State Consumer Disputes Redressal Commission
M/S. D. Chakraborty & Alliances & Others vs Mr. Kalyan Sadhu on 15 February, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/933/2018 ( Date of Filing : 27 Nov 2018 ) (Arisen out of Order Dated 04/10/2018 in Case No. CC/518/2015 of District Kolkata-I(North)) 1. M/s. D. Chakraborty & Alliances & Others Rep. by Mr. Debabrata Chakraborty, 11E, Northern Avenue, P.S. - Chitpore, Kolkata - 700 037. 2. Mr. Debabrata Chakraborty S/o Lt. Amal Bikash Chakraborty, M/s. D. Chakraborty, 11E, Northern Avenue, P.S. - Chitpore, Kolkata - 700 037. 3. Mr. Ashoke Kr. Banerjee S/o Lt. Kartick Chandra Banerjee, 1/2A, Paikpara Row, P.S. - Chitpore, Kolkata - 700 037, rep. by constituted attorney Mr. Debabrata Chakraborty. 4. Mr. Partha Banerjee S/o Lt. Kartick Chandra Banerjee, 1/2A, Paikpara Row, P.S. - Chitpore, Kolkata - 700 037, rep. by constituted attorney Mr. Debabrata Chakraborty. 5. Mr. Amar Nath Banerjee S/o Lt. Kartick Chandra Banerjee, 1/2A, Paikpara Row, P.S. - Chitpore, Kolkata - 700 037, rep. by constituted attorney Mr. Debabrata Chakraborty. ...........Appellant(s) Versus 1. Mr. Kalyan Sadhu S/o Sri Niranjan Kr. Sadhu, Flat no. 4B, 4th Floor, Trishul Aprt., 1/2A, Paikpara Row, P.S. - Chitpore, Kolkata - 700 037. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Shantanu Sanyal, Advocate For the Respondent: Mr. Debesh Halder, Advocate Dated : 15 Feb 2019 Final Order / Judgement
The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of Opposite Parties to impeach the Final Order/Judgement dated 04.10.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short, Ld. District Forum) in Consumer Complaint No. 518/2015. By the impugned order, the Ld. District Forum allowed the complaint ex-parte against Opposite Party Nos. 1 & 2 and on contest against the other Opposite Parties with the direction upon OPs jointly and severally to execute and register the Deed of Conveyance in respect of the garage space in favour of the complainant as per Agreement after receiving the balance consideration price. The OP Nos. 1 & 2 (a proprietorship firm, represented by it proprietor) were directed to refund the equivalent amount of the short fall area i.e. 69 sq. ft. to the complainant along with compensation of Rs.20,000/- only for harassment and mental agony and litigation cost of Rs.5,000/- only to be paid within 30 days from the date of communication of the order in default the amount shall carry interest @ 8% p.a. till its realisation.
The Respondent herein being Complainant lodged the complaint before the Ld. District Forum under Section 12 of the Act stating that on 12.05.2011 the complainant had entered into an Agreement for Sale with the opposite parties to purchase of a flat measuring about 775 sq. ft. super built up area being Flat No.4A on the 4th floor at Premises No.1/2A, Paikpara Row, P.S.- Chitpur, Kolkata - 700037 within the local limits of Ward No.04 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs.17,00,000/-. The Complainant has paid a lump sum of Rs.16,50,000/- and it was agreed that the balance amount of Rs.50,000/- will be paid at the time of handing over Completion Certificate and Rs.5,00,000/- on towards extra work but till date no work has been done by the developer. The OP Nos. 1 & 2/developer handed over peaceful possession of the flat and promised to handover Completion Certificate but have not shown any intention to deliver the same. The complainant has alleged that OP Nos. 1 & 2 sold the flat stating the measurement of 775 sq. ft. but on verification, it was found that the flat is 604 sq. ft. On several occasions, he requested the OPs to refund the amount of the shortfall area but it turned a deaf ear.
On 01.03.2013 the Complainant had also entered into a separate agreement to purchase of one covered garage (north side) on the ground floor at a total consideration of Rs.2,80,000/- and the complainant has already paid Rs.2,50,000/- towards consideration money for the said garage. The complainant has alleged that the OPs till date not executed the Deed of Conveyance in respect of the said covered garage. Hence, the respondent approached the Ld. District Forum on the allegation of deficiency in services with prayer for following reliefs, viz. - (a) an order direction the OPs jointly and severally to execute and register the Deed of Conveyance in respect of the covered garage after handing over physical possession, failing which the Deed of Conveyance may be registered through the machinery of the Commission; (b) an order directing the OP Nos. 1 & 2 to cover the garage in the ground floor by partition wall; (c) an order directing the OPs to pay compensation of Rs.2,00,000/- for harassment and mental agony; (d) an order directing the OPs to obtain Completion Certificate; (e) an order directing the OPs to refund equivalent amount of shortfall area; (f) costs of the proceedings etc. Despite service of notice, the Appellant Nos. 1 & 2/Opposite Party Nos. 1 & 2 did not appear to contest before the Ld. District Forum. However, respondent nos. 3 to 6/OP Nos. 3 to 6 (landowners) by filing a written version have stated that the object of the complainant is a fraudulent one in order to fulfil his consideration and object which are not at all lawful rather forbidden under KMC Act and the Building Rules. According to the landowners, the object for purchasing 'covered garage' in violation of building plan is not lawful rather forbidden by Building Rules. The OP Nos. 3 to 6 have stated that KMC has sanctioned the building plan with two car parking spaces lying on south-east on the ground floor and not covered garage and issued the Occupancy Certificate of the building subject to the terms and conditions that if any deviations are found from completion plan afterwards, the Occupancy Certificate will be treated cancelled automatically. The OP Nos. 3 to 6 have categorically stated that the sanctioned car parking space is not meant for any covered garage, as claimed by the complainant.
During hearing of the appeal, Ld. Advocate for the Appellants has submitted that the appellants are ready to provide a garage space as per terms of the Agreement but a covered car parking space of 100 sq. ft. cannot be provided as there is no agreement to that effect. He has also submitted that the report of the Ld. Engineer Commissioner regarding shortfall of area is contradictory and as such the Ld. District Forum should not have awarded any amount for alleged shortfall of 69 sq. ft.
Per contra, Ld. Advocate for the Respondent has contended that in order to purchase the garage in question, the respondent has already paid Rs.2,50,000/- and ready and willing to pay the balance amount of Rs.30,000/- but the appellants are showing reluctance to execute the Sale Deed in respect of garage in question. He has also submitted that when in accordance with the direction of the Ld. District Forum, the measurement was taken by the expert and it was found that there was super built up area of 623 sq. ft., certainly, the Ld. District Forum was quite justified in passing the award.
I have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Undisputedly, Respondent Nos. 2 to 5 (one of the owners died during the pendency of the case before the Ld. District Forum) being owners of 3 cottahs 3 chittaks 29 sq. ft. more or less lying and situated at Premises No. 1/2A, Paikpara Row, P.S.- Chitpur, Kolkata - 700037 within the local limits of Ward No.04 of KMC had entered into an Development Agreement with appellant no.1/OP No.1 being represented by appellant no.2/OP No.2 for raising a multi-storied building over the said property on 03.08.2010. Subsequently, the original landowners had also executed a registered General Power of Attorney in favour of the developer with the right and power to absolute sell, transfer, alienate the constructed area a separate unit/flat to the intending purchasers/buyers after taking consideration from them.
It is not in dispute that on 30.07.2012 after construction of the building, the appellants/OPs executed a Deed of Conveyance in favour of respondent in respect of the subject flat after receipt of entire consideration amount of Rs.17,00,000/-. After purchase of the property, the respondent is in possession of the same.
It is alleged by the Respondent/Complainant that there was shortfall or area of the subject flat. As per Deed of Conveyance dated 30.07.2012, the size of the flat has been mentioned 775 sq. ft. super built up area. On the allegation of shortfall of area, at the instance of respondent/complainant, an expert was appointed. The said expert after visual inspection submitted a report on 11.12.2017 and opined that the area of the flat in question is 706 sq. ft. super built up area i.e. short of 69 sq. ft. Subsequently, at the instance of Ld. District Forum another visual inspection had taken place on 04.08.2018 and on that time the said expert found the size of the flat as 623 sq. ft. super built up area. The said report does not annexe with any field note.
The Ld. District Forum should not have given much importance to the said report as it was self-contradictory. It is well settled that best evidence must always be given. The respondent had opportunity to remove the cloud as to the contradiction of two reports by a same expert. Therefore, when there is ambiguity in the reports, on the basis of same, it was unsafe to pass any order in favour of respondent/complainant.
Needless to say, the parties are bound by the agreement. A person who signs a document contain certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. In a decision reported in AIR 1996 SC 2508( Bharati Knitting Company -vs. - DHL Worldwide Express Courier Division of Airfreight Ltd. ) the Hon'ble Supreme Court has observed thus :
"It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F.Nariman, Ld. Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M.N.Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon it own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract"
The evidence on record speaks that the respondent had entered into an agreement with the appellants to purchase of a garage measuring about 100 sq. ft. at a consideration of Rs.2,80,000/-. The overwhelming evidence on record make it quite clear that the respondent has already paid Rs.2,50,000/- to the developer. The only dispute has cropped up as to whether the respondent/complainant is entitled to a covered garage space, as claimed in the petition of complaint. The Ld. District Forum directed the OPs/appellants to execute and register the Deed of Conveyance in respect of the garage space in favour of the complainant as per agreement after receiving the balance consideration price. When the agreement itself does not indicate any obligation to provide a covered car parking space, the respondent/complainant is entitled to a car garage measuring 100 sq. ft. on payment of balance consideration of Rs.30,000/-.
In view of the above, the impugned order is modified only to the extent that the appellants/OPs shall jointly and severally executed the Deed of Conveyance in respect of garage space measuring about 100 sq. ft. on receipt of balance consideration of Rs.30,000/- in favour of appellant nos. 1 & 2/OP Nos. 1 & 2. The other part of the order like payment of compensation of Rs.20,000/- and litigation cost of Rs.5,000/-, as imposed by the Ld. District Forum shall be maintained which shall be subject to adjustment of balance consideration of Rs.30,000/-.
With the above observations and directions, the instant appeal stands disposed of.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER