17.04.2015
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The instant Appeal has been preferred against the judgment and order dated 17.8.2012 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas in C.C.Case No. 250/2011, directing the Ops/Respondents to handover the possession , execute and register the Deed of Conveyance in respect of the flat in question on payment by the Appellant/Complainant the balance consideration of Rs. 1,79,000/-, and also to pay to the Appellant/Complainant Rs. 3,000/- as litigation cost within one month from the date of the order, failing which interest @ Rs. 100/- per day shall be payable by the Respondents/Ops from the date of order till the realization of the said amount in full, 50% of which shall be deposited with the State Consumer Welfare Fund and the balance 50% shall be payable to the Appellant/Complainant.
The facts, which are germane to the present controversy, are, in short, that the Ops/Respondents offered on 30.9.2010, orally as stated, to the Complainant/Appellant for sale of a flat bearing No. 403 on the 3rd floor of the building concerned at 373, Nandan Nagar, Kolkata-83. According to the said offer, the Complainant/Appellant paid to the Ops/Respondents Rs.3,30,000/- in total. As per the averment in the Petition of Complaint, the area of the flat as settled orally was 504 sq. ft. (without any mention of the super built-up area or covered area). Later on, the Ops/Respondents raised a Bill No. NIL dated 29.7.2011 upon the Complainant/Appellant showing the area of the flat as 552 sq. ft. super built-up area along with loft-slab of 35 sq. ft. and the gross value of the flat as Rs. 5,59,000/- and the net value as Rs. 5,09,000/- being arrived at upon deducting from the gross value of the flat Rs.50,000/- shown as the estimated value of 50 s q. ft. area @ Rs. 1000/- pe sq. ft.
After raising such Bill the Complainant/Appellant came to know that the Ops/Respondents had added afresh additional area of the staircase as also the super built-up area @ 20% to the carpet area of the flat in question as settled earlier, which the Complainant/Appellant had disputed. In this position, when the Complainant/Appellant requested in writing the Ops/ Respondents for handing over the possession and completion of registration of the flat in question, the Ops/Respondents did not respond to. In this factual background, the Ld. District Forum passed the impugned judgment and order in the aforesaid manner. Dissatisfied with such order the Complainant has filed the instant Appeal.
The Ld. Advocate for the Appellant/Complainant submits that the Ld. District Forum passed the impugned judgment and order without properly appreciating the facts of the case.
The Ld. Advocate also submits that the area of the flat, as settled with the Respondents/Ops, was 504 sq. ft. inclusive of the proportionate area of the staircase and of super built-up area @ 20%, and that for such settled area the net consideration of the flat was settled at Rs. 5,09,000/-, out of which Rs. 3,30,000/- were paid by the Appellant/Complainant to the Respondents/ Ops.
The Ld. Advocate further submits that the oral contract, as in the present case, being a valid contract as per the Indian Contract Act, casts contractual obligation upon the Respondents/Ops and accordingly, the failure, on the part of the Respondents/Ops, to discharge their contractual obligation as per the terms and conditions already orally settled in respect of handing over the possession of the flat as also its execution and registration, constitutes gross deficiency in service, which was not properly considered by the Ld. District Forum and hence, the impugned judgment and order should be modified directing the Respondents/Ops to handover the possession of the flat in question against the price as settled upon earlier and complete the execution and registration of the flat in question.
On the other hand, the Ld. Advocate for the Respondents/Ops submits that there being no written contract with the Appellant/Complainant, the claim of the Appellant/Complainant about the area of the flat being 504 sq. ft. as also the inclusion of the area of the staircase and super built-up area is baseless as against the documentary evidence as produced relating to the area of the flat being 552 sq. ft. super built-up plus the loft-slab area of 35 sq. ft. as shown in the Bill No. NIL dated 29.7.2011 raised by the Respondents/ Ops upon the Appellant/Complainant, as available on records.
The Ld. Advocate further submits that the Respondents/Ops had received Rs. 3,30,000/- out of the net consideration of the flat being Rs.5,09,000/- after allowing deduction of Rs. 50/- from the gross value of the flat as shown in the Bill referred to hereinabove and that the Respondents/Ops are ready to handover the possession of the flat and also for execution and registration of the flat in question on receiving the balance consideration being Rs. 1,79,000/- as shown in the Bill mentioned hereinbefore.
We have heard both the sides, considered their respective submissions and perused the materials on records.
Admittedly, there was no written agreement between the parties for the purchase of the flat by the Complainant. The Ops subsequently raised a bill which is not accepted by the Complainant. Since the bill is disputed, its contents cannot take the place of a valid written agreement. There is no concluded agreement between the parties. The oral agreement, therefore, is not enforceable. In this connection, we place reliance upon the decision of the Hon’ble National Commission in Birendra Kumar Srivastava Vs. Ajoy Girish Verma, reported in 2012 (1) CPR 229 (NC), wherein it was held that Complaint can be dismissed on the ground of absence of written contract between the parties. The Complainant is not entitled to get any relief. The Ld. District Forum was not justified in allowing the Complaint on the basis of oral agreement. The Petition of Complaint is dismissed. The Appeal is thus disposed of.
