1.      The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1968 (“the Act”) against the Order dated 08.07.2016 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata, (“the State Commission”), in Complaint Case No. CC/187/2015.

2.      Brief facts, as per the Appellant/Complainant that he entered into an Agreement for Sale with the Respondent/ OP Nos. 1 & 2/ Developer to purchase the flat in question at a consideration of Rs.25,00,000/-. Upon the execution of the Agreement, the Appellant paid part consideration amount of Rs.22,00,000/- in cash. It was mutually agreed that the balance Rs.3,00,000/- would be settled at the time of possession/registration by April 2015. However, he alleged that the Respondents/OPs failed to fulfill their obligations within the stipulated time, leading to filing of the Consumer Complaint (CC/187/2015) before the Ld. State Commission.

3.      The State Commission initially admitted the complaint in its Order dated 09.06.2015 and issued interim order under Section 13(3B) of the Act, directing the Respondents/OPs to refrain from creating any third-party interest in the property until the next hearing on 05.01.2016. On receiving notice, the Respondents/OPs appeared on 11.09.2015 and filed two Applications: MA/771/2015 and MA/772/2015 seeking respectively the vacation of interim order dated 09.06.2015 and challenging the complaint’s maintainability on the grounds that the Complainant had not paid any earnest money or part consideration, thus not qualifying as a Consumer under Section 2(1)(d) of the Act, rendering the complaint non-maintainable. The State Commission allowed both MAs, consequently rejecting the Complaint as barred by the provisions of the Act. The relevant excerpt of the impugned Order dated 08.07.2016 is provided below:

“On a plain reading of the provision of Section 2(1)(d) of the Act, it becomes quite clear that Consumer is a person who buy any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid or partly promised. Since no amount has been paid by the Complainant in favour of the Developer as part payment or any consideration amount whatsoever for purchasing of the flat in question, the Complainant does not fall within the category of Consumer as provided in Section 2(1)(d) of the Act.

For the reasons aforesaid, the MA/772/2015 is, thus, allowed on contest.

Accordingly, the MA/771/2015 is also allowed on contest and disposed of accordingly.  The interim order stands vacated. 

Consequently, the instant consumer complaint being CC/187/2015 stands rejected being barred under the provision of the Act. 

   The Complainant after manufacturing a cheque initiated this frivolous and vexatious complaint just to harass the OPs and also to wastage valuable public time of this Commission and as such the Complainant must be saddled with cost which we quantify at Rs.20,000/-.  Out of the said amount the Complainant to deposit a sum of Rs.10,000/- in the State Consumer Welfare Fund and the balance amount of Rs.10,000/- to be paid in favour of OP nos. 1 & 2.

   To 08.08.2016 for showing receipts by the Complainant in respect of payment of costs otherwise a coercive method may be followed for compliance.”

4.      Upon filing the MAs before the learned State Commission, the Counsel for the OPs/Respondents submitted that the Complainant did not annex “Page no. 16” of the Sale Agreement and the copy of “Cheque” dated 18.11.2014 with the complaint. His clients annexed the copy of the Agreement for Sale, including Page No. 16, and the cheque dated 18.11.2014 issued by the Complainant in favor of OP No.1. He contended that the non-CTS A/C Payee Cheque of Rs.22,00,000/- dated 18.11.2014 drawn on UTI Bank Ltd., Dunlop (Kolkata) to the Developer/ OP No.2 is void ab-initio, and therefore, the Complainant, not being a consumer, renders the case liable to be dismissed.

5.      Per contra, the Complainant/Appellant contended before the learned State Commission that as per Sale Agreement dated 13.03.2013, the OP agreed to transfer the flat at a consideration of Rs.25,00,000/-. The Complainant has already paid Rs.22,00,000/-, and despite requests, the OP failed to execute the Deed even after payment of Rs.3,00,000/-.

6.      The Ld. State Commission, while rejecting the complaint, made the crucial observation as follows:-

“The Agreement in question indicates that the OP nos. 1 & 2/ Developer agreed to sell the flat measuring about 910 sq. ft. in "the said premises at a consideration of Rs.25,00,000/. Though the Complainant suppressed the last page of the Agreement and the cheque in question by which amount of Rs.22,00,000/- is said to have been paid. But these two documents which are annexed with MA/772/2015 speak that the OP no.2 put his signature in the Agreement showing receipt of cheque No. 009919 dated 18.11.2014 issued by the Complainant drawn on UTI Bank Ltd., Dunlop Branch. Surprisingly enough, in the so called Account Payee Cheque issued by the Complainant, the amount in words was mentioned “Twenty two lakh only” but numerically it has been mentioned “Rs.22,000/”.  Therefore, the cheque in question appears to be defective and question of credit of the amount in the account of the Developer does not arise.  It appears to us that the cheque in question has been manufactured by the Complainant to lodge this complaint and to put the OPs in an inconvenient situation.

In order to appreciate the situation, it would be worthwhile to reproduce the term “Consumer” as defined in Section 2(1)(d) of the Act which runs as follows –

“Consumer” means any person who –

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation – For the purposes of the clause, “Commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.

7.      Being aggrieved, the Complainant (Appellant herein) filed instant Appeal No. 959 of 2016. During the pendency of appeal, the Appellant/ Complainant Biswajit Banerjee, the sole Appellant, died on 09.05.2021. Consequently, on 29.11.2021, vide IA No. 9539/ 2021 his Legal Heirs viz Nandita Banerjee, wife, and Ritwika Banerjee, the only daughter were allowed to be substituted for the deceased Appellant in the present matter.

8.      The learned Counsel for the Appellant/Complainant argued that the deceased Appellant filed the petition of complaint with Annexure including Sale Agreement for the year 2014, which was not Notarized as evidenced from Page 41 of the Brief Notes of Argument on behalf of Respondent Nos. 1&2 along with Affidavit. However, it was noted that Page 16 of the Sale Agreement was missing, which prevented the deceased Appellant to satisfy the State Commission by placing Page 16 of the Sale Agreement. In this Appeal, a Photocopy of the Agreement was filed by the deceased Appellant, indicating that the CTS Cheque was not issued by him in favour of Respondents. He further contended that the Agreement was attested as a True Copy by the Notary Public without verifying the original, suggesting fabrication. He highlighted discrepancies in the alleged cheque, arguing that the Commission should have applied judicial scrutiny. The Appellant asserted that he paid Rs.22,00,000/- and the Respondents misrepresented the same. Moreover, the Appellant never stated in the petition of complaint that Rs. 22,00,000/- was paid by cheque. The State Commission failed to consider his objections and submissions regarding the fraud perpetrated by the Respondents and, these arguments cannot be adjudicated by the Commission at an interlocutory stage.

9.      On the other hand, the learned Counsel for the Respondents/ OPs vehemently argued that the Appellant/ Complainant is guilty of deliberately concealing material facts in filing the instant Appeal as well as in the Consumer Complaint before the State Commission. Specifically, he failed to disclose an attested true copy of Non-CTS A/c Payee Cheque No. 009919 dated 18.11.2014 for Rs.22,00,000/-drawn on UTI Bank Ltd., Dunlop Branch (Kolkata), and an attested true copy of the Memo of Consideration, i.e., Page No. 16 of the Agreement for Sale, marked in the Index as ‘Annexure-P-1’ and ‘Annexure-P-2’. A plain reading of these two annexures indicates that the appellant in fact Ritwika Construction was paying for the unit and not Mr. Biswajit Banerjee. He did not reflect the business entity in filing the instant Appeal and the Consumer Complaint before the State Commission. He further argued that Respondent No. 2 received the said cheque out of utmost fidelity and cordiality, but the banking system did not allow the Respondent to deposit it, and the Non-CTS A/C Payee Cheque No. 009919 could not be credited. Despite receiving repeated requests from Respondent No. 2 day after day, the Appellant did not take back the cheque and issue a fresh one. Consequently, the purchase consideration did not pass from the Appellant to the Respondent. Hence, the Agreement for Sale, as a reciprocal contract, stands void ab initio. The Respondent did not hand over possession of the flat to the Appellant due non-payment of consideration and the absence of contract. Therefore, the State Commission rightly rejected the frivolous complaint of the Appellant/Complainant during the disposal of the maintainability petition filed by the Respondents. He further argued that the Appellant has completely changed his allegations and claimed that Rs.22,00,000/- was paid in cash as the consideration amount, an unsubstantiated assertion. There was no cash transaction for Rs.22,00,000/- as the consideration amount that has been even remotely established. Further, the Appellant suppressed the fact that a Non-CTS A/C Payee Cheque was tendered to Respondent No. 2, causing the legal quandary. This Appeal and complaint stem from some issues between Ritwika Construction and Shaw Construction engaged in similar housing projects. He, therefore, sought the appeal be dismissed on the grounds that the Agreement for Sale is void ab initio due to the suppression of material facts regarding the payment of consideration by an A/C Payee Non-CTS Cheque.

10.    I have examined the pleadings and the connected documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.

11.    The main issue to be determined is whether the contract between the parties is valid. If it is valid, what is the relief for which the Appellant/ Complainant is legally entitled to.

12.    The case of the Complainant (Appellant) is that the Appellant entered into a Sale Agreement with the Respondent/Developer to purchase a flat for Rs.25,00,000/-. According to the Appellant he paid Rs.22,00,000/- as part consideration in cash at the time of the agreement, with the remaining Rs.3,00,000/- to be paid at the time of possession/registration of the flat. The Appellant asserts that the payment of Rs.22,00,000/- was made, which the OP accepted as part consideration. The Appellant claims that despite repeated requests and the payment made, the Respondent failed to execute the Sale Deed and transfer possession of the flat. The Appellant contends that the State Commission dismissed the complaint based on the discrepancy without adequately considering the overall evidence and the merits of the case. The Appellant maintains that the matter should be adjudicated on its merits rather than dismissed on preliminary technical grounds. On the other hand, Respondent asserted that the Complainant/Appellant did not make any payment toward the consideration for the flat. The Respondent pointed to the discrepancy in the cheque issued by the Complainant which stated “Twenty-two lakh only” in words but “Rs.22,000/-” in figures. This discrepancy rendered the said cheque issued towards consideration invalid and void ab-initio. The Respondent contended that because the Complainant did not make a valid payment, he does not qualify as a "consumer" under Section 2(1)(d) of the Act, 1968. Since no payment was done, he cannot be considered a consumer who purchased goods or availed services for consideration. Given the invalid payment, the Respondent argued that the complaint is non-maintainable under the provisions of the Act. The State Commission's decision to reject the complaint as barred by the Act is therefore justified and should be upheld. While a cheque was issued with invalid entries, the banking system did not allow them to deposit it due to its non-CTS (Cheque Truncation System) format, which was invalid. They asserted to have repeatedly informed the Complainant about the invalid cheque issued, but the Complainant neither took back the cheque nor issued a fresh one, leading to failure of the transaction. The Respondent supported the State Commission's decision, stating that the Commission rightly rejected the complaint based on the clear evidence of the invalid cheque and the subsequent non-maintainability of the complaint. The Sale Agreement is void ab initio due to suppression of material facts and non-payment of consideration. This is a frivolous and vexatious litigation to harass them.

13.    Adverting to the issue in dispute, it is observed that the whole complaint contains numerous discrepancies, particularly regarding factual details. The complaint alleges that part consideration was paid in cash by the Complainant and relied on the Sale Agreement. The Complainant, however, produced no evidence to substantiate the claim of payment. Further, at some stages he stated to have paid the consideration by remaining silent on mode of payment. The Respondent produced a copy of the cheque alleged to have been issued by the Appellant and established that it is prima facie an invalid instrument. At no stage, however, the Appellant/Complainant brought out any justification as to the validity of the same, if any, and how the OP had the said cheque signed by the Complainant in its possession? Mere filing an FIR later for its loss does not justify the possession of the said signed cheque by the OP. In the absence of reasonably establishing either payment of consideration in cash or by cheque, the Sale Agreement in question has limited meaning. Further, the Agreement produced by the Complainant appears dubious, as Page 16, states that the payment was made in cash, is wholly inconsistent with the other particulars in the document. The format of the amount on Page 16 is different with respect to other pages. This inconsistency raises questions about authenticity of the document itself. Intriguingly, Page 16 and other pages seem to have been printed using different printers. The signatures and seals of the Developer/ Respondent and witnesses on Page 16 differ from those on other pages. These further undermine the credibility of the claim of the Appellant. Given these inconsistencies, the contention of the Appellant that the consideration was paid in cash is entirely unsubstantiated. Moreover, the cheque in question, which was annexed with the Misc Application (MA) filed by the Respondent before the learned State Commission, clearly shows the signature of the Appellant with certain discrepancies related to the amount in words and the amount in numbers. Hence, the State Commission’s finding that the cheque is defective and the order is appropriate.

14.    Based on the aforesaid deliberations, I do not find any infirmity or illegality in the order of the learned State Commission. Therefore, the Appeal No. 959/2016 is dismissed.

15.    All pending Applications, if any, are also disposed of accordingly.

16.    There shall be no order as to costs.