DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

      C.C. CASE NO. _256_ OF ___2014

DATE OF FILING : 6.6.2014    DATE OF PASSING JUDGEMENT:  _29.6.2018_

Present                 :   President       :   Ananta Kumar Kapri

                                 Member(s)    :    Subrata Sarker  & Jhunu Prasad

COMPLAINANT        : Tapas Kumar Sen, son of late Naresh Chandra Sen of 10/1B, Madhab Lane, P.S Ballygunge, Kolkata – 700 025.

•  VERSUS  -

O.P/O.Ps                    :  Pappu Ghosh @ Samipon Ghosh ,son of late Sudindra Narayan Ghosh of 132, Santoshpur East Road,  Santoshpur, P.S Garfa, Kolkata – 25, being the successor of the Ghosh Traders.

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                                                J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

                      The quintessence of the facts leading to the filing of the instant case by the complainant is that one Naresh Chandra Sen alias Sengupta ,since deceased, was the father of the complainant. He purchased a homestead land measuring more or less 6 cattah 17 chittak 28 sq.ft as succinctly described in Schedule A to the complainant by different dates from different owners. His name was also mutated in Calcutta Municipal Records. He died intestate leaving behind his wife, sons and daughters. The said wife has also expired.  Complainant is one of the sons and he along with  his brothers and sisters has inherited the property left by his father.

                     One Development Agreement dated 24.1.2009 was effected between them and the O.P i.e the developer, whereby the developer agreed to raise a multi storied building upon the case land. Sale Agreement dated 17.8.2009 was also effected between the complainant and the said developer and thereby the developer agreed to provide a self contained flat as described in Schedule B to the complaint to the complainant for a consideration price of Rs.3,90,000/- .  General Power of Attorney was also executed by the land owners in favour of the O.P developer. The complainant paid Rs.2,40,000/- to the developer. Construction of the multi storied building was completed, but the developer did not deliver the possession of the flat to the complainant, nor did he register the deed of conveyance in favour of the complainant. Repeated requests by the complainant for registration of the flat in his favour yielded no positive response. Now, the complainant prays for delivery of possession of the flat, registration thereof in his favour, delivery of completion certificate and compensation. Hence, the case.

                          Written version of the statement was filed by the original O.P ,who is dead now, and his legal heirs has been substituted in his place. According to him, the Development Agreement was executed between the land owners and him  on 24.8.2009 and it was agreed between the parties that the O.P/developer would raise a two storied building on the land which would belong exclusively to the developer who will pay Rs.24 lacs to the owners and provide a car parking space of 100 sq.ft  to the owners. A sum of Rs.24 lacs has already been paid to the land owners by the developer. That apart, on 17.8.2009 the land owners  gave a declaration to the effect that they would not claim the proposed car parking space in the said building. The further case of the O.P is that an agreement was prepared for selling a self contained flat to the complainant, but no payment was made by the complainant and, therefore, the said agreement for sale was illegal and unlawful.   He did not execute any valid and legal agreement for sale as alleged by the complainant and , therefore, no question of handing over possession or completion certificate by him does arise. Complainant, however, managed to procure signature of O.P on the sale agreement and memo of consideration. The sale agreement is a false one and, therefore, the instant complaint should be rejected with cost.

     Upon the averments of the parties following points are formulated for consideration.

POINT FOR DETERMINATION

1. Is the agreement for sale dated 17.8.2009 executed by the original O.P/developer is valid ?
2. Does the agreement for sale require to be impounded in accordance with the provisions of Law?
3. Is the O.P liable for deficiency in service for not delivering the possession of the flat to the complainant in terms of the agreement for sale dated 17.8.2009?
4. Is the complainant entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

Complainant has led his Evidences on affidavit which is kept in the record for consideration. Written version of the original O.P is treated as evidence of the O.P vide his petition dated 1.9.2015. Questionnaires, replies and BNAs filed by the parties are kept in the record for consideration. The substituted O.P has also filed a fresh written version of his statement and has also filed evidence on affidavit and these are also kept in the record for consideration.

DECISION WITH REASONS

Point no.1 :

Already heard the submissions of Ld. Lawyers ,appearing for both the parties. Perused the complaint, written version and the materials on record. Considered all these.

It was contended in the written version filed by the original O.P that he did never execute the agreement for sale and that the agreement for sale was not legal. According to the O.P, the signature transpiring in the agreement for sale were somehow procured by the complainant from him and the agreement for sale was not a genuine one. As the signatures of the original O.P were challenged by the original O.P, the agreement for sale was sent to the Hand Writing Expert for ascertaining whether those signatures belonged to the original O.P or not, after having compared the same with the sample signatures of the original O.P. The report of Hand Writing Expert has been received by this Forum and the same is kept in the record. The report dated 6.2.2017 of the Hand Writing Expert goes to prove that the disputed signatures of sale agreement and specimen signatures of the original O.P belong to the same person. In the face of the opinion-evidence of Hand Writing Expert we feel constrained to hold that sale agreement was executed by the original O.P and the original O.P has denied the execution of the sale agreement only to subserve his ulterior motive .

That apart , there is also inkling in the written version of the original O.P that the sale agreement was prepared after having negotiations between the complainant and the O.P for selling a self contained flat to the complainant. But no payment was made by the complainant in pursuance of that agreement and, therefore, the O.P has called the agreement not valid and not legal. From this version of the O.P as transpiring in the written statement filed by him, it is given to understand to some extent that the O.P executed the sale agreement and that he thereby agreed to sell a self contained flat to the complainant.

Upon scrutiny of all these facts and evidences we are of the opinion that the sale agreement was actually executed by the original O.P in favour of the complainant and that he thereby agreed to sell a self contained flat to the complainant.

Point no.1 is thus answered in favour of the complainant.

  Point no.2  :

                    Ld. Lawyer appearing for the O.P has contended that the sale agreement requires to be impounded in accordance with the provisions of Law ,relying upon a Ruling cited in the case of Dr. Swapnadin Lahiri Vs. Tridib Das Roy ( C.O no.1410 of 1999) of Hon’ble Calcutta High Court. It is submitted by him that an agreement for sale also requires stamp duty as is required in a deed of conveyance. It is further submitted by him that the sale agreement is not provided with proper stamp duty and, therefore, it is inadmissible in Law.

                    It is true that the sale agreement has been written upon a stamp paper of Rs.10/-. The question which arises for consideration now is whether such an agreement i.e agreement for sale requires to be impounded in view of the Ruling of Hon’ble Calcutta High Court as cited above. The aforesaid Ruling of Calcutta High Court relates to sell or transfer of immovable property . It is laid down therein that whenever the sale agreement creates any right, title or interest or whenever it provides for any provision for delivery of possession of immovable property before or immediately after the execution of the sale agreement, the sale agreement, though it is purely an agreement, requires stamp duty as is payable on a deed of conveyance as mentioned in Item no.23 in Schedule 1A of the Indian Stamp (West Bengal Amendment) Act, 1990( West Bengal Act XVII of 1990). The aforesaid ruling relates to immovable property. Dispute before the Consumer Forum does never relate to any immovable property . It relates to deficiency in service. When a builder raises a multi storied building and agrees to deliver the possession of a flat to an intending purchasers within a stipulated period in that multi storied building,  such transaction does never relate to transfer of immovable property. It is a part of housing construction  and as such it is a service within the meaning of the term as provided under section 2(1)(o) of the C.P Act, 1986. So, the agreement which provides for providing a flat to an intending purchaser by the developer in a multi storied building within the stipulated period is a service. The Hon’ble Apex Court has also held the same view in the case of Faquir Chand Gulati Vs. Uppal Agencies Pvt. Ltd., reported in 2008(5) Supreme 76, wherein it has been laid down by the Hon’ble Apex Court that when possession of property is not delivered within the stipulated period, the delay so caused is denial of service and such dispute or claims are not in respect of immovable property ,but deficiency in rendering of services of particular standard ,quality or grade. Relying upon the ruling of the Hon’ble Apex Court, we are inclined to hold that the agreement for sale ,though it is so nomenclature, is not an agreement for sale  of immovable property. But, it is an agreement for sale of service tobe rendered by the O.P/builder. The agreement for sale ,being an agreement for sale of service, it is not required to be impounded and this being so, the ruling of the Hon’ble Calcutta High Court as cited above does not have any application to this case. The sale agreement is not required to be impounded.

                    Point no.2 is thus answered in favour of the complainant.

  Point no.3 & 4  :

                    Now, it is found that the sale agreement which was executed by the original O.P was a genuine one and it has been so established by the opinion-evidence of the Hand Writing Expert, which also goes undisputed. The complainant has stated on affidavit that the total consideration price of the flat was fixed at Rs.3,90,000/- and that he has paid Rs.2,40,000/- only to the original O.P. A perusal of the sale agreement dated 17.8.2009 also reveals that the original O.P agreed to deliver the possession of the flat to the complainant within 24 months of the date of execution of the sale agreement. The possession of the flat has not yet been delivered to the complainant. Registration of the flat has not also been effected in favour of the complainant as yet. Delay in delivery of the possession of the flat to the complainant is a glaring instance of deficiency in service on the part of the O.P. That apart, delay in causing registration of the flat in favour of the complainant and delay in delivery  of the completion certificate to the complainant are also the instances  of deficiency in service on the part of the O.P. Regards being had to all these facts and circumstances ,which stands established in the face of the record, we do say that the O.P is guilty of deficiency in service and that the complainant is, therefore, entitled to get the relief or reliefs as prayed for and the relief or reliefs are granted to the complainant accordingly as hereunder.

                        Some points are required to be mentioned herein because unless these are mentioned, the discussion of us, as it seems to us, will remain incomplete. In the instant case, the son of the original O.P who has been substituted after demise of his father has filed fresh written statement  and a fresh examination-in-Chief on affidavit and those are kept in the record. The original O.P i.e the father of the substituted O.P filed written version of his statement in the case and this written version of his statement has been treated as evidence of him in accordance with the prayer of his petition dated 1.9.2015. So, in the facts and circumstances the substituted son of the original O.P has no locus standi to file a fresh written version or fresh evidence; he cannot deviate from the stand taken by his father and Law does not allow him to do so. Keeping this legal position in mind we do keep aside the written version and the evidence filed by the substituted O.P from the zone of consideration.

                    In the instant case the complainant has suffered to a large extent and such suffering of the complainant can only be attributed to none but the O.P, who executed the sale agreement, though he denied unabashedly  the execution of the said agreement. For this unfair conduct of the O.P, the complainant has certainly suffered a lot of mental agony as well as harassment and the O.P will have to pay compensation to the complainant in this regard.

                        In the result, the case succeeds.

                       Hence,

ORDERED

That the complaint case be and the same is decreed on contest against the O.P with a cost of Rs.10,000/- to be paid by the O.P to the complainant.

The O.P is directed to execute and register the deed of conveyance in favour of the complainant having received Rs.1,50,000/- from the complainant as balance amount of consideration money and also to deliver the possession of the flat as described in schedule B to the complaint to the complainant ,failing which the complainant is at liberty to effect the registration of the flat and to recover the possession of the said flat with the help of the  machinery of the Forum .

The O.P is also directed to pay compensation of Rs.1 lac for loss ,mental agony, harassment and unfair conduct of the O.P to the complainant within a month of this order, failing which the compensation amount and the also the amount of cost will bear interest @10% p.a till full realization thereof.

     Let a free copy of this order be given to the parties concerned at once.   

                                                                                                                   President

I / We agree

                                       Member                                   Member                                                      

Dictated and corrected by me

                   President