Complainant by filing this complaint has submitted thathe intended to purchase a flat from the op on the 2nd floor of Block-A at the Eastern side of the proposed three storied building having an area of 900 Sq. Ft. Super Built up area at a final consideration of Rs. 13,05,000/- and to that effect an tripartite Agreement to Sale was executed in between the Developer, Land Lord as confirmed party and fact remains that complainant paid Rs. 13,05,000/- and thereafter executed a Sale Deed in favour of the complainant. But in the Deed of Sale, consideration money is mentioned at Rs. 9 lakhs in respect of actual consideration paid by the complainant for the said flat. No doubt possession has already been handed over to the complainant and in fact the Deed of Sale was prepared and drafted by the appointed Lawyer of the Developer and said Deed was registered on 15.06.2010.
But on receipt of the registered Deed from the concerned Registry Office on 15.06.2010, complainant noticed that in Schedule-B of the said second schedule, Super Built Up area of the said flat had been mentioned as 823 Sq. Ft., more or less, instead of 900 Sq. Ft. as previously agreed by and between the Developer and the Purchaser under the said tripartite Agreement to Sale and after that complainant understood that the Developer and the Landlord did not act bonafide in registering a flat with Super Built Up area of 823 Sq. Ft. instead of 900 Sq. Ft. as agreed between them vide Agreement to Sale dated 14.03.2007 and as such they did not provide any opportunity to the purchaser/complainant to examine the said Deed of Sale before registration with malafide intention.
Fact remains that the flat had been completed with materials of substandard and inferior quality and the owner as well as the Developer did not follow the specification of work as laid down under Schedule-C of the said Agreement for Sale on 14.03.2007 as the floor walls and other fixtures had started to be damaged within a few month of delivery of possession. Complainant thereafter intimated the Developer and the Landlord repeatedly regarding the same and requested them to replace the substandard materials at the earliest with specified materials as agreed by and between the parties under Schedule-C of the said Agreement. But neither the Developer and nor the Landlord paid any heed to his request and ultimately complainant was compelled to replace all those fixtures, fittings, main doors and windows and he had to repair inner walls of both the bed rooms, bathrooms, kitchen and flooring of the said flat within two years of purchase at his own cost and expenses to make it suitable for human habitation.
But ultimately the Developer agreed upon by an declaration dated 30.06.2010 stating that “I promise/assure to settle the final measurement of the Flat owners/occupiers of flat No. 2A/1, A/2B and 1A/1 as per the final and actual deviation/additions/alterations made in my construction project as I considered and applied service area/super built up area according to the preliminary sanctioned plan and I also agree to refund the amount to the said flat owners/occupiers for excess service area/super built up area which is already charged by me” and the Developer had also promised “I agree to shift the flat owners/occupiers as stated above to any nearly similar flats for a temporary period to repair/reconstruct/complete all the damaged/incomplete construction work of the flat owners occupiers by executing a shifting agreement with the said flat owners/occupiers and all the shifting expenses will be borne by me”.But neither he shifted the owners/occupiers to repair the same nor he had paid the cost of repairing of the said flat to the complainant.
Thereafter the Developer had also issued two self cheques, one of Rs. 6 lakhs bearing cheque No. 927751 and another of Rs. 5 lakhs bearing cheque No. 944100 and both cheques was drawn on Canara Bank, Entally Branch, Kolkata – 700014 duly signed by the Developer/op no.1 himself to compensate the owners of the aforesaid three flats bearing flat Nos. 2A/1, A/2B and 1A/1 respectively for breach of contract. But after issuance of the said cheques the said Developer requested them not to present the said cheques for encashment and in good faith the owners of the aforesaid Flats did not present those two cheques before the Banker of the Developer for encashment and the said cheques are now not in custody of the complainant.
The Developer and the Landlord further constructed another story on the said three storied building illegally without obtaining any sanctioned plan from the Kolkata Municipal Corporation and without taking permission from the concerned authorities of the Housing Department and also from the Flat owners of the said building had been constructed. So all the flat owners including complainant have to face and they are still facing much inconveniences due to that illegal construction.
Further there was a provision of separate car parking space on the ground floor of the said building but the said Developer and the Landlord have constructed 4 flats in the said space reserved for parking of vehicles of the flat owners and have already sold the same. It may be mentioned that under the provisions of West Bengal Apartment Ownership Act, 1972 the car parking space comes under the definition of Common Areas and Common Facilities which cannot be partitioned converted or sold out to any person. Moreover the said Developer in collusion with the Landlord deviated from the sanctioned plan and as such the construction of flats in the car parking space is illegal and caused great inconveniences to the flat owners of the said building as at present there is no space available on the ground floor of the said building for parking the vehicles of the flat owners and the complainant and the other flat owners have to arrange separate accommodation elsewhere for car parking.
Being aggrieved and dissatisfied with the action and inaction of the ops specially the op no.1 is not refunding the said amount of Rs. 1,11,650/- as agreed by him to return under the terms of the Declaration dated 30.06.2010 and for registering and delivering possession of a flat with a Super Built Up area of 823 Sq. Ft. instead of 900 Sq. Ft. as agreed under the terms of the aforesaid Agreement of Sale and is not paying the amount of Rs. 2,00,000/- spent by the complainant for making the flat suitable for human habitation and in not completing and repairing the incomplete and damaged structure as per the recommendations of certified chartered engineer at his own cost and expenses under the terms of the agreement and declaration made by the Developer and further for selling out the car parking space in the ground floor by constructing flats and in the above circumstances, complainant has prayed for directing the op/Developer to refund the aforesaid amount of Rs. 1,11,650/- for selling the Super Built Up areas of 823 Sq. Ft. in place of 900 Sq. Ft. and also for not making the flat complete for habitation and for not getting the area of car parking space on the ground floor and prayed for relief.
On the other hand op/Prasanta Kumar Pahari by filing written statement submitted that Gour Kishore Das/op no.2 was the owner of the Premises No. 24B/1A, Dr. Suresh Sarkar Road, Kolkata – 700014, P.S.- Entally and op no.1 is running the business under the name and style of M/s. Basanti Enterprise as Proprietor, having his office at No. 3, Canal Street, Ground Floor, Kolkata – 700014, P.S.- Entally.
It is specifically admitted that op no.1 has done the construction work of the two units of the apartment being the premises No. 24B/1A, P.S.- Entally and it is admitted that complainant purchased as the intended buyers of a flat measuring about 700 Sq. Ft. in Block A in between the op no.1/Developer and complainant/Purchaser that proposed two bed rooms flat of about 700 Sq. Ft. built up area would be sold by the op no.1 with Super Built Up area by adding 30 percent of built-up area. Accordingly the Agreement for Sale dated 14.03.2007 was made by and between the op no.1/Developer and the complainant/Purchaser and the op no.2/Landowner.
Though it was agreed upon by the said Agreement for Sale that Rs. 9,05,000/- would be paid at the time of execution of the Agreement and the balance of Rs. 4,00,000/- would be paid at the time of execution and registration of the Deed of Conveyance but actually on request of the complainant, it was agreed that the additional area of 20 percent instead of 30 percent of built-up-area would be added with the actual built-up area and for which the said Agreement for Sale was made was found as 686 Sq. ft. and by adding 20 percent of the same the Super Built Up area was settled at 823 Sq. Ft. and accordingly considering the lesser area of 77 Sq. Ft. the aforesaid price of Rs. 13,05,000/- was settled at lesser amount of Rs. 9,00,000/- only.
Though the complainant agreed by the said agreement dated 14.03.2007 to pay Rs. 9,05,000/- at the time of execution of the said Agreement but regarding area in the manner as aforesaid, it was also settled that the earnest money would be of Rs. 5,00,000/- instead of Rs. 9,05,000/- of the revised price of Rs. 9,00,000/- would be paid before registration of the Deed of Conveyance and the amount of Rs. 4,05,000/- which was agreed to be paid along with aforesaid Rs. 5,00,000/- was not paid at the time of execution of the said Agreement for the re-schedulement of the area, price and mode of payments and it was further settled that instead of the said amount of Rs. 4,05,000/- a sum of Rs. 4,00,000/- paid thereafter from time to time by the complainant to the op no.1 in addition to the revised sale price of Rs. 9,00,000/- would be spent for doing the addition/alteration, change in lay out of the rooms, extra and special fittings of more better quality of materials inside the said flat and accordingly as per instruction of the complainant, the extra or additional work i.e. change of bath room, toilet, kitchen, sewerage plumbing system, verandah, fittings and fixtures of grills, special quality of paint and wooden doors and windows etc. were done in at the said flat. So the complainant’s allegation in the complaint are all false and fabricated.
Fact remains that there is a joint tenancy of one Sri Chandra Kanta Dolui and Sri Anup Kumar Dolui who were running their engineering factory with leathe machine and other equipments in one room at ground floor of the old structure of the said premises and after construction of the new building said tenants were re-instated at the same place of that new building as per the contract between the landlord and tenant, but due to running of the leathe machine some minor damage was found in the newly constructed structure of the proposed building as it was complained by some of the purchasers including the complainant during continuation of construction work.
On receipt of the said complaint against the running of leathe factory by the said tenants the op no.1/Developerand op no.2/Landowner took the immediate action by holding discussion with the said tenants and purchasers of the flats and upon such discussions for settlement of the dispute the said tenants agreed to stop the running of their factory and to surrender their tenancy in terms of the Agreement, entered into by and between the said tenants, Landowner/op no.2 and Developer/op no.1 and finally in compliance of the said contracts the tenants vacated and surrendered their tenancy in respect of their said leathe factory as on 30.11.2007.
On 15.09.2007 at the time of settlement of the aforesaid dispute, regarding the damage, caused for running of leathe factory by the said tenants in the manner, the Developer/op no.1 had to agree to do all the repairing and reconstruction works at his own cost as it was required in respect of the said damaged parts of the newly constructed structure of the building and to complete the same before resuming the balance construction works of the said apartments. So, the story of the complainant for renovation, addition and alteration in the flat of the complainantis completely false. It is fact that the said declaration was prepared on the same day just after having been executed the agreement between the tenants and landowner and it was made in two sets with similar writings and both the copies of the said document in original were signed by the op no.1/Developer without mentioning any date and one copy of the same was kept by the complainant while the other copy was given to the op no.1. Therefore it is absolutely false that any such Declaration has been given by the op no.1 on 30.06.2010. But the date 30.06.2010 has been put in the said documents by the complainant to avoid the point of limitation and to create a false cause of action.
As the complainant had a good relation with the op no.1/Developer in course of the contact between them for sale or purchase of the said flat, purchased by the complainant and he used to come in the office of the op no.1/Developer in absence of the op no.1 on good faith. On 31.05.2008 op no.1 prepared two self-cheque of Rs. 5 lakhs and Rs. 6 lakhs being cheque Nos. 944100 and 927751 respectively of Canara Bank, Entally Branch, Kolkata – 700014 for the purpose of making payment to the suppliers, labour contractors and to purchase the building materials. Those two cheques were written and signed by the op no.1 without putting any date and those two cheques along with the cheques books were kept in the unlocked drawer of the working table in the office of the op no.1. On 01.06.2008 complainant came to the office of the op no.1 for discussions regarding registration of Deed of Conveyance and he was requested to sit and wait in the office of the op no.1. On 02.06.2008 op came to his office to collect those two self-cheques for withdrawal of money from the bank but surprisingly it was found missing from there. Then instantly op no.1 rushed to the concerned bank and informed the bank in writing about missing of those two self cheques and under advice of the bank’s officials the instruction for stop payment against those cheques were given to the bank by the op no.1 vide his letter dated 02.06.2008.
Thereafter op no.1 went to the local police station but he was told by the police personals of Entally P.S. that the police diary would be accepted when it would be referred by the bank. Since then op no.1 was in search for those two self cheques but could not trace it and as per the discussions and settlement between the op no.1 and complainant, the Deed of Conveyance prepared by and on behalf of the complainant was approved by the op no.1 and it was duly executed and registered upon satisfaction of all the parties concerned to the said Deed of Conveyance dated 08.12.2008 being No. 03677, registered in the office of the DSR-III, South 24-Parganas, West Bengal.
The flat no. 2A/1, was made ready in all respect of delivery of possession and the complainant was put in peaceful vacant possession at the said flat after finishing all the addition alteration and repairing jobs as required by the complainant. But after execution of the Deed of Conveyance and completion of deal between the op no.1/Developer and complainant upon registration of the Deed of Conveyance and delivery of possession the complainant asked the op no.1 to do some more additional alteration to change the mosaic floor by fitting marbels at the said flat at the cost of op no.1. But op no.1 did not agree and complainant became aggrieved and since then started threatening the op no.1 to teach a good lesson and for dire consequences.
So the entire allegation of the complainant is false and document which are produced by the complainant is fabricated in respect of witness, signatures and date and in respect of cheque, practically it was lost by the op and practically it is found at this stage that it was removed by the complainant but that prayer was on 31.08.2008 for payment the said cheque there was no date and in the above circumstances for filing a vexatious and false complaint, the complaint should be dismissed.
Decision with reasons
On comparative study of the complaint including the written version and also after evaluation of the material document as filed by the both parties and also considering the argument as advanced by the Ld. Lawyers of both the parties, it is found that there is no dispute in respect of the fact that complainant got a flat having an area of 823 Sq. Ft. and in respect of the said flat Deed of Conveyance (Sale Deed) had been executed on 08.12.2008 bearing No. 03677 registered in the Office of District Sub Registrar-III of South 24-Parganas, West Bengal and complainant had been possessing the said flat since prior to execution of the registration of the said Deed.
Truth is that complainant has tried to convince that practically there was an Agreement for Sale in respect of 900 Sq. Ft. Fact remains that complainant has alleged that he got the flat but the flat was damaged and it was not completed and everything has been done by the complainant and it has been made habitable by the complainant.
But after considering the material on record including the defence as made by the op and also the Deed of Sale, it is clear that complainant being satisfied about the area and amount that is noted in the Deed paid the amount as noted in the Deed, the Deed was completed and that Deed was received by the complainant on the very date of registration. Thereafter complainant was sitting idle about that. Thereafter complainant filed this complaint on 27.06.2012 that is long after 4 years. Apparently it is found that within two years from the date of receipt of the original Deed of Sale, complainant did not file this complaint within two years from the date of execution of the Sale Deed. So, apparently the present complaint is barred by limitation. But anyhow Ld. Lawyer for the complainant has tried to convince that in fact after execution retgistration of the Sale Deed by the complainant, complainant came to learn that in the Deed of Sale, area is noted 823 Sq. ft. and some consideration was passed, noted Rs. 9,00,000/- when complainant raised this grievance to the op. When ultimately op after wasting time executed one declaration to that effect that he shall have to pay or refund amount of the said flat and occupied of the excess service area of Super Built Up area which is already charged by him and complainant’s Ld. Lawyer in the complaint by showing therir documents tried to convince that declaration was made by the complainant on 30.06.2010 whereas the Ld. Lawyer for the op submitted that similar copy of said Agreement was with the op, op has filed it wherefrom it would be found that there was no date mentioned in the said copy or there was no witness in the witnesses in the said declaration. Now question is whether 30.06.2010 was noted by Prasanta Kumar Pahari or not.
Another factor is that the Ld. Lawyer for the complainant submitted that op also handed over of two cheques signed by him mentioning amount as security for refund of the total amount and also for repairing the said flats. No doubt complainant has filed the copy of two cheques being No. 944100 and 927751 having no date and it is the contention of the complainant, op requested them not to encash because it was given as security and op shall have to complete the flat and it is the contention of the Ld. Lawyer for the complainant that those two cheques were handed over to the complainant along with said declaration dated 30.06.2012. So, moot question is whether the said two cheques were issued by the op and handed over to the complainant by the op on 30.06.2010 or not.
In this regard after hearing the argument of the Ld. Lawyer for the complainant and op and also considering the cheque book of the op, it is found that cheque No. 944100 for Rs. 5,00,000/- and cheque No. 927751 of Rs. 6,00,000/- issued in between 08.02.2008 to 21.04.2008.
So, under any circumstances, it can be believed that those two cheques were handed over to the op by the complainant on 30.06.2010 and not only that op has alleged that those two cheques were in his Office which was lost what he pointed out. Subsequently in his Office on 02.06.2008 and after on 02.06.2008 as per op, op informed his banker the Canara Bank, Entally, Kolkata-14 stating that who executed his cheque Nos. 944100 and 927751 had been lost or misplaced from his Office. So, he requested the Banking Authority for not giving any chance for encashment if it is presented from any source. That copy of letter has been submitted by the op wherefrom it is found that on 02.06.2008 op submitted last information to his banker Canara Bank for not entertaining those two cheques if it is presented from any source or from anybody in op’s Bank and in that letter there was a stamp of the Canara Bank of Entally Branch dated 02.06.2008.
So, considering that letter and the version of the op, it is clear that those two cheques which are produced by the complainant showing that it was handed over by the op on 30.06.2010 is completely false on the contrary it is proved that those two cheques somehow or otherwise taken away by the complainant from the Office of the op and he was kept silent and those two cheques were never issued by the op to the complainant on 30.06.2010. But those two cheques were executed and signed prior to 02.06.2008. So, it is clear that complainant has removed somehow by manipulation brought out those two cheques and kept in his custody for the purpose of presenting the same in the Court of law to prove that op handed over those two cheques to the complainant as security till completion of the flats and till refund of the amount in respect of the area of 77 Sq. Ft. But that is proved false on the contrary complainant’s dishonest activities has been proved and no doubt this complainant should be arrested at first and fact remains that it is one kind of act of cheating done by this complainant and no doubt he is proved a thief.
So, we are convinced to hold that those two cheques which were self-issued cheque of the op was no doubt stolen from the office of the op by the complainant for which it can safely be said that those two cheques were only issued on 30.06.2010 in favour of the complainant and regarding those two cheques produced in the complaint is a false and fabricated story and it is a story of a theft like complainant. Now regarding declaration we have gathered that there are two copies of declaration, one with the complainant and another with the op. But op’s declaration all are reapproved of the complainant’s document that is declaration of the op except dated 30.06.2012 and name of the witnesses and practically it is operated from the documents that on 30.06.2012 and name of the place were subsequently neglected by the complainant only to avoid the limitation. But question is how on 30.06.2012 was neglected? Ld. Lawyer for the complainant submitted that it was handed over to the complainant by the op and date was noted by the op. But only to ascertain whether this letter was of the year 30.06.2010 or prior to that date. In this regard we have gone through declaration and from that declaration, it is found that at the relevant point of time there was a dispute regarding the tenant who was running leathe machine on the ground floor of the said flat and due to running of the leathe machine on the ground floor of the flat, the flat was damaged. So, all the flat owners including the complainant raised objection when op took a step and gave such declaration that he shall have to take such positive step for removal of such tenant and for repairing of the entire flat and this fact is specifically mentioned in the said declaration letter and it was also agreed that in respect of shortage of area that means 77 Sq. Ft. and over op shall have to pay/refund such amount. Now question is at what point of time that type of dispute regarding removal of tenant was raised. In this regard we have gathered that from the documents that said dispute area in the year 2007 because on 30.11.2007 the aforesaid tenant who was running the leathe machine on the ground floor surrendered the said tenancy on 30.11.2007 and that has not been denied by the complainant so it is proved that the said declaration was made by op before 30.11.2007..
Fact remains in para-2 of the declaration, it is specifically mentioned that op agreed but we have to search out when that declaration was made. Fact remains at that time practically the tenant was running the leathe machine on the ground floor. But it is proved from the document that no denial made by the complainant and in respect of surrender of leathe machine on 30.11.2007, we are confirmed that 30.11.2007 the said tenant already vacated the ground floor. Thereafter as per choice of all the flat owners, building was repaired, reconstructed after that all the flat owners got possession in the first part of March Possession was delivered and thereafter Final Deed of Sale was executed by the op on 08.12.2009. So, it is clear that the declaration of op as has been submitted by the complainant dated 30.06.2010 is completely the invention of the complainant by inserting the name of the witnesses of the complainant somehow subsequently date was placed by the complainant when complainant after consulting their agent and legal hands came to learn that there is a question of limitation when that date was noted to remove the limitation period and so it is proved beyond any manner of doubt that complainant is a unscrupulous person and only for grabbing money interpolated the said declaration after getting possession of the flat after execution and registration of his sale deed on 08.12.2009 and after that complainant has no grievance for which the complainant got possession being satisfied about habitable condition of the flat which had been prepared by the op after surrender of the ground floor by the said tenant and thereafter complainant proceded for registration and op executed and registered the Sale Deed ultimately 08.12.2009 but after that complainant did not file any case within two years from that date before this Forum on 27.06.2012 i.e. long after two years and six months after preparing the disputed document and producing those cheques already removed by the complainant back behind the knowledge of the op.
Considering all theabove fact materials and conduct of the complainant we are inclined to hold that complainant as consumer is dishonest and unscrupulous person and he is the manufacturer of those two cheques and documents only to grab money by mis-leading the Forum and for which it is proved that the present complaint is not only vexatious one but also false and fabricated one.
In the above findings we are inclined to dismiss the complaint with penal cost.
Hence, it is
ORDERED
That the complaint be and the same dismissed on contest against the ops.
Complainant is directed to pay a sum of Rs. 10,000/- as penal cost to this Forum for filing vexatious complaint by preparing manipulated document and as dishonest and thief consumer.
