State Consumer Disputes Redressal Commission
Sri Satyendra Nath Ghosh vs L.P. Enterprise on 6 December, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/707/2016 (Arisen out of Order Dated 03/06/2016 in Case No. Complaint Case No. CC/126/2016 of District Kolkata-II(Central)) 1. Sri Satyendra Nath Ghosh S/o A.K. Ghosh, 31/2, Middle Road, Santoshpur, P.O. Purba Jadavpur, Kolkata - 700 075. 2. Smt. Mamata Ghosh W/o Satyendra Nath Ghosh, 31/2, Middle Road, Santoshpur, P.O. Purba Jadavpur, Kolkata - 700 075. ...........Appellant(s) Versus 1. L.P. Enterprise Rep. by its prop., Sri Subrata Paul, Baikuntha Saha Road, P.S. Purba Jadavpur, Kolkata - 700 075. 2. Smt. Elna Sinha D/o Lt. Pradyot Kr. Sinha, 31/2, Middle Road, Santoshpur, P.O. Purba Jadavpur, Kolkata - 700 075. 3. Sri Semon Sinha S/o Lt. Pradyot Kr. Sinha, 31/2, Middle Road, Santoshpur, P.O. Purba Jadavpur, Kolkata - 700 075. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Soumen Mondal, Advocate For the Respondent: Mr. Ardhendu Bikas Sengupta, Advocate Dated : 06 Dec 2017 Final Order / Judgement
Date of filing :05.08.2016 Date of hearing : 29.11.2017 The assail in this appeal under Section 15 of the Consumer Protection Act, 1986 ( for brevity, "the Act") is at the instance of Complainants is to the judgement/final order dated 03.06.2016 made by the District Consumer Disputes Redressal Forum, Kolkata, Unit - III ( in short, Ld. District Forum ) in Consumer Complaint No. 126/2016 whereby the Complaint lodged by the Appellants U/s 12 of the Act was dismissed on contest.
The Appellants herein being complainants lodged the complaint asserting that in order to purchase of a flat measuring about 674 sq. ft. super built up area on the first floor with common areas and facilities at premises no. 86, Middle Road, P.S - Purba Jadavpur, Kolkata - 700 075, Postal premises No. 31/2, Middle Road, Santoshpur, P.S - Purba Jadavpur, Kolkata - 700 075, Dist - South 24 Parganas within the local limits of Ward No. 104 of Kolkata Municipal Corporation (KMC) he entered into an agreement with the O.P. No. 1 on 05.03.2012 at a total consideration of Rs 15,43,460/-. The Complainants have stated that on the date of agreement for sale they paid the entire consideration amount to the Opposite Party. It was agreed that the O.P. No. 1 will deliver the said flat as per agreement but O.P. No. 1 despite payment of entire consideration amount Complainants did not get possession of the said flat within the specified period. The complainants have stated that on 03.06.2013 the O.P. No. 1 issued a letter with a false allegation that the consideration money has not yet paid and the said registered agreement is not a valid one. After receipt of the same, the Complainant replied to the same through the Ld. Advocate on 17.06.2013 and the said reply was received by Ld. Advocate for O.P. No. 1 and did not give any rejoinder to the said letter. Ultimately on 03.06.2013 the O.P. finally refused to execute the Deed of Conveyance. Hence, the Appellants approach the Ld. District Forum with prayer for direction upon the O.Ps to execute and register the Deed of conveyance in respect of the flat mentioned in schedule - A to the Petition of Complaint, to complete the incomplete works, to deliver possession, to pay compensation etc. The O.P. No. 1/ builder by filing a Written Version has admitted the existence of the agreement regarding subject flat at a consideration of Rs 15,43,460/- but it has been stated that the Complainants promised to pay but somehow manage the O.P. No. 1 and got the said agreement for sale executed and registered by O.P. No. 1 without any consideration money for which he compelled to institute a suit being T.S. No. 151/2013 which is pending before the Ld. 5th Civil Judge (Senior Division) at Alipore and as such the Complaint should be dismissed.
The O.P. Nos. 2 & 3 / Landowners by filing a separate Written Version have stated that the Complainants suppressing the existence of T.S. No. 151/2013 pending in the Court of Ld. 5th Civil Judge (Senior Division) at Alipore has lodged this complaint and as such it should be dismissed.
Considering the materials on record, the Ld. District Forum by the impugned judgement/final order dismissed the complaint. Being aggrieved and dissatisfied with the said order, the Complainants have come up in this Commission with the present appeal.
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
The evidence on record goes to show that one Sri Pradyut Kumar Sinha, since deceased was the original owner in respect of the land lying and situated at Municipal Premises No. 86, Middle Road, P.S - Purba Jadavpur, Kolkata - 700 075, Postal premises No. 31/2, Middle Road, Santoshpur, P.S - Purba Jadavpur, Kolkata - 700 075, Dist - South 24 Parganas within the local limits of Ward No. 104 of Kolkata Municipal Corporation (KMC) . On 18.08.2010 he entered into an agreement with the O.P. No. 1 for raising a multi storied building over the said property. Accordingly, Pradyut Kumar Sinha, the landowner executed a Power of Attorney authorising the O.P. No. 1 represented by Sri Subrata Pal for doing required activities for the purpose of the said Premises. Subsequently, on account of death of Pradyut Kumar Sinha, his son and daughter entered into a supplementary agreement with the developer on 21.08.2012 authorising the developer to carry out the construction job. They had also executed registered general power of attorney in favour of O.P. No. 1 on the self - same date i.e. on 21.08.2012.
Being emboldened with the authority reposed upon him, the O.P. No.1 for himself and also as constituted attorney of the landowner entered into a registered agreement for sale with the Complainants to sell a flat measuring about 674 sq. ft. super built up area on the first floor with common areas and facilities at premises no. 86, Middle Road, P.S - Purba Jadavpur, Kolkata - 700 075, Postal premises No. 31/2, Middle Road, Santoshpur, P.S - Purba Jadavpur, Kolkata - 700 075, Dist - South 24 Parganas within the local limits of Ward No. 104 of Kolkata Municipal Corporation (KMC) he entered into an agreement with the O.P. No. 1 on 05.03.2012 at a total consideration of Rs 15,43,460/-. The agreement for sale indicates that the purchaser / complainants have already paid Rs 15,43,460/- to the O.P. No. 1 being confirming party being constituted attorney of the owner / vendor and the developer. as per terms of the agreement. The O.P. No. 1 was under obligation to complete the construction within 10 months from the date of execution of the agreement.
The fact remains that despite alleged payment of entire consideration amount of 15,43,460/-, as depicted in the payment schedule, the Appellants did not claim possession even after expiry of considerable period. It also comes to surface that the O.P. No. 1 has instituted one suit being T.S. No. 151/2013 in the Court of Ld. 5th Civil Judge (Senior Division) at Alipore which is still pending for disposal. It is evident that the Appellants had entered appearance in the said suit but remained silent in the petition of complaint to that effect.
Ld. Advocate for the Appellants has submitted that the parties are bound by the agreement and when the registered agreement indicates that at the time of agreement the Appellants have paid the amount of Rs 15,43,460/-, there is hardly any scope to raise doubt as to genuineness of the agreement and as such the impugned order should be set aside.
Per contra, Ld. Advocate for the Respondent No. 1 / developer has submitted that despite opportunity when the Appellants have failed to produce any mode of payment either in cash or by cheque, the Ld. District Forum has rightly dismiss the complaint which should not be interfered with.
Usually, when there is an agreement, the parties are bound by it. On a cursory perusal of schedule of payment it would reveals that at the time of agreement the Appellants have paid the entire consideration amount of Rs 15,43,460/-. But at the same time a question also creeps in the mind why despite of payment of entire consideration amount after expiry of stipulated period of 10 months the Appellants remain silent. On the contrary, the O.P. No. 1 has instituted a civil suit for cancellation of the agreement before the Ld. 5th Civil Judge (Senior Division) at Alipore being T.S. No. 150/2013. Another startling fact is that the Appellants have totally suppressed the factum of civil dispute in their petition of complaint.
On a question on behalf of O.P. No. 1 as to - 'if you have paid the entire consideration to the O.P. No. 1 / developer at the time of execution of agreement for sale, can you give details of denomination of your payment of consideration and your source of income and Tax returns for such period in respect to your payment'? to which it was replied - ' the question of filing income tax return does not arise as I have paid money by selling gold ornament and taking loan from different sources and own source.
Having heard the Ld. Advocates appearing for the parties and on perusal of the pleadings and evidence on record it appears to me that several disputed questions of facts and law are involved in this case. Therefore, it would be quite difficult to decide the lis in a summary way. In AIR 1996 SC 2508 (Bharati Knitting Co. Vs DHL Worldwide Express Courier Division of Airfreight Ltd) the Hon'ble Supreme Court has observed thus - ' in an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original civil court established under the CPC or appropriate State Law to have the claims decided between the parties. But when there is a specific term in the contra, the parties are bound by the terms in the contract.' When the O.P. No. 1 has already instituted a civil suit before a competent civil court challenging its authenticity and the complainants suppress the same in the petition of complaint, I think Ld. District Forum was quite justified in dismissing the complaint.
Consequently, the appeal is dismissed on contest. However, there will be no order as to costs.
The impugned judgement / final order is hereby affirmed.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata Unit III for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER