Judgment : Dt.8.1.2018
Shri S. K. Verma, President
This is a complaint made by one Mrs. Pallavi Nuwal, w/o Mr. Neeraj Gupta, D/o Mr. Kamal Kumar Nual, permanent resident of 4A/4, Jagannath Ghosh Road, P.S.-Kasba, Kolkata-700 042, presently residing at 180 10th Steet, Apt#510, Jersey City, New Jersey-7302, U.S.A., being represented by Madan Mohan Sahoo, son of Benu Dhar Sahoo, residing at Block-A, 4A/4, Jagannath Ghosh Road, P.S.-Kasba, Kolkata-700 042 against M/s, G.W.E. Engineering and Consultants Pvt . Ltd., B/5B/H/3, Sibtala Lane, P.S.-Narkeldanga, Kolkata-700 015, OP No.1, Mr. Rajesh Jaiswal, son of Mr. Sambhu Nath Jaiswal, Director, M/s, G.W.E. Engineering and Consultants Pvt . Ltd., B/5B/H/3, Sibtala Lane, P.S.-Narkeldanga, Kolkata-700 015, OP No.2, Mr. Sambhu Nath Jaiswal, son of Late K. L. Jaiswal, Director, M/s, G.W.E. Engineering and Consultants Pvt . Ltd., B/5B/H/3, Sibtala Lane, P.S.-Narkeldanga, Kolkata-700 015, OP No.3 and Mrs. Purnima Singh Deo, w/o Kumar Aditya Narayan Singh Deo, 1/20A, Bediadanga Second Lane, P.S.-Kasba, Kolkata-700 039, OP No.4, praying for execution and registration of the deed of schedule property in favour of the Complainant by receiving payment of the amount of Rs.2,50,000/- and for a direction upon the to pay compensation of Rs.3,00,000/- and litigation cost of Rs.50,000/-.
Facts in brief are that Complainant is a Non Resident Indian and is a consumer ;and he is being represented by her Sri Madan Mohan Sahoo, son of Benu Dhar Sahoo, residing at Block-A, 4A/4, Jagannath Ghosh Road, P.S.-Kasba, Kolkata-700 042, OP No.1 is a company incorporated under the Companies Act, which deals in development and promotion of real estate properties and at present being represented by its directors Sri Rajesh Jaiswal, son of Sri Shambhu Nath Jaiswal, and Sri Shambhu Nath Jaiswal, son of Late Kamraklal Jaiswal and involved in day to day transactions of the OP No1. OP No.4 is the land lady. A joint venture agreement was executed with OP No.1 for development of land owned and possessed by OP No.4. Initially OP No.1 was formed with its three Directors namely – Rathindra Nth Chatterjee, Sri Rajesh Jaiswal and Sri Shambhu Nath Jaiswal and after the demise of Sri Rathindra Nath Chatterjee on 27.06.2015, the other two Directors Sri Rajesh Jaiswal and Sri Sambhu Nath Jaiswal shifted the registered office of M/s G.W.E. Engineers and Consultants Pvt. Ltd. to its present address at B/5B/H/3, Sibtala Lane, P.S.-Narkeldanga, Kolkata-700 015.
OP No.4 being the owner of the plot of the land measuring 6 cottahs at the premises No.131/A, Santoshpur East Road, P.S.-Survey Park, Kolkata-700 075, entered into an agreement for construction of G+4 storied building. Thereafter, the OP NO.4 gave a registered power of attorney in favour of the Developer on the basis of the said development agreement as well as registered power of attorney OP No.1, 2 & 3 got one building plan sanctioned from KMC and simultaneously entered into agreement for sale with the prospective purchasers .
Complainant knowing the fact became interest and entered into an agreement for sale with the OP on 6.7.2012 for purchasing one flat measuring 700 sq.ft. super built up area at the first floor together with one car parking space measuring 105 sq.ft. at the ground floor of the building to be constructed over the premises No. 131/A, Santoshpur East Road, P.S.-Survey Park, Kolkata-700 075, for a total consideration of Rs.19,50,000/-. Complainant paid a sum of Rs.6,50,000/- on the date of agreement and this fact is mentioned in the Memo of Consideration. Complainant is Non Residence Indian, at present 180 10th Street, Apt#510, Jersey City, New Jersey-7302, U.S.A. and executed a notarized general power of attorney in fvour of her father Sri Kamal Kumar Nuwal dt.8.10.2010 to look after all her movable and immovable properties at the country including the demised she intended to purchase.
After booking the said flat and car parking space, Complainant due to some paucity of fund intended to purchase a flat at the premises with lesser super built up area and accordingly approached the developer to allot a smaller flat to her in place of the flat she had booked for purchase or to reduce the area of the flat. To curtail the cost of the flat, the Complainant also proposed to surrender the car parking area she had booked earlier. Considering the proposal of the Complainant to reduce the area of the flat and to surrender the car parking area measuring 105 sq.ft. at the ground floor which she had booked through one agreement for sale dt.6.7.2012 and the developer as per the request reduced the area of the flat from 700 sq.ft. to 600 sq.ft. super built up area and the developer by a letter dt.15.3.2013 confirmed the changes and intimated the Complainant that the cost of the flat measuring 600 sq.ft. super built up area without any car parking space would be Rs.15,00,000/- only, which the Complainant would pay to the developer and assured the Complainant that necessary amendment and rectification will be done in future if required. The copy of the said letter dt.15.3.2013 issued by the Director of M/s G.W.E. Engineers and Consultants Pvt. Ltd. is enclosed. The said letter dt.15.3.2013 issued by the Director of Developer Company as modified agreement surrendered the car parking space and accepted the area of the flat which was reduced to 600 sq.ft. from its earlier measurement of 700 sq.ft. Complainant after making payment of Rs.6,50,000/- on the d ate of entering into the agreement for sale with the OPs also paid to the developer Company Rs.1,00,000/- on 2.3.2013 and another Rs.5,00,000/- on 13.3.2013 by way of three installments of Rs.1,00,000/- on 13.3.2013 and Rs.2,00,000/- each on 15.7.2013 and 19.7.2013 respectively which developer duly received and acknowledged by issuing separate receipts. As such, Complainant had already paid to the developer a sum of Rs.12,50,000/- in total against the total consideration of Rs.15,00,000/- and approached the developer to register the flat in her favour by receiving the balance amount of money of Rs.2,50,000/- at an early date. But the developer refused to register the flat on the plea that they had not obtained the completion certificate from the competent authority after getting the said completion certificate they would register the flat to the prospective purchaser. On 27.6.2015 the Principal Director of the Developer Company, Rathindra Nath Chatterjee, suddenly expired and after the demise of Rathindra Nath Chatterjee, the other two Directors Sri Rajesh Jaiswal and Sri Sambhu Nath Jaiswal took total control of the business of the Company. Sometime in August, 2015, Complainant came to learn that the developer has already sold some flats to the purchasers by executing registered deed of conveyance. She then asked her father to take with the developer for arranging an early date for registering the flat. As per request of her faughter, the father of the Complainant Mr. Kamal Kumar Nuwal wrote a letter dt.20.8.2015 and sought for a suitable date so that the Complainant would come to the country and shall register the flat in her name by paying the balance amount of money. The Complainant thereafter, received one letter dt.26.9.2016 from M/s G.W.E.Engineers and Consultants Pvt. Ltd. in Company’s letter head signed by someone without mentioning his name and designation. Surprisingly, the said letter was not issued to the recorded address of the Complainant instead it was issued at her matrimonial address at Hyderabad whereas the Complainant being an N.R.I. residing abroad received the letter in the month of February, 2017. Complainant on receiving such purported letter being signed by someone without having any rubber stamp came to learn that the demise of the other Director – Rathindra Nath Chatterjee the other two Directors not only shifted the registered office of the Company at their residence but some ulterior motive denied all the correspondences and transactions made by the Complainant which was signed by the said Director – Rathindra Nath Chatterjee. Complainant had strong reason to apprehend that since the said letter has not been properly issued, it has no value in the eye of law. From the content of the said purported letter it is evident that the intention of the developer is questionable. Without replying the letter issued by the father of the Complainant they have arbitrarily cancelled the agreement for sale and asked the Complainant to receive a sum of Rs.8,50,000/- as final settlement due to cancellation of the agreement for sale. It is clear that the OPs have made deficiency in service and there is sign of unfair trade practice on the part of the OPs. Having no other alternative, the Complainant issued legal notices to all the OPs asking them to execute the deed of conveyance in favour of the Complainant. OP No.4 refused to receive the said letter. The copy of the said legal notice issued by Ld. Advocate of Complainant, which was not received by her and the postal receipts acknowledging the posting of the said legal letters through Speed Post with A.D. is filed. The OP No.1, 2 & 3 after receiving the legal notice on behalf of the Complainant again issued a purported letter to the Ld. Advocate of the Complainant asking the Complainant to take refund of Rs.5,58,000/- only alleging that the agreement for sale has already been cancelled unilaterally by them. It is pertinent to mentioned that the amount to be refunded had further reduced from Rs.5,85,000/- to Rs.5,58,000/-. The Complainant states that the OP has voluntarily neglected and committed deficiency of service and has practiced unfair trade. So, Complainant filed this case.
OP No.1 to OP No.3 filed written version and denied the material allegations of the complaint. Further, they have stated that OP No.1 is a Pvt. Ltd. Company and OP No.2 & 3 along with Rathindra Nath Chatterjee, since deceased worked as Director of the Company, during his lifetime was one of the Directors of the Company and registered office was at 2, R.N.Das Road, P.S.-Kasba, Kolkata-700 031. After the demise of Rathindra Nath Chatterjee, the office was shifted to B/5B/H/3 Sibtala Lane, P.S.-Narkeldanga, Kolkata-15. Complainant along with her petition of complaint has annexed certain forged documents. For the purpose of this complaint many receipts have been manufactured by the Complainant. The letter is also manufactured by the Complainant for the purpose of instant complaint. Complainant did not pay the consideration amount of Rs.13,00,000/-. Even on receipt of letter issued by the OPs and so the agreement dt.6.7.2012 has been cancelled for non-payment of balance consideration of Rs.13,00,000/- OPs are ready and willing to refund the sum of Rs.5,85,000/- . OPs by their letter dt.1.3.2017 replied to the letter written by one Debasish Chatterjee, Advocate, intimated that the agreement of the Complainant stood cancelled for non-payment of balance consideration of Rs.13,00,000/- against the agreed total consideration amount of Rs.19,50,000/- after repeated written demands vide their letter dt.26.9.2016 and 1.6.2015.
As such, the OPs have prayed that Complainant is not entitled to the reliefs. In addition, OPs have denied specifically all the allegations made in the complaint petition and prayed for dismissal of the complaint.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition to which OPs filed questionnaire to which Complainant filed affidavit-in-reply. OPs did not file evidence and the case was fixed for argument.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint petition, it appears that the Complainant has prayed for execution and registration of the flat mentioned in the schedule, after payment of Rs.2,50,000/-. Further, it appears that in the schedule the flat area is mentioned as 600 sq.ft. consisting of two bed rooms, one living cum dining, one kitchen, one toilet, one W.C. and one balcony together with undivided proportionate impartible share of the premises. But the location of the flat is not mentioned. So, it would be difficult to identify the flat even after decree is passed in favour of the Complainant the execution of it would not only be difficult but impossible.
It is the allegation of the Complainant that she has paid Rs.12,50,000/- to the OPs out of which she paid Rs.6,50,000/- at the time of signing of the agreement which is mentioned in the agreement for sale. In addition, there are receipts which are without stamp and the receipts reveal that Rs.2,00,000/- was paid on 19.7.2013, 13.7.2013 and 15.1.2013 amounting to Rs.2,00,000/-, Rs.1,00,000/- and Rs.2,00,000/- respectively. OPs received Rs.1,00,000/- from the Complainant as per the agreement. So, it is clear that in 2013 the payment was made by the Complainant and only Rs.2,50,000/- were due to be paid. Complainant has also mentioned about a letter which is dt.15.3.2013 wherein the area of the flat was reduced to 600 sq.ft. and Complainant surrendered the car parking allotted to her in the agreement for sale.
On the contrary, OPs have alleged that the receipts as well as the letter dt.15.3.2013 are all manufactured and Complainant did not pay Rs.6,00,000/- as mentioned in the back of the agreement for sale and as per the receipts filed. Complainant only paid Rs.6,50,000/- at the time of agreement for sale and they are always ready and willing to refund Rs.5,85,000/- to the Complainant to which she did not agree.
So, the question arises as to whether the allegations of the OPs can be believed that the receipts and letters reducing the flat area are forged one. As per law, this Forum lacks the jurisdiction to adjudicate any allegation of the documents being forged. Furthermore, this Forum is not in a position to pass any relief in favour of the Complainant because the flat mentioned in the agreement for sale is not specific and it appears to be vague.
Hence,
ordered
CC/226/2017 and the same is dismissed on contest.
