State Consumer Disputes Redressal Commission
Sri Kanailal Mandal vs L.P. Enterprise on 9 August, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/628/2016 ( Date of Filing : 18 Jul 2016 ) (Arisen out of Order Dated 03/06/2016 in Case No. Complaint Case No. CC/124/2016 of District Kolkata-III(South)) 1. Sri Kanailal Mandal S/o Lt. A.K. Mandal, 31/2, Middle Road, Santoshpur, P.S. Purba Jadavpur, Kolkata - 700 075. ...........Appellant(s) Versus 1. L.P. Enterprise Rep. by its Prop., Sri Subrata Paul, S/o Sri Ranjit Kr. Paul, Baikuntha Saha Road, P.S. Purba Jadavpur, Kolkata - 700 075. 2. Smt. Elka Sinha D/o Lt. Pradyot Kr. Sinha, 31/2, Middle Road, Santoshpur, P.S. Purba Jadavpur, Kolkata - 700 075. 3. Sri Semon Sinha S/o Lt. Pradyot Kr. Sinha, 31/2, Middle Road, Santoshpur, P.S. Purba Jadavpur, Kolkata - 700 075. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Ms. Sayantani Das, Advocate For the Respondent: Mr. Ardhendu Bikas Sengupta, Advocate Dated : 09 Aug 2018 Final Order / Judgement
The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (for brevity, "the Act") is to the judgement/final order dated 03.06.2016 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit - III (in short, Ld. District Forum) in Consumer Complaint No. 124/2016 whereby the complaint lodged by the Appellant Under Section 12 of the Act was dismissed on contest.
The Appellant herein being complainant lodged the complaint before the Ld. District Forum stating that he entered into an Agreement for Sale with the Respondent No.1 on 05.03.2012 to purchase a self-contained flat measuring about 674 sq. ft. super built up area on the ground floor with common areas and facilities lying and situated at premises no. 86, Middle Road, P.S - Purba Jadavpur, Kolkata - 700075, Dist - South 24 Parganas within the local limits of Ward No. 104 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs 15,36,720/-. The appellant full consideration money of the said flat at the time of agreement to respondent no.1 as per terms of the said agreement. It was agreed that the respondent no.1/developer will hand over the subject flat within ten months from the date of Agreement for Sale after making the same habitable. The appellant has alleged that in accordance with the terms of agreement, the respondent no.1 did not execute the Deed of Conveyance in favour of him inspite of repeated requests and reminders. After a lapse of 15 months, the respondent no.1 all on a sudden wrote a letter to the appellant with some false allegation that the consideration money has not yet paid and the said registered Agreement for Sale is not a valid one. The appellant replied to the same by giving a letter through his Advocate on 17.06.2013 but the respondent no.1 did not give any rejoinder to the said letter. The appellant has alleged that the respondent no.1 has neglected to complete the constructional work in the said premises in respect of sewerage connection and electric meter which ought to have been done. The appellant has alleged that due to non-delivery or execution of Sale Deed, as per clause no.27, the respondent no.1 is liable to pay Rs.5,000/- per day as compensation for the delay and the same will be reckoned from the date of actual date of delivery as per the said agreement till the delivery of the flat to the complainant. The appellant has submitted that on 03.06.2013 the respondent no.1 flatly refused to execute the Deed of Conveyance in favour of him. Hence, the appellant approached the Ld. District Forum with prayer for direction upon the opposite parties/respondents to execute and register the Deed of Conveyance in respect of the scheduled flat and to direct the respondents to complete the incomplete works and to deliver possession of the same, to pay compensation and costs etc. The Respondent No. 1/OP No.1 by filing a Written Version has admitted the existence of the agreement regarding subject flat at a consideration of Rs 15,36,720/- but it has been stated that the appellant promised to pay but somehow managed the Respondent No.1/O.P. No. 1 and got the said agreement for sale executed and registered by Respondent No.1/O.P. No. 1 without any consideration money for which he compelled to institute a suit being T.S. No. 150/2013 which is pending before the Ld. 5th Civil Judge (Senior Division) at Alipore and as such the Complaint should be dismissed.
The Respondent Nos. 2 & 3/O.P. Nos. 2 & 3 / Landowners by filing a separate Written Version have stated that the Complainant suppressing the existence of T.S. No. 150/2013 pending in the Court of Ld. 5th Civil Judge (Senior Division) at Alipore has lodged this complaint and as such it should be dismissed.
On evaluation of the materials on record, the Ld. District Forum by the impugned judgement/final order dismissed the complaint. Being aggrieved and dissatisfied with the said order, the Complainant has come up in this Commission with the present appeal.
Ld. Advocate for the Appellant has submitted that the Ld. District Forum has failed to appreciate that the terms and conditions of the Agreement for Sale, which was a registered one was binding upon the parties. He has further submitted that the Ld. District Forum without any cogent reason came to the conclusion - "It is of common knowledge that nobody will make full payment at the time of Agreement for Sale. Generally, at the time of Agreement for Sale, a part consideration money is paid and registration of Agreement for Sale does not convert an Agreement for Sale in to a Sale Deed. So there remains suspicion as to why the complainant paid total consideration money at the time of Agreement for Sale". Ld. Advocate for the appellant has further drawn my attention to Clause - 1(inner page 8) of the Agreement for Sale dated 05.03.2012 and submitted that despite undertaking made by respondent no.1 being developer and constituted Attorney of the owner/vendor to complete the construction within 10 months from the date of agreement, could not deliver possession and execute the Deed of Conveyance, the Ld. District Forum should have passed an order including a compensation per day for the delay as per Clause-27 (inner page 13) of the Agreement. The Ld. Advocate for the appellant has submitted that when the developer/respondent no.1 put his signature in the agreement for sale before the registering authority as developer as well as constituted Attorney of the landowner, the Ld. District Forum should have allowed the complaint and as such the impugned order should be set aside.
Per contra, supporting the judgement passed by the Ld. District Forum, Ld. Advocate for the respondents has contended that it is true that the Agreement for Sale is a registered one and the same was executed by respondent no.1 in the office of Registrar at Alipore but there is no memo of consideration enclosing with the Agreement for Sale and further when there is no money receipt or any other document showing payment of money, the Ld. District Forum has rightly dismissed the complaint.
Ld. Advocate for the respondents has also submitted that challenging the authenticity of the Agreement for Sale, the respondent no.1 has already filed a Civil Suit being T.S. No.150/2013 in the Court of Ld. Civil Judge (Sr. Div.) at Alipore and as the matter is pending before a competent Civil Court, the instant proceeding should remain stayed. In support of such submission, Ld. Advocate for the respondents has placed before me one sheet of a book named 'The Consumer Protection Act, 1986' (the name of author or edition does not appear) where the Ld. Advocate has placed reliance to a Paragraph which is recorded as - "As a matter of sound policy, the Commission will not entertain any complaint, the subject-matter of which is already sub-judice before a Civil Court. The questions relating to the justification for the refusal or failure on the part of a bank to advance further amounts by way of loan to the borrower or the discontinuance of the facility allowed to the borrower to operate the overdraft account etc. are not matters which legitimately call for adjudication by this Commission under the provisions of Consumer Protection Act. The foot note of the relevant sheet indicates that it was the observation of the Hon'ble National Commission in a decision reported in I (1992) CPJ 115 (NC) [Arora Industrial Corporation - Vs. - Union Bank of India]. Ld. Advocate for the respondents has also referred the decision dated 06.12.2017 passed by this Commission in FA No.A/707/2016 [Sri Satyendra Nath Ghosh & Anr. - Vs. - LP Enterprise & 2 Ors.] to impress that the facts and circumstances of both the cases are similar in nature and as such this appeal deserves same result like the appeal referred above.
I have given due consideration to the submissions made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Undisputedly, one Sri Pradyut Kumar Sinha was the original owner of a piece of land measuring about 7 cottahs 2 chittaks 07 sq. ft. of land lying and situated at premises no. 86, Middle Road, P.S - Purba Jadavpur, Kolkata - 700075, Dist - South 24 Parganas within the local limits of Ward No. 104 of Kolkata Municipal Corporation (KMC). On 18.04.2010 the said Pradyut Kumar Sinha had entered into a Development Agreement with LP Enterprise, a sole proprietorship firm represented by its Proprietor Sri Subrata Paul/respondent no.1 for the purpose of development of the said property. The record also speaks that on 16.04.2010 i.e. prior to two days of execution of Development Agreement, Pradyut Kumar also executed a registered Power of Attorney authorising the respondent no.1 to construct the multi-storied building over the said property in terms of the Development Agreement. The evidence on record also goes to show that the respondent no.1 has obtained sanctioned building plan on 11.10.2010 from the KMC.
Pradyut Kumar Sinha passed away on 07.04.2012. It would be pertinent to record here that Konika Sinha, W/o Pradyut has expired on 23.10.2010. On their death, the property devolved upon respondent nos. 2 & 3. On 21.08.2012 the respondent nos. 2 & 3 executed one joint venture supplementary agreement with respondent no.1 for execution of terms and agreement of Development Agreement. On the self-same date they have also executed a Power of Attorney in favour of the respondent no.1.
