FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
Complainant one Md. Mofizer Rahaman has filed his petition of complaint U/s 35 of the CP Act, 2019 submitting inter alia that on or about 11th Feb, 2009. He intends to purchase a flat having super built up area on 900 sq. ft. On the 2nd floor of the proposed building, construction project of the OPs 1 to 10 under the name and style M/S Reliable Construction and Co. with one car parking space on ground floor of the said premises situated at 32A, 32B, 32C, 32D, 32E and 32 F Abdul Halim Lane, PS-Taltala, Kolkata-700016 along with all other amenities attached thereto which include proportionate share of land attributing to same flat as described in schedule of the petition of complainant herein after mentioned as suit flat. The photocopy of the said agreement for sale has been marked as “A”.
It is further stated that the consideration money of dispute flat was settled on Rs. 12,50,000/- only vide agreement for sale dated 11.02.2009. The complainant paid entire consideration money as per demand of the said agreement for sale.
It is further stated that the complainant in the year 2005 and the Sale Agreement was executed for purchasing a flat containing by estimation of a super build up area of 1200 sq. ft., consisting of 3 bed room, one drawing /dinning, one kitchen, two bath cum privy located on the 2nd floor situated in the aforesaid premises owned by the OP-11 for self and on behalf of the OPs 1 to 10 as their constituted attorney in favour of the complainant and his mother Begum Sakina Khatoon for a total consideration of Rs. 10,00,000/- only. The photocopy of said agreement for sale has been annexed as annexure “B”. The entire matter was rescheduled as the developer could not construct the building and again executed a new agreement for sale/booking agreement in respect of two flats which containing area of 900 sq. ft. each more or less along with car parking space in the open space of the ground floor. Two agreement for sale were executed one in the name of the complainant himself and the other in the name of his mother namely Begum Sakina Khatoon with enhanced amount of consideration money amounting to Rs. 12,50,000/- each only. It is further stated that thereafter the OPs obtained a sanctioned building plan of a 3 stored building G+2 and started construction work in the said property and constructed a G+4 storied building but the said building was lying in unfinished condition. On several occasions being asked by the complainant about the completion of the building, the OP-11 used to evade the queries of both the complainant and his mother. In the mean time, it has come to the knowledge of the complainant that some dispute cropped up between the owners and developers. As a result, the construction of the building is lying incomplete. The photocopy of the building is annexed herewith as “C”. It is further alleged by the complainant in his petition of complaint that the OP-11 handed over the some flats to the purchasers barring the complainant. The complainant repeatedly his request the OP-11 to handover the flat in question along with the car parking space to him as per terms and condition of the agreement but the OP-11 refused his request on some fals pretext.
It is also the complainant’s case that the OP-11 instead of the flat in the second floor of the newly constructed building suggested him (complainant) to choose another flat either on 3rd floor or 4th floor or any other portion to the constructed later on which is beyond the amid of sanctioned plan already obtained but since those flats above second floor mere erected illegally and subject to demolish at any moment by the order of KMC Authority. So, the complainant did not agree to choice flat illegally erected by ignoring agreement existence and thus, the complainant has not allotted any flat in terms of the said agreement in spite of the fact that so many flats with similar measurement are still lying vacant and not subjected to any agreement for sale at least prior to the agreement between the OPs and complainant. It is also alleged by the complainant that the OP parties illegally and wilfully put him in trouble by ignoring the existence agreement between themselves and the complainant and they ignored his request to handover peaceful physical possession of the flat in question as per terms of the agreement for sale dated 11.02.2019 in that way they have cheated the complainant and practicing fraud upon against him which amounts to deficiency in service on the parts of the OP members.
Thereafter, having no other alternative, as per direction of his conducting advocate the complainant filed a suit for declaration and permanent Injunction being title suit No. 1598/2016 and the said suit was dismissed on the ground of limitation.
Thereafter, the mother of the complainant namely Begum Sakina Khatoon filed a complaint case before this Unit II Kolkata which was recorded as CC- 590/2016 and the FA No. 962/2017. The Hon’ble SCDRC allowed the appeal and directed the OP-11 to handover the flat as per schedule of the agreement for sale dated 11.02.2009 which has been marked as annexure “D” in the instant case. It is also the complainant’s case that due to covid situation he could not be able to file the case before this commission in time. The cause of this case arose when the OP-11 refused to hand over physical possession of the scheduled flat to the complainant and it was continuous process. Hence, the case is filed by the complainant with a prayer to give direction the Ops to handover the peaceful possession of the flat in question as mentioned in the Agreement for Sale dated 11.02.2009 and to execute and register the final deed of conveyance in favour of the complainant and to handover the completion certificate to the complainant before the date of execution and registration of the final deed of conveyance along with compensation of Rs. 21,00,000/- for hardship mental pain and agony and financial losses as sustained by the complainant along with cost of Rs. 2,000/- per diem till the said default.
The OP members have contested the case by filing a WV denying all the material allegation levelled against him. It is the OPs case that the complainant’s case is barred by limitation and is also barred by principle res-judicata. Because the allegation made by the complainant and his mother Begum Sakina Khatoon in respect of 900 sq. ft. super Built up area on 2nd floor of the flat by virtue of purported agreement for sale dated 11.02.2009 is subjudice. The Judgment passed in CC-590/2016 of the DCDRC Unit II and FA No. A/962/2017 of the Hon’ble SCDRC WB and at present pending on Revision Case RP/628/2020 before the Hon’ble NCDRC New Delhi.
It is also alleged by the OP members that the complainant has no cause of action to file the case. It is also alleged that the complainant is not a consumer as per CP Act. It is the case of the OP members that the complainant intends to purchase or booking two flats, being commercial purpose, more processing investment for commercial purpose and cannot be used for residential purpose. So, the complainant cannot be said a consumer under the CP Act, 1986 (as amandated up to date).
The description of the flat in question as mentioned in schedule of the petition of complaint is something different from the description of the flat mentioned in the agreement for sale. It is also stated that the case is bad for mis-joinder and non-joinder of the necessary parties and also barred by Section 25 of the Indian contract Act, 1872.
It is the further case of the OP members that the OP-10 Sri Arup Kumar Dey sold all that peace and parcel of Vastu Land measuring area of 645 sq. ft. out of the total area of land measuring 1 Bigha, 7 Cottahs pertaining premises No. 32A, Abdul Halim Lane, Kolkata-700016, PS Taltala to SK. Hazim Ali, prop. of M/s Reliable Construction and Co. by dint of a registered deed of conveyance dated 16.06.2011 at a consideration of Rs. 3,00,000/- and the OP-8 Sri Amit Kumar Dey has entered into a Development Agreement dated 30.09.2011 with the OP-11 in respect of his share in the Premises No. 32A, Abdul Halim Lane, Kolkata-700016. The OP-9 entered into a Development Agreement dated 26.07.2012 in respect of the premises in question with the OP-11. The OP-3 also entered into Development Agreement dated 15.08.2012 with the OP-11 in respect of the premises in question the OP-5 i.e Bijoy Krishna Dey along with Smt. Dipa Dey, Smt. Sarmistha Dutta and Smt. Samita Nandi jointly entered into a Development Agreement dated 15.08.2012 with the OP-11. The OP-6, 7 and others also entered into a Development Agreement dated 04.04.2005, and 15.08.2012 with the OP-11 in respect of their shares in the premises No. 32A, Abdul Halim Lane, Kolkata-700016. The OP-1 and 2 Sri Gouri Shankar Dey and Sri Uma Shankar Dey respectively also entered into a Development Agreement dated 15.08.2012 with the OP-11 in respect of their share in premises in question. It is further stated by the OP member in their WV that the OPs 1, 2 and 3 namely Sri Gouri Shankar Dey, Sri Uma Shankaer Dey and Smt. Nayantara Chandra have entered into another Development Agreement dated 04.04.2005 with the OP-11 in respect of their shares in the premise in question.
The OP 4 and 5 jointly entered into a Development Agreement dated 04.04.2005 with the OP-11 in respect to their share in premises in question and the OP-8 by virtue of a registered general power of attorney dated 30.09.2018 appointed Sk. Azem Ali as his constituted attorney to perform and execute all acts, deeds and things in respect of the Premises No. 32A, Abdul Halim Lane, Kolkata-700016 or its sub premises and/or as mentioned in the said power of attorney. The OP-9 entrusted Sri Azem Ali as his constituted attorney by executing a registered general power of attorney dated 26.07.2012 to perform and execute all acts deed and things in respect of premises No. 32A, Abdul Halim Lane, Kolkata-700016 and/or its sub premises as mentioned in power of attorney. The OP-s 1 , 2, and 3 and 10 also entrusted Sk. Azem Ali as their constituted attorney by dint of a registered power of attorney. Being the constituted attorney of OP 1 to 10 Azem Ali by virtue of an Agreement for Sale dated 06.04.2005 agreed to sale all that piece and parcel of one self contained flat on 2nd floor of the multi storied building. Consisting of 3 bed rooms, one dinning/drawing, one kitchen, 2 bathroom cum privies, toilet covering super built up area measuring about 12 sq. ft. together with all common rights business and appearances attached thereto together with undivided proportionate share of land. (excluding any interest of the roof or terrace of the proposed multi storied building) to one Begum Sakina Khatoon and her son Md. Mafizul Rahaman (complainant herein) jointly appertaining to premises No. 32, Abdul Halim Lane, Kolkata-70016 and/or its sub premises, at a total consideration of Rs. 10,00,000/- computed @ Rs 834 per sq. ft. subject to the terms and conditions as mentioned in the said agreement.
It is the admitted by the OP members in WV that begum Sakina Khatton Md. Mafizul Rahaman, present complaint in this case have paid the total consideration amount of Rs. 10,00,000/- with the execution of said agreement for sale dated 06.04.2005. it is the further case of the OP that Begum Sakina Khatton has entered into another agreement for sale with the OP members on 11.02.2009 in respect of a flat lying on the 2nd floor of multi storied building consisting of 2 bed rooms, one dinning/drawing, one kitchen, two bath cum privy, toilet and one varanda covering a super build up area measuring about 900 sq. ft. together with all common rights of easement and appartenance thereto together with undivided proportionate share of land at the premises No. 32, Abdul Halim Lane, Kolkata-700016 and/or its sub premises. It is alleged that Begum Sankina Khatoon did not pay an amount of Rs. 12,50,000/- or any mount whatso ever towards the consideration money of the flat as mentioned above and as mentioned in the Agreement for Sale dated 11.02.2009. Surely paid Rs. 10,00,000/- for the purpose of purchasing the earlier mentioned flat. It is denied by the OP members in the WV that Begum Sakina Khatoon has ever paid Rs. 12,50,000/- for the flat measuring about 900 sq. ft. by dint of Agreement for Sale dated 11.02.2009. So, there is/was no concluded contract.
It is further stated by the OP member in the WV that there after Begum Sakina Khatoon filed the Complaint case before this commission/forum being case CC-590/2016 which was disposed of by this commission vide judgment dated 02.08.2017. The complainant Begum Sakina Khatoon being aggrieved by and dissatisfied with the said judgment dated 02.08.2017 passed by this forum/commission preferred FA No. A/962/2017 before the Hon’be SCDRC WB and the Hon’ble State commission was pleased to allow the said appeal ex-pate against the OP member vide its judgment dated 15.01.2020 wherein the Hon’ble SCDRC WB directed the Op-11 to handover the subject flat as per schedule of purported agreement for sale dated 11.02.2009 to the Begum Sakina Khatoon and to execute and register the deed of conveyance of the subject flat in her favour within 60 days from the date of the said order and also directed to OP 1 to 10 to execute and register the deed of conveyance as confirming parties and the cost of registration shall be borne by Begum Sakina Khatoon. The said judgment of the Hon’ble SCDRC has been challenged by the OP-11 before the Hon’ble National Commission Delhi vide Revisional Case being RP-628/2020 which is still pending for the disposal.
It is also the OPs case that the present complainant Md. Mafizul Rahaman has also filed a false and frivolous Civil Case for declaration injunction being title suite No. 1598/2016 before the Ld. 9th Judge, City Civil Court, Calcutta wherein the OP-11 filed the application under order 7 Rule 11 read with section 9 and 151 of CP code. Praying for rejection of plaint on the grounds as mentioned therein. Ld. 9th City Civil Court Calcutta was pleased to allow the prayer of the OP-11 vide order No. 34 dated 25.07.2019 and rejected the plaint of the complainant.
It is the further case of the OP that the complainant and his mother never paid any money i.e. Rs. 12,50,000/- at any point of time but admittedly they paid Rs. 10,00,000/- by virtue of aforesaid agreement dated 06.04.2005 in respect of 1200 sq. ft. super built up area in 2nd floor of the premises in question and the OP-11 can admitted that he is ready to refund or willing to refund the said amount to the complainant and his mother.
It is further stated by the OP members that the Agreement for Sale dated 11.02.2009 entered in between the OP member 11 is in effective, in operative, null and void not binding upon the OP members since no consideration has been passed by the complainant by virtue thereof. It is also stated by the OP members that the complainant and his mother never cancelled the Agreement for Sale dated 06.04.2005 in respect of 1200 sq. ft. Super build up area on the second floor and it has also not been rescheduled as alleged by the complainant .
It is also denied by the OP members that the complainant himself has entered into Agreement for Sale dated 11.02.2009 for purchasing one flat of 900 sq. ft. and he along with his mother also entered into another Agreement for Sale dated 11.02.2009 for another flat of 900 sq. ft. along with car parking space at a consideration of Rs. 12,50,000/-. It is baseless and concocted story stated by the complainant.
It is also denied by the OP members that 3 storied building (G+2) and constructed a G+4 storied building rather the OP members has got the sanctioned building plan for G+4 storied building and it has been raised in the said premises and/or it’s sub premises as per valid KMC sanctioned building plan.
It is further case of the OP members that no agreement for sale dated 11.02.2009 was made between the complainant and/or his mother Begum Sakina Khatoon in respect of 900 sq. ft. super built area up on 2nd floor flat of purported Agreement for Sale area dated 11.02.2019 at a consideration of Rs. 12,50,000/-. So, question of handing over the flat as mentioned above to the complainant and his mother does not arise at all.
As per OP’s case the claim of the complainant has made out in his petition of the complaint is false, frivolous, baseless and concocted. Thus, the petition of complaint is liable to be dismissed with cost.
In view of the above facts and circumstances, it has to be considered by this commission.
1. Whether the case is maintainable in its present form in law?
2. Whether the complainant has any cause of action to file this case or not?
3. Whether the complaint is a consumer within the ambit of CP Act?
4. Whether there is /was any deficiency in service on the part of OP members?
5. Whether the complainant is entitled to get relief as prayed for?
6. To what other relief or reliefs is the complainant entitled to get?
Decision with Reasons
All the points are taken up together for convenience of discussion and to avoid unnecessary repetitions.
On a close scrutiny of the materials on record, and also considering the facts and circumstances of this case, it appears that this commission has both territorial and pecuniary jurisdiction to try this case. The case is filed well within the period of limitation, at the same time the complainant has/had sufficient cause of action to file the case.
It is the case of the compliant that the OP-1 to 10 are joint and collective owners of the premises in question No. 32A to 32F , Abdul Halim Lane, PS-Taltala, Kolkata-700016. Being all together six premises lying and situated at piece of land measuring about 27 cottahs which will be referred as said property.
From the fact of the case as well as evidence on record it appears that the Ops 1 to 10 decided to develop their property as mentioned above through M/s reliance construciotn and co. a sole proprietorship concerned of Sk. Azem Ali, S/o Late Nakimuddin had principal office at premises 6 , Abdul Halim Lane, Taltala, kolkata-700016. Said sk. Azem Ali got the general power of attorney in his favour as executed by the OP-10 time to time to look after the properties as well as to erect a multi storied building thereon. Accordingly, the developer Sk. Azem Ali has obtained a sanctioned plan from KMC and also entered into Agreement for Sale with many intending purchasers for the sale of different units of flat etc. On the strength of power of attorney and to fetch money for the purpose of the said proposed construction. It is also evident from the evidence on record that admittedly the complainant had entered into agreement dated 11.02.2009 for purchasing the flat in question having super built up area of 900 sq. ft. on the second floor of the proposed building with one car parking space on the ground of said premises i.e. 32A to 32F, Abdul Halim Lane, PS-Taltala, Kolkata-700016 along with other amenities attached thereto as mentioned in the schedule of petition of the complaint. At a consideration of Rs. 12,50,000/-, the said agreement dated 11.02.2009 as executed in between the complainant Md. Mafizul Rahman and OP-11 Sk. Azem Ali has been brought into evidence as Annexure ‘A’ and Exhibit ‘1’.
It is the case of the OP that the complainant never paid any money of Rs. 12,50,000/- only for the flat in question as mentioned in scheduled of the petition of the complaint rather the complainant and his mother paid Rs. 10,00,000/- only for a flat on the second floor of the proposed multi-storied building consisting of 3 bed rooms, one dinning/drawing, one kitchen 2 bathroom cum privy, toilet covering a super built up area measuring 1200 sq. ft. together with undivided proportionate share of land apartaining to premises NO. 32, Abdul Halim Lane, PS-Taltala, Kolkata-700016 at a consideration of Rs. 10,00,000/- @ Rs. 834/- per sq. ft. subject to terms and conditions mentioned in the agreement dated 06.04.2005 as entered into with the OP-11. The constituted attorney of the OP No. 1 to 10.
It is also the OPs case that the complainant induces the OPs 1 to 10 being represented by their constituted attorney, the OP-11 to enter into the alleged Agreement for Sale dated 11.02.2009 for purchasing a flat on second floor i.e. flat in question as described in the scheduled of petition of complaint which ever may be but it is admitted fact that the OP-11 had entered into Agreement for Sale dated 11.02.2009 with the complainant for the flat in question measuring about 900 sq. ft. in the second floor of the proposed building as described in the scheduled of the petition of the complaint alleged agreement for sale dated 11.02.2009.
From the alleged agreement dated 11.02.2009 (Exhibit-1) it is palpably clear that the agreement was executed on 11.02.2009 by and between the parties of this case i.e. between the complainant and the OP-11 Sk. Azem Ali wherein it is clearly mentioned that the consideration money was fixed on Rs. 12,50,000/- as mentioned in second schedule which has been paid by the complainant to the OP-11. Ld. Advocate of the OPs argued that the complainant and his mother only paid Rs. 10,00,000/- at the time of execution of the earlier agreement for sale dated 06.04.2005 which is not the subject matter of this case
On a close scrutiny of the materials and facts and circumstances of this case it is revealed that the present complainant and the OP-11 has entered into Agreement for Sale in respect of purchasing the flat in question measuring about 900 sq. ft. along with other amenities situated in the second floor of the premises 32, Abdul Halim Lane, Kolkata-700016 at a consideration of Rs. 12,50,000/-.
The OP members have tried their level best to misdirect this commission by stating inter alia in respect of several allegation as mentioned in their WV that the matter is subjudice (CC-595/2016) before the Hon’ble NCDRC. Thus, the agreement is in operative and this case is not maintainable in its present form . In this respect, It is the view of this commission that the respective statement of the OP members cannot be entertained by this commission because the OP members did not submit even a scrap of paper before this commission that the matter is under challenged before the Hon’ble NCDRC. Moreover, CC-595/2016 is a separate subject matter and is in no way connected to the subject matter of this case rather when it is admitted by the OP member in WV that the OP-11 entered into Agreement for Sale dated 11.02.2009 for purchasing a flat measuring about 900 sq. ft. on the second floor of premises No. 32 situated at Abdul Halim Lane, Kolkata-700016 at a consideration of Rs. 12,50,000/-. They stated that the complainant induced the OP members illegally and entered into allegedagreement for sale dated 11.02.2009 in respect of flat in question in described in schedule of the complaint petition. The commission is considered the matter as one kind of admission of the fact wherein it is clearly mentioned that the consideration of the said flat is/was a sum of Rs. 12,50,000/- and the complainant paid the said money as consideration money flat in question to the OP-11 then the OP-11 is responsible to handover the flat to the complainant. Moreover, in respect of illegally inducement, it is not the case of the OP members that they informed matter to the local PS or lodge any F.I.R to that effect against the complainant. So, without having any supportive document, this commission is unable to accept the statement of the OP members that the complainant illegally induced them or forcebily compelled the OP-11 to enter into the Agreement for Sale dated 11.02.2009. It is also no body’s case that the signature of the OP-11 put on the Agreement for Sale dated 11.02.2009 is forged one. If that be so then this commission has no hesitation to held the view that the OP-11 Sk. Azem Ali being the constituted attorney of OP Nos. 1 to 10 has entered into the Agreement for Sale dated 11.02.2009 with the complainant knowing fully whell that he entered into Agreement for Sale dated 11.02.2009 in respect of the flat in question measuring about 900 sq. ft. along with other amenities as mentioned in the Agreement for Sale (Exhibit -1) and in the schedule of the petition of the complaint lying on the second floor of the premises No. 32, Abdul Halim Lane, Kolkata-700016 at a consideration of Rs. 12,50,000/- .
From the facts and circumstances of the case as well as evidence on record, it is crystal clear that till this date the OP members mainly the oP-11 did not handover the flat in question to the complainant even on receipt of Rs. 12,50,000/- i.e. consideration money of the flat in question as mentioned in the scheduled of the petition of the complainant as and in the Agreement for Sale dated 11.02.2009.
From which it is also proved beyond doubt that the complainant being a consumer has been harassed by the OP members which caused mental agony and which also amounts to deficiency in service on the part of the OP member and such conduct of OP member should be considered as unfair trade practice. For such reason the complainant should be compensated by the OP members.
It was further case of the OP members that they received only Rs. 10,00,000/- from the complainant and they are ready to pay the same at any time but as per exhibit the conservation money of the flat in question in present case is of Rs. 12,50,000/- only so the commission cannot go beyond the prayer of the petition of the complaint as prayed for by the complainant. Complainant prayed for handover of the flat in question. So, OP members are bound to handover the same when the complainant be able to prove the case beyond all reasonable doubt.
The case is properly stamped.
Point of consideration are thus, decided favourably to the complainant.
Hence,
Ordered
That the instant case be and the same is allowed on contest in part with cost against the OP members.
The complainant do get the decree n his favour against the OP-11 member.
The OP-11 is directed to handover peaceful possession of the flat in question as mentioned in the agreement for sale dated 11.02.2009 and he further directed to register the final deed of conveyance of the said flat in favour of the complainant and also directed to handover the completion certificate of the said flat of the complainant before the date of execution, registration of the deed of conveyance.’
The OP-11 is further directed to pay a sum of Rs. 10,00,000/- as compensation along with interest @ 9 % p.a. from the date of filing of this case till realisation of entire amount.
Copy of the judgment be supplied to the parties free of costs as mandated by the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the.
