DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 133 OF 2017
DATE OF FILING: 02.11.2017 DATE OF JUDGEMENT: 23.07.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : SRI RABINDRA NATH RAUL S/O – Late Gostha Bihari Raul , Aged about 60 years, Dakshinpara Road, Residing at – 23, P.O. – Dum Dum, P.S. – Dum Dum, Dist. - North 24 Parganas, Kolkata – 700 028, West Bengal.
O.P/O.Ps : 1. SRI AJOY DUTTA
2. SRI BIJOY DUTTA
3. SMT. BIJOLI BHATTACHARYA
4. SMT. SHYAMALI DEY
All sons and daughters of Late Anil Kumar Dutta, All are residing at Sreenagar Dhalua, Garia, P.S. – Sonarpur, Dist. – South 24 Parganas, Kolkata – 700 094, West Bengal.
5. NEED ENTERPRISE
A proprietor ship firm having its registered office at - 119, Santoshpur Avenue, P.S. – Garfa, Dist. – South 24 Parganas, Kolkata – 700 075, Represented by its sole proprietor.
(Developers)
6. SRI SHYAMAL KUMAR DAS
S/O – Late Satish Chandra Das, Residing at - 40/3, 6th Road, Santoshpur, P.S. – Garfa, Kolkata – 700 075, Dist. – South 24 Parganas, West Bengal.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Negligence and inability on the part of the O.P. developers to complete the construction work of the subject flat and also to handover the possession thereof to the complainant have galvanized the complainant to file the instant case under section 12, CP Act, 1986 alleging deficiency in service on the part of the O.P.s.
Facts leading to the filing of the instant case may be epitomized as follows.
A sale agreement dated 24.03.2006 was executed by and between the complainant and developer i.e. O.P. no. 6 and thereby the developer agreed to sell a self contained flat measuring 600 sq.ft. super built-up area on the ground floor as succinctly described in schedule to the complaint of the complainant for a total consideration price of Rs. 5,40,000/-. The consideration price was paid by the complainant to the developer in its entirety – Rs. 90,000/- in cash and Rs. 4,50,000/- by banker’s cheque dated 05.06.2006 and the deed of conveyance was also executed and registered on 07.06.2006 in favour of the complainant by O.P. no. 6 i.e. the developer, when the construction work of the flat was yet to take its flight. Thereafter also, the construction work of the subject building was started; but, the completion of such work was yet to see the light of the day. Possession of the flat has still remained a far cry to the complainant and therefore the complainant has come up before this forum with the filing of the instant case praying for passing an order directing the O.P. developer to complete the construction of the flat and thereafter to deliver the possession of the flat to the complainant and to pay sum of Rs. 3,00,000/- as compensation for harassment and mental agony etc. Hence, this case.
O.P. nos. 1 to 4 are land owners and notice of the case has been served upon them by way of publication in the newspaper. In spite of such service they have neither appeared nor have filed W/V within statutory period and therefore the case proceeds ex-parte against them.
O.P. nos. 5 and 6 i.e. the developers have filed W/V to contest herein, wherein it is contended inter-alia that no sale agreement as alleged by the complainant was executed in favour of the complainant and that the O.P. no. 6 never received consideration price as alleged from the complainant. The subject flat has been sold to one Avik Mukherjee by registered sale deed prior to 31.03.2006. All deeds and documents of the complainant including sale agreement and money receipt are forged and fictitious and therefore the complainant is not entitled to get any relief as prayed for.
Upon the averments of the parties, the following points are formulated for consideration.
POINTS FOR DETERMINATION
- Is the case barred by limitation?
- Have the O.P. / developers executed the sale agreement dated 24.03.2006, deed of conveyance dated 07.06.2006 in favour of the complainant with respect to the subject flat?
- Has O.P. no. 6 received the consideration price of the flat in its entirety from the complainant?
- Are the O.P. nos. 5 and 6 guilty of deficiency in service for not delivering the possession of the subject flat to the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Complainant has filed evidence on affidavit and the same is kept in record. Similarly, evidence on affidavit is also filed on behalf of O.P. nos. 5 and 6 and the same is also kept in record. BNAs filed by the parties are also kept in record after consideration.
DECISION WITH REASONS
Point no.1 :
It has been argued on behalf of the contesting O.Ps i.e O.P nos. 5 and 6 that the case is barred by limitation. According to the submission of those O.Ps, the sale deed was allegedly executed with respect to the subject flat on 7.6.2006 and the instant case is filed on 2.11.2017 i.e about 10 or 11 years after the date of execution of sale deed. So, the case is barred by limitation.
It is true that the alleged sale agreement was executed on 24.3.2006 and sale deed was allegedly registered on 7.6.2006. It is equally true that instant case is filed on 2.11.2017 i.e about 10 or 11 years after the date of registration of the sale deed with respect to the subject flat. But, it is well settled that the cause of action in case of such kind is a continuing one , if the possession of the flat is not handed over to the purchaser by the developer. The cause of action is also a continuing one if the completion certificate is not delivered to the purchaser of the flat by the developer. In the instant case, the possession of the flat has not been delivered as yet to the complainant and the completion certificate of the said flat is also yet to be delivered to the complainant. This being the facts and circumstances of the case, we feel no manner of hesitation to say that the instant case is not barred by limitation.
Point no.1 is thus answered in favour of the complainant.
Point no.2,3 ,4 & 5:
All the points as mentioned above are intrinsically connected with one another and, therefore, all the points are taken up for discussion simultaneously.
In the instant case, the O.P/developers i.e O.P nos. 5 and 6 have denied everything stated in the petition of complaint. They have denied the execution of sale agreement dated 24.3.2006 and also the deed of conveyance dated 7.6.2006 . They have denied the money receipts of the complainant. According to them, the case of the complainant is a false, fictitious and concocted one and , therefore, he is not entitled to get any relief as prayed for.
In the light of the version of the O.P nos.5 and 6/developers, it is to be seen now whether the version of the O.Ps carries any grain of truth with it or it is a concocted version orchestrated with a view to evading the liability of them towards the complainant. We know very well that a man is best known from his conduct. We know very well that it does not require to test each and every grain of rice to ascertain whether they are properly boiled or not. Test of one or two of such grains is sufficient to ascertain whether the whole of the grains of rice contained in a bowl are fully done or not, Applying this test to the instant case, we may ascertain whether the version of the O.P developers carries any truth or not. If a drop of poison is mixed with a bucket-full water, the whole of the water becomes poison . Similarly if the conduct of the developers is found to be fraudulent in respect of one or two points, the whole conduct of the O.Ps will be recognized.
Let us proceed to apply the said test to know something more about the exact nature of the O.Ps. In the instant case the version of the complainant is that he paid the entire consideration price i.e Rs. 5,40,000/- to O.p nos. 5 and 6 and out of this Rs.90,000/- was paid by him in cash on the date of sale agreement and Rs.4,50,000/- was paid by banker’s cheque issued by the Bank of Baroda ,wherefrom he took a loan for house building purpose. The O.P developers have denied all these and it has been so narrated above. In the contest of submission and counter submission of the parties, the Forum considered it expedient to direct the parties to produce their all bank statements of account so that the Forum is able to see whether Rs.4,50,000/- has been credited to the account of the O.P nos. 5 and 6 at the relevant time. The O.P / developers i.e O.P nos. 5 and 6 have submitted an application before the Forum on 10.9.2018 and in that application they have given a vivid description of all of their accounts. It is submitted therein that the O.P-6 Sri Shyamal Kumar Das had an account in Allahabad Bank at Dhakuria at the relevant period i.e from 1.1.2006 to 31.12.2007. He has also submitted therein that he also had another account in IDBI Bank at Garia . But no statement of that account is available by him from the said bank. It is further submitted by him in that application that there is a bank account in the bank of Maharashtra , Jadavpur Branch and another bank account in IDBI Bank at Garia in the name of O.P-5 i.e ‘Need Enterprise’ . Those two accounts in the name of the O.P no.5 were closed long ago and, therefore, no statement of account was made available from those banks. It is further stated in that application dated 10.9.2018 that there is no other account in any bank in the name of O.P-5 during the period from 1.1.2006 to 31.12.2007.
Now to consider the conduct of O.P nos. 5 and 6. They have given their account details of their banks ,wherein lay their accounts at the relevant time i.e from 1.1.2006 to 31.12.2007. But, the information of most relevant bank has not been given by them to the Forum. Why? Is it not duplicity played on the part of the O.P nos. 5 and 6 ? O.P-5 had a bank account in UTI Bank, Tollygunge Branch at the relevant point of time. The said UTI Bank has now merged with the Axis Bank, Tollygunge Branch and account of all the account holders of the said UTI Bank have been transferred to Axis Bank, Tollygugne Branch . . We have received a report from Axis Bank, Tollygunge Branch and the report dated 17.6.2019 of the said Bank reveals that there was an account in the name of “Need Enterprise”(O.P-5) bearing account no.045010200009157 and an amount of Rs.4,50,000/- was credited to the said account of “Need Enterprise” on 9.6.2006. But nothing is stated by O.P-6 about the account of Axis Bank. He has suppressed it and regards being had to this particular aspect of the conduct of O.P-6, we feel no hesitation whatsoever to say that suppression has entered into the soul of O.P-6 and this aspect of his character goes a long way to apprise us all about the true nature of O.P-6.
That O.P-6 is not a straight forward person and that he is a crooked person , are again established if we go deeper into further consideration of facts and materials on record. Before filing of the instant case, one legal notice dated 24.8.2017 was served upon all the O.Ps including the O.P-6. In that legal notice also the complainant stated about the sale agreement and the deed of conveyance executed by the O.P-5 in favour of the complainant with respect to the subject flat. Had those deeds been forged and fictitious as alleged by the O.P-6 at present, the O.P-6 could have lodged a complaint before the appropriate authority. O.P-6 could have given a reply at least to the complainant. But nothing was done by the O.P-6; he maintained silence all along. Why? A prudent man can never be expected to remain silent whenever he knows that someone is grabbing his property by practicing fraud upon him. But the O.P-6 remained silent. This silence on the part of O.P-6 implies that O.P-6 executed all those documents such as the sale agreement, deed of conveyance and also the money receipts. This silence on the part of the O.P-6 implies that the defence case is got up subsequently with a malafide intention to evade the liability of the O.Ps towards the complainant.
The circumstances as discussed above are tell-tale facts and go to prove that O.P-6 has resorted to mendacity in order to avoid his legal obligation towards the complainant. The entire defence taken by the O.P-6 appears to be not only bizarre but also balderdash. The O.P-6 has taken a false defence before the Court of Law and such act on his part is an unfair trade practice, no less than deficiency in service. We have already made it clear that one drop of poison makes a bucketful water poisonous. Similarly, one or two vices in the character of O.P-6 has exposed the true nature of O.P-6 and regards being had to all these aspects, we do say that the O.P-6 has taken up a fictitious and concocted defence in order to avoid his liability towards the complainant.
Now to see how far the complainant has been able to prove that he has paid entire consideration price of Rs.5,40,000/- to the O.P/developers i.e O.P nos. 5 and 6 . O.P-6 is the sole proprietor of O.P-5 and this is so stated by the O.P-6 himself in paragraph 2 of their evidence. The complainant took a loan from Bank of Baroda for purchasing a residential flat from O.P nos. 5 and 6 and Bank of Baroda issued a banker’s cheque. This banker’s cheque was issued in the name of “Need Enterprise” i.e O.P-5 of which the O.P6 is the sole proprietor. The amount of banker’s cheque was credited to the account of “Need Enterprise” maintained at the then UTI Bank, Tollygunge and now Axis Bank, Tollygunge Branch. All these are established by the report dated 17.6.2019 submitted by Axis Bank, Tollygunge Branch. Bank of Baroda has also submitted a report dated 19.9.2018 before the Forum and the said report reveals that a banker’s cheque of Rs.4,50,000/- was issued in favour of “Need Enterprise” from the Housing Loan Account of Sri Rabindranath Paul (complainant) on 5.6.2006 and the said banker’s cheque had been credited to the account of “ Need Enterprise” on 9.6.2006 ,maintained at UTI Bank, Tollygunge. The complainant has also filed a copy of sale deed to which is attached a Memo of consideration. From the memo of consideration it stands established that the complainant has paid Rs.5,40,000/- to O.P-6. On perusal of each and every page of the deed of agreement dated 24.3.2006 ,it is found that each page bears the signature of O.P-6. The written version filed by the O.P nos. 5 and 6 also bears the signature of O.P-6 i.e Shyamal Kumar Das. The chief-evidence filed by the O.Ps/developers in the Forum also bears the signature of O.P-6. In a process of comparison by naked eye by this Forum, it is found that the signatures of sale agreement and the deed of conveyance squarely correspond with the signature of written version and evidence filed by the O.P nos. 5 and 6. Regards being had to all these facts and circumstances of the case, we have not a vestige of doubt in our mind to say that the O.P-6 executed the sale agreement and deed of conveyance in favour of the complainant with respect to the subject flat and now, he has denied all these with malafide intention to evade his liability/obligation towards the complainant. It is submitted by O.P-6 that the sub ject flat has been sold to one Avik Mukherjee. No date of sale is mentioned. No copy of sale deed is filed by O.P-6. In absence of all these, we do say that this version of O.P-6 is also an attempt to hide the skeletons tumbling down from the cupboards. Such an attempt on the part of the O.P nos. 5 and 6 is nothing but an instance of unfair trade practice as well as deficiency in service. The complainant has certainly suffered a lot of harassment and mental agony due to such unfair trade practice and deficiency in service on the part of the O.P nos. 5 and 6 and ,therefore, he is deemed to be entitled to relief which is granted as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos.5 & 6 with a cost of Rs.10,000/- and decreed exparte against the O.P nos. 1 to 4 without any cost.
O.P Nos. 5 and 6 are hereby directed to deliver the vacant possession of the subject flat complete in all respects in accordance with the terms of sale deed and sale agreement to the complainant and also to supply the completion certificate of the building to him, within a month of the order, failing which they will have to refund the entire consideration price, i.e, Rs.5,40,000/- to the complainant with interest @12% p.a from the date of registration of sale deed , i.e 7.6.2006 till the date of full realization thereof along with a sum of Rs.12,00,000/-( Twelve Lac) as compensation for loss sustained by the complainant due to appreciation of value of the flat in the mean time and mental agony caused to him, within a month thereafter .
If the compensation amount is not paid within the aforesaid period, the said amount will bear interest @12% p.a till full realization thereof.
O.P nos. 1 to 4 are directed to extend full cooperation to O.P nos. 5 and 6 so that this award can find the light of the day.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
