Commission

3. The appellant is a construction company. The respondent sought to purchase an office room in the third floor of a building being constructed by the appellant. The parties agreed to sell and purchase. According to the company the purchase price was fixed at Rs.7,75,000/-. Documentation, registration and other expenses were to be borne by the respondent Rs.5,00,000/- was paid by cheque. The balance due, was Rs. 3,41,190/-. 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 Rs.9,00,110/-. The amount was paid in a lump. Receipt for Rs.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 Rs.4,84,000. He was, therefore, entitled to recover a sum of Rs.4,84,000/- as compensation. He was entitled to an order restraining the company from transferring the office room bearing No.309, to any other person. The company was liable to be directed not to create any obstruction in his taking possession of office room No.309. The company was to be directed to remove the lock it had put at the door of the room.

5. It is seen that on 4.7.1997 the respondent handedover two cheques bearing No. 299667 and 299678 to the company for a total sum of Rs.9,00,000/-. He paid a sum of Rs.110/- in cash. He obtained a receipt. Cheque No. 299667 was for Rs. 7,50,000/- and cheque No. 299668 was for Rs. 1,50,000/-. The parties agree that these two cheques were not encashed, but were returned to the respondent. According to the company, the respondent agreed to destroy the receipt for Rs.9,00,110/- issued in that behalf, by the company. The case of the company is that the cheques were returned because the purchase price was something less than Rs.9,00,000/- and it was found to be only Rs.7,75,000/-. In view of this, the respondent on 8.7.1997, issued a fresh cheque to the company, bearing No.299669, for a sum of Rs.5,00,000/-. That cheque was encashed by the company. The parties reduced the transaction into writing. As per that agreement, the payment of Rs.5,00,000/- by cheque dated 8.7.1997 and its receipt was acknowledged. A sum of Rs.1,25,000/- was to be paid by 15.8.1997. Another sum of Rs.1,25,000/- was to be paid by 19.9.1997. Rs.25,000/- was to be paid at the time of transfer of possession. A sum of Rs.150/- per sq. ft. by way of deposit for meeting the maintenance charges, was also to be paid. The payment by the purchaser was to be the essence of the contract. The total purchase price was shown in the agreement as Rs.7,75,000/-.

6. Before the District Forum, the company denied the case of the respondent and set up in defence the written agreement between the parties. It pleaded that in spite of being called upon to do so, the respondent had not paid the balance amount due. The company, therefore, terminated the agreement. The respondent was not entitled to any relief. The sum of Rs.5,00,000/- received by cheque had been returned to the respondent and the cheque issued in that behalf was received by him.

7. In his evidence before the District Forum, the

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