State Consumer Disputes Redressal Commission
Md. Anwar Ali vs Jamil Ahmed Farooqui on 13 May, 2013
DRAFT State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.CC/176/2012 DATE OF FILING:10/02/12 DATE OF FINAL ORDER:13/05/13 COMPLAINANT : Md. Anwar Ali S/o-Late Md. Saheb Jan Ali 71/17, Topsia Road Kolkata-700 046 OPPOSITE PARTY : Jamil Ahmed Farooqui S/o-Late Md. Farooqui 70, Topsia Road (South) Kolkata-700 046 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE COMPLAINANT : Mr. Debnath Saha Ld. Advocate FOR THE OPPOSITE PARTY : Shahjee Kazim Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This order relates to the MA 177 of 2013 filed by the OP challenging the maintainability of the complaint case.
It has been stated in the miscellaneous application that there was no privity of contract between the parties with regard to the sale and purchase of the flat in question at any point of time.
The OP is neither a promoter nor a contractor. He is the owner of all the piece and parcel of land measuring 5 cottahs 13 chattacks at premises no.70, Topsia Road (South), Kolkata-700
046. For his financial requirement he wanted to develop his own land to earn money and maintain his family in future. There was a loan transaction between the OP and the complainant out of the personal relation between themselves. The alleged agreement on the basis of which the complaint case has been filed is a fraudulent document. When the OP took loan from the complainant the signatures of the OP were taken on some blank papers. The circumstances under which the OP took loan from the complainant has been sufficiently explained in the letter of reply of the Ld. Advocate for the OP to the Ld. Advocate for the complainant. The blank papers containing the signatures of the OP while taking loan from the complainant have been converted and manufactured by the complainant into the alleged agreement. The said document is fraudulent and manufactured one. The OP had long before entered into three agreements with three different persons for the entire three floors consisting of one flat each. Two such agreements were executed on 12/10/11 and another on 30/11/11. There was no scope on the part of the OP to enter into any agreement with the complainant for the sale of any flat in the said building. The complainant has committed fraud upon referring to the fraudulent document claiming to be an agreement which was without any format and without any date. There were some hand written portions which were not countersigned by the parties.
The alleged agreement will show that the complainant has not come before this Commission with clean hands. On the other hand, the OP had long before entered into an agreement with different persons for the sale of flats in the said building and those agreements were duly notarized and in proper format. It has been stated in the application that the agreement is null and void and the petition of complaint is not maintainable.
The complainant has filed written objection against the miscellaneous application denying all the allegations raised in the miscellaneous application filed by the OP. It has been stated that the miscellaneous application filed by the OP is baseless and frivolous with the intention to delay and drag the hearing of the complaint case.
The Learned Counsel for the OP/MA applicant has submitted that the complaint case is not maintainable. It is contended that the OP being the owner entered into an agreement with other persons for the sale of the flat to other persons.
It is contended that those agreements are in proper format and duly notarized and those intending purchasers are bonafide purchasers for value. It is submitted that the OP took loan from the complainant and took the signatures of the OP on some blank papers and subsequently taking advantage of the blank papers signed by the complainant, the same were converted into an agreement. It is submitted that the petition of complaint, under such circumstances, is not maintainable in view of the fake and fraudulent agreement.
The Learned Counsel for the complainant has submitted that miscellaneous application filed by the OP is not maintainable. It is submitted that the agreements filed by the OP are all manufactured documents.
It is contended that the complainant paid part consideration money of Rs.15 lakh by three cheques. It is submitted that nowhere in the letter of reply written by the Ld. Advocate for the OP there was any mention that the flats have been sold to others. It is contended that the miscellaneous application has no merit and it should be rejected.
We have heard the submission made by both sides and perused the papers on record. The main contention of the OP/MA applicant is that he has already entered into an agreement with others for the sale of the flats to others. It is the further contention of the OPs that on the ground of his sons education he took loan of Rs.15 lakh from the complainant and when he was busy in connection with the illness of his sister and was about to leave Kolkata for Patna, the complainant took the signatures of the OP on some blank papers as security for the loan. It has been contended by the Learned Counsel for the OP that the relation between the parties was cordial and on good faith the OP had put his signatures on some blank papers.
On perusal of the agreements filed by the OP along with the miscellaneous application we find that each of those agreements was in proper format and the same was notarized. Those agreements are dated 12/10/11, 13/10/11 and 30/11/11 in respect of first floor, second floor and third floor of the building. It is the contention of the OP that the purchasers under those agreements are bonafide purchasers for value. On perusal of the agreements filed by the OPs, we do not find any ground to disbelieve the same. On the other hand, the complainant has filed the complaint on the basis of the alleged agreement where there is no mention of the date of execution of such agreement. Moreover, some portions are hand written which bear no counter signature by the parties.
In Para-4 of the complaint it has been stated that the total consideration money was fixed at Rs.57,50,000/-. There is no mention of the amount of total consideration money in the agreement.
The agreement is also not in proper format. The recital therein is also not sufficient so as to constitute an agreement for sale of a flat. There is no schedule or description of the property which is sought to be purchased by the complainant. In this connection the letter of reply given by the Ld. Advocate for the OP to the Ld. Advocate of the complainant assumes much importance. It has been mentioned therein that in the month of January, 2012 the OP was in urgent need of some money for the higher education of his eldest son and as the relation between the parties was very cordial, the complainant advanced the loan of Rs.15 lakh by three cheques to the OP and two cheques were issued in favour of OPs son and other in the name of OP. It was further mentioned that the OPs sister fell sick at Patna and when the OP was in a hurry to proceed to Patna the complainant taking advantage of the situation took the signatures of the OP on some blank papers along with the money receipt. The OP also lodged information with the local P.S. to that effect.
In view of the serious infirmities raising reasonable doubt as to the genuineness of the alleged agreement filed by the complainant and having regard to the circumstances as disclosed in the letter of reply of the Ld. Advocate of the OP, we are of the considered view that the agreement filed by the complainant is not enforceable and the petition of complaint filed by the complainant on the basis of such agreement is not maintainable.
The miscellaneous application bearing no.177/2013 filed by the OP is allowed. The petition of complaint is dismissed being not maintainable.
MEMBER(SC) MEMBER(L) PRESIDENT