JUDICIAL REFERENCES IN SUPPORT OF THE CASE OF THE OPPOSITE PARTY

 

For the Opposite Party's Evidence-on-Affidavit in C.C. No. 141 of 2024, I would add a separate section titled “Judicial Authorities Relied Upon by the Opposite Party” and weave the authorities into the relevant paragraphs of the affidavit rather than merely attaching a list of cases.

The authorities below are particularly useful for your defence.

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JUDICIAL REFERENCES IN SUPPORT OF THE CASE OF THE OPPOSITE PARTY

1. Burden is upon the Complainant to prove deficiency in service

Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr.

(2000) 1 SCC 66

This is probably the most important authority for the present Evidence-on-Affidavit.

The Supreme Court has held that deficiency cannot simply be alleged; the complainant has to establish a fault, imperfection, shortcoming or inadequacy in the manner of performance, and the burden of proving deficiency lies upon the person who alleges it.

The Supreme Court reiterated this principle in:

The Chairman & Managing Director, City Union Bank Ltd. & Anr. v. R. Chandramohan

Civil Appeal No. 7289 of 2009, decided on 27.03.2023.

The Court expressly held that:

“The burden of proving the deficiency in service is upon the person who alleges it.”

It further held that where the service provider has acted in good faith and there is no wilful fault, imperfection or inadequacy, deficiency cannot be presumed.

How to use it in your affidavit

Insert after paragraphs dealing with the allegations of incomplete construction:

“That the allegation of deficiency in service cannot be sustained merely on the basis of an assertion made by the Complainant. It is incumbent upon the Complainant to establish by cogent and reliable evidence the specific fault, imperfection, shortcoming or inadequacy attributable to the Opposite Party. The Hon'ble Supreme Court in Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr., (2000) 1 SCC 66, and subsequently in The Chairman & Managing Director, City Union Bank Ltd. & Anr. v. R. Chandramohan, Civil Appeal No.7289 of 2009, decided on 27.03.2023, has reiterated that the burden of proving deficiency in service rests upon the person alleging the same.”

This directly supports your defence that the Complainant cannot merely allege that the building was incomplete.

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2. Bona fide contractual dispute is not automatically deficiency in service

The same City Union Bank Ltd. v. R. Chandramohan judgment is particularly useful because the Supreme Court observed that in bona fide disputes, where the service provider has acted in good faith, deficiency cannot simply be presumed.

The Court also observed that Consumer Commissions exercise a summary jurisdiction and that highly disputed questions of fact may not appropriately be adjudicated in such proceedings.

Application to your case

This is useful because your Written Version raises several factual disputes concerning:

• original Development Agreement;
• cancellation of the earlier agreement;
• fresh Development Agreement dated 12.08.2017;
• supplementary agreement;
• ₹2,00,000/-;
• additional works;
• ₹35,000/- payment;
• alterations made by the Complainant;
• meter/mother-meter charges;
• alleged extra-work demand;
• possession;
• completion certificate; and
• pending Money Suit No.121 of 2023 and Title Suit No.297 of 2023.

You can therefore plead:

“That the dispute between the parties is a bona fide contractual and factual dispute concerning reciprocal obligations, additional works, alterations, payments and outstanding charges and cannot, without cogent evidence of fault or inadequacy, be characterised as deficiency in service.”

This is a much safer argument than saying that the Consumer Commission automatically loses jurisdiction because civil suits are pending.

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3. Possession can be linked to compliance with contractual obligations

NBCC (India) Ltd. v. Shri Ram Trivedi

Civil Appeal No. 274 of 2020, Supreme Court, decided on 08.03.2021

This is particularly useful for your possession-letter defence.

In that case, the contractual terms contemplated the offer of possession after obtaining the occupation certificate and subject to the applicant complying with the contractual conditions and clearing outstanding dues.

The Supreme Court examined the contractual arrangement and recognised the relevance of the allottee's outstanding dues and contractual compliance in relation to possession.

Use in your case

Your affidavit should say:

“That the Opposite Party has never refused possession to the Complainant. The Opposite Party has always been ready and willing to issue the possession letter subject to settlement of the legitimate outstanding obligations of the Complainant in accordance with the contractual arrangement between the parties.”

This is particularly useful against the Complainant's allegation that possession was deliberately withheld.

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4. The contractual terms and actual obligations of the parties are important

Bunga Daniel Babu v. M/s Sri Vasudeva Constructions & Ors.

Civil Appeal No.944 of 2016, decided on 14.03.2016

This is especially relevant because it concerned a landowner/developer arrangement.

The Supreme Court dealt with a landowner who entered into an arrangement with a developer for construction of a multi-storied building, sharing the constructed area between the landowner and developer.

The Court examined the terms of the MOU/addendum and the actual obligations undertaken by the developer.

Importance for your case

Your matter is also based upon a development agreement between the landowner and developer.

Therefore, the Opposite Party should emphasise:

“The rights and obligations of the parties are required to be determined with reference to the registered Development Agreement dated 12.08.2017, the supplementary agreement and the subsequent conduct of the parties, and not on the basis of isolated allegations contained in the complaint.”

This will strengthen your reliance upon the fresh Development Agreement dated 12.08.2017, rather than allowing the Complainant to selectively rely upon the earlier 2016 arrangement.

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5. Complainant cannot obtain compensation merely by making a general allegation

DLF Homes Panchkula Pvt. Ltd. v. D.S. Dhanda & Ors.

Civil Appeal Nos.4910–4941 of 2019, decided on 10.05.2019

This is very useful for attacking the Complainant's claim of ₹1,00,000/- compensation for mental agony.

The Supreme Court held that compensation for loss, mental agony, hardship etc. must be just, reasonable and commensurate with the loss or injury and cannot be awarded arbitrarily or on a mere rule-of-thumb basis.

The Court specifically held that Consumer Fora cannot award compensation under multiple heads for the same alleged default without an appropriate foundation.

Insert into your affidavit:

“That the Complainant's claim of Rs.1,00,000/- towards alleged mental agony, harassment and deficiency in service is wholly arbitrary and unsupported by any cogent evidence of actual loss or injury. In DLF Homes Panchkula Pvt. Ltd. v. D.S. Dhanda & Ors., Civil Appeal Nos.4910–4941 of 2019, decided on 10.05.2019, the Hon'ble Supreme Court held that compensation cannot be awarded mechanically or by applying a rule of thumb and must have a reasonable nexus with the loss or injury established on record.”

This is a strong authority for resisting the ₹1 lakh claim.

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6. Compensation cannot be duplicated under different heads

The DLF Homes Panchkula judgment is also useful if the Complainant seeks:

• ₹1 lakh mental agony;
• separate damages;
• litigation costs;
• compensation for alleged deficiency;
• and other monetary reliefs

all arising from the same alleged failure to hand over possession.

The Supreme Court held that compensation under different heads for the same default is not sustainable without proper justification.

Therefore add:

“That the Complainant cannot claim multiple and overlapping monetary reliefs arising out of the same alleged cause of action without establishing separate and legally recognisable loss or injury.”

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7. But be careful with possession-delay authorities

There is an important distinction.

Imperia Structures Ltd. v. Anil Patni & Anr.

(2020) 10 SCC 783

The Supreme Court has repeatedly recognised that a consumer remedy may coexist with other remedies.

Therefore, I would not advise pleading before the Commission that the complaint is automatically barred merely because Money Suit No.121 of 2023 and Title Suit No.297 of 2023 are pending.

That proposition would be vulnerable.

Instead, use the civil suits as evidence that:

1. there are genuine reciprocal contractual disputes;
2. the Complainant has not made a complete disclosure;
3. the allegation of deliberate deficiency is disputed;
4. the monetary obligations are seriously contested; and
5. the Complainant must prove his allegations independently.

That is a much stronger position.

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8. Suppression of material facts — very important

S.P. Chengalvaraya Naidu v. Jagannath

(1994) 1 SCC 1

The Supreme Court has repeatedly reiterated that a litigant approaching a court must come with clean hands and cannot obtain relief by suppressing material facts.

A recent Supreme Court judgment has again quoted and reaffirmed this principle, stating that a person who comes to court must come with clean hands and that suppression of material facts is a serious matter.

Apply this specifically to your case

Your affidavit should identify the alleged suppressions one by one:

(a) fresh Development Agreement dated 12.08.2017;

(b) fresh Power of Attorney;

(c) supplementary agreement;

(d) receipt/adjustment of ₹2,00,000/-;

(e) ₹35,000/- payment dated 22.10.2022;

(f) additional works and alterations;

(g) occupation of the garage;

(h) outstanding meter/mother-meter charges;

(i) correspondence between Advocates;

(j) Money Suit No.121 of 2023; and

(k) Title Suit No.297 of 2023.

Then plead:

“That the Complainant has not made a full and candid disclosure of the material facts and documents forming part of the contractual relationship between the parties. The Hon'ble Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1, has consistently held that a litigant approaching a judicial forum must come with clean hands and cannot seek advantage by suppressing material facts.”

This is a good supporting proposition, but do not use the word “fraud” unless the evidence actually establishes fraud. “Suppression/non-disclosure of material facts” is safer.

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9. Very important factual authority — Development Agreement between landowner and developer

The Bunga Daniel Babu case is worth keeping in the compilation because its factual setting is unusually close to your case:

Your case	Bunga Daniel Babu
Landowner	Landowner
Developer	Builder/developer
Development agreement	MOU/development arrangement
Owner's share	Owner's share
Construction obligations	Construction obligations
Additional works/issues	Construction/other works
Consumer complaint	Consumer complaint

The Supreme Court itself described the arrangement as one where the landowner provided the land, the builder constructed the building and the constructed area was shared between them.

However, remember that Bunga Daniel Babu ultimately found deficiencies on its own facts. So it should be cited for the nature of the development arrangement and contractual examination, not as an authority that automatically favours the developer.

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PROPOSED “JUDICIAL AUTHORITIES” SECTION IN YOUR AFFIDAVIT

I recommend inserting the following after the factual evidence and before the prayer:

JUDICIAL AUTHORITIES RELIED UPON BY THE OPPOSITE PARTY

118.

That the Opposite Party respectfully submits that the burden of establishing deficiency in service rests upon the Complainant. Mere allegations in a consumer complaint cannot, by themselves, constitute proof of deficiency. The Hon'ble Supreme Court in Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr., (2000) 1 SCC 66, and subsequently in The Chairman & Managing Director, City Union Bank Ltd. & Anr. v. R. Chandramohan, Civil Appeal No.7289 of 2009, decided on 27.03.2023, has held that the person alleging deficiency bears the burden of proving the requisite fault, imperfection, shortcoming or inadequacy.

119.

That the present dispute involves bona fide and substantial questions concerning the reciprocal contractual obligations of the parties, additional works, alterations, payments, meter/mother-meter charges and other monetary claims. The Hon'ble Supreme Court in City Union Bank Ltd. v. R. Chandramohan has reiterated that deficiency cannot be presumed in the absence of established fault or inadequacy and that bona fide disputes must be examined on their own facts.

120.

That the possession letter cannot be considered in isolation from the contractual obligations of the parties and the outstanding dues. The decision of the Hon'ble Supreme Court in NBCC (India) Ltd. v. Shri Ram Trivedi, Civil Appeal No.274 of 2020, decided on 08.03.2021, demonstrates the importance of the contractual terms governing offer of possession, including compliance with the contractual conditions and payment of outstanding dues.

121.

That the relationship between the Complainant and the Opposite Party arises out of a development arrangement and the rights and obligations of the parties have to be determined from the governing development documents and subsequent conduct. In Bunga Daniel Babu v. M/s Sri Vasudeva Constructions & Ors., Civil Appeal No.944 of 2016, the Hon'ble Supreme Court considered a comparable landowner-developer arrangement and examined the rights and obligations arising from the development agreement/MOU and related documents.

122.

That the Complainant's claim for Rs.1,00,000/- towards mental agony and harassment cannot be granted mechanically. In DLF Homes Panchkula Pvt. Ltd. v. D.S. Dhanda & Ors., Civil Appeal Nos.4910–4941 of 2019, decided on 10.05.2019, the Hon'ble Supreme Court held that compensation must be just, reasonable and commensurate with the loss or injury and cannot be awarded arbitrarily or merely by applying a rule of thumb.

123.

That the Complainant is also not entitled to overlapping or duplicative compensation under different heads arising from the same alleged default without establishing separate loss or injury. The Hon'ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. v. D.S. Dhanda & Ors. deprecated compensation under multiple heads in respect of the same default without an appropriate legal and evidentiary foundation.

124.

That the Complainant is further required to make a full and candid disclosure of all material facts relevant to the adjudication of his claim. The Hon'ble Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1, has held that a litigant approaching a judicial forum must come with clean hands and cannot obtain an advantage by suppression of material facts. The said principle has been repeatedly reaffirmed by the Hon'ble Supreme Court.

125.

That in the instant case, the Complainant has failed to make a complete disclosure regarding the subsequent Development Agreement dated 12.08.2017, the supplementary agreement, the receipt of Rs.2,00,000/-, the subsequent additional works and payment of Rs.35,000/-, alterations made in the owner's allocation, outstanding charges and the pending civil proceedings between the parties. Such facts are material for determining whether the alleged conduct of the Opposite Party constitutes deficiency in service.

126.

That the Opposite Party therefore respectfully submits that the complaint cannot be allowed merely upon the basis of unsubstantiated allegations and that the Complainant must establish each alleged deficiency by cogent evidence.

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Authorities I would actually cite in the final filing

I would keep the compilation focused, rather than putting 15–20 cases into the affidavit:

1. Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr., (2000) 1 SCC 66 — burden of proving deficiency.
2. The Chairman & Managing Director, City Union Bank Ltd. & Anr. v. R. Chandramohan, Civil Appeal No.7289/2009, decided 27.03.2023 — burden + bona fide dispute + no presumption of deficiency.
3. NBCC (India) Ltd. v. Shri Ram Trivedi, Civil Appeal No.274/2020, decided 08.03.2021 — contractual conditions and outstanding dues in relation to possession.
4. Bunga Daniel Babu v. M/s Sri Vasudeva Constructions & Ors., Civil Appeal No.944/2016 — landowner/developer development arrangement.
5. DLF Homes Panchkula Pvt. Ltd. v. D.S. Dhanda & Ors., Civil Appeal Nos.4910–4941/2019, decided 10.05.2019 — compensation must be founded on loss/injury and cannot be arbitrary or duplicated.
6. S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 — suppression of material facts / clean hands.

One caution

I would not rely heavily on cases such as Pioneer Urban or cases where the builder was actually found guilty of long-delayed possession, because the factual principle in those cases may assist the Complainant rather than your Opposite Party. For example, the Supreme Court has held that genuine contractual delay in handing over possession can itself constitute deficiency.

Therefore, the defence should be framed around “no established deficiency + readiness to give possession + reciprocal contractual obligations + additional works/alterations + documentary acknowledgments + suppression of material facts + no proof of ₹1 lakh injury”, rather than merely saying that a consumer complaint is not maintainable.

If the 24.03.2023 Advocate's reply letter, the Development Agreement dated 12.08.2017, Supplementary Agreement and the ₹35,000/- receipt are placed before me, I can next prepare a “List of Exhibits + Evidence-on-Affidavit paragraphs + cross-examination questions for Rakhal Chandra Nath”, with each question tied to a particular exhibit and the above Supreme Court authorities.