1. This appeal has been filed under section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) in challenge to the Order dated 25.10.2017 of the State Commission in complaint no. 410 of 2014, whereby the complaint was allowed against the appellant No. 1 / opposite party No. 1 and ex parte against respondents no. 2 and 3 / opposite parties no. 2 and 3. 2. Heard the learned counsel for the appellant (hereinafter referred to as the ‘developer’) and learned counsel for the respondent no. 1 (hereinafter referred to as the ‘complainant’) and perused the record including inter alia the Order dated 25.10.2017 of the State Commission and the memorandum of appeal. This Commission, vide its Order dated 25.10.2017, has proceeded ex parte against respondents no. 2 and 3. 3. The facts, in brief, of the case are that on 19.09.2012, the complainant entered into an agreement with the developer to purchase two self-contained flats measuring about 750 sq. ft. super built up area on the entire 3rd floor at premises No. 842, Upendra Nath Banerjee Road, P.S. Parnashree, Kolkata – 700060, District South 24 Parganas within the local limits of Kolkata Municipal Corporation for a consideration of Rs. 33,57,000/-. It is alleged that on different dates, the complainant has paid total amount of Rs. 37,35,640/- i.e. excess of agreed consideration amount. In the agreement, it was stipulated that the developer will handover the scheduled property in a habitable condition within 12 months after receiving full consideration amount. It is further alleged that the complainant repeatedly requested the developer to execute the sale deed but it turned a deaf ear and even the legal notice dated 08.09.2014 went in vain. 4. Being aggrieved, the complainant filed a complaint before the State Commission with the following prayer: (a) pass an order directing the O.P. No. 1 / developer to complete all unfinished works as per the Development Agreement and the Agreement for Deed of Assignment; (b) pass an order directing the O.P. No. 1/ developer to make the two flats on the top floor, being the entire top floor, a single unit and thereafter obtain regularize / revise plan from the Kolkata Municipal Corporation; (c) pass an order directing the opposite parties to execute and register the final deed in favour of the complainant; (d) pass an order for execution and registration of the Deed of Conveyance through the machinery of this Hon’ble Commission if the opposite parties fails to execute and register the deed as per order of this Hon’ble Commission. (e) pass an order directing the O.P. No. 1 / Developer to refund the amount of Rs.3,60,640/- received in excess of the agreed consideration; (f) pass an order directing the O.P. No. 1 to pay Rs. 3,00,000/- as compensation for causing serious mental pain and agony; (g) pass an order directing the opposite parties to pay Rs.50,000/- as litigation cost; (h) such other relief or reliefs as the complainant is entitled to. 5. The developer contested the case by filing written statement stating that the complainant’s assertion that the flat in question was to be purchased for Rs.33,75,000/- is not the real market value and the same is fictitious. It was further stated that the money receipts are manufactured and forged and have not admittedly been signed by the developer. It is further stated that if the agreed consideration of the flat is Rs. 33 odd lakhs, there is no reason for the complainant to pay Rs. 37 odd lakh without any justification. It was further stated that if the complainant is seeking restitution of money loaned to the developer or anybody, he ought to have come by way of money suit by paying requisite court fee before the appropriate court. It is further stated that the complainant had promised to make available loan amounts in the shape of crores of rupees to enable the developer to execute this project but he could not even finance to the tune of even Rs. 1 crore and is demanding exorbitant rates of interest with threats of assault if the developer defaults. It is further stated that the complaint is infructuous and non est. The developer cannot be compelled to register the deed of conveyance as allegedly demanded by the complainant without payment of adequate finances as was promised. The question of money lending is entirely a question of civil dispute and the complainant has not alleged any deficiency of service on the part of the developer and the complainant only refers to an unregistered agreement for deed of assignment, which is a disputed manufactured document resorted to by interpolation of purported payments in the blank spaces left in certain spaces. 6. The State Commission, vide its order dated 15.12.2014, allowed the complaint on contest against opposite party no. 1 and ex parte against opposite parties no. 2 and 3 and directed them to jointly and severally to deliver the possession and to execute the Sale Deed in respect of Schedule ‘B’ property as mentioned in the agreement dated 19.09.2012 in favour of the complainant or in the alternative the opposite party no. 1 shall refund Rs.37,35,640/- along with interest thereon @12% p.a. from the date of payments till its realization. The State Commission also awarded Rs. 1,00,000/- towards compensation and Rs. 10,000/- as litigation costs. 7. Being aggrieved by the order dated 15.12.2014, the developer has filed the instant appeal before this Commission. 8. Before this Commission, learned counsel for the developer has argued that the agreement dated 19.09.2023 is an unregistered document, therefore, the same is not enforceable. He further argued that on 11.09.2017 when the State Commission concluded the hearing, the complainant did not receive the physical possession of the flat in question but before passing the impugned order, the complainant forcibly trespassed and took the possession of the said flat and has subsequently obtained electric connection in his name. In this regard, an F.I.R. has been registered against the complainant and the same is pending for disposal before the Additional Chief Judicial Magistrate, Alipore. He has further argued that the State Commission has ignored the dispute raised by the developer that it had not received any cash money amounting to Rs. 15,25,000/- and has also disputed the signature in the cash receipt and the said question of fact, which requires a detailed and complicated investigation, cannot be decided in summary proceedings before Consumer Commission. It is an admitted fact that the developer had received an amount of Rs. 12,65,000/- only. 9. Learned counsel for the complainant reiterated their arguments made before the State Commission and argued that the State Commission has passed a reasoned order after considering all the facts and evidence. 10. It is seen from the facts and upon perusal of evidences on record that the complainant is placing reliance on the money receipts. However, the appellant developer categorically denies even issuing such receipts and stated that they are forged. It is also not denied by the complainant that he had taken forcible possession of the flat in question and an F.I.R. has been registered in this regard. In my opinion, the present case involves highly disputed questions of facts and issues of fabrication of documents and unauthorized possession of the flat in question. Such complex issues cannot be adjudicated in a summary proceeding in the Consumer Commission. 11. In view of the above discussion, this bench is of the opinion that matter as such is of complicated nature, which needs deeper probe, investigation requiring parties to adduce elaborate evidence and cross examination of each other witnesses. The parties are at liberty to avail their remedy before the Civil Court in accordance with law. - . In view of the above, the appeal is allowed and the order dated 25.12.2017 of the State Commission is set aside. The appellant is at liberty to avail their remedy before the Civil Court, in accordance with law. Pending applications, if any, stand disposed of.
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