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STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, DELHI
Hon’ble Mr. Justice R.N. Mittal, President; Sh. B.L. Anand, Member
ASGHARI BEGUM—Complainant
versus
M/S. JAINA PROPERTIES (P) LTD. & OTHERS—Opposite Parties
Complaint Case No. C-123/91—Decided on 8.5.92
CONTRACT ACT, 1872 - SECTION 11, 70 - VOID CONTRACT - REFUND OF CONSIDERATION - MINORITY - LIMITATION ACT - SECTION 6 - MINORITY - DAMAGES - INTEREST.
Fact of the Case:
The complainant booked a flat with the respondent builder and paid the full consideration. However, the respondent failed to deliver the possession of the flat and instead mentioned in the receipts that the consideration had been received for a different flat. The complainant filed a complaint for refund of the consideration along with damages.
Finding of the Court:
The court held that the contract for purchase of a flat entered into by the guardian of the minor is void and unenforceable. The court also held that the complainant is entitled to the refund of the amount paid to the respondent builder.
Issues: 1. Whether the contract for purchase of a flat entered into by the guardian of the minor is void and unenforceable? 2. Whether the complainant is entitled to the refund of the amount paid to the respondent builder? 3. Whether the complaint is barred by limitation?
Ratio Decidendi: 1. Section 11 of the Contract Act, 1872 provides that a minor is incompetent to contract and an agreement entered into by him is void. 2. Section 70 of the Contract Act provides that where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously and such other person enjoys the benefit thereof, the later is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered. 3. Section 6 of the Limitation Act provides that the limitation against the minor would start after he attains majority.
Final Decision: The court accepted the complaint and directed the respondent builder to pay Rs. 62,500/- to the complainant along with interest @ 12% p.a. from the dates of deposits till the date of payment within a period of three months.
Mr. Justice R.N. Mittal, President — Briefly the facts of the case are that respondent No, 1 is working as a builder and respondent 2 & 3 are alleged to be its Directors. It is alleged that the complainant booked a flat measuring 50 sq. ft. bearing No. G-52A on the ground floor in Jaina Electronic Market, Darya Ganj, Delhi on behalf of her minor son with respondent No. 1 at a concessional rate of Rs. 62,500/- and paid the full consideration of Rs. 62,500/- in ix instalments as detailed below :-
1. Rs. 1,000/- 16.12.82
2. RS; 10,000/- 22.12.82
3. Rs. 20,000/- 7.8.84
4. Rs. 12,000/- 30.1.85
5. Rs. 10,000/- 30.1.85
6. Rs. 9,500/- 21.5.85
6. Rs. 9,500/- 21.5.85
2. The case of the complainant further is that the respondent played a fraud on her and mentioned in the receipts that the consideration had been received for flat No. B-148 (FF) having the super area of 32 sq. feet. She requested the respondents several times to deliver the possession of the flat but they failed to do so. Consequently, she filed a complaint for refund of Rs. 62,500/- alongwith damages amounting to Rs. 3 lacs.
3. The complaint has been contested by the respondents who have inter-alia pleaded that Akhtar Khan booked a space in the building of the respondent which was on the first floor and flat No. B-148 (FF) having a super area of 32 sq. feet in the name of Shehzad Khan for a consideration of Rs. 81,600/-. They denied that the complainant booked a flat in the name of Shehzad Khan. It is further averred that only Rs. 62,500/- had been deposited towards the price and the remaining amount i.e., Rs. 19,100/- has not been deposited. Consequently, it is prayed that the complaint be dismissed.
4. We have heard the learned Counsel for the parties at a considerable length, the complainant filed an affidavit that she booked a flat in the name of her minor son and deposited the amount of Rs. 62,500/- with the respondent. However, the receipts given by the respondents, show that the money had been deposited by Shehzad Khan for whose benefit the flat was booked. Admittedly, Shehzad Khan is a minor. It is not mentioned in any of the receipts that the amount was deposited by the complainant or Akhtar Khan. Therefore, it will be presumed that the money had been deposited by the minor himself.
5. There is no document executed between the parties from which the terms of the agreement could be found out. It is relevant to mention that there are different versions of the parties regarding the amount of the consideration, area of the flat booked and the situation of the flat. Section 11 of the Contract Act, 1872 provides that every person is competent to contract, who is of the age of majority according to the law to which he is subject and who is of sound mind, and is not disqualified from contracting by any law to which he is subject. Thus a minor is incompetent to contract and an agreement entered into by him is void. In this view, I am fortified by a decision of Lahore High Court in Malla v. Mohammed Sharif & Others AIR 1927 Lahore 355(1). In that case an agreement had been entered into by a guardian on behalf of the minor for purchase of an immovable property. The question that arose for determination was, whether the contract entered into by the guardian of the minor for the purchase of immovable could be specifically enforced at the option of the vendor. It was observed by the learned Bench that there, was divergence of judicial opinion on the point in you, but the matter had been set at rest by the judgment of their Lordships of the Privy Council in Meera Sarwarjan v. Fakhruddin Mohamed Chowdhari 39 Indian Appeals 1 (PC) which enunciated the principle that it was not within the competence of the guardian of a minor to bind the minor or the minors’ estate by a contract for the purpose, of immovable property. The minor was consequently not bound by the contract and there being no mutuality, he could not, after attaining the age of majority obtain specific performance of the con
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