Presented by: -Shri Debasish Bandyopadhyay, President.

Complaint Case No. 23/2015

The  complainant  has instituted  this complaint case against the OPs for passing direction upon the OPs to execute  and register proper deed of conveyance  in respect  of the suit property and for passing order of permanent injunction  against the OPs  and also for awarding compensation  and litigation cost.

Case of the complainant

The  case of the complainant  which is deciphered  from the complaint petition  in bird’s eye view is that the OP Nos. 2 to 6 are the owners of Holding No. 30, Pran Krishna Ganguly  Road, P.S. Bally, Dist. Howrah who in order to develop the said premises entered into  an Agreement for Development on 7^th December, 2009 with OP No. 1 Bholanath Saha (Predecessor-in-Charge) of OP Nos. 1(a) to 1(e) and said Bholanath Saha  was the sole proprietor  of OP No.1 and one General Power of Attorney  dt. 7^th December, 2009 was executed in between Bholanath Saha and OP Nos. 2 to 6 and pursuant  to such Agreement  for Development  and Power of Attorney , said Bholanath Saha obtained a building sanctioned plan  on 21^st July, 2010 from Bally Municipality .  According to the case of the complainant in order to purchase that entire one self-contained flat being No. as ‘A’ situated in the Ground Floor comparison an area of 630 sq. ft.  including super built up area of the building comprised in the said premises and also entered into an Agreement for Sale dt. 20^th September, 2011 with said Bholanath Saha and subsequently  the complainant has paid  a sum of Rs. 50,000/- to said Bholanath Saha towards earnest  amount.  It is submitted  that thereafter on 12^th October, 2011 said Bholanath Saha  died intestate leaving behind OP Nos. 1(a) to 1 (e) as legal heirs  and initially  the OP Nos. 1(a) to 1(e) acknowledged  the said Agreement for Sale dt. 20^th September 2011  and assured the complainant in the matter of handing over the suit property in compliance of the terms & conditions of the said agreement.  However,  OP Nos. 1(a) to 1(e) failed to abide by the terms  of the said agreement and also failed  to deliver  the suit property  to the complainant within stipulated  time of 24 months from the date of said agreement.  It is alleged that the complainant issued a notice through his Ld. Lawyers Mr. Subir Ch. Chatterjee to the land owners i.e. OP Nos. 2 to 6.  however, that has also not yielded any result.  It is further  alleged  that the OP Nos. 1(a) to 1(e) alongwith  OP Nos. 2 to 6 with malice  have already handed  over the project  of constructing  multi-storied building over the said premises to OP No.7 without giving any intimation  to the complainant.  It is also the case of the complainant that after getting intimation  of the fact that the project of constructing  multi-storied building  over the aforesaid  premises  was handed over by OP Nos. 1(a) to 1(e) to OP No. 7 narrated the facts & circumstances  and also furnished the said Agreement for Sale  and money receipt  of Rs. 50,000/- .  It is contended that despite such, the OP No. 7 did not pay any heed towards the complainant’s request and refused to accept the terms & conditions of the Agreement for Sale.  It is also pointed out  by the complainant side that the OP Nos. 1(a) to 1(e) & OP Nos. 2 to 6 and OP No.7 have failed  and neglected to perform  their duty  in terms  of the said Agreement  for Sale .  For all these reasons the complainant has instituted this instant complaint case before this District Forum / Commission.

Defense Case

The  OP Nos. 1 to 6 and subsequently  OP Nos. 1 (a) to 1 (e) in spite of receiving notice  are not contested this instant case  and have not participated in the instant case from inception  and as a result of which  this instant case is running ex-parte  against the said OPs.

Although  the OP No. 7 has failed to file written version  within stipulated time but the OP No. 7 pointed out  that after getting summons  from this District Forum  the OP No. 7 appeared by filing Vokalatnama and immediately thereafter the OP No. 7 has filed an application for production  of document which are relied by the complainant and this District Forum duly directed the complainant for production of the documents and   after long lapse  of time the complainant  produced xerox  copy  of the alleged Agreement for Sale.  It is submitted by the OP No. 7 that immediately thereafter the OP No.7 alongwith his Ld. Advocate  inspected  the said Agreement for Sale and at the time of inspection  it is reflected  that the said Agreement for Sale is not only a false document but also a manufactured document procured  after the demise  of Bholanath Saha and the signatures lying on the said document are  not the signatures of Bholanath Saha and that signatures are not  genuine one.  It is also pointed out by the OP No.7  that after inspection of the alleged Agreement for Sale  the OP No. 7 has filed an application for appointment of handwriting  expert  in order to compare  the signatures of Bholanath Saha and also to make sure about the genuineness of the document.  But ultimately without entertaining the said application and without considering the gravity of the said application this District Forum  by its order dt. 13.12.2018 has been pleased to fix this case for ex-parte hearing.

Points of consideration

On the basis of the pleadings  of the parties  this District Commission for the purpose of arriving at just and proper decision and also for proper  and complete adjudication  of this case is going to adopt  the following points of consideration:-

1. Is this case maintainable in its present form and in the eye of law?
2. Has this District Commission / Forum territorial and pecuniary jurisdiction to try this case or not?
3. Is the complainant a consumer under the OPs or not?
4. Whether the complainant has proper cause of action for filing this case or not?
5. Whether the complainant is entitled  to get  the degree passing direction upon the OPs to execute  and register  the deed of conveyance  in respect of the suit property or not?
6. To what other relief / reliefs the complainant is entitled to get  in this case?

Evidence on record

The complainant in order to prove this case has filed evidence on affidavit and against the said evidence on affidavit no interrogatories and / or questionnaires have been filed by the OPs as this case is running ex-parte against the OPs.

On the other hand the OPs have not filed any evidence on affidavit to disprove the case of the complainant.

Argument highlighted by Ld. Advocates of complainant side & OP No. 7

In course of argument the complainant side has filed Brief Notes of Argument and also highlighted their verbal submission and also referred some decisions such as AIR 1967 SC 744 , AIR 2005 Cal 108 and 2012(4) WBLR (CPJ)905.

Decision with  reason

The first 4(four) points of consideration have been framed over the issue of maintainability, jurisdiction of this District Commission, whether the complainant is a consumer under the OPs or not and whether the complainant has cause of action for filing this case or not?

For the purpose of arriving at just and proper decision in respect of the above noted 4 (four) points of consideration, there is urgent necessity of making scrutiny of the evidence on record as well as materials of this case record.  In this connection this District Commission after going through the materials of this case record as well as after making scrutiny of the evidence on record finds that the Agreement for Sale was executed in between the complainant  and Bholanath Saha (Predecessor-in-interest) of OP Nos. 1(a) to 1 (e) on 20^th September 2011 and the complainant has paid earnest money of Rs. 50,000/- to the Bholanath Saha and as per Clause No. 20 of the said agreement it was agreed  that the suit property  would be handed over to the complainant within 24 months from the date of agreement .  But fact remains  that Bholanath Saha  thereafter died on 12^th October 2011 leaving behind his legal heirs OP Nos. 1(a) to 1(e).  Now, the question is whether OP Nos. 1(a) to 1(e) has any responsibility to carry out the agreement executed by their father Bholanath Saha or not?  In this connection the provisions of Section 40 of Indian Contract Act, 1872 is very important and according to the provisions of Section 40 of Indian Contract Act the provision i.e. Bholanath Saha  and after his demise OP Nos. 1(a) to 1(e) are duty bound  to execute  and register the deed of conveyance  in respect of the suit property and in this regard  the decision which is referred by the complainant side (AIR 1967 SC 744) is very important.

For that reason the OP Nos. 1(a) to 1(e) cannot refuse to execute and register the deed of conveyance in respect of suit property.  Moreover,  there is no dispute  over the issue that suit property has not been handed over to the complainant  even up to this date  in spite of existence of the said Agreement for Sale  and in this regard  the decisions AIR 2005 Calcutta Page 108 and 2012 (4) WBLR 905 which have been referred by the complainant side  are going to depict  that Hon’ble High Court  has been pleased to observe in favour of execution  and registration  of the deed of conveyance  to the complainant and thus this case is maintainable before this District Forum / Commission.

Relating to the jurisdiction point this District Commission after going through  the materials of this case record  finds that the complainant  and OPs are the residents  of Bally which is situated within the District of Howrah and this matter is clearly indicating  that this District Commission has territorial jurisdiction over the suit property.

In this case the complainant has claimed and/or prayed for execution and registration of the deed of conveyance  in respect of the suit property and also claimed for compensation of Rs. 1,00,000/- and litigation cost.    The total claim of the complainant side is far below  of Rs. 20,00,000/-.  This matter is clearly indicating  that this District Commission has pecuniary jurisdiction as well.  Now the question is whether the complainant is a consumer under the OPs or not?  In this connection it is very important  to note that the complainant  and Bholanath Saha  entered into  Agreement for Sale on 20^th September 2011 and the complainant has paid Rs. 50,000/- as earnest money.  This matter is clearly indicating  that  the complainant is a consumer under the OPs.  In connection with the question of cause of action this District Commission after going through the material of this case record finds that the OPs in spite of existence  of the Agreement for Sale dt. 20^th September, 2011 have not yet deliver possession of the suit property and also have not executed and registered the deed of conveyance  in respect of the suit property and this matter is clearly indicating  that there is cause of action for the complainant for institution of this complaint case.

A cumulative consideration of the above noted discussion goes to show  that the complaint case is maintainable  in its present form and in the eye of law and this District Commission has territorial and pecuniary jurisdiction to try this case  and the complainant is a consumer  under the OPs and the complainant has cause of action for institution of this complaint case.  Thus, the above noted 4 points of consideration are decided in favour of the complainant side. 

The point of consideration No. 5  is related with the question whether the complainant  is maintainable  to get any degree directing the OP No. 7 for execution and registration of the deed of conveyance  in respect of the suit property and / or not and the point of consideration No. 6  is related with the question whether the complainant is entitled to get any other relief or reliefs in this complaint case or not?

For the purpose of arriving at just and proper decision in respect of above noted  2(two) points of consideration, this District Commission is of the view  that there is necessity of making scrutiny of the evidence on record and materials of this case record .  In this regard it is very important to note that the complainant has submitted evidence on affidavit   but the contesting OP No. 7  has not filed  any interrogatories or questionnaires  against the said evidence on affidavit  filed by the complainant.  So, it is crystal clear that the evidence given by the complainant remains unchallenged and / or uncontroverted.  It is also important to note that the OP No. 7 has not filed any evidence on affidavit as the case is running exparte against all the OPs as OPs have not filed evidence on affidavit,  the evidence  given by complainant side remains unchallenged and / or uncontroverted and it  has not been shakened in any way. After going through the material of this case record this District Commission finds that there is no reason to disbelieve the unchallenged  and / or uncontroverted testimony of the complainant side.  On close examination  of the evidence on affidavit filed by the complainant  this District Commission finds that the complainant has proved his case beyond any shadow of doubt.  More so, in view of the reported decision of the Hon’ble Apex Court  passed in AIR 2022 SC Page 1824 the promoter / developer  is duty bound  to hand over the possession  and bound  to give delivery of possession of the suit flat within  stipulated period of time otherwise  the promoter/ developer is duty bound to refund the entire consideration amount alongwith  interest  @ 9 % per annum.  In this instant case  the OPs have not  executed  and / or registered  the deed of conveyance  in respect of the suit flat.  At the same time the OPs also have not delivered possession of the suit flat to the complainant.  In this connection  it is very important to note that the OP No. 7 has adopted the defense alibi that the Agreement for Sale which has been produced  in this case is fraudulent  but fact remains  that the OP No. 7 has failed to prove the said fact that the Agreement for Sale which has been produced in this case by the complainant  side is fraudulent  and illegal document .  Thus, this point of contention  of the OP No. 7 cannot be accepted .  In this regard it is also very important to note that the OP No. 7 after entering in this case has filed  an application for  sending  the said document of Agreement for Sale to the handwriting expert  in the matter of comparing  signature of the Bholanath Saha.  But fact remains  that the said prayer has not been allowed by this District Commission. It is surprisingly  that the OP No. 7 has neither  challenged  the order of this District Commission nor preferred any revision before the Higher Forum.  So, this point of contention of the OP No. 7 can also not be accepted.

The recapitulating of the above noted discussion this District Commission finds that  the complainant has proved this case  in respect of points of consideration Nos. 5 & 6  and so the complainant is entitled to get all the reliefs which has been prayed in this complaint case.

In the result, it is accordingly,

ORDERED

That this Complaint Case  being No. 23/2015 be and the same is allowed on contest but in part against the OPs.

It is held that the complainant is entitled to get the degree of directing  the OP to execute and register  a proper deed of conveyance  in respect of the suit property which has been more fully described  in schedule ‘A’ and the complainant  is also entitled  to get compensation  of Rs. 25,000/- from the OP No. 7 and litigation cost of Rs. 10,000/- from OP No. 7.

The OPs are directed to execute and register the sale deed positively within 45 days from the date of passing of this judgment and OP NO. 7 is also directed to pay the compensation amount  of Rs. 25,000/-  and litigation cost of Rs. 10,000/- to the complainant within 45 days from the date of passing of this judgment otherwise  the complainant is given liberty to execute this award  as per law.

In the event of non-compliance of the above noted direction by the OPs and OP No. 7, they must deposit fine of Rs. 15,000/-  in the Consumer Legal Aid A/C of D.C.D.R.C., Howrah.

The parties of this case are entitled to get a free copy of this judgment  as early as possible.

Let this final order and / or judgment be uploaded in the official website  of this District Commission as early as possible.

  Dictated & corrected by me

            President

Debasish Bandyopadhyay