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Dipak Kumar Saha v/s Bandhan Bild Con. & Others


Company & Directors' Information:- I-CON (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL1995PTC072945

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- DIPAK CORPN PVT LTD [Strike Off] CIN = U67120WB1960PTC024859

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    Complaint Case No. 160 of 2015

    Decided On, 21 January 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT

    For the Complainant: Bijoy Singha, Advocate. For the Opposite Parties: Shamim Ahmed, Advocate.



Judgment Text


1. This complaint case originated from an application under section 17 (1) (a) (i) of the Consumer Protection Act, 1986 where the complainant prayed for a direction upon the OPs to hand over possession of the 'B' schedule flat, to execute and register the deed of conveyance in favour of the complainant in respect of that flat, to hand over possession of the flat and a copy of the completion certificate issued by the Competent Authority, compensation to the tune of Rs. 5,00,000/- (Rupees five lakh) for harassment and mental agony and litigation cost of a sum of Rs. 55,000/- (Rupees fifty five thousand) and other consequential reliefs.

2. Briefly stated, the case of the complainant was that the complainant, a business man, while in need of a residential accommodation in an around Madhyamgram, approached the OPs no. 2 and 3 who represented themselves to be the Developers of the 'A' schedule property and offered to sell out a flat from an apartment raised by them over the 'A' schedule property. Accordingly an Agreement for Sale was executed by and between the complainant and the OPs on 03-03-2014 where the OPs promised and assured to sell and deliver the schedule 'B' property of the flat within a period of one year from the date of Agreement for Sale on payment of a consideration of Rs. 20,68,000/- (Rupees twenty lakh sixty eight thousand). The complainant paid a sum of Rs. 10,00,000/- (Rupees ten lakh) at the time of signing the Agreement for Sale on 03-03-2014. The complainant alleged that from the very inception, the progress of the construction of the 'B' schedule flat was very slow and as the complainant was in urgent need of accommodation he requested the OPs to deliver possession of the said flat but the OPs failed and neglected to deliver possession of the 'B' schedule flat resulting gross 'deficiency in service' as well as 'unfair trade practice' but inaction on the part of the OPs in the matter of completion of construction of the flat as well as delivery of possession and other reliefs as sought for by the complainant being 'deficiency in service' as well as 'unfair trade practice' prompted the complainant to issue a legal notice on 9 th April, 2015 asking the OPs to give reliefs in terms of prayers as per petition of complaint. The complainant further alleged that the OPs received a sum of Rs. 10,00,000/- (Rupees ten lakh) but did not comply with the terms of agreement dated 03-03-2014.

3. A written version was filed by the OPs no. 2 and 3, the Developers who contested the complaint case and contended in their written version that there was Agreement for Sale between the parties for selling out the flat in question rather it was contended that the Agreement for Sale was a manufactured document created at the instance of one Debabrata Saha who put his signature as witness in the said Agreement for Sale. It is further alleged that the signature of the OP no. 2 in the so-called Agreement for Sale was taken by said Debabrata Saha, a Tax Consultant of the OP no. 3 showing that the complainant intended to purchase the flat on payment of earnest money of a sum of Rs. 10,00,000/- (Rupees ten lakh) and the agreement was executed in his favour at the time of execution of the agreement but in fact no money was passed in favour of the OPs/Developers at any point of time. Denying and disputing of the material allegations, the contesting OPs ultimately prayed for dismissal of the complaint case.

4. The factual aspects of the matter with regard to execution of the agreement, intention of the complainant to purchase the flat, as referred to in schedule 'B' in the petition of complaint for a consideration of Rs. 20,68,000/- (Rupees twenty lakh sixty eight thousand) were not disputed. The only point in dispute is the payment of earnest money by the complainant to the tune of Rs. 10,00,000/- (Rupees ten lakh) at the time of execution of the Agreement for Sale. Ld. Counsel for the OPs in course of hearing drew our attention to the inner page '6', clause 5 of the Agreement for Sale dated 03-03-2014 which is quoted below for deciding the merit of the case: -

"5. That the purchaser is hereby agreed to pay an amount of Rs. 10,00,000/- (Rupees ten lakh) as an advance money of total consideration money of Rs. 20,68,000/- (Rupees twenty lakh sixty eight thousand). The said advance money of Rs. 10,00,000/- (Rupees ten lakh) will be paid to the Developer/Promoters at the timeof executing and/or signing this Agreement for sale and the balance amount of Rs. 10,68,000/- (Rupees ten lakh sixty eight thousand) be paid to the Developer/Promoter phase by phase within next one year i.e. just before the execution and/or Registration of Deed of Conveyance".

5. The terms of agreement as quoted above, reveals that the purchaser of the agreement intended to purchase the flat as per schedule 'B' of the petition of complaint for a consideration of Rs. 20,68,000/- (Rupees twenty lakh sixty eight thousand) and agreed to pay an amount of Rs. 10,00,000/- (Rupees ten lakh) as advanced money of total consideration. The terms of agreement further disclosed that the complainant would pay the balance of the consideration to the Developer phase by phase within one year from the date of agreement but before execution and registration of the deed of conveyance. From a scrutiny of the agreement it appears that one of the OPs i.e. Prasanta Kumar Samanta, the OP no. 3 was the only signatory for the Developer where the complainant and two independent witnesses put their signatures. There was no endorsement with regard to payment of earnest money to the tune of Rs. 10,00,000/- (Rupees ten lakh) or any subsequent payment phase by phase by the complainant in favour of the Developer.

6. In the written version the contesting OPs categorically averred that the Agreement for Sale was a manufactured document created for the purpose of unlawful gain by one Debabrata Saha who happens to be

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a Tax Consultant of the OP no. 3 and he managed to get the signature of the said OP no. 3 collusively in favour of the complainant. Taking into consideration the facts and circumstances of the case as well as the preponderance of probability such a collusion cannot be ruled out. Since the complainant failed to produce any scrap of paper with regard to payment of consideration in part or otherwise, as claimed, it is difficult to accept that he was a bonafide consumer within the meaning of section 2 (1) (d) of the Consumer Protection Act 1986. Accordingly the complaint case stands dismissed. I do not pass any order as to costs. Complaint dismissed.
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