judicial authorities may be relied upon by the Opposite Parties

 

The following judicial authorities may be relied upon by the Opposite Parties. Ordinarily, detailed case-law belongs in the written notes of argument rather than the factual evidence affidavit; however, brief legal propositions may be incorporated in the affidavit without turning it into argumentative pleadings.

1. Admissions made by the complainants

Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242

The Supreme Court held that clear admissions made in pleadings or during judicial proceedings constitute the best proof of the facts admitted and may dispense with further proof. This supports reliance upon the complainants’ answers admitting possession, withholding of the residual amount, receipt of ₹3,00,000, absence of an engineer’s report and self-assessment of compensation.

Avadh Kishore Das v. Ram Gopal, (1979) 4 SCC 790

An evidentiary admission is not necessarily conclusive, but it is substantive evidence against its maker and shifts the burden upon that person to satisfactorily explain it.

Suggested paragraph:

That the answers furnished by the complainants to the questionnaire contain material admissions, including that a portion of the consideration remained withheld, that possession had been obtained and enjoyed since 2019, that no report of any qualified engineer or technical expert had been produced, and that the compensation claimed was self-assessed. In view of the principles laid down in Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242 and Avadh Kishore Das v. Ram Gopal, (1979) 4 SCC 790, such admissions constitute substantive evidence against their maker and materially corroborate the defence of the Opposite Parties.

2. Evidence through a Power-of-Attorney holder

Janki Vashdeo Bhojwani v. IndusInd Bank Ltd., (2005) 2 SCC 217

A power-of-attorney holder may depose regarding acts performed by the attorney and matters within the attorney’s personal knowledge. The attorney cannot replace the principal concerning transactions exclusively undertaken by the principal or facts exclusively within the principal’s knowledge.

Suggested paragraph:

That although Complainant No. 2 has executed a Special Power of Attorney in favour of Complainant No. 1, such authorization does not confer personal knowledge upon Complainant No. 1 regarding transactions, payments, conversations or representations exclusively made by or to Complainant No. 2. The evidentiary value of such testimony is therefore confined to matters personally undertaken, witnessed or perceived by the deponent, consistently with Janki Vashdeo Bhojwani v. IndusInd Bank Ltd., (2005) 2 SCC 217.

3. Limitation under Section 69 of the Consumer Protection Act, 2019

Kandimalla Raghavaiah & Co. v. National Insurance Co. Ltd., (2009) 7 SCC 768

The statutory limitation period under consumer law is mandatory. A consumer complaint filed after two years cannot be entertained unless delay is specifically condoned upon sufficient cause being shown. A subsequent correspondence or demand does not automatically revive an expired cause of action.

Dr. V.N. Shrikhande v. Anita Sena Fernandes, (2011) 1 SCC 53

Limitation ordinarily begins when the alleged deficiency or injury became known, or reasonably ought to have become known, to the complainant. A stale claim cannot ordinarily be revived merely through a later notice.

Suggested paragraph:

That the complainants admittedly entered into possession in or about 2019 and, according to their own case, were aware from that time of the alleged incomplete work, alleged absence of amenities and alleged non-performance now complained of. The legal notice dated 07.02.2024 could not, by itself, create a fresh cause of action in respect of matters already known several years earlier. The complaint is therefore liable to be examined strictly under Section 69 of the Consumer Protection Act, 2019 in light of Kandimalla Raghavaiah & Co. v. National Insurance Co. Ltd., (2009) 7 SCC 768 and Dr. V.N. Shrikhande v. Anita Sena Fernandes, (2011) 1 SCC 53.

Important limitation caution: the complainants may rely upon Lata Construction v. Dr. Rameshchandra Ramniklal Shah, (2000) 1 SCC 586, which recognizes a continuing cause of action where the promised possession or substituted performance remains unfulfilled. The Opposite Parties should distinguish it on the ground that physical possession was delivered in 2019 and has continuously been enjoyed, while conveyance is stated to be subject to payment of the admitted outstanding amount and registration expenses.

4. Compensation must be proved and cannot be arbitrary

Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65

Consumer fora must record a finding of actual loss, injury, harassment or injustice before awarding compensation. The amount must correspond to the proved injury and cannot be uniform, speculative or arbitrary.

Suggested paragraph:

That the complainants have expressly stated that the compensation demanded by them was self-assessed. They have produced no medical record, expert assessment, accounts, receipts or other reliable material quantifying any actual financial or physical injury. In Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65, the Hon’ble Supreme Court held that compensation must be founded upon a proved loss or injury and must bear a rational relationship to such loss. The speculative claim for compensation is therefore liable to be rejected.

5. Proof of alleged construction defects

The Opposite Parties may advance the proposition that serious allegations concerning structural defects, deviations, construction quality or technical incompleteness ordinarily require cogent technical evidence. However, it should not be pleaded that an expert report is invariably mandatory, because consumer fora may determine visible or admitted defects from photographs, contractual documents, inspection reports and other reliable evidence.

Suggested paragraph:

That the complainants have admittedly not produced any report from a civil engineer, architect, surveyor, municipal authority or other qualified person identifying the alleged defects, their extent, the contractual work allegedly remaining incomplete or the estimated cost of rectification. In the absence of such evidence, the allegations remain general, unquantified and incapable of establishing either deficiency in service or the amount allegedly required for rectification.

6. Consumer jurisdiction and contractual terms

Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725

This decision generally protects consumers against arbitrary and one-sided builder-buyer clauses. The Opposite Parties should not rely on it affirmatively unless the contractual terms in this matter are balanced. It may be distinguished by emphasizing that the present defence is based upon an admitted unpaid balance and reciprocal obligations, rather than an unfair forfeiture or one-sided contractual clause.

Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna, (2021) 3 SCC 241

This judgment recognizes that the parties’ respective contractual defaults, payment obligations, project status and entitlement to relief must be examined category-wise and upon the evidence applicable to each allottee. It should be used cautiously because much of the ultimate relief in that case was granted to allottees.

7. Relevant provisions of the Consumer Protection Act, 2019

The affidavit and arguments may also refer to:

• Section 2(11): “deficiency” must relate to an actual fault, imperfection, shortcoming or inadequacy in the performance of the service.
• Section 38(6): proceedings are principally determined upon affidavits and documentary evidence.
• Section 38(9): the Commission possesses specified civil-court powers concerning evidence and documents.
• Section 39(1): substantive relief follows only where the allegations concerning defect or deficiency are proved.
• Section 39(1)(d): compensation requires proof of loss or injury caused by the negligence of the Opposite Party.
• Section 69: complaint must ordinarily be filed within two years from accrual of the cause of action.

The strongest authorities for this particular defence are Nagindas Ramdas, Janki Vashdeo Bhojwani, Kandimalla Raghavaiah and Ghaziabad Development Authority v. Balbir Singh. The limitation defence should be pleaded as an alternative defence because the complainants may contend that non-execution of conveyance constitutes a continuing cause of action.