Admittedly, pursuant to the power conferred upon him, the respondent no.1/developer on behalf of himself and also being constituted Attorney of the landowner had entered into a registered Agreement for Sale with the appellant in order to sell a self-contained flat measuring about 674 sq. ft. of super built area on the ground floor of the said premises at a total consideration of Rs.15,36,720/-. True it is that in the Agreement for Sale there is no memo of consideration. However, the agreement was executed before the District Sub-Registrar - III of South 24 Parganas at Alipore. The relevant clause being clause no.1(inner page 8) being vital one, it reproduces below -
"1. That the Owner/Vendor and the Developer/Confirming Party intended to sell and the purchaser herein agrees to purchase a piece and parcel of the flat measuring more or less 674 sq. ft. super built up are of which 498 sq. ft. is covered area on the south-eastern side of the ground floor in the newly constructed building more fully described in Schedule 'B' hereunder at a total consideration money of Rs.15,36,720/- (fifteen lakh thrity-six thousand seven hundred and twenty) only including of all service tax, out of which the purchaser till this day has already paid Rs.15,36,720/- (fifteen lakh thrity-six thousand seven hundred and twenty) only to the Developer/Confirming Party being Constituted Attorney of the Owner/Vendor and the Developer herein acknowledged receipt of the same and discharge and grant receipt of the same and undertake to hand over the possession and grant transfer of the said flat after completion of the construction within 10 months of the same from the date of signing of this agreement".
Clause 27 of the Agreement stipulates -
"27. That in the event of delay in handing over possession of the said flat to the purchaser due to non-completion of the same within the stipulated period of time for the reasons of acute of scarcity of raw materials, labour problems, suit or proceeding and/or natural calamities, the purchase shall allow the developer reasonable time for completion of the flat as well as building at his own discretion even then failed to complete the construction with the said extra time the developer will be liable to pay a sum of Rs.5,000/- per day as compensation for the delay and same will be counted from the date of actual date of delivery as per this agreement till the date delay of delivery of flat".
The fact remains that the registered Agreement for Sale was executed by and between the parties in presence of two witnesses before the District Sub-Registrar - III of South 24 Parganas at Alipore. In a reply to the questionnaire set forth by appellant, the respondent no.1, who deposed on behalf of respondent nos. 2 & 3 has admitted - "Yes, I had signed the Agreement for Sale based on the promises, assurances of the payment of consideration of the flat in question made by the complainant even in the Registration Office".
It is trite law that the parties are bound by the terms of agreement. A person who signs a document contains certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. 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 needs to be established. In a case reported in AIR 1996 SC 2508 (Bharti Knitting Co. - vs. - DHL World Wide 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"
In the Agreement for Sale, the respondent no.1/developer has categorically mentioned that he acknowledge the receipt of Rs.15,36,720/- and undertook to complete the construction within 10 months and to grant transfer, certainly it has binding effect upon the parties and the respondents cannot absolve their responsibilities simply on the ground that no amount has been paid as consideration amount.
Each case has its own merit. The facts and circumstances of the present case cannot be said to be a total match with the case in connection with FA/707/2016. In the instant case, when there is specific terms in the agreement and as per clause 1 of the agreement, the respondent no.1 has put his signature after knowing its contents, he cannot shirk of his responsibility to fulfil his part of obligations.
The pendency of civil suits being T.S. No.150/2013 before the Ld. Civil Judge (Sr. Division) 5th Court at Alipore cannot be a dent to the appellant's case. In a decision reported in 2014 (4) CPR 681 (NC) [ Indrani Chatterjee & Anr. - Vs. - AMRI Hospitals, through its Management], the Hon'ble National Commission referring to the decision of Hon'ble Supreme Court in the case of Guru Granth Saheb Sthan Meerghat, Venaras - Vs. - Ved Prakash & Ors. reported in (2013) 7 SCC 622 has observed thus - ".............. As a matter of fact, having regard to the object and intent of the Act, summary trial of consumer complaint has to be given precedence over other cases, be it civil or criminal in nature, the question of double jeopardy, self-incrimination or the binding effect of the findings of summary proceedings under the Act, does not arise on facts, at hand. Accordingly, the preliminary objection fails".
After giving due consideration to the submission made by the Ld. Advocates appearing for the parties and on perusal of the judgement/final order I find that the Ld. District Forum has proceeded in a wrong way without considering the fact that a Consumer Forum is primarily meant for disposal of a complaint in a summary way for a limited purpose and when there was specific terms of the agreement, the parties are bound to obey the same. Therefore, the impugned being not sustainable in the eye of law is liable to be set aside.
For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs.
The impugned Final Order/Judgement is hereby set aside.
Resultantly, the complaint case No.RBT/CC/124/2016 is allowed. The Opposite Parties are jointly and severally directed to handover the possession of the flat as mentioned in Schedule 'B' to the registered Agreement for Sale dated 05.03.2012 and also to execute and register Deed of Conveyance in favour of the complainant within 60 days from date. Considering the facts and circumstances of the case, I do not impose any amount as to compensation or litigation costs.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata Unit III for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER