State Consumer Disputes Redressal Commission
Sri Sandeep V. Upadhyay vs Sri Ajit Kumar Banerjee on 5 December, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/668/2017 ( Date of Filing : 08 Sep 2017 ) 1. Sri Sandeep V. Upadhyay S/o Lt. Vinodray H. Upadhyay, 11, Chakrabaria Lane, P.O. - Elgin Road, P.S. Ballygunge, Dist. South 24 Pgs. 2. Jayesh V. Upadhyay S/o Lt. Vinodray H. Upadhyay, 11, Chakrabaria Lane, P.O. - Elgin Road, P.S. Ballygunge, Dist. South 24 Pgs. ...........Complainant(s) Versus 1. Sri Ajit Kumar Banerjee S/o Lt. Bhupendra Krishna Banerjee, 21B, Puddapukur Lane, P.O. - Elgin Road, P.S. - Bhowanipore, Kolkata - 700 020.(Stands Substitued as per order no.4, dated 19.03.2018, under sl. no. 3 & 4) 2. Sri Sibnath Ghosh S/o Lt. Dilip Kr. Ghosh, 11, Chakrabaria Lane, P.O. - Elgin Road, P.S. Ballygunge, Kolkata -700 020. 3. Sri Aniruddha Banerjee S/o Lt. Ajit Kumar Banerjee, 21B, Paddapukur Lane, P.O. Elgin Road, P.S. Bhowanipore, Kolkata - 700 020. 4. Smt. Aparna Ghosh D/o Lt. Ajit Kumar Ghosh, 21B, Paddapukur Lane, P.O. Elgin Road, P.S. - Bhowanipore, Kolkata - 700 020. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Subrata Kumar Chowdhury, Mr. Arun Kumar Mahapatra, Advocate For the Opp. Party: Ms.Anindita Banerjee, Advocate Dated : 05 Dec 2019 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under Section 17 (wrongly mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of two brothers (claiming themselves intending purchasers) against the developer/builder (Opposite Party Nos. 1 and 2) and the landowner (Opposite Party No. 3) on the allegation of deficiency of services on the part of them in a dispute of housing construction.
Succinctly put, complainants' case is that a piece of land measuring about 3 cottahs 2 chittaks 15½ sq. ft. of land with a structure standing thereon lying and situated at premises No. 11, Chakraberia Lane, P.S.- Ballygunge, Kolkata- 700020, Dist- South 24 Parganas within the local limits of ward No. 69 of Kolkata Municipal Corporation belonged to OP No. 2 (re-numbered as OP No. 3) Sri Sibnath Ghosh. On 20.01.2013 OP No. 3 had entered into an agreement for development with Ajit Kumar Banerjee, since deceased (predecessor-in-interest of Opposite Party Nos. 1 and 2) for the development of additional floor at the roof of first floor of the said premises on certain terms and conditions. On the basis of the said development agreement, the developer constructed the additional floor over the roof of first floor in terms of sanctioned building plan obtained from Kolkata Municipal Corporation. The complainants have stated that while the construction of the building was completed, they approached the developer to purchase of a flat measuring about 662 sq. ft. super built up area being flat No. 'F' on the second floor of the said premises at a total consideration of Rs. 33,10,000/-. The complainants have stated that on 23.07.2015 an agreement for sale was executed between them and the Opposite Parties and on that date they paid a sum of Rs. 18,51,000/- and the OP No. 2 acknowledged the same. The complainants have further stated that on the date of execution of agreement for sale the Opposite Parties handed over the possession of the flat to the complainants and since then they have been residing in the said flat with their family members. The complainants have alleged that on several occasions they requested the Opposite Parties to execute and register the deed of conveyance after receiving the balance consideration amount but it turned a deaf ear. Finding no other alternative, the complainants issued a notice through their Advocate on 29.08.2017 requesting the Opposite Parties to execute and register the deed of conveyance in respect of flat in question in favour of the complainants but the Opposite Parties did not give any response to the said letter. The complainants stated that they were/are ready and willing to bear the expenses for execution and registration of the deed of conveyance but the Opposite Parties failed and neglected to execute and register the deed of conveyance. Hence, the complainants have come up in this commission with prayer for following reliefs, viz.- (a) to direct the Opposite Parties to execute and register the sale deed in favour of the complainants and on the basis of agreement for sale dated 23.07.2015 as described in Schedule 'B' to the petition of complaint; (b) to direct the Opposite Parties to pay a sum of Rs. 5,00,000/- only as compensation for harassment and mental agony; (c) to direct the Opposite Parties to pay Rs. 1,00,000/- as costs of litigation.
Despite receipt of notice, Opposite Party No. 1 Sri Aniruddha Banerjee, son of developer did not file written version within the stipulated period prescribed under the Act. Therefore, in view of the decision of Three-Judge Bench of Hon'ble Supreme Court reported in 2016 (1) Supreme 319 ( New India Assurance Company Limited -vs- Hilli Multipurpose Cold Storage Private Limited) by order No. 06 dated 28.05.2018 OP No. 1 was prevented from filing written version.
The Opposite Party No. 2 Smt Aparna Ghosh, daughter of deceased Ajit Kumar Banerjee (developer) by filing a written version has stated that as there is provision to refer the dispute to Arbitrator in accordance with clause 10 of the agreement, it excludes the jurisdiction of this commission. She has further stated that the original developer Ajit Kumar Banerjee passed away on 25.06.2016 which was well within the knowledge of the complainants but the complainants have filed this compliant after his death in order to grab the schedule property after manufacturing a forged agreement. She has further stated that on the date of the said manufactured agreement, the complainants purchased adjacent flat on the second floor of the said premises at a total consideration of Rs. 39,85,600/-. By the said registered conveyance the developer Ajit Kumar Banerjee transferred his entire allotment in the said second floor after accepting Rs. 39,85,600/- through cheques of different banks of different dates. She has further stated that the developer constructed two flats being flat No.'E' having an area of 848 sq. ft. which was purchased by the complainants on 23.07.2015 and the other flat being flat no. 'F' having an area of 662 sq. ft. in the said floor. The OP No. 2 has alleged that the agreement annexed is a forged agreement and Ajit Kumar Banerjee did not put his signature in the said agreement for sale. The OP No. 2 has also stated that the complaint is not maintainable as the same was not affirmed by complainants and there was no verification of the paragraphs mentioned in the complaint and as such the complaint should be dismissed.
The Opposite Party No.2 (re-numbered as OP No. 3), Sri Sibnath Ghosh/landowner by filing a separate written version has stated that on 20.01.2013 he entered into a development agreement with Ajit Kumar Banerjee, since deceased for construction of one additional floor on the roof of first floor of the building for residential house at premises No. 11, Chakraberia Lane, P.S.- Ballygunge, Kolkata- 700020, Dist- South 24 Parganas within the local limits of ward No. 69 of Kolkata Municipal Corporation where the owners allocation was mentioned 601 sq. ft. On 15.08.2013 the developer entered into an agreement with the complainants for sale of his allocation being flat No. 'E' on the second floor of the said premises at a total consideration of Rs. 39,85,600/-. The OP No. 3 has further stated that the flat No. 'F' was constructed with a common wall with flat No. 'E' of the complainants on 27.05.2016, who tried to demolish the common partition wall in between the flat Nos. 'E' and 'F' and tried to occupy and grab the flat No. 'F' by demolishing the partition wall for which he sent a complaint to the Officer-in- Charge, Ballygunge P.S. but the police did not take any steps. On the contrary, on the same day OP No. 3 has allowed that the complainants with an ill motive tried to mutate their names in the record of Kolkata Municipal Corporation in respect of flat No. 'F' by illegal means for which the complaint was lodged with the Executive Engineer (Building) Borough VIII of KMC and the complainants ultimately became unsuccessful to mutate their names in the Assessment Registrar of the Corporation. Ultimately, the O.P No. 3 was compelled to institute a suit being T.S. No. 1114 of 2017 in the court of Ld. Second Civil Judge (Junior Division) at Alipore against the complainants with a prayer for decree of declaration and permanent injunction in respect of 'B' schedule property identical to the property claiming by the complainants. In the said suit an order has been passed whereby the present complainants were restrained by an order and ad-interim temporary injunction from keeping third party interest in respect of the said property. The OP No. 3 denied the execution of any agreement in respect of 'B' schedule property of the complaint and receipt of consideration money and stated that the agreement for sale is a manufactured document and as such complaint should be dismissed with costs.
The contesting parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. Both the parties have relied upon several documents in support of their respective cases. At the time of final hearing OP Nos. 1 and 2 and OP No. 3 have filed brief notes of arguments.
Undisputedly, Opposite Party No. 2 (re-numbered as Opposite Party No. 3) was the owner of a piece and parcel of land measuring about 3 cottahs 2 chittaks 15 ½ sq. ft. of land lying and situated at premises No. 11, Chakraberia Lane, P.S.- Ballygunge, Kolkata- 700020, Dist- South 24 Parganas within the local limits of ward No. 69 of Kolkata Municipal Corporation. The landowner had decided to construct a new building after demolishing the existing old structure standing thereon but due to paucity of sufficient fund and other exigencies, he was not in a position to raise the construction of the said premises and as such the Opposite Party No.3 approached to a building contractor namely Barisan Kundu with a request him to construct the building and in this regard an agreement was executed on 06.06.2006. On 11.08.2006 an agreement was entered into in between Binod Ray, H. Upadhaya, the father of the complainants and the developer to sell one flat measuring about 601 sq. ft super built up area being flat No. 'A' on the ground floor in the said premises and accordingly on 15.06.2012 a deed of conveyance was executed and registered in respect of the said flat in question.
Thereafter, in order to raise a further construction on the first floor of the said building, the Opposite Party No. 3/landowner had entered into an agreement with one Sri Ajit Kumar Banerjee, since deceased, (the father of Opposite Party Nos. 1 and 2 respectively) on 20.01.2013. The complainants expressed their intention to purchase another flat being flat No. 'E' on the second floor and to that effect an agreement for sale was executed on 15.08.2013. After construction of two flats, one flat being flat No. 'E' had been sold out to the complainants by a registered deed of conveyance dated 23.07.2015.
Now, the whole dispute cropped up with regard to the flat that is flat No. 'F' of the second floor.
The complainants have alleged that on the date of execution of sale deed dated 23.07.2015 Ajit Kumar Banerjee (developer) and the landowner had entered into an agreement with them to sold away the flat No. 'F' having an area measuring about 662 sq. ft. super built up area at a total consideration of Rs. 33,10,000/-. The alleged agreement for sale speaks that the complainants have paid Rs. 18,51,000/- as part consideration amount towards the said total consideration amount and on payment of the same the possession of the flat in question was delivered to the complainants.
The Opposite Parties have raised serious dispute as to the genuineness of the said agreement for sale dated 23.07.2015 in respect of flat No. 'F' on the second floor of the premises in question on the ground that the signatures of the developer and the landowner appears in the said agreement for sale dated 23.07.2015 are not genuine.
During pendency of the proceeding, several interlocutory applications have been filed by the Opposite Parties on different grounds. The Opposite Party Nos. 2 and 3 in their written version took a plea that the complaint is not maintainable as the same was not affirmed by the complainants and there was no verification of the paragraphs mentioned in the complaint and as such the complaint should be dismissed in limine. The fact remains that the said point was raised earlier and by order No. 14 dated 06.06.2019 the said question was decided with an observation that one of the brothers of the complainants due to inadvertence put the signature. However, all the pages of the petition of complaint contains the signature of the complainants and in his affidavit dated 30.05.2019 the complainant No. 1 has stated that he made affidavit of the complaint of his case but due to inadvertence and bonafide mistake his another brother put the signature over the deponent of the affidavit of the complaint. He has further by affidavit has stated that they put their signature on each page of the original complaint and all the statements made therein are true to their best of knowledge and belief.
We must not be obsessed with the proposition of law that a consumer complaint is a social beneficial legislation and in order to determine a dispute, it has only to be seen whether the person who approaches before the forum constituted under Act is a 'consumer' or not within the meaning of Section 2(1)(d) of the Act and if so, whether the OPs being 'service provider' were deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. In the process of determination, there is hardly any reason to be bogged down by any hyper-technicalities. In a decision reported in (1994) 1 SCC 243 (Lucknow Development Authority -vs- M.K. Gupta), the Hon'ble Supreme Court has observed:
"To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of the interest of consumers. Use of the word 'protection' furnishes key to the minds of makers of the Act. Various definitions and provisions ......."
Therefore, the technical question raised by the Opposite Parties regarding shortcoming of affidavit does not stand.
The contesting Opposite Parties had also filed an application for referring the dispute to the arbitration as per clause 10 of the agreement which runs as follows:
" That 10. All disputes and differences by and between the parties hereto in any way relating to area concerned with the said unit and/or this agreement and/or anything done in pursuance hereto shall be referred for arbitration ..........."
The question as to referring the dispute to the Arbitrator has also been adjudicated by order No. 07 dated 05.06.2018. In a decision reported in (2017) 1 CPJ 270 (Aftab Singh -vs- EMAAR MGF Land and Anr.) the Hon'ble National Commission has observed that in the context of consumer jurisprudence, the Hon'ble Supreme Court has not disturbed earlier opinion regarding the arbitrality of consumer disputes rendering in the pre-amendment era rather it has been affirmed the protection guaranteed to the consumers from private resolution. After the detailed discussion, the Hon'ble Supreme Court by a decision reported in (2016) 10 SCC 386 (Ayyaswami -vs- A. Paramsivan and Ors.) has arrived at the conclusion that in the light of overall architecture of the Consumer Act and the court - evolved jurisprudence amended sub clause (1) of section 8 cannot be construed as amended to the Consumer Forum, constitute under the Act, to refer the parties to arbitration in terms of the arbitration agreement. Challenging the said order, the Opposite Parties did not approach any higher forum. Therefore the said order has attained finality.
The Opposite Party No. 2 and Opposite Party No. 3 have seriously challenged the legality and authenticity of agreement for sale dated 23.07.2015 which is the genesis of the instant dispute. At the time of final hearing, in compliance with the direction of the Commission, the complainants have filed the original unregistered agreement for sale dated 23.07.2015. The Opposite Party No. 3 has also filed original unregistered agreement for sale dated 15.08.2013 amongst the parties. Ld. Advocate for the Opposite Parties have also drawn our attention to the signatures of the developer and the landowner appear in the deed of conveyance dated 15.06.2012 and submitted that the signatures of the developer and the landowner appears in the agreement for sale dated 23.07.2015 is a forged one and should be referred to the handwriting expert to obtain opinion.
It is to be recorded here that Sections 45 and 47 of the Indian Evidence Act, 1872 authorises the Court to take a view on the opinion of others whereas under Section 73 of the said Act, the Court by its own comparison of writings can form its opinion. In the former case, it is by a scientific comparison and in the latter on the basis of formality resulting from frequent observations and experiences. However, in both the cases, a court of law is required to be satisfied itself by such means as are open to conclude that the opinion may be acted upon. It is well settled that irrespective of an opinion of the expert, a court can compare the admitted writing with disputed writing and come its independent conclusion. It is also well settled that even when an expert and evidence is not there, court has power to compare the writings and decide the matter.
Keeping in view, the proposition of law, as recorded above we have compared the agreement for sale dated 23.07.2015 and the agreement for sale dated 15.08.2013 vis-a-vis copy of registered deed of conveyance dated 23.07.2015 in respect of the flat being flat No. 'E' on the second floor executed and registered in favour of the complainants. Since the original developer Ajit Kumar Banerjee is no more, there is hardly any possibility to obtain his specimen signature to compare the same with the signature appearing in the agreement for sale dated 23.07.2015 in respect of flat No. 'F' on the second floor. However, we have scope to compare the signature of the deceased Ajit Kumar Banerjee on the basis of admitted documents like agreement for sale dated 15.08.2013 and the sale deed dated 23.07.2015. On comparison of those documents, there is hardly any possibility to come to a conclusion that the signature of Ajit Kumar Banerjee (since deceased) or the signature of Sri Sibnath Ghosh/landowner (OP No. 3) have manufactured for the purpose of the case.
In this regard, question No. 6 put by the complainants appears to be significant where it was asked- "can you prove Ajit Kumar Banerjee had not received any amount for selling of the suit flat i.e. flat No. 'F'? to which OP No. 3 has replied to prove the same - (a) by calling the GDE lodged with P.S.; (b) by producing the photocopy of the application under Section 144 (2) Cr. P.C; (c) order passed time to time in MP 1424- 16; (d) by filing C.C. of plaint in T.S. No. 1114 of 2017 etc. but nowhere OP No. 3 has stated that he or deceased Ajit did not receive any money from the complainants.
Admittedly, the complainants are in possession of the flat in question. It is alleged by the Opposite Parties that on 27.05.2016 the complainants forcibly had taken possession of the flat in question. Surprisingly enough, the Opposite Party No. 3 though filed a suit being T.S. No. 1114 of 2017 before the Ld. Second Civil Judge (Junior Division), Alipore against the complainants and one of their brother with a prayer for declaration of title and permanent injunction but the OP No. 3 (landowner) being plaintiff did not seek any relief for mandatory injunction or a suit for recovery of possession to oust/ evict the complainants from the subject flat.
In the said suit, an ad-interim order of injunction has been passed directing the defendants (complainants) not to create any third party interest in respect of the property as mentioned in schedule 'D' to the plaint as well as injunction application which is the subject matter of dispute in this case and the said order is still in vogue. Therefore, the order passed by the competent Civil Court will not affect the right of complainants to get the deed registered in favour of them in terms of agreement for sale dated 13.07.2015.
On evaluation of materials on record including the close scrutiny of the alleged agreement for sale dated 23.07.2015, the agreement for sale dated 15.08.2013 and the copy of sale deed dated 23.07.2015 in respect of flat 'E' of the second floor of the premises and having heard the Ld. Advocates appearing for the respective parties, when it appears that the complainants are in possession of the flat in question and the Memo of consideration speaks receipt of Rs. 18,51,000/- out of total consideration of Rs. 33,10,000/-, we think, the complainants are entitled order to get the deed executed and registered in respect of the property as mentioned in the second schedule to the agreement for sale dated 23.07.2015. However, as the complainants are in possession and enjoying the flat in question without payment of balance consideration amount, they are not entitled to any compensation or litigation cost.
Consequently, complaint is allowed on contest. However, there will be no order as to costs.
The Opposite Party Nos. 1 to 3 are jointly and severally directed to execute and register the deed of conveyance in respect of the property as mentioned in the Schedule 'B' to the agreement for sale dated 23.07.2015 within 45 days from date subject to payment of balance consideration amount (Rs. 33,10,000/- Rs. 18,51,000/-) =Rs.14,59,000/-, in default the complainants shall have liberty to get the deed executed through the machinery of the commission. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER