State Consumer Disputes Redressal Commission
Sri Bishwadev Koley vs Sri Rabi Manna on 29 April, 2013
DRAFT State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.FA/176/2012 (Arising out of order dated 24/02/12 in Case No.62/2010 of District Consumer Disputes Redressal Forum, Hooghly) DATE OF FILING:24/04/12 DATE OF FINAL ORDER:29/04/13 APPELLANT : Sri Bishwadev Koley S/o-Late Panchkori Koley Khalisani, Baganbati P.S. Bhadreshwar District-Hooghly RESPONDENTS : Sri Rabi Manna S/o-Sripati Manna Nichupatti P.O. & P.S. Chandernagore District-Hooghly 2) Sri Pranab Roy S/o-Late Durgadas Roy Fatakgora P.O. & P.S. Chandernagore District-Hooghly BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANT : Mr. Ved Sharma Ld. Advocate FOR THE RESPONDENTS : Mr. Prasanta Banerjee Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This appeal is directed against the judgment and order passed by Learned District Forum, Hoogly in case no.CC 62 of 2010 dismissing thereby the complaint.
The case of the complainant/appellant, in short, is that the complainant was the registered owner of the landed property as described in Schedule-A. The complainant entered into a development agreement with the OP for the purpose of construction of building on a plot of land belonging to the complainant as described in Schedule-A. The OPs are promoters-cum-developers. The OPs wanted to develop the A schedule property after purchasing it from the complainant. The OPs initially offered for a joint venture agreement with the complainant which the complainant refused and thereafter the OPs once again came to the complainant with a new proposal that he would purchase the scheduled property at a marketable price prevailing at that point of time. The OPs offered to purchase entire scheduled property from the complainant and the deal was finalized on condition that the consideration money would be Rs.10 lakhs out of which Rs.6 lakhs would be paid to the complainant in cash and for the balance sum of Rs.4 lakhs, a flat measuring 500 sq. ft. would be given to the complainant by the OPs. As per the terms of the agreement the complainant executed a sale deed in favour of the OPs whereupon the property was sold to the OPs. After the transfer of the scheduled property the OPs started raising a multi-storied building thereon under the name and style Maa Jagadhatri Apartment. When the construction was on the verge of completion, the complainant demanded the proposed flat measuring about 500 sq. ft. from the OPs. But the OPs ignored to honour the said demand of the complainant.
The complainant sent a notice dated 25/07/08 requesting the OPs to handover the peaceful possession of the agreed flat as per terms of agreement dated 19/05/2000. The OPs wrote a letter to the complainant dated 29/08/08 wherein some false allegations were made against the complainant and the execution and registration of the deed as well as the delivery of possession were denied by the OPs.
The complainant again wrote a letter dated 21/10/08 denying the allegations raised by the OPs. In the said letter it was stated by the complainant that some signed blank papers were misplaced and, as such, a G. D. Entry No.330 dated 07/07/06 was lodged with the local P.S. It has been alleged in the complaint that the OPs started/opened the booking of flats and started selling the same without giving delivery of possession of 500 sq. ft. flat in favour of the complainant and under such circumstances, the complainant had to file a civil suit before Learned Court of Civil Judge (Junior Division), Chandernagore being T.S. No.284 of 2008 which was disposed of with the order for return of the plaint on the ground of lack of pecuniary jurisdiction. For the said reasons, the complaint was filed before the Learned District Forum praying for a direction upon the OPs to handover the possession of the flat and to execute and register the sale deed in favour of the complainant, alternatively, directing the OPs to pay sum of Rs.4 lakhs with statutory interest to the complainant; compensation of Rs.6 lakhs and litigation cost of Rs.50,000/-.
Th OPs filed W.V. denying all the material allegations raised by the complainant. It has been averred that the complainant has created the story of construction of Maa Jagadhatri Apartment for the purpose of this case.
The present dispute is purely civil in nature which is required to be adjudicated by a competent civil court.
The complainant has not come with clean hands and, as such, he is not entitled to get any relief.
The Learned Counsel for the appellant/owner has submitted that in the W.V. and in the evidence of the OPs there is no mention about the alleged declaration dated 15/07/06. It is contended that the Learned District Forum was not justified in relying on the declaration dated 15/07/06 whereby the complainant allegedly waived his right to the flat in question. It is submitted that the alleged declaration dated 15/07/06 was filed by the OPs at the time of filing reply to the questionnaires, but no copy of the same was handed over to the complainant. It is submitted that the complainant was not given an opportunity to cross-examine the OPs on the point of alleged declaration regarding the waiver of his right to the flat. It is contended that the document filed, for the first time, at the time of filing reply without supplying the copy of the same to the complainant, cannot be accepted.
It is contended that the Learned District Forum was not justified in dismissing the complaint in view of the agreement by and between the parties and the sale deed executed by the complainant in favour of the OPs with the condition that the OPs will deliver a flat measuring 500 sq. ft. in favour of the complainant.
The Learned Counsel for the respondent has submitted that in the W.V. there was mention about the declaration regarding waiver of the right to the flat and the declaration was filed at the time of filing reply, but no copy thereof could be supplied to the complainant as the complainant remained absent on 28/09/11. It is submitted that in the G. D. Entry no allegation was made against the OPs in respect of the alleged loss of signed blank papers. It is contended that there is no ground to interfere with the findings of the Learned District Forum.
We have heard the submission made by both sides and perused the papers on record. Admittedly, there was an agreement by and between the parties dated 19/05/2000 wherein it was stipulated that the OPs purchased the property at a consideration of Rs.6 lakhs and the OPs will deliver a flat measuring 500 sq. ft. to the complainant free of cost. It was further stipulated therein that the OPs will first deliver the flat in favour of the complainant and thereafter will sell the other flats to others.
On 17/05/2000 the sale deed was executed in respect of property for a consideration of Rs.6 lakhs. The complainant in his evidence and in the complaint has categorically stated that the construction was made and when he demanded the flat, the OPs refused. On the point of construction the OPs in the W.V. denied it, but the complainant put questionnaire no.12 as follows:
Kindly inform this Learned District Forum as to where the said Jagadhatri Apartment has been constructed and whether the construction of the same has been completed.
The OPs answered questionnaire no.12 as follows:
Not completed.
Nothing has been said in answer to question no.12 put by the complainant that the construction has not at all been raised in the property in question. Therefore, it is an established fact that the construction has been made and the complainant vide his letter dated 25/07/08 demanded the agreed flat from the OPs wherein it has been clearly mentioned that the OPs had completed the said plot and on several requests being made by the complainant, the OPs refused to deliver the same. Therefore, it can be said to be an established fact that the OPs raised construction on the plot in question. It is also clear that in view of the specific averment made in the complaint and in the subsequent letter issued by the complainant there is consistent point taken by the complainant that the OPs started selling the flats to the intending purchasers. In this connection it appears from the agreement in question that the developer would deliver the agreed flat to the complainant first and thereafter would be entitled to sell other flats to the intending purchasers. This attempt on the part of the OPs to sell the flats to the intending purchasers without first delivering flat to the complainant was in breach of the terms of the agreement.
As regards the alleged waiver of the right to get the flat under the agreement, the Learned Counsel for the appellant has challenged the alleged declaration dated 15/07/06. We have already held that the construction has been made on the plot in question and the complainant has succeeded in establishing that the OPs started selling the flats to the intending purchasers and in such view of the matter, alleged declaration stating that the complainant could not evict the tenants from the plot in question and thereby surrendered his right to get the agreed flat is quite contrary to the existing state of affairs and the terms of the agreement as well. In this connection it has been contended by the Learned Counsel for the appellant that the complainant lost some signed blank papers and it was duly brought it to the notice of the concerned P.S. vide G.D. Entry No.330 dated 07/07/06. Such being the position, we are not inclined to attach any importance to the alleged declaration dated 15/07/06 regarding the waiver of the right to flat.
As regards the prayer made by the complainant in the petition of complaint we are inclined to allow the alternative prayer of the complainant regarding in (a) for the refund of the amount of Rs.4 lakh as to the value of the agreed flat. On the point of compensation, we are of the considered view that the OPs did not deliver the agreed flat to the complainant and on the other hand, started selling the flats to the intending purchasers in violation of the terms of the agreement.
Considering the harassment and the mental agony suffered by the complainant we are of the considered view that the appellant/complainant is entitled to get compensation of Rs.1 lakh and the litigation cost of Rs.40,000/-. The Learned District Forum was not justified in dismissing the complaint relying on the alleged declaration dated 15/07/06.
In the result, the appeal is allowed. The impugned judgment is set aside. The complaint is allowed in part. The respondents/OPs are jointly and severally directed to pay Rs.4 lakh being the value of the agreed flat, compensation of Rs.1 lakh and litigation cost of Rs.40,000/- to the appellant/complainant within 45 days from this date failing which the aforesaid amount will carry interest @ 9% per annum till realization.
MEMBER(SC) MEMBER(L) PRESIDENT