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Gouri Saha v/s Amarendra Nath Das & Others


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

Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

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

Company & Directors' Information:- GOURI INDIA PRIVATE LTD. [Strike Off] CIN = U74900DL1985PTC021945

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

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

    First Appeal No. A/992/2016

    Decided On, 16 July 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, MEMBER

    For the Appellant: Pradip Kumar Das, Dibyayan Saha, Advocates. For the Respondents: Ushnish Dutta, Advocate.



Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of complainant to impeach the judgement/final order dated 15.09.2016 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (In short, ‘Ld. District Forum’) in Consumer Complaint No.39/2015 whereby the complaint lodged by the appellant under Section 12 of the Act was dismissed on contest with cost of Rs.10,000/-.

The appellant herein being complainant lodged the complaint before the Ld. District Forum asserting that she entered into an agreement with OP No.14 (Respondent No.18) on 12.02.2017 to purchase one self-contained flat measuring about 700 sq. ft. super built up area on the top floor in a G+3 storied building lying and situated at Premises No.34, Mahendra Nath Sen Lane, P.S.-Regent Park, Kolkata-700040, District- South 24 Parganas within the local limits of Ward No.-97 of Kolkata Municipal Corporation at a consideration of Rs.5,00,000/-. The complainant has stated that she has paid the entire consideration amount of Rs.5,00,000/- but the OP No.14/developer refused to hand over the possession of the flat in favour of her and also refuses to execute the deed of conveyance. Hence, the appellant approached the Ld. District Forum with prayer for several reliefs, viz.-(a) the opposite parties be directed to execute the deed of conveyance as per agreement dated 12.02.2017; (b) to direct the opposite parties to pay a sum of Rs.2,00,000/- as compensation for harassment and mental agony; (c) a direction upon the opposite parties to pay Rs.50,000/- as litigation cost etc.

The opposite parties No. 6 to 13 (land owners) by filing a joint written version have stated that in the month of April 2009, a dispute over allocation and non-delivery of possession etc. arose between them and OP No.14 (developer) and as such the matter was moved to the Hon’ble High Court at Calcutta and by an order in F.M.A.T. No.1094/2011 with C.A.N. 7371/2011, the Hon’ble High Court referred the matter to Hon’ble Mr. Justice Susanta Chatterjee (Retd.) as sole Arbitrator. The arbitration has already been started and the hearing of the last and 26th sitting was completed on 04.03.2015 and 04.05.2015 has been fixed for publication of the award. Hence, the Opposite Parties have made a prayer not to proceed with the complaint and the matter be kept in obeyance till the award in respect of allocation of OP No.4/developer is published.

The respondent No.18 being O.P. No.14 (developer) by filing a written version has stated that the complainant is a financer and in the process of construction of building she entered into a loan transaction with her for which the complainant paid her a sum of Rs.5,00,000/- towards business accommodation loan and she has already paid Rs.6,40,000/- but the complainant did not grant any receipt to her. The developer has stated that as the transaction is a loan transaction in substance and as there was no question of deficiency in services and further the complainant has already received Rs.10,65,000/- from her towards refund of loan amount with interest, the complaint should be dismissed.

Both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries and also participated in the final hearing. After hearing both sides and considering the materials on record, the Ld. District Forum by the impugned Judgement/final order dismissed the complaint with cost of Rs.10,000/- to be paid by the appellant/complainant in the Consumer Legal Aid Account of the Commission. Being aggrieve and dissatisfied with the said order, the complainant has come up in this Commission with the present appeal.

Undisputedly, the respondent Nos.1 to 17 or their predecessors – in- interest were the owners of a piece and parcel of land measuring about 4 Cottahs 2 Chittaks lying and situated at Premises No.34, Mahendra Nath Sen Lane, P.S.-Regent Park, Kolkata-700040, District- South 24 Parganas within the local limits of Ward No.97 of Kolkata Municipal Corporation. It is also not in dispute that the land owners have also executed the Power of Attorney authorising the developer to raise construction of a G+3 storied building over the said property.

Being emboldened with the power conferred upon her, OP No.14/respondent No.18 had entered into an agreement for sell with the appellant on 12.02.2007 to sell one flat measuring about 700 sq. ft. super built area on the top floor in the said building along with undivided proportionate share of land in the said premises at a total consideration of Rs.5,00,000/-. The whole dispute cropped up as to the nature of transaction. According to the appellant, she intended to purchase the flat for which she paid an amount of Rs.5,00,000/- to the respondent No. 18 and as such the relation of Consumer/service provider between her and respondent No.18/ OP No.14 exists. On the other hand, it is contended on behalf of respondent No.18/developer that she was provided with a loan of 5,00,000/- and which she repaid and as such the transaction being not an agreement for sale in substance, the appellant cannot claim herself as ‘Consumer’ within the meaning of Section 2(1)(d) of the Act.

To ascertain as to whether the transaction between the appellant and respondent No.18/ OP No.14 was an agreement for sale or a loan in substance, the Ld. District Forum has observed that a man can lie but document does not lie and in this regard the Ld. District Forum has relied upon the bank statement and came to a finding that it was not an agreement for sale because complainant has accepted Rs.4,25,000/- out of Rs.5,00,000/-. So, if there is no money transaction between the complainant and OP No.14 why the complainant has accepted that amount showing in the bank statement of OP No.14.

We have also scrutinised the statements made by the complainant with regard to the questionnaire made on behalf of respondent No.18/ OP No.14. In question Nos. 5 and 7 the complainant was asked wherefrom she collected the amount of Rs.5,00,000/- to pay it to OP No.14/respondent No.18 and is there any paper to show wherefrom she collected the said sum of Rs.5,00,000/- to which the complainant has stated that she collected the amount of Rs.5,00,000/- from her husband but she did not feel it necessary to produce any document like bank statement or savings account book about the collection of the said amount.

In question Nos.9 to 14, several questions were put to the complainant relating to acceptance of Rs.60,000/-, Rs.15,000/-, Rs.15,000/-, Rs.15,000/-, Rs.20,000/- and Rs.3,00,000/- by way of cheques to which the complainant denied but did not give any specific answer whether she received the amount from the developer or not.

In question No.15, it was specifically put to the complainant- “have you got Rs.4,25,000/- from the OP No.14 by cheques?” to which the appellant/complainant replies – “no”. In question No.16 it was asked to the appellant/complainant –“Have you made any clarification about such payment of Rs.4,25,000/- by the Opposite party No.14 to you?” to which it was replied –“This is a question of record”. In another question being question No.19 it was again asked to the complainant –“Do you admit out of the principal loan amount of Rs.5,00,000/- the opposite party No.14 paid Rs.4,25,000/- by cheques and the balance amount of Rs.75,000/- by cash?” to which it was replied –“I do not admit as it is totally false and baseless”. When bank statements to that effect are available in the record, the complainant/appellant should have given reasonable explanation to that effect. However, no such statement has been made by the appellant relating to procurement of Rs.5,00,000/- and received of the amount of Rs.6,40,000/- from April, 2009 to July 2014 which creates doubt as to genuineness of the claim of the appellant/complainant.

In this regard, the Ld. District Forum has rightly observed that it was not an agreement for sale because complainant has accepted Rs.4,25,000/- out of Rs.5,00,000/- by cheques.

Regarding non-issuance of money receipt the Ld. District Forum has observed-“It is true that the persons who were dealing with money lending business having no license definitely will not issue any written document. This is the trend of unofficial money lending which the complainant has made. But the complainant has accepted altogether Rs.4,50,000/- through cheques which is reflected in the bank statement of the developer.” We do not find to hold anything contrary to th

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e observation made by the Ld. District Forum. In other words, the appellant/complainant has not come before the Ld. District Forum with a clean hand. In other words, the appellant/complainant should have categorically explained the manner of acquisition of Rs.5,00,000/- by her, more precisely by producing the relevant document. The Ld. District Forum has rightly relied upon the bank statement and disbelieved the case of appellant. Therefore, considering the materials on record and we find that the appeal is totally devoid of any merit and as such it is liable to be dismissed. Consequently, the appeal is dismissed. However, there will be no order as to cost. The impugned judgement/final order dated 15.09.2016 passed in CC/39/2015 is hereby affirmed. `The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur for information.
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