National Consumer Disputes Redressal
Tamal Ghosh & Anr. vs Ashoke Kumar Biswas on 7 May, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2246 OF 2016 (Against the Order dated 13/07/2016 in Appeal No. 740/2015 of the State Commission West Bengal) 1. TAMAL GHOSH & ANR. 311/9/2, NAGENDRANATH ROAD, KOLKATA-700028 WEST BENGAL 2. M/S. T. GHOSH AND ASSOCIATES, 311/9/2, NAGENDRANATH ROAD, P.S. DUM DUM, DISTRICT-NORTH 24 PGS KOLKATA-700028, WEST BENGAL ...........Petitioner(s) Versus 1. ASHOKE KUMAR BISWAS S/O. GOUR HARI BISWAS, R/O. 122, VISHAL RESIDENCY, FLAT NO. 404, PANTNAGAR, P.O. GHATKOPAR EAST, P.S. PANTNAGAR MUMBAI-400075 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. ANUP K THAKUR,PRESIDING MEMBER
For the Petitioner : For the Petitioner : Mr. Alok Mukhopadhyay, Advocate For the Respondent : For the Respondent : In person
Dated : 07 May 2019 ORDER
Anup K. Thakur
1. This Revision Petition No.2246 of 2016 challenges the impugned order dated 13.07.2016 of West Bengal State Consumer Disputes Redressal Commission, Kolkata (for short, 'State Commission) vide which the final order dated 04.06.2015 of District Consumer Disputes Redressal Forum, North 24 Pgs, Barasat (for short, 'District Forum') in C.C. No.311 of 2014 was affirmed.
2. Very briefly, the respondent/complainant- Sri Asoke Biswas (complainant hereinafter), vide CC 311/2014, sought relief from the District Forum, in as much as he had paid the full consideration amount and more for a flat he had purchased from the petitioner/appellant/opposite parties (OP hereinafter), had taken possession too on 5.2.2005, but was yet to get registration of sale deed of the said flat with undivided proportionate share of land. Other reliefs included full completion of the flat, obtaining of completion certificate, compensation of Rs. 5 lakh, Rs 25,000/- as litigation cost etc.
3. As per the complainant, he was working in Mumbai. Upon coming to know that the OPs were, under a development agreement with one Sri Amitava Mitra, the land owner, constructing a multi storied complex and had invited buyers for flats, he saw the relevant documents, was satisfied that everything was in order, and entered into an agreement with the OPs dt. 10.12.1998 : he paid Rs. 50,000/- vide draft no. 746878 and agreed to pay the balance consideration; the sale transaction was to be completed within 31st October, 1999. While the complainant paid the full amount, in installments, the last payment being Rs. 50,000/- on 5.2.2005, which included an extra Rs. 31,000/- demanded by the OP s on account of rising prices etc., and also took possession, since then, despite repeated requests, the OPs have not executed and registered the sale deed. When the complainant, post -retirement, returned to Kolkata and visited OP on 10.6.2014, OP wanted Rs 12 lakh more, citing increased market value and declining the registration request Hence the consumer complaint before the District Forum.
4. This was contested by the OPs through a written reply. Besides a host of preliminary objections-gross suppression of facts, unclean hands, not a consumer, no specific cause of action - it was admitted that the OPs were promoter/developer in a development agreement between OPs and the owner, and that OP 1 - the company had every right to sell the flats to intending purchasers. The agreement dt. 10.12.1998 was denied: OPs had not prepared it, OP 2's signature was forged, complainant's signature was missing; the signature of witness Sri Probir Kumar Mitra was arranged by the complainant but in any case, Sri Mitra had expired long before. OPs challenged the genuineness of all the money receipts attached with the complaint. OPs disputed document dt 5.2.2005, a letter from the complainant to the OP 2 informing the OPs that he had received possession, had paid Rs. 3,40,000/- and was ready to register deed of conveyance, claiming that this letter had been shown as received by forging OP 2's signature. OP s deny the letter dt. 10.8.1997, written by Sri Probir k Mitra, on behalf of the complainant, arguing that Sri Mitra had expired long time ago. Finally, OPs submitted that the complaint was completely barred by limitation, since the date of agreement was 10.12.1998, and the date of possession was 5.2.2005, whereas complaint before the District Forum had been filed on 16.6.2014.
5. The District Forum found no substance in the allegation of forgery, on the basis of it's own examination of impugned documents and signatures, and therefore found that the OP s could not deny the payments of consideration money and the delivery of physical possession. Equally, the complainant could not deny his liability to pay the registration cost. It ordered accordingly, directing OPs to execute and register sale deed at the cost of the complainant, and hand over the completion certificate 15 days after registration, and pay Rs. 15,000/- as compensation and Rs. 5,000/- as cost. The appeal made by the OPs before the State Commission was dismissed on contest with a further cost of Rs. 20,000/- imposed on the OP s, to be paid to the complainants. The State Commission duly considered the arguments of OPs qua forgery, the request of the OPs for reference to a hand writing expert before the District Forum which was granted, the manifest failure by the OPs to take this opportunity, and thereafter the OP's willing participation in the final arguments, as proof enough that the only object behind the appeal was to cause delay in execution of the promise made by the OPs to the complainant. The present Revision Petition has been filed against this order of the State Commission.
6. Heard arguments on 06.03.2019. Counsel for the petitioners/ OPs essentially raised more or less the same arguments already considered by the lower fora viz. denial of the documents furnished by the complainant, on the ground that signatures of the OP 2 were forged. It was also argued that the land owner had not been made a party in the agreement dt. 10.12.1998 between the parties. It was further mentioned that the land owner, Sri Amitava Mitra, had died intestate, leaving his wife as the legal heir. The learned counsel vehemently argued that the agreement dated 10.12.1998 signed between the OP and the complainant was not a document prepared by the OP, pointing out irregularities in support of his contention such as (i) not signed by the complainant, (ii) land owner not a party, (iii) OP's signature forged. He further argued that the developer received from Shri A.K. Biswas Rs.1 lac vide cheque dated 24.7.97. This was before the agreement signed in 1998 referred to above. The further point made was that if this Rs.1 Lac was indeed towards the flat, why was it not mentioned in the development agreement which only took cognizance of Rs.50,000/- as paid. Counsel for the OP drew attention to letter dated 2.2.2005 from Shri Tamal Ghosh, proprietor of M/s. T. Ghosh and Associates addressed to Shri Ashoke Kr. Biswas, informing the complainant to take possession of the flat, and held that this letter was not genuine and that Shri Tamal Ghosh's signature was forged. Similarly, he referred to letter dated 5.2.2005, from the complainant to Shri Tamal Ghosh, claiming that this letter was also forged and doubtful as there was no signature of Shri Ashoke Kr. Biswas, the complainant. The short point being made by counsel for the OP was that the agreement, letter offering possession, letter accepting possession, were all doubtful and forged documents. To a query as to whether this had been raised before the lower fora, counsel submitted that an application had been made to the District Forum, praying for appointment of handwriting expert: the prayer was allowed and both were directed to appear before the forum on 3.2.2015 to put their specimen signatures and also to file original documents bearing their signatures. Counsel for the OP stated that after this there was no whisper in the order-sheet as to what happened to this. Counsel for the OP further submitted that this issue had been agitated before the State Commission who however considered the same and concluded that the only object behind the appeal was to delay execution of promise made by the OP to the complainant. Counsel for the OP further argued that in District Forum's order dated 4.6.2015, it had been recorded that OP denied signatures on money receipts and copy of agreement and that his specimen signature was taken on 9.2.2015 on a plain sheet and upon perusal of the specimen signatures and the signatures in money receipts and agreement, it appeared to the District Forum that the signatures belonged to the same person. Counsel for the OP further submitted that it was not for the District Forum to be the judge of whether the signatures were forged or not. Therefore, it was pleaded that this factum be taken into account while deciding the revision petition. Counsel for the OP also referred to certain citations to make the point that once a forgery has been alleged, it has to be decided and the only way of deciding was by reference to handwriting expert. The citations filed in this regard were (i) Velugubanti Hari Babu vs. Parvathini Narasimha Rao, 2016 (4) CHN (SC) 134, (ii) Rajat Kanti Roy Vs. SBI Life Insurance Co. Ltd. & Anr., III (2016) CPJ (NC), (iii) New India Assurance Co. Vs. M/s. Penta Care Ayurpharma, 2013 (3) CPR 33 (NC), (iv) Ashok Jain Vs. TATA AIG Life Insurance Co. Ltd. & Ors., 2016 (1) CPR 635 (NC), (v) Raj P.U. Foam Industries Vs. National Insurance Co. Ltd. and Anr., (2015) CJ 563 (NC).
7. The complainant appeared in person and argued his own case. His submissions were briefly that he had made all payments, by means of demand draft only, as he was stationed in Mumbai. He submitted that he came to know of this project through some family contacts and friends and since he was in Mumbai, he depended on an associate to handover demand drafts to Shri Tamal Ghosh. When however he began to inquire about the flat's registration, he was always put off by Shri Tamal Ghosh who furnished some excuse or the other. Therefore, finally, he had to approach the District Forum with a consumer complaint.
8. Counsel for the OP ended his arguments, by reiterating that no payments had been received at all, that agreement had not been signed by the land owner and that Shri Amitabh Mitra was not a party and in any case, he was dead survived by his wife.
9. Having heard the learned counsel for the OP and the complainant in person, and upon a careful perusal of the record, I am of the considered opinion that there is no occasion to call for any interference with the impugned order of the State Commission.
10. Admittedly, development agreement between the OP s and the land owner, for construction and sale of flats by the O P s, did exist. What has been questioned is the agreement between the complainant and the OPs. Counsel for OP has alleged that this is a non-genuine document, manufactured by the complainant, which did not bear the complainant's signature and in which the OP s signature was forged. In the same vein, all the documents such as letter dt. 2.2. 2005, 5.2.2005, all the receipts etc. have been denied by the counsel for the OP.
11. The District Forum had examined these allegations in it's detailed order dt. 4.6.2015. The forum, upon the OP's allegations, had sought the OP's specimen signature on 9.2.2015 on a plain sheet and then compared it with the signatures in the agreement and the money receipts and noted that it appeared that the signatures belonged to the same person. The Forum also noted that an affidavit filed on behalf of the complainant went unchallenged by the OPs as they did not file any counter affidavit to this. The Forum therefore concluded that the complaint deserved to be allowed. On appeal, the State Commission too examined this aspect carefully and concluded that the only object behind the appeal was to delay matters. The State Commission, on the basis of examination of the relevant orders of the District Forum, noted that despite opportunity given, the OPs did not take any steps to refer the matter of forgery to an expert. Further, the OPs also did not challenge the order of the District Forum when it fixed a date for final arguments and also participated in the final hearing. In fine, the OPs did not press their forgery allegation because they really could not have done so.
12. I am also entirely persuaded that the reasoning and logic used by the State Commission is sound and calls for no interference. Clearly, the approach that has been manifestly taken by the OPs is one of challenging every document on the ground that it is forged. Such a challenge has to be duly supported by some clear cut logic and documents. In the case at hand, the charge of forgery could not even withstand a prima facie examination by the District Forum, nor were effective steps really taken by the OPs to refer to an expert, despite opportunity given, as correctly observed by the State Commission. The argument that once a charge of forgery is made, it has to be referred to an expert does not hold in the instant case where it was found not to be true even to the naked eye!! Indeed, if the argument of the counsel for the OP were to be considered as binding, regardless of context, every OP, in such matters of asymmetrical power relationships involving a builder and a complainant, could simply keep at bay all proceedings, by pleading forgery and putting the complainant to strict proof. This would be clearly a blatant misuse of the process of law, especially in the summary proceedings of the consumer courts. It is obvious that a challenge to genuineness of document(s) in a consumer court may invite responses that could put the matter in long pendencies. This would not be desirable at all. In the case at hand, however, this was not permitted, and the strategy of the OPs therefore failed. It is surprising that the same arguments which have already been considered and disposed off, through a reasoned order, are again being agitated in this revision petition. As discussed above, I see no reason to indulge this revision petition.
13. Accordingly, this Revision Petition stands dismissed. Parties to bear their own costs.
...................... ANUP K THAKUR PRESIDING MEMBER