State Consumer Disputes Redressal Commission
Sri Debnath Chatterjee vs Smt. Rinku Tewari on 9 September, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/141/2015 (Arisen out of Order Dated 31/12/2014 in Case No. Complaint Case No. CC/296/2014 of District South 24 Parganas DF, Alipore) 1. Sri Debnath Chatterjee S/o Late Dhirendra Nath Chatterjee, 17/7, Sahapur Colony, New Alipore, P.S. New Alipore, Kolkata -700 053. ...........Appellant(s) Versus 1. Smt. Rinku Tewari W/o Sri Rajiv Ranjan, 17/7, Sahapur Colony, New Alipore, P.S. New Alipore, Kolkata -700 053. 2. Sri Amar Makhal S/o Sri Madan Ch. Makhal, Vill. Chakthakurani, P.O. Arshi Thakurani, P.S. Thakurpukur, Kolkata-700 104. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Harihar Bhaumik Mrs. Kakoli Das , Advocate For the Respondent: Ms. Debolina Chakraborty, Mr. R. K. Choumal, Advocate ORDER Date of hearing : The 4th day of September, 2015 Date of judgment : Wednesday, the 9th day of September, 2015 JUDGMENT
The instant appeal u/s 15 of the Consumer Protection Act 1986 (hereinafter referred to as the 'Act') is at the instance of opposite party No.2 to impeach the judgment dated 31st December, 2014 passed by Ld. District Consumer Disputes Redressal Forum, South 24-Parganas at Alipore (in short, 'DCDRF') in consumer complaint No.296 of 2014 whereby the complaint was allowed ex parte against opposite party No.1 without cost and on contest against opposite party No.2 with costs of Rs.10,000/-.
The respondent No.1 herein being complainant initiated complaint under section 12 of the Act alleging that on 25th July, 2005 the opposite party No.1 had entered into an agreement with opposite party No.2 for the purpose of development of G+3 storied building at premises No.17/7, Sahapur Colony (East), New Alipore, Kolkata-700053. The complainant approached the opposite party Nos. 1 & 2 who offered her to sell a flat measuring more or less 632 sq. ft. on the eastern side on the first floor of the said proposed premises at a total consideration price of Rs.5,40,000/- and accordingly an agreement was executed on 16th March, 2007. The complainant had paid the entire consideration amount and the opposite party No.1 put her into possession on 18th July, 2007. However, the opposite parties are not executing the Deed of Conveyance for which the instant complaint has been filed with the following prayers, viz. : (a) an order directing the opposite parties to execute and register Deed of Conveyance in the name of the complainant in respect of the flat in question; (b) an order directing the opposite party to pay compensation of Rs.1,50,000/- for inconvenience, agony, harassment, etc. and (c) a sum of Rs. 20,000/- for litigation cost, etc. The opposite party No.1/Developer did not contest.
However, O.P. No.2/land owner by filing a written version has disputed the claim contending, inter alia, that the agreement dated 25th July, 2005 alleged to have been entered into by and between him and the opposite party No.1 is a manufactured one for which he lodged a written complaint with O.C. New Alipore P.S. The O.P. No.2 has also denied that he entered into an agreement with the complainant for selling out the flat in question.
Relying upon evidence of the parties filed on affidavit, questionnaire and reply and on perusal of the documents, the Ld. DCDRF has allowed the complaint with a direction upon the opposite parties to execute and register Deed of Conveyance in respect of the property in question within one month from date and also directed the O.P. No. 2 to pay Rs.1,00,000/- to the complainant towards compensation which prompted the O.P. No.2 to prefer this appeal.
The point arises for consideration in this appeal as to whether or not the Ld. DCDRF was justified in passing the order impugned.
On close scrutiny of materials on record and having heard the Ld. Advocates for the respective parties it emerges that on 25th July, 2005, O.P. No.1 and O.P. No.2 of the case had entered into an agreement for development of 'A' schedule property as mentioned in the application. Be it mentioned here that O.P. No.1 is the Developer and O.P.2 is land owner. It also comes to surface that on 16th day of March, 2007 an agreement was entered into by and between O.P.No.1 (Developer), complainant (Purchaser) and O.P. No.2 (Land Owner) in which the complainant agreed to purchase the 'B' schedule property which is a self-contained flat measuring 632 sq. ft. super-built (carpet 542 sq. ft.) area lying and situated at premises No.23A, Diamond Harbour Road, Kolkata-700053.
It is contended on behalf of the complainant that she paid the entire consideration amount by cash/bank draft, etc. On behalf of opposite party No.2 it is contended that the agreement is not a genuine one and his signature was obtained by fraud.
To substantiate his allegation O.P.No.2 had filed an application before Ld. DCDRF with a prayer for appointment of a hand-writing expert to ascertain the genuinity of signature of him in the Deed. The agreement by which the complainant intended to purchase the flat in question bears the signatures of the Developer and the Purchaser in all the pages. However, the signature of O.P.No.2 appears only in first and last page. Ld. Advocate for the appellant has submitted that the signatures of his client are manufactured one and as such they had applied for appointment of a hand-writing expert.
It would be worthwhile to note that on 16.12.2009 the complainant through his Advocate wrote letters to both the opposite parties clearly mentioning that the complainant has almost paid the entire consideration amount and has been put in possession on 18.7.2007 and as such requested them to execute and register the Deed of Conveyance. On 22.12.2009 a reply was given to the Advocate of the complainant by the Advocate of opposite party No.2 stating that the complainant had not paid the full consideration amount to their promoter i.e. O.P. No.1 and that is why the execution for registration of the flat could not be done. The letter dated 22.12.2009 issued by O.P.No.2 through his Advocate clearly manifests that being land owner he engaged O.P. No.1 for development of 'A' schedule property. Though in the letter it has been mentioned that entire payment of consideration amount has not been paid but it has not been made clear how much amount is still due and payable by the complainant. Therefore, the letter given by the opposite party No.2 through his Advocate on 22.12.2009 and the application wherein he has made a prayer for appointment of hand-writing expert appears to be self-contradictory. The situation would be more clear if we have a look to the answer given by opposite party No.2 to the suggested questionnaire for cross examination put on behalf of the complainant. In question No.12, the complainant intended to know whether O.P.No.2 put his signature in the agreement to which O.P. No. 2 replied that the complainant at the time of booking of the flat obtained his signature in blank papers and in those blank papers they manufactured the said document. Again another question was put to O.P. No.2 whether in TS 76 of 2009 instituted by O.P. No.2 against O.P. No.1 & others that complainant is in possession of the flat in question and paid almost all the consideration money to which the O.P. No.2 replied that his advocate has made such statement without his knowledge. The replies given by O.P. No.2 do not appear to be satisfactory and further he has admitted that he allowed a meter to be installed within the premises in the name of the complainant as the complainant intended to purchase a flat and gave him a token money of Rs.50,000/-.
The facts and circumstances and the materials on record indicate that meanwhile the rate of flat are increasing day by day and as such the opposite party No.2 has made his intention clear that unless the entire consideration of Rs.19,50,000/- is paid he is unable to execute any Deed of Conveyance. Surprisingly enough, when the agreement between the parties indicates that the consideration amount of the flat would be Rs.5,40,000/- the O.P. No.2 cannot bargain such exorbitant amount to deprive a consumer.
In that perspective, the Ld. DCDRF was quite justified in holding that the opposite party No.2 is adopting unfair trade practice by claiming exorbitant amount of the flat and as such the cost and compensation amount has been rightly imposed upon the opposite party No.2.
The cumulative effect of our foregoing discussion clearly leads us to hold that the instant appeal is devoid of any merit. The appellant/O.P. No.2 should have complied with the order of Ld. DCDRF and instead of doing so when he approached this Commission with this frivolous appeal it is liable to be dismissed with cost of Rs.5,000/-.
Consequently, the appeal is dismissed on contest with costs of Rs.5,000/- to be paid by the appellant in favour of respondent No.1 i.e. the complainant of the case.
The judgment dated 31st day of December, 2014 passed by the Ld. District Consumer Disputes Redressal Forum, South 24-Parganas in consumer complaint No.296 of 2014 is hereby affirmed. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER