Order-18.

Date-16/06/2015.

Complainant Raj Kumar Shaw by filing this complaint has submitted that complainant entered into an agreement on 09.05.2009 with ops for purchasing a room measuring about 150 Sq. Ft. on the ground floor of premises No. 50D, Pottery Road under Entally Police Station, Kolkata – 700015 at a total consideration amount of Rs. 2,25,000/- in favour of the op no.2, the developer and as per said Agreement complainant paid the above mentioned amount by cheques and in cash.  Complainant issued two cheques bearing no. 228761 drawn on Central Bank of India, Entally Branch on 09.05.2009 amounting to Rs. 90,000/- and paid Rs. 10,000/- in cash on the same date in favour of the op no.2.  Next the cheque no. 228762 amount to Rs. 50,000/- dated 18.06.2009 drawn on Central Bank of India, Entally Branch in favour of the op no.2 and further complainant paid in cash of Rs. 35,000/- on 23.07.2009, Rs. 30,000/- on 08.08.2009 and Rs. 10,000/- as full final settlement was made on 11.07.2009 in favour of the op no.2 respectively.

          However, in the said Agreement of Sale there was clearly stated that the op no.2, the developer should hand over the said flat to the complainant within a stipulated period i.e. three months from the date of execution of the said Agreement.  Though op handed over the possession of the said room to the complainant after taking full consideration amount, but did not execute the Deed of Conveyance in favour of the complainant till date.

          Thereafter op handed over the suit flat without completing its work and without maintaining the specification as in the Said Agreement dated 09.05.2009 and also the plaster work of the suit room was damaged.  The said suit flat is now in the possession of the complainant and he is facing the same problem.  But after expiry of the stipulated period for executing the Deed of Conveyance, the complainant along with his father visited and met with the op nos. 1 & 2 with a request to execute the Deed of Conveyance, but on all occasions ops refused their requests.

          In such circumstances, finding no other alternative, complainant sent a letter to the ops through their Ld. Advocate on 12.06.2014 where complainant asked the ops to execute the Deed of Conveyance.  But inspite of after receiving the Advocate’s letter, ops did not take any steps for execution in favour of the complainant and at last on 27.06.2014 complainant requested the op to execute the Deed of Conveyance by Advocate’s letter but in vain.  In such circumstances, complainant suffered mental pain and sufferings for non-execution of the Deed of Conveyance for which complainant by filing this complaint prayed for redressal and also for compensation.

          On the other hand op no.2 by filing this written version submitted that the complaint is bad for mis-joinder and it is not maintainable against this op and also by misrepresentation and suppression of material facts, complainant cannot be termed as a consumer.  Fact remains that op no.2 submitted that the Agreement for Sale was executed in between the complainant and op no.2 and the signature of the op/developer which was on the agreement papers dated 09.05.2009 is false, forged, fabricated and manufactured for unlawful gain and in deceitful manner for which op no.2 requests the Ld. Forum to compare the signature which is appearing in the agreement for sale.

          Further op no.2 denied that he only received two cheques i.e. cheque No. 228761 dated 09.05.2009 amounting to Rs. 90,000/- and cheque no. 228762 dated 18.06.2009 amounting to Rs. 50,000/- respectively out of total consideration amount of Rs. 2,25,000/- and remaining balance of Rs. 85,000/- has not been paid by the complainant.  Thus complainant violated the agreement for sale which was executed by and between the parties and on the contrary, complainant forcibly took the possession of the said shop room which is illegal occupation without paying single penny as on 09.05.2009.  Op no.2 also mentioned that complainant never paid the balance amount for execution of the Deed of Conveyance for the said shop room.  So, complainant blamed that it is unfair trade practice and deficiency in service on the part of the ops and created mental pain are totally false and manipulated.

          Fact remains that op no.2 is an old aged ailing person and suffered seriously from several diseases and organ failure and in such a situation complainant did not pay the balance due towards the said agreement dated 09.05.2009.  So, it is clear that complainant suppressed all the material facts before the Ld. Forum and has not approached with clean hands before this Forum for which it is clear that the complaint is motivated, vexatious, harassive and to get unlawful gain, complainant filed this complaint against op no.2.  In such circumstances, op no.2 prayed for dismissal of this case with costs.

                                                   Decision with reasons

          On overall evaluation and consideration of the complaint and written version filed by M.H. Sagar (Developer) op no.2 and also considering the documents filed by the complainant and op, it is clear that original Deed of Agreement to Sale dated 09.05.2009 was handed over to the complainant and stamp paper was purchased by M.H. Sagar (Developer) in the name of op no.2 on 06.02.2009 and agreement was executed on 09.05.2009 and that is the original agreement in view of the fact that stamp paper was also purchased by op no.2 in his name M.H. Sagar (Developer) and op has not challenged the original copy of the agreement to sale dated 09.05.2009.  Op has admitted that he executed the agreement to sale on 09.05.2009 and also admitted that he received two cheques being Nos. 228761 dated 09.05.2009 amounting to Rs. 90,000/- as earnest amount and cheque no. 228762 dated 18.06.2009 amounting to Rs. 50,000/-, i.e. total Rs. 1,40,000/- out of total Rs. 2,25,000/- and regarding execution of agreement to sale, there is no denial.

          It is the case of the op no.2 that complainant has not yet paid the balance amount of Rs. 85,000/-.  But complainant forcibly took possession of the said shop room in question and thereby violated the terms and conditions of the agreement.  The main contention of the op is that the agreement copy which is with the op in that copy he signed as Mazharul Haque Sagar and in the original copy of agreement to sale as produced by the complainant his signature is shown as M.H. Sagar (Developer).  So, op has challenged that complainant’s agreement to sale is completely purported one.

          In this regard we have gone through the original copy of both the agreement to sale.  But from the original copy of agreement to sale dated 09.05.2009 it is found that the said stamp paper was purchased by op no.2 as M.H. Sagar (Developer).  But that is of the dated 06.02.2009, Sl. No. 777 and another stamp paper copy of the said agreement which is in the custody of the op, it’s Sl. No. is 778 of M.H. Sagar (Developer), purchase date is 06.02.2009.  Admitted fact is that on the same date op handed over the original copy of the agreement to sale dated 09.05.2009 to the complainant and in the said agreement to sale, signature of op no.2 is noted as M.H. Sagar (Developer) and stamp paper was also purchased in the name of M.H. Sagar and in the said deed Suresh Shaw signed as witness and fact remains that in the said agreement to sale (original copy lying with the complainant) it is found that op no.2 received Rs. 30,000/- on 08.08.2009 and full and final payment of Rs. 10,000/- on 11.07.2010 and he signed it as M.H. Sagar and always he signed as M.H. Sagar and stamp paper was also purchased in the name of M.H. Sagar. 

          But op’s Ld. Lawyer submitted that another copy of agreement to sale is lying with the op from where it would be found that op no.2 signed as Mazharul Haque Sagar, but stamp paper was purchased in the name of M.H. Sagar like the stamp paper on which the original agreement to sale was written and executed by op no.2 is also of same name probably.  Now the copy which is lying with the op purportedly back behind the knowledge of the complainant, signed as Mazharul Haque Sagar.  But in the original agreement to sale which was handed over by the op to the complainant signed as M.H. Sagar.

          Fact remains that op’s Ld. Lawyer tried to convince that signature of M.H. Sagar as mentioned in the agreement to sale produced by the complainant is not signature of the op no.2.  But it is completely false in view of the fact that op has not signed in any paper either in the written version or evidence in chief.  No where op no.2 has signed but it was filed by the Ld. Lawyer of the op without any verification of the op and truth is that same are not verified by any affidavit.

          Another factor is that complaint was also filed stating the name of the op no.2 as M.H. Sagar.  Fact remains that only to prove the original agreement to sale executed by the op no.2 in favour of complainant, with knowledge of unscrupulous persons and with advice of some unscrupulous persons in written version or in the evidence in chief or in reply against queries, op; no.2 did not sign.

          Most interesting factor is that evidence in chief is filed by the op no.2, but in the said evidence in chief LTI is placed and same is not written or identified that means for ill purpose op no.2 put LTI in the evidence in chief.  It indicates that op no.2 tried to prove that he is illiterate.  So, he put LTI when no explanation for putting LTI is made in the E/chief or in Vokalatnama. 

          On the other hand the reasons for putting of LTI are not explained in the evidence in chief.  Fact remains this M.H. Sagar in every case before this Forum did not challenge his signature as M.H. Sagar in other case and same was decreed.  Subsequently in one execution case, M.H. Sagar was arrested and produced before this Forum when it was found that all his fingers’ heads are decayed due to several types of diseases and practically he has no capacity to sign at present.  But admitted position is that op executed the agreement to sale in favour of the complainant on 09.05.2009 and he has also admitted that he has already received Rs. 1,40,000/- that means op admitted the acceptance of Rs. 90,000/- by cheque No. 228761 on 09.05.2009 and Rs. 50,000/- by cheque No. 228762 dated 18.06.2009 and now he is claiming that balance amount of total consideration of Rs. 2,25,000/- has not been paid by the complainant.  But from the original agreement to sale dated 09.05.2009 it is found that op received Rs. 30,000/- on 08.08.2009 and another Rs. 10,000/- on 11.07.2010 also and it was received in cash that means payment of another Rs. 40,000/- cannot be denied by the op and probably op’s unscrupulous advisors asked him not to sign anywhere but to put LTI and that has been done by the op in present case and truth is that op in his evidence in chief filed on 10.03.2015 put LTI but that LTI is not written, actually whose LTI it is.  But it is identified by one Advocate, but LTI is not written by any person.  But fact remains that op no.2 is a renowned dishonest business man, developer and he always signed everywhere as M.H. Sagar, purchased stamp paper in the name of M.H. Sagar, signed everywhere as M.H. Sagar, only in his copy of agreement to sale, he signed his full name.  But signature of witness in both the original copy and copy of the op are same.

          Further considering the total conduct of the op, it is found that op did not sign in any paper either in evidence in chief or his written version or any other papers which were filed by the op but it was always filed by his Ld. Lawyer, but signature is not anywhere in the written version, evidence in chief or any reply made by the op no.2.  But admitted position is that the deed on the basis of agreement to sale op no.2 received Rs. 1,40,000/- by two cheques, but about other payment he has denied.  Now the question is whether the payment was made by the complainant and in this regard we have gathered from the original agreement to sale which is lying to the complainant that subsequently op received Rs. 30,000/- on 08.07.2009 and Rs. 10,000/- on 11.07.2010 in cash and it was noted and signed by M.H. Sagar.

          So, it is proved that op always signed as M.H. Sagar, but only to avoid his liability as developer op no.2 did not sign in any paper either in the evidence in chief or written version or any other reply and he did not put his signature, only for the purpose to prove that he never signed as M.H. Sagar.  But truth is that he put his LTI in evidence in chief and it is not written by anyone that means the whole procedure is adopted by the op no.2 for the purpose of deceiving the complainant from his right to get the registered deed of sale and fact remains the present procedure as adopted for not signing in any paper of written version, evidence in chief or reply is made as per direction of unscrupulous advisors on the ground that in previous case C.C. No. 167/2014, M.H. Sagar appeared and contested the case and in the said deed of agreement to sale dated 15.08.2007 the present op signed as M.H. Sagar and it is in respect of one flat in respect of the present premises and from that record it is clear that everywhere op no.2 signed as M.H. Sagar.  But the present document which is produced by the op treated as another copy of original copy of the agreement to sale dated 09.05.2009 in which op subsequently signed his full signature and tried to prove that original agreement to sale as lying in the custody of the complainant is not correct and it is not the signature of M.H. Sagar but it is completely false and fabricated and practically when the advice of some unscrupulous persons were taken such sort of false plea has been taken by the op no.2.  But even then op no.2 has admitted that he executed the original agreement to sale in favour of the complainant and out of total consideration of Rs. 2,25,000/- he admittedly received Rs. 1,40,000/-. 

          Now we shall have to consider whether actually op received any other money from the complainant.  In this regard we have gathered that he has admittedly received further amount of Rs. 30,000/- in cash putting such note and signature of M.H. Sagar on 08.08.2009 and Rs. 10,000/- on 11.07.2010 and only to grab more money, this false plea has been taken and fact remains that in all the documents that is in evidence in chief, written version, in reply no where he signed, lawyer of the op no.2 signed it.  But fact is that he sold way many flats, executed the deed by signing M.H. Sagar and stamp paper was purchased admittedly in the name of M.H. Sagar.  So the signature as shown in the document as produced is the subsequent preparation and it was done when op no.2 lost in the early C.C. No. 167/2014 where it was found that he signed in all the papers as M.H. Sagar and against that the execution case is pending i.e. no. EA No. 30/2015 and most interesting factor is that M.H. Sagar was and produced after arrest in that Execution Case.  But he did not sign in any paper.  But it is found that he has been suffering from several diseases and when he realised that in that previous case his signature shown as M.H. Sagar is proved.  So in copy which was in the custody of the op, at the time of filing of the said copy he signed his full signature because that copy is not treated as original in view of the fact, original copy had been handed over to the complainant, that has not been denied and in the original copy  signature of witness, and the copy of agreement to sale as lying with the op is the same witness.  No where op has stated that he did not hand over any original copy of agreement to sale to the complainant.  But unscrupulous advisors advised for which he has taken such defence and did not sign any such paper of this case and evidence in chief or written version or no where that means he has taken a bad defence for the purpose of avoiding the execution and registration of the deed when it is admitted that possession of the flat in question is in custody of the complainant.

          Already we have gathered that op no.2 admittedly received Rs. 1,40,000/- and from the original agreement to sale as produced by the complainant, it is found that op no.2 also received Rs. 30,000/- on 08.08.2009 by signing M.H. Sagar and received Rs. 10,000/- on 11.07.2010 that means another Rs. 40,000/- he received that means in total he received Rs. 1,80,000/- from the complainant which is well proved.  But op is trying to convince that he did not receive the money in cash but that is completely false.

          But anyhow after considering the materials documents as produced by the complainant the payment of balance amount of Rs. 45,000/- out of Rs. 2,25,000/- has not been paid by complainant who has failed to produce any such paper though complainant has tried to convince that he paid another Rs. 10,000/- on 09.05.2009 and Rs. 35,000/- on 23.07.2009.  But in respect of that amount no receipt is produced by the complainant.  Though complainant relied upon the agreement to sale and from original agreement to sale we have gathered that complainant received Rs. 1,40,000/- by two cheques admitted by the op no.2 and also complainant paid of Rs. 40,000/- that is Rs. 30,000/- and Rs. 10,000/-.  But no other payment in cash is proved by proper receipt issued by the op.  So, in the present circumstances, we are convinced to hold that admittedly agreement to sale dated 09.05.2009 is genuine one and we are convinced to hold that op no.2 as M.H. Sagar executed all documents but only to deceive the complainant in so many manner by taking unscrupulous persons advise took such defence in this case and in fact copy of agreement to sale dated 09.05.2009 as produced by the op is forced one because in his custody a copy of agreement without his signature was when he found that he has lost in previous C.C. No. 167/2014, so this false plea was taken and he signed as Mazharul Haque Sagar and it was subsequent though and it was done by the op with malafide intention and only to prove that but he always signed as M.H. Sagar.  But fact remains that he is dishonest no doubt and he produced fabricated and false document only for deceiving the complainant.  How a prudent man can believe that signed as Mazharul Haque Sagar when in all previous documents he signed as M. H. Sagar and in other cases already referred and he contested as M.H. Sagar.  But subsequently in present case this false plea is taken.  Admittedly op no.2 executed agreement to sale in favour of the complainant that is original the agreement to sale as produced by the complainant but op has fabricated in his copy because it was kept as because there was no signature of M.H. Sagar. 

          Interesting factor is that op no.2 appeared on 11.12.2014 Vokalatnama is filed and in that Vokalatnama LTI is there and beneath of LTI it is noted that LTI of M.H. Sagar.  But reason for putting LTI is not mentioned by the Ld. Lawyer as submitted by the Lawyer.  But the admitted position is that op is known as M.H. Sagar which is evident from the Vokalatnama but even after that unscrupulous advices were given by some persons for which subsequent to that in the written version he did not put any LTI or any signature but that was filed.  But in the evidence in chief LTI was there, but whose LTI, it is not written.

          Considering all the above facts, circumstances and materials we are convinced to hold that M.H. Sagar who is a dishonest person, he is in the market to deceive the customers that is consumer and for that purpose unscrupulous advisors are there who asked to do all those things and he has done it and that unscrupulous persons are behind the green room but unscrupulous activities of the op no.2 is proved from the Vokalatnama where it is noted as M.H. Sagar.  So, it is proved that he is known as M.H. Sagar and used to sign everywhere as M.H. Sagar.  Already opno.2 in previous cases contested as M.H. Sagar and thereafter he lost and that case was referred i.e. C.C. No. 167/2014 which was disposed on 13.11.2014 against that no appeal was filed but execution case was filed being No. EA-30/2015 and it is pending for execution registration of the deed in that case he also appeared as M.H. Sagar.

          So, considering all the above fact and circumstances, we are convinced to hold that  there is no necessity to refer for expert opinion on the contrary it is proved that M.H. Sagar is an expert dishonest man dealing with such type of business but he has an expert dishonest person which is proved and in his hands they are unscrupulous advisors who asked him to challenged his signature in such a manner and considering his conduct in the present case for not signing anywhere in the written version or evidence in chief or any reply, we are convinced to hold that he avoided to sing in all those documents of record only on the ground if he signs as M.H. Sagar in that case his dishonesty shall be proved for which he never signed anywhere but only in Vokalatnama put his LTI not noted as LTI of M. H. Sagar.

          Considering all the above fact and circumstances we are convinced to hold that those documents are produced by the op should be seized as it is manufactured by op no.2 and it must not be handed over to him because only for the purpose of deceiving the complainant, this paper was submitted with the help of unscrupulous dishonest persons who are his advisors.  But we are sure that no Ld. Lawyer gave him such type of advice as honest professional Advocate.  No doubt his Ld. Advocate did not ask him to sign in the evidence in chief, to sign in the Vokalatnama, to sign in the written version and in fact written version, evidence in chief or any reply are not valid in the eye of law.  What is known to Ld. Lawyer of the op but his Ld. Lawyer did not secure his signatures the reason behind it can only be stated by his Ld. Lawyer.

          So, after over all evaluation of the entire materials, we are convinced to hold that deed of agreement to sale as produced by the complainant is the genuine one and that is valid one and op no.2 signed as M.H. Sagar and in the said deed also.  Admitted position is that op no.2 received Rs. 1,80,000/- out of Rs. 2,25,000/-.  So, complainant shall have to pay the balance amount i.e. Rs. 45,000/- to the op.  But ops are bound to execute the sale deed and register a sale deed in favour of the complainant.  But they are not willing to do that.  This is not the first case where op no.2 has refused to execute the register the sale deed but in some other cases including this case is referred where op nos. 1 & 2 did not execute even after receipt of the order and in the present case complainant shall have to pay balance consideration of Rs. 45,000/- to the op and on payment of that invariably ops are liable to execute sale deed in favour of the complainant in respect of which possession is with the complainant as admitted by the op and taking possession by force is completely false because in all the cases op has not executed the sale deed for which one after another case is being filed.  It is also proved from the conduct of the op that he is dishonest developer and his fame in the market is well known as deceitful manner of seller of flats and he has unscrupulous advisors and those advisors are giving him different type of advices but in all the cases he failed.

          But in this case very dangerous defence was taken by the op; no.2 for which he did not sign in the written version, evidence in chief or in reply or any other, but put LTI in Vokalatnama and appeared as M.H. Sagar, note as Mazharul Haque Sagar.  So, we are convinced that M.H. Sagar appeared in this case before this Forum and his Ld. Lawyer stated that he filed such Vokalatnama then it is clear that M.H. Sagar is present in this Forum and only to avoid execution registration he has not signed in any paper in this case.  Only Ld. Lawyer signed but we have failed to decide why how Ld. Lawyer filed such documents when affidavit must be sworn by the op.  Written version shall be signed by the op and reply shall be signed by the op, but no where his signature is shown but only Ld. Lawyer’s signature is there and unfortunately complainant has been deceived by the op in this case and such type dishonest developer shall be ops are imposed penalty for causing harassment, mental pain and agony.  But anyhow complainant has proved also without any manner of doubt that he is in possession he paid details of Rs. 1,80,000/- but he shall have to pay balance amount of Rs. 45,000/- and no doubt ops are bound to execute the sale deed and register it at the cost of complainant and that is the liability because they harassed the complainant in so many manners.

          In the result, the complaint succeeds.

          Hence, it is

                                                             ORDERED

          That the complaint be and the same is allowed on contest against op no.2 with cost of Rs. 10,000/- and same is allowed exparte against op no.1 without any cost.

          Op nos. 1 & 2 are hereby directed to execute the sale deed as per agreement to sale dated 09.05.2009 within 45 days from the date of this order and in the meantime complainant shall have to deposit Rs. 45,000/- balance consideration amount along with Rs. 5,000/- interest that is total Rs. 50,000/- to this Forum as refundable amount as balance consideration and interest for completion of execution and registration of the sale deed by the ops in favour of the complainant.  Complainant must have to deposit the said amount within 15 days from the date of this order and then ops jointly shall have to execute and register the sale deed within 45 days from the date of this order.

          So ops are directed to execute and register the sale deed and if ops refuse to execute the sale deed and register it then, they shall have to pay penal damages of Rs. 50,000/- to this Forum and in that case complainant shall have to pay for execution and registration of the sale deed through this Forum for that purpose complainant shall have to pay all service charges for the purpose of appointing court officers for execution and registration of the sale deed and also for other purpose and entire matter shall be processed by the complainant at his own cost under guidance of this Forum.

          Ops jointly are directed to comply the order failing which for non-compliance of the Forum’s order, op no.2 shall have to pay penal interest of Rs. 25,000/- to the complainant and also shall have to pay the entire service charge which shall be paid by the complainant over the registration and execution of the deed by this Forum.  If ops fail to comply the order within stipulated time, penal action shall be started u/s 27 of C.P. Act for which further penalty and fine shall be imposed against them.

          Complainant is directed to comply the order and to deposit of Rs. 50,000/- to this Forum as refundable amount as consideration and interest which has not been paid to the op by the complainant.