w w w . L a w y e r S e r v i c e s . i n



Joydeb Saha v/s Ashim Kumar Ghosh & Others


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

Company & Directors' Information:- N R GHOSH & CO PVT LTD [Strike Off] CIN = U52400WB1938PTC009511

Company & Directors' Information:- S K GHOSH PVT LTD [Active] CIN = U51909WB1945PTC010956

Company & Directors' Information:- A K GHOSH PVT LTD [Strike Off] CIN = U51909WB1960PTC024523

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

Company & Directors' Information:- A R GHOSH PVT LTD [Strike Off] CIN = U25209WB1987PTC042917

Company & Directors' Information:- A GHOSH & CO PVT LTD [Active] CIN = U74210WB1949PTC018128

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

Company & Directors' Information:- K C GHOSH & CO PVT LTD [Strike Off] CIN = U74210WB1934PTC008006

Company & Directors' Information:- A N GHOSH PVT LTD [Strike Off] CIN = U45201WB1948PTC016772

    First Appeal No. A/299/2018

    Decided On, 28 August 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT & THE HONOURABLE MR. TARAPADA GANGOPADHYAY
    By, MEMBER

    For the Appellant: Rajnikant Srivastava, Advocate. For the Respondents: Prasanta Banerjee, Prasanta Banerjee, Advocates.



Judgment Text

Ishan Chandra Das, President

This Appeal has been directed against the Judgement and order dated 10.1.2014 passed by ld. D.C.D.R.F., Kolkata Unit I (North) in C.C. No. 22 of 2014 where the ld. Forum concerned while disposing the said Complaint Case allowed the same exparte against the oP NO.1 and on contest against the OP no.2 with costs, found the oPs no.1 & 2 responsible jointly and severally, directed them to execute and register the Deed of Conveyance in respect of the flat in question in favour of the Complainants, and further directed them to pay compensation to the tune of Rs.20,000/- (Rupees twenty thousand) for harassment and mental agony and Rs.5,000/- (Rupees five thousand) towards litigation cost within 30 days from the date of the order i.d. to pay interest @ 8% per annum over the entire amount till full realization .

Being aggrieved by such judgement and order , the OP no.2 of the Complaint Case, Joydeb Saha/the Developer preferred this Appeal. Here the Complainants of C.C. No. 22 of 2014 are the Respondents No. 1 and 2 of the OP No.1 of the Complaint Case / the land owner is the respondent No.3.

The case of the Complainants i.e. Respondent No.1 and 2 herein, (hereinafter referred to as the Complainants) was that one Bimala Agarwala was the absolute owner of the land and building measuring 7 Cottah 4 Chitak and 24 Sft. in the premises No. 37/4C , Northern Avenue, Kolkata – 700 030 and he executed a Power of Attorney in favour of the OP No.1/Respondent No.3 herein. The OP No.1 being the constituted attorney of said Bimala Agarwala entered into an agreement with the Appellant ( OP no.2 of the Complaint Case) for construction on the said land after demolishing the old structures thereon. The complainants with a view to constructing a flat approached the OP no.2-Developer /Appellant (hereinafter referred to as OP No.2 of the Complaint Case) to construct a flat on the second floor of the building measuring about 1068 sft super built up area upon purchasing the land for a consideration of Rs.80,100/- (Rupees eighty thousand one hundred) for the proportionate undivided land from the OP No.1 and to construct a flat on the second floor measuring 1068 sft. for a consideration of Rs.3,20,000/- (Rupees three lakhs twenty thousand) for the cost of construction, of the said unit of the building. The Complainants paid Rs.80,100/- (Rupees eighty thousand one hundred) to the OP No.1 towards the cost of undivided proportionate share of land pertaining to the flat in question and paid a sum of Rs.3,20,000/- (Rupees three lakhs twenty thousand) towards cost of construction, supervision and completion of the said Unit of the building. The OPs inspite of receiving the said amount did not hand over possession of the flat for a long time and on 26.7.1998 the complainants got possession of the flat and since then they were possessing the same and requested the OPs to execute the Deed of conveyance in their favour though both the OPs No.1 and 2 were under contractual obligation to execute and register the Deed of Conveyance in their favour but their deliberate act in declining to execute and register the Deed of conveyance in favour of the Complainants amounted to deficiency in service and that left no other alternative to the Complainants but to take recourse of the D.C.D.R.F. concerned for filing the instant Complaint Case, claiming reliefs in terms of the prayers as per Petition of Complaint.

The OP No.2 (the appellant herein) filed a Written version before the ld. D.C.D.R.F. concerned and contended that the Complaint Case was not maintainable and the same was hit by law of limitation. In the said Written version, the OP No.2 contended that there was no agreement for sale signed by him and the Complainants paid a part of consideration to the OP No.2 and the OP No.2 received such part of consideration from the Complainants on good faith and without putting his signature in the agreement , rather he handed over possession of the flat to the Complