National Consumer Disputes Redressal
Satya Dulal Das Gupta vs Amitava Banerjee & 3 Ors. on 18 March, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2524 OF 2017 (Against the Order dated 13/07/2017 in Appeal No. 696/2015 of the State Commission West Bengal) 1. SATYA DULAL DAS GUPTA S/O. LT. KRISHNA LAL DAS GUPTA, OF 23, HARE KRISHNA SETT LANE, P.S. SINTHEE, KOLKATA--700050 WEST BENGAL ...........Petitioner(s) Versus 1. AMITAVA BANERJEE & 3 ORS. S/O. LT. DEBDAS BANERJEE, 23, HARE KRISHNA SETT LANE P.S. SINTHEE KOLKATA-700050 WEST BENGAL 2. SRI SIBASISH DAS S/O. SANJIB CHANDRA DAS, 28/1E, HARE KRISHNA SETT LANE P.S. SINTHEE KOLKATA-700050 WEST BENGAL 3. SRI GOUTAM DAS, S/O. NITYANANDA DAS OF 8B, KEDERNATH DAS LANE KOLKATA-700030 WEST BENGAL 4. SRI SANKAR SAHOO S/O. ASWANI SAHOO OF 8B, KEDERNATH DAS LANE KOLKATA-700030 WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE SUDIP AHLUWALIA,PRESIDING MEMBER
FOR THE PETITIONER : MR. DEBOJYOTI BHATTACHARYA, ADVOCATE FOR THE RESPONDENT : NEMO
Dated : 18 March 2024 ORDER
JUSTICE SUDIP AHLUWALIA, MEMBER
This Revision Petition has been filed against the impugned Order dated 13.07.2017 passed by the Ld. State Consumer Disputes Redressal Commission, West Bengal in Appeal No. 696/2015, vide which the Appeal filed by the Petitioner was dismissed, and the Order of the Ld. District Forum was affirmed.
2. The factual background in brief, is that the Petitioner is the owner of a plot of land with an old two-storied building situated at Premises No. 23, Harey Krishna Sett Lane in North 24 Parganas, measuring about 2 Cottahs 15 Chittack 11 Sq. Ft. The Complainant had been a tenant of the entire ground floor of the building for a long time and regularly paid rent. On 15.04.2010, the Petitioner entered into a Development Agreement with Opposite Party Nos. 2, 3, and 4 for the development of the property after demolishing the old building. Additionally, the Petitioner executed a registered General Power of Attorney on 16.04.2010 in favor of the Developers. As part of the agreement, the Complainant was required to vacate the rented premises for demolition and construction purposes, and to issue a 'No Objection Certificate' as necessary. In exchange for the NOC, the Opposite Parties agreed to allot a complete flat measuring around 500 Sq. Ft. carpet area on the ground floor of the new building, free of cost, including any registration fees. An agreement to this effect was signed between the Complainant and the Opposite Parties on 22.12.2010. The Developers completed the construction and delivered possession of the flat to the Complainant on 20.06.2013. However, they failed to execute and register a Deed of Conveyance in favour of the Complainant despite repeated requests. The Complainant then sent a Legal Notice dated 28.02.2014 to the Opposite Parties, urging them to register the Deed of Conveyance promptly, but received no response. Aggrieved by his failure to obtain a registered Deed of Conveyance, the Complainant filed his Complaint before the Ld. District Forum, North 24 Parganas, Barasat.
3. The Ld. District Forum vide its Order dated 12.05.2015 allowed the Complaint and directed the Petitioner (and other Opposite Parties) to execute and register the Deed of Conveyance in respect of the concerned Flat, along with payment of Rs. 10,000/- as compensation and Rs. 3,000/- as litigation costs. The Petitioner filed Appeal before the Ld. State Commission, which vide the impugned Order dated 13.07.2017 dismissed the same, and upheld the Order of the Ld. District Forum. The relevant extracts of the impugned Order are set out as below -
"Admittedly, the father of the complainant was a tenant under the appellant in respect of a portion of ground floor of an old two storied building lying and situated at Premises No.23, Hare Krishna Sett Lane, P.S.- Sinthee, Kolkata - 700050 at a rental of Rs.250/- per month payable according to English calendar. Undisputedly, on 15.04.2010 the appellant/landowner had entered into a Development Agreement with respondent nos. 2 to 4 for development of the said property after demolishing the existing structure. On the following day, i.e. on 16.04.2010 the appellant has also executed a registered General Power of Attorney in favour of respondent nos. 2 to 4. It is also not in dispute that on 27.06.2013 the respondent nos. 2 to 4 handed over the possession of one flat measuring about 400 sq. ft. super built up area on the backside of the building in favour of the tenant/occupier and to that effect, a possession letter/declaration dated 27.06.2013 is available on the record. The appellant/owner being a confirming party to the same put his signature as one of the witnesses with date.
Now, the whole trouble cropped up for non-execution of Deed of Conveyance.
Ld. Advocate for the appellant, on the threshold of his argument has submitted that the scheduled property is lying and situated under P.S.- Sinthee, Kolkata - 700050 within the local limits of Ward No.2 of Kolkata Municipal Corporation and as such the Ld. District Forum should have dismissed the complaint on the ground that it had no territorial jurisdiction within the meaning of Section 11(2) of the Act.
Needless to say, the jurisdiction means the authority of a Court/Forum to administer justice subject to the limitations imposed by law, which are three-fold, viz (a) as to subject matter, (b) as to territorial jurisdiction and (e) as to pecuniary jurisdiction. If any Court or Forum passes any order without any competence, the said order would be a nullity. In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi-vs.D.L.F. Universal Ltd. & Anr.) the Hon'ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not, in an appellate stage.
In the case beforehand, it is evident that in his written version, the appellant/ No.1 did not aver anything challenging the territorial jurisdiction of the Ld Distre Forum. Therefore, the question of lacking territorial jurisdiction does not carry any weight at this appellate stage.
Coming to merit of the case, it would reveal that the father of the respondent no.1/complainant was the tenant under the appellant. The tenant did not raise any objection with an understanding with the developer and the landowner after completion of the building, they will provide a flat measuring about 500 sq. ft. on the ground floor. The contention of the appellant that respondent no.1 is not a "consumer" as he did not pay any consideration amount does not appear to me acceptable because the handing over of the tenanted portion by a tenant to the landowner for ruising construction by itself is a consideration. Since, the construction has been completed and further when the developer has agreed to provide a flat to the respondent no.1 and to that effect has already handed over possession on 27.06.2013 in respect of 400 sq. ft. an the backside of the building and the mother of the respondent no.1 has accepted the same, the landowner/appellant in all fairness should not have stand on the way. In this regard, the pendency of suit of eviction in the Court of Ld. 3rd Civil Judge (Junior Division) being TS No.89/2014 has no relevancy with the facts and circumstances of the present case.
After giving due consideration to the submission advanced by the Ld. Advocate appearing for the appellant, I do not find any illegality or incorrectness in passing the order impugned. Therefore, the instant appeal is liable to be dismissed.
Consequently, the appeal is dismissed exparte. There will be no order as to costs.
The impugned Judgement/Final Order is hereby affirmed.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barisal for information."
4. Ld. Counsel for Petitioner has argued that the purported second Tripartite Agreement dated 22.12.2010 does not contain his signatures on any page and its last page is only a duplicate of the last page of the Development Agreement dated 15.04.2010, indicating a clear fraud. The authenticity of the signatures can be verified from the original records of the District Forum, which the State Commission and District Forum had overlooked; That it was highlighted in the Affidavit and Written Arguments in the Complaint that the original tenant, Uma Banerjee, had declared herself as a 'bonafide tenant'. Despite this revelation, the State Commission disregarded such crucial fact presented in the Written Arguments. It was the said Uma Banerjee who took possession of the 400 Sq. Ft. flat as a tenant by signing the possession letter, casting a doubt on the Complainant's claim; That the assertion made by the Complainant regarding filing a 'Registered/Notarized Agreement' is altogether false, as can be seen from scrutiny of the original records of the District Forum; That the Complainant's claim of receiving tenancy rights from his mother is unsubstantiated, as tenancy rights cannot be transferred without explicit written consent from the landlord. Thus, the entire case of the Complainant is deemed false, and based on a forged Agreement dated 22.12.2010.
5. Ld. Counsel for Respondent No. 1 has argued that all the Agreements in question were duly registered, and their authenticity has been substantiated by presenting the original documents before this Commission. Arguing against questioning the authenticity of these documents at this stage is not maintainable in Revisioniary jurisdiction, and the Commission ought to refrain from entertaining such pleas; That it is actually the another reluctance of the Petitioner to register the Conveyance Deed in favor of the Complainant, despite prior agreement to do so, as clear from the unwillingness of the Petitioner to fulfil his obligation; That the arrangement where a tenant relinquishes possession to facilitate property development, in exchange for ownership of a flat, constitutes a valid consideration as affirmed by numerous judgments of both this Commission and the Hon'ble Apex Court. In the light of these contentions, it is asserted that the present Petition lacks merit and is liable to be dismissed.
6. Ld. Counsel for Respondent No. 2, 3, and 4 has argued that by virtue of a registered General Power of Attorney (GPA) executed on 16.04.2010, the Petitioner duly authorized them as lawful Attorneys to negotiate and conclude any agreement for the sale of the building or any part thereof mentioned in the Schedule; That Uma Banerjee, the original tenant, issued a Declaration dated 10.06.2010 authorizing her son, the Complainant, to negotiate on her behalf due to her ailing condition; That given the authority conferred by the GPA, Respondent Nos. 2-4 engaged in negotiations with the Complainant and subsequently entered into an unregistered Agreement dated 22.12.2010. This agreement stipulated conditions for vacating the premises and providing a No Objection Certificate (NOC) to facilitate ongoing development work; That Respondent No. 2-4 fulfilled their obligations by completing the development work and delivering both the Owner's Allocation and the Tenant's portion (measuring 400 Sq. Ft.) to the Complainant through a Possession Letter dated 27.06.2013.
7. The office note dated 18.7.2024 shows that the written notes of arguments have been filed by Respondent Nos. 2 to 4, but no appearance from their side has ever been made before this Commission after 13.6.2022 on which date Shri Parveen Mishra, Advocate had appeared on behalf of Respondent No. 4. While the other three Respondents remained unrepresented.
8. Nevertheless, this Commission has considered their written submissions on record and also heard the submissions made by the Ld. Counsel for Petitioner carefully.
9. The Petitioner who was the Opposite Party No.1 in the original Complaint Case is aggrieved that neither of the Ld. Fora below had cared to consider much less to examine the validity of his claim that he was never a party to the alleged Agreement dated 22.11.2010 by virtue of which the Complainant/tenant had allegedly agreed to transfer ownership of disputed Flat on the ground floor along with the Developers/Opposite Party. His clear and unambiguous case all along was that the aforesaid Agreement was a collusive and forged document entered into between the Complainant, tenant and the Developers/OP Nos. 2 to 4, and was therefore, not binding upon him. It was in view of such submission made on behalf of the Petitioner way back in the year 2018 that the Hon'ble Presiding Member of the concerned Bench of this Commission, which was hearing the matter on 27.4.2018 had directed requisitioning the original record of the Ld. District Forum. The records have since been received. In addition, the originals of the various documents were also filed by the Ld. Counsel for Respondents on 29.1.2019.
10. Ld. Counsel for the Petitioner has first of all drawn attention to the averment in para 7 of his written version filed before the Ld. District Forum, in which he had categorically stated that he was never aware of any such Agreement, thereafter in Para 3 of his Memorandum of Appeal filed before the Ld. State Commission, he had categorically stated that he was not a party to the said Agreement dated 22.11.2010, and that he "did not put any signature in that impugned illegal Agreement dated 22.11.2010." But these contentions of the Petitioner were not taken into account by both the Ld. Fora below. This Commission has carefully examined the aforesaid document i.e. the Agreement dated 22.11.2010, relied upon by the Complainant, the original of which is available in the case file after the same was filed on behalf of Opposite Party on 29.1.2019 and photocopy of the same, which was filed in the Ld. learned District Forum as Annexure A, and which alone had been considered by both the Ld. Fora below. A careful comparison of the original document on record, as well as its photocopy, which was filed in the District Forum on the basis of which, the Complaint and the Appeal were decided against the Petitioner/Opposite Party No.1, clearly goes to show that the photo copy filed before the Ld. District Forum was an out and out forged document. This is so because the actual document runs into only nine sheets, none of which bears the signature of the Petitioner/OP No.1 on any page whatsoever, not only in the original document on record, but also in the photocopy of the same, which was filed as Annexure-A in the District Forum, on all the nine pages. But the original document goes to show that it was actually the complete in itself within those nine pages, and there was no extra page beyond page No.9. However, in the District Forum there was an additional page in the Photostat copy placed on record, which ostensibly would indicate that the Petitioner was also a signatory to the said document. But a careful glance over such extra sheet in the photostat of the Agreement filed before the District Forum clearly reveals that the running page number at the top thereof is "13", which automatically proves that it is an artificially attached document, which was not there in the original Agreement dated 22.11.2010, and had the same been a genuine part thereof, its page number ought to have been "10". Further, it is also verified from the original document on record that the said running page 13 under the heading 'MEMO OF CONSIDERATION' is actually a part of only the development Agreement between the Petitioner and M/s ADYAMA CONSTRUCTION represented by its three Partners (OP Nos.2, 3 & 4), and that the Complainant/tenant Amitava Banerjee was never a party to the said Development Agreement dated 15.4.2010, and his signature is nowhere to be seen either in the original page No.13 of the said Agreement or even in the Photostat copy of the said page attached to Annexure-A filed in the District Forum, although on rest of the first nine pages, his signature is invariably seen in Bengali on the right side margin of each page.
11. Unfortunately, both the Ld. Fora below did not attempt to consider such averment and contentions raised on behalf of Petitioner/Opposite Party nor carefully examined the document Annexure-A, on the basis of which, they held that the Complainant was a 'Consumer' qua the Petitioner, although actually there was never any Agreement between him regarding transfer of the ground floor Flat to the Complainant whose original status therein was only of a tenant. Both the Ld. Fora below therefore, fell into error by not taking notice of the fact that Photostat copy of the alleged Agreement dated 22.11.2010 filed as Annexure-A was a forged document by way of fraudulent insertion of running page 13 in the same, which page actually was a part of a different Development Agreement executed only between the Petitioner and other Opposite Parties.
12. For the aforesaid reasons, this Commission is of the opinion that the concurrent decisions of both the Ld. Fora below are liable to be set aside, since they have failed to take notice of the palpable evidence of forgery in the document filed by the Complainant, on the basis of which, the complaint was allowed.
13. Consequently, the Revision petition is allowed after setting aside the orders of both the Ld. Fora below and the original Complaint filed by Respondent No.1 accordingly, stands dismissed.
14. Parties to bear their own costs.
15. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
......................................J SUDIP AHLUWALIA PRESIDING MEMBER