State Consumer Disputes Redressal Commission
Sea View Impex Pvt. Ltd. & Another vs Sanjit Singh & Another on 7 February, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/88/2021 ( Date of Filing : 05 Oct 2021 ) (Arisen out of Order Dated 15/03/2021 in Case No. Complaint Case No. CC/36/2019 of District Kolkata-II(Central)) 1. Sea View Impex Pvt. Ltd. & Another 119/2B, Harish Mukherjee Road, P.O.- Kalighat, P.S.- Bhawanipore, Kolkata- 700 026. 2. Tapas Kumar Bhagat S/o, Bijay Kumar Bhagat. 119/2B, Harish Mukherjee Road, P.O.- Kalighat, P.S.- Bhawanipore, Kolkata- 700 026. ...........Appellant(s) Versus 1. Sanjit Singh & Another S/o, Bhanu Pratap Singh. 22/1/H/8, K.C.Road, BB Bazar, P.O.- Cossipore, Kolkata- 700 002, P.S.- Cossipore. 2. The Director, Sea View Impex Pvt. Ltd. 119/2B, Harish Mukherjee Road, P.O.- Kalighat, P.S.- Bhawanipore, Kolkata- 700 026. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER PRESENT: Mr. S.L.Adak, Md. Adnan Ahmed, Advocate for the Appellant 1 Kanchan Gupta, Md Bani Israil, Advocate for the Respondent 1 Dated : 07 Feb 2023 Final Order / Judgement SMT. SAMIKSHA BHATTACHARYA, MEMBER
The instant appeal has been directed by the Appellants challenging the order dated 15.03.2021 passed by Ld. DCDRC, Kolkata-II (Central) in complaint case no. CC/36/2019.
The facts of the case, in brief, are that Respondent no.1/Complainant (hereinafter referred to as `Complainant`) and his family members decided to purchase a 3BHK Flat and by that time the Appellant no. 1/OP no. 1 (hereinafter referred to as 'OP no 1') being represented by Appellant No.2/OP No.2(hereinafter referred to as 'OP no 2') approached the Complainant and his family members to purchase a flat in the project namely 'SHIVAM APARTMENT' at 6A, Sen Bagan, North Station Road, P.O.-Agarpara, P.S. Khardah, Kolkata-700009 which was developing by the OPs no. 1 & 2 and the Directors of OP No 1 who are the OP No. 3 of the Complaint Case and the Respondent No. 2 of the present Appeal. The Op No. 1 is a Company registered under the Complainant's Act,1956 and carrying on business of developing land and building. The OP no. 2 is the Director of OP no. 1. The Complainant and his family members decided to purchase the flat in the name of Amarjit Singh @ Amarjeet Singh, the elder brother of Complainant and Usha Singh wife of Amarjit Singh, sister-in-law of the Complainant in the said project. Prior to entering into the agreement on 12.06.2013 Amarjit Singh & Usha Singh paid the booking amount of Rs. 50,000/- in respect of a flat on the 4th floor being Flat No. 4D measuring about 1000 sq.ft @ Rs.1600/- per. sq.ft. and thereafter, they paid Rs. 45,000/- on 03.12.2013 though no site plan as well as floor plan was given to the Complainant and his family members. Then the Complainant and his brother Amarjit Singh went to the office of the OPs and OPs insisted the Complainant and his brother to take the Flats being no. B and C1 measuring about 1500 sq.ft at the same rate instead of Flat being no. 4D to which the Complainant and his brother agreed to and the OPs assured that in the agreement the previous payment would be reflected. Accordingly,the Complainant and his brother made further payment of Rs. 1,05,000/- on 11.01.2014 , Rs. 50,000/- on 31.01.2015, Rs. 1,50,000/- on 26.02.2014, Rs. 1,00,000/- on 24.03.2014, Rs. 1,00,000/- on 26.04.2014, Rs. 1,00,000/- on 11.06.2014, Rs. 1,00,000/- on 16.07.2014, Rs. 50,000/- on 25.07.2014 and Rs. 1,00,000/- on 05.08.2014. Para-6 of the Complaint petition. During the period of aforesaid payment the Complainant and his family members requested the OPs several times to execute the sale agreement but the OPs did not. After 05.08.2014 the OPs asked the Complainant and his family members to come at their office and when the Complainant went to the office of the OPs with his brother the OPs started to pressurize the Complainant and his brother to take the flats being no. B & C on the 4th floor measuring about 1700 sq.ft.(200 sq.ft. larger than the Flat no. B and C-1) at a higher rate i.e. @ Rs. 2000/- per sq. ft. Since the family members of the Complainant paid the larger portion of the consideration amount they had no option but to accept the proposal of the OPs under compelling situation and made another payment of Rs. 2.5 lakhs on 20.09.2014 on the assurance that the agreement would be executed on 01.10.2014 but the OPs did not execute the same.
The Complainant and his family members also booked two shops at 'Trinetra Apartment' and two more flats at 'Shivam Apartment' from the same OPs. Thereafter the OPs disclosed that they are unable to give flats to the Complainant and his family members in the 'Shivam Apartment' and OPs gave proposal to take flat on another site namely 'Trishul Apartment' on the same locality @ 1700/- per sq. ft. Finally on 21.08.2015 the agreement for sale was executed by the Complainant and the OPs. Due to prevailing situation the family members of the Complainants decided to purchase the flat in the name of the Complainant instead of Amarjit Singh and Usha Singh. The aforesaid agreement for sale was entered in respect of South east facing self contained flat on the 3rd floor being Flat No. C measuring about 965 sq. ft at Mouza Tarapukuria , JL No.12,Rs. No. 27,Touji No. 178 under Khatian no. 537, Dag No. 570/1779, Holding No. 110, P.S. Khardah under Panihati Municipality, Ward No. 08. It was agreed that OPs would deliver the flat within 24 months from the date of signing the agreement or date of local municipality sanctioned plan. The OPs have obtained sanctioned plan on 04.04.2016. Till date the Complainant and his family members paid Rs.11,01,200/- out of total consideration of Rs.16,40,500/- but the OPs did not execute the same. Complainant several time requested the OPs to execute and register the deed of conveyance in favour of the Complainant upon payment of balance consideration but the OPs did not. Then the Complainant made a representation on 03.11.2018. Despite receiving the representation OPs did not bother to reply. Hence, the application praying for direction upon OPs to handover the possession of the flat and execute the registered sale deed in respect of Flat being No. C on the 3rd Floor measuring about 965 sq. ft. at Mouza Tarapukuria , JL No.12,Rs. No. 27,Touji No. 178, under Khatian No. 537, Dag No. 570/1779, Holding No. 110, P.S. Khardah under Panihati Municipality, Ward No. 8 or alternatively to pay a sum of Rs. 11,01,200/- along with 18% interest till the date of realization and compensation of Rs.3,00,000/- and litigation cost of Rs.55,000/-
OPs No. 1 &2 filed their written version to contest the case before the Ld. DCDRC.
In their written version OPs NO. 1 & 2 denied all material allegation inter alia stated that the money was advanced by Amarjit Singh and Usha Singh, and accordingly registration was made in the name of Amarjit Singh and Usha Singh. From the annexed money receipts it can be found that the money was advanced by Raj Singh and Usha Singh and Amarjit Singh &Usha Singh, the name of the complainant and his brother were not mentioned in the money receipts towards advance payment. As per payment, four deeds of conveyance were registered in favour of complainant and his family members. The deeds were being duly registered in the office of ARA II and IV Kolkata in the names of Usha Singh and Amarjeet Singh, Raj Singh and Rishav Singh. As per payment registration was already being made in favour of the complainant's family members. Two shop room and two flats are already in possession of the complainant's family members and those were registered properly.
As per agreement dated 21.08.2015 no advance payment was given as per agreement. On that agreement, payment schedule was shown but those payment were actually made by Uhsa Singh and Amarjit Singh by which they have taken flats on their names. Since no payment was made for the agreement dated 21.08.2015, the OPs have no liabilities to make such registration. The OPs are not bound to pay any amount as per claim mentioned in the petition of complaint. The complaint of the complainant is false and frivolous and the same should be dismissed with cost.
The District Commission allowed the complaint petition with the following direction:
"OPs are directed to handover possession of the subject flat to the complainant within 30 days from today after receiving balance consideration amount.
OPs are directed to execute and register, Deed of Conveyance of the subject flat in favour of the complainant within 15 days from the date of handover possession and receiving balance consideration amount.
Alternatively, the OPs are directed to refund Rs.11,01,200/- to the interest @ 6% per annum form the date of payments till realization of the amount.
OPs are directed to pay a sum of Rs.5,000/- as cost of litigation to the complainant."
Being aggrieved by and dissatisfied with the order OPs No. 1 & 2 filed the instant appeal.
The Ld. Counsel for the appellants has submitted that the consumer complaint is not maintainable for non-joinder of necessary parties.
The complainant has pleaded in his petition of complaint, the complainant and his family members purchased two shop rooms at Trinetra Apartment and two flat in 'Shivam Apartment' apart from the flat in the dispute. However, the complainant failed and neglected to produce any document to that effect, hence the complainant has not come with the clean hands. Therefore, the complaint should be dismissed on this ground.
The Ld. DCDRC has failed to appreciate that the evidence adduced by the parties goes to show the amount mentioned in the memo of consideration was in fact paid as consideration of the flats in some other project and the same has been adjusted in the same agreement and the complainant has paid no separate payment with respect to flat in dispute. Hence, the order and judgment passed by the Ld. DCDRC suffers from material irregularity and hence the same is liable to be set aside and/or quashed.
The impugned order has been passed only on the basis of the fact stated in the petition of complaint and hence the impugned order and judgment is an outcome of non-application of mind. The Ops have categorically pleaded in their written version that the flats and shop rooms which were booked by the complainant and his family members have already been sold and transferred in favour of the complainant and his family members, therefore, question of adjustment of amount earlier paid against the flat in question does not and cannot arise. The agreement in dispute is void for want of consideration and the same is not enforceable under law and that has not been properly dealt with and no opportunity was given to the appellant to adduce evidence in support of their defence and as such the impugned order is not sustainable under the law. The complainant has failed to produce any scrap of money receipts to show that he has paid Rs.11.01.200/- out of total consideration of Rs.16,40,500/-. The Ld. DCDRC has failed to appreciate that the complainant has paid no consideration for the flat in question and the Ld. DCDRC has committed grave injustice to the appellants/Ops No. 1 & 2 by recording contradictory findings. The Ld. DCDRC could have permitted the OPs No. 1 & 2 to produce the original conveyance deed which were registered in favour of the complainant and his family members. There is serious disputes regarding payment in respect of the agreement for sale. The value of agreement was more than Rs.16,0000/- and the said agreement was typed on non-judicial stamp paper of Rs.10/- and therefore, the whole case of the complainant was based upon a document which is unstamped and inadmissible in evidence. Hence the OPs No. 1 & 3 have prayed for setting aside the impugned order passed by the Ld. DCDRC.
Ld. Counsel for the complainant has submitted before this commission that there is no illegality in the impugned order and therefore, the appeal should be dismissed by confirming the impugned order passed by the Ld. District Commission.
Ld. Counsel for the complainant drew our attention by showing running page 56 of the memo of appeal where the OPs No. 1 & 2/appellant filed the agreement for sale entered by and between the OPs No. 1 & 2, the complainant and the owners/landlords. In internal page 6 of the said agreement for sale dated 21.08.2015, it has been specifically mentioned that the purchaser i.e., the present complaint has been interested to purchase the 3rd floor flat No. C measuring about 965 sq. ft. super built up area ( South-East facing) of the building as mentioned in the second schedule together with undivided proportionate share or interest in the land comprised in the said premises appertaining to the flat intended to be owned by the purchaser on the said premises as described in the first schedule. The allegation by the appellants is not true since the deed of conveyance was executed and registered in the names of Amarjeet Singh and Usha Singh, for the flat No. B & C which reflects from the running page 86 of the memo of appeal. The agreement for sale of the complainant and the deed of conveyance in the names of Amarjeet Singh and Usha Singh mention two different schedules. Therefore, the complainant has come for execution and registration of the deed of conveyance for the flat C in the name of the complainant as per agreement dated 21.08.2015.
Upon hearing the parties and on perusal of entire material on record, we have observed that the complainant entered into an agreement for sale on 21.08.2015 with the appellant No. 1 as the confirming party and with the land-owners who are represented by the constituting power of attorney Mr. Tapas Kumar Bhagat/the appellant No. 2. In the agreement for sale., the schedule of the flat has been mentioned as follows:-
"That subject to the terms and conditions contained herein, the developer/Second party herein has agreed to sell and the purchaser herein shall purchase All that piece and parcel of one self-contained flaton the 3rd floor Flat No- 3 measuring about 965 sq. ft. super built area (South-East facing) more of less together with the undivided proportionate share of land along with the easement rights of common areas, passages, installations, fittings and fixtures of the said building situatedin MouzaTarapukuria, J.L No. 12, R.S. No. 27, Touji No. 178, under Khatian No. 537, Dag No. 570/1779, P.S. Khardah under Panihati Municipality Ward No. 8, District North 24-Pagranas (particularly mentioned in the Schedule 'F' hereunder written) at or for a total consideration of Rs.16,40,500/- (Sixteen Lakhs Forty Thousand Five Hundred) only."
We have also noticed that the deed of conveyance in names of Amarjeet Singh and Usha Singh, the specification of flat is other which is mentioned as the flat being No. B&C on the 4th floor measuring about 1044 & 656 sq. ft. aggregating to 1700 sq ft. super built up facing north east and the schedule of the flat is mentioned as under which is mentioned in the 2nd schedule of the deed of conveyance dated 13.02.2015 (internal page 10):
"All that piece and parcel of one self-contained flat on the 4th Floor, Flat No. - "B & C" measuring about 1044 & 656 sq. ft. aggregating to 1770 sq. ft. super built up area more or less consisting of four bed rooms, one drawing cum dining space, one kitchen, three toilets and one balcony, together with the undivided proportionate share of land along with the easement rights of common areas, passages, installations, fittings and fixtures of the said building situated in MoujaTarapukuria, comprised in Dag No. 551, appertaining to Khatian No. 279, J.L. No. 12 Old Touji No. 178, New Touji No. 1, under P.S. Khardah, S.R.O. Barrackpore, holding No. 47, SenBagan Road, within the limits of Panihati Municipality, ward No. 9 District North 24-Parganas."
Therefore, the argument on behalf of the appellants that the complainant entered into the agreement for sale for which the flat has already been executed and registered in the names of Amarjeet Singh and Usha Singh cannot be accepted. The complainant has entered into the agreement for sale dated 21.08.2015 for flat No. C on the 3rd floor measuring about 965 sq. ft.
Now, we have to only consider whether the agreement for sale dated 21.08.2015 by and between the parties has been registered in the name of the complainant. Till date OPs have failed to produce any scrap of papers from which it can be evident that the agreement for sale dated 21.08.2015 has been executed and registered in the name of the complainant for flat No. C on the 3rdfloor measuring about 965 sq. ft. consisting of three bed rooms, one open kitchen, two bath, one balcony one drawing cum dining situated at MoujaTarapukuria, JL No. 12 RS No. 27 Touji No. 127 under Khatian No. 537, Dag No. 570/1779, Holding No. 110 PS kharda under Panihati Municipality, Ward No. 8. In the internal page 16 of the said agreement for sale under heading 'Memo of Consideration' it has been specifically mentioned that sum of Rs.11,01,200/- only received being the part payment out of total amount of Rs.16,40,500/- in respect of the property mentioned in the schedule of the agreement for sale dated 21.08.2015.
In the Para 2 of the internal page 8 of the agreement for sale dated 21.08.2015 it is mentioned that the purchaser has already paid a sum of Rs.11,01,200/-and in the last portion of Para 7 of internal page 8, it is mentioned that "balance payment of Rs.5,39,300/- would be payable at time of 3 instalments."
However, upon meticulous perusal of the record we have observed that in the internal page 16 of the agreement for sale under the heading 'Memo of Consideration" Rs.9,00,000/- has been paid by way of cash on different dates from 12.06.2013 to 05.08.2014, thereafter, it has been written that cheque No. 508221 dated 05.08.2014 amounting to Rs.50,000/-, Cheque No. 024433dated 20.09.2014 amounting to Rs.1,00,000/- and Cheque No. 508228 dated 20,09,2014 amounting to Rs.50,000/- all drawn on Allahabad Bank i.e., Rs.2,00,000/- paid by way of cheque and Rs. 1200/- paid on 20.09.2014 by way cash. But it is astonishing that the annexure filed with the petition of complaint.
All the money receipts towards cash payment as well as cheque payment on the date mentioned as above has been issued by the OPNO. 1 in favour of Amarjeet Singh and Usha Singh. No money receipt has been filed by the complainant which is issued in favour of the complainant.
Ld. Counsel for the appellants/Ops No. 1& 2 has submitted that no amount has been paid by the complainant to the OPs for the flat in question. We have also observed that under the heading "Memo of consideration" of the agreement for sale dated 21.08.2015 by and between the OPs and the complainant all the money receipts towards the payment as per memo of consideration has been paid by theUsha Singh and Amarjeet Singh for another two flats being No. B and C1 or B & C. On perusal of the deed of conveyance in favour of Usha Singh and Amarjeet Singh it appears to us that the consideration of flat B & C was Rs.34,00,000/- which was paid by the Usha Singh and Amarjeet Singh by cheques only in the year 2012, 2013 and 2015 and before the agreement for sale dated 21.08.2015 entered by and between the complainant and Ops No. 1 & 2. . It has been mentioned under the heading Memo of Consideration in running page 12 of the deed of conveyance by and between the OPs and Usha Singh and Amarjeet Singh.
The learned Counsel for the complainant stated that initially the amount was paid for flat No. B & C but thereafter, the amount was adjusted with the flat of the complainant. The consideration of Rs.34 lakh for the flat being No. B & C was paid separately and all the payments were made through cheques. Upon perusal of the record, and particularly the agreement for sale dated 21.08.2015 by and between the complainant and OPs it appears that OPs have admitted that Rs.11,01,200/- was received on and from the complainant. There is seal and signature of the OPcompany. Therefore, it is apparent from the agreement for sale that OPs have admitted the payment of Rs.11,01,200/- was paid by the complainant. All the money receipts towards the payment in support of considerationwere issued before the date of execution of agreement for sale. All the money receipts are issued in the year 2014 and the agreement for sale was executed on 21.08.2015. Therefore, all the payments may be adjusted with the flat of the complainant. Therefore, there is no dispute that an amount of Rs.11,1,200/- was paid in the account of the developer from the complainant as per agreement for sale dated 21.08.2015. It is also admitted fact that the OPs have not delivered the flat to the complainant till date. The balance amount of Rs.5,39,300/- (total consideration of Rs.16,40,500/- - paid amount of Rs.11,1,200) has not been paid by the complainant.
It is pertinent to mention that the performance of Ops suffers from deficiency in service and unfair trade practice. All money receipts are issued for another flats, the quantum of payment as reflected in the money receipts, are mentioned in the agreement for sale dated 21.08.2015 admitting the amount has been received from the complainant. These activities shows that OPs are performing unfair trade practice. Moreover, the money receipts were issued for Flats No. B & C1 and/or 4B & C. But the Flats being No. B & C were registered in the names of Amarjeet Singh and Usha Singh for a consideration of Rs.34,00,000/-. Rs.34,00,000/-was paid by way of different cheques and the cheques were issued in the year 2012, 2013 and one cheque has been issued in the year 2015 on 12.02.2015. The agreement for sale between the complainant and the Ops was executed on 21.08.2015.
On the other hand, the complainant has entered into the agreement for sale with the OPs which mentions the memo of consideration supporting the money receipts in the name of another purchasers and for another flats in question. Therefore, we think that both the parties have not come with clean hands.
As per foregoing discussion it appears to us that if we pass any order for execution and registration of the deed of conveyance, it will create another controversy and complications.
There is no dispute that OPs have acknowledged the payment of Rs.11,01,200/- from the complainant. On the date of hearing, the complainant has stated that he is ready to accept the consideration money as refund instead of execution and registration of the deed of conveyance for the flat in question. Since, the OPs have acknowledged the amount received from the complainant in the agreement for sale we are of the view that the complainant is entitled to relief with his alternative prayer as per the petition of complaint. For the finality of litigation and for interest of justice we think it would be proper if we pass the order of refund in favour of complainant.
Since, the amount of part payment i.e. Rs.11,01,200/- is retained by the OPs No. 1 & 2 from the dates of payment by the Complainant, the OPs No. 1 & 2 are bound to refund the amount with interest.
Therefore, the judement passed by the Ld. District Commission , Kolkata Unit -II is hereby modified to the following extent :
The OPs/appellants are directed to refund Rs.11,01,200/- along with simple interest @ 6% p.a. from the date of each payment till its realization within 60 days from date of passing of this order.
In view of above, the appeal be and the same is allowed in part on contest against Respondent No. 1 and exparte against Respondent No. 2.
There is no order as to costs.
The appeal is disposed of accordingly.
Consequently, the IA being No. IA/547/2022 stands disposed of, accordingly. [HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER