NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.B. Gupta, Presiding Member and Suresh Chandra, Member
Sovereign Developers & Infrastructure Limited —Petitioner
versus
Sujith Kumar Dhar —Respondent
Revision Petition Nos. 2447, 2485 of 2014
Decided on 1.8.2014

IMPORTANT POINT
Burden of proof cannot be shifted through appointment of any Court Commissioner.

Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Real estate—Agreement for purchase of flat—Cost escalation due to delay in construction—As to whether there has been any increase in cost of raw materials, labour and other charges etc, onus to prove these facts lies only upon petitioner—Petitioner alone has to discharge this onus by producing evidence to this effect before District Forum—By seeking appointment of Court Commissioner for this purpose, petitioner just wants to shift that burden of proof which lies upon him only—That burden of proof cannot be shifted through appointment of any Court Commissioner—District Forum directed to record further evidence of both parties by receiving documentary evidence, additional documents and dispose of cases expeditiously on priority basis.

       Held: Now as to whether there has been any increase in the cost of the raw materials, labour and other charges etc, the onus to prove these facts lies only upon the petitioner. The petitioner alone has to discharge this onus by producing evidence to this effect, before the District Forum. By seeking appointment of a Court Commissioner for this purpose, the petitioner just wants to shift that burden of proof, which lies upon him only. That burden of proof cannot be shifted through appointment of any Court Commissioner.

        The State Commission in this regard in its order has observed;

        “8. It is argued by the learned counsel for the revision petitioners that both the parties are bound by the terms of the agreements.Of course, the main intention of the Parliamentarian/Legislature in enacting thissocio-legislative enactment is to help the consumers and to dispose of the complaints in a speedy manner. Of course, there is no bar to file the applications for appointment of Court Commissioner. When a particular defense has been taken by the respondent/ Opposite Party before the DF with regard to the alleged escalation of cost of building materials and labour charges, it is for the Opposite Party to prove with cogent evidence. The DF has made an observation in page-9 of its order that, when the DF has power of discovery and production of any document or other material objection producible as evidence, either party can move for appointment of Court Commissioner to record the evidence of witnesses who are unable to attend the Commissioner to tender cross-examination and also to know the position of the apartments if any constructed or any deficiency of service in constructing the apartments by the builder. Therefore, the DF has erroneously comes to the conclusion that,Court has to appoint a Commissioner to collect the materials on behalf of the Opposite Party to prove its defense, which is improper and incorrect.

        9. It is argued by the revision petitioner in R.P.No.10/2014 that if one of the complainant file an application for appointment of Commissioner which has been withdrawn subsequently, it is not binding on the complaints filed by the other members of the respondent. Therefore, the observation made by the DF that, one of the complainants who filed a similar I.A. through his advocate for appointment of Commissioner to ascertain the escalation price about the flat in question is not a ground. He has relied on several decision rendered by the Hon’ble National Commission in R.P. No.624/ 2007, in A. No. 1061/ 2005 by the AP State Consumer Commission, Hyderabad), R.P. No. 2002 / 2005 in Appeal No.171/1997 by the State Consumer Commission, Uttar Pradesh, the decision rendered by the State Commission, Maharashtra, Mumbai in C.C.No.12/ 2005. He has also relied on the order passed by this Commission in Appeal No.1029/ 2012 wherein it has been held that, when once the Opposite Party has received the value of the flat, it is incumbent upon the Opposite Party to complete the project, deliver the flat, register the flat and put the complainants in possession till then complainant will get recurring cause of action and also entitled to seek compensation. It is a well settled law that, when parties entered into an agreement of sale and the terms and conditions incorporated, such an agreement is binding on both parties. Either party is not entitled to deviate with such terms and conditions. It is not the duty of the Commission to get the evidence on behalf of both parties. The learned counsel for the petitioner in R.P.9/20014 and also the revision petitioner party in person in R.P. No.10/2014 have rightly contended that, the cost of the land was also increased to the extent of 300%. Therefore, when a builder entered into an agreement, it is its bounden duty to strictly comply with the terms and conditions of the agreement and is expected to execute the registered sale deed and deliver possession of the flats on the agreed dates. On failure to do so, the parties are entitled to enforce the terms and conditions of the agreement. Therefore, in our opinion, the DF erroneously comes to the conclusion in allowing the applications filed by the respondent/Opposite Party. It is for the respondent/Opposite Party to prove its case by examining itself and through its witnesses. Accordingly, we pass the following:

        ORDER

        Both the Revision Petitions are allowed. The order dated 10.04.2014 passed by the Addl. DF Bangalore in Complaint Nos. 1730/2014 & 1733/2013 connected with other cases is hereby set aside.

        However, the DF is directed to record further evidence of both parties if any, by receiving the documentary evidence, additional documents if any and dispose of the cases expeditiously on priority basis”.

        Under section 21(b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

        We are in full agreement with the above reasonings given by the State Commission. The State Commission has neither committed any infirmity or illegality nor there is any jurisdictional error, in passing of the impugned order. (Paras 14 to 18)

       Result: Revision Petitions allowed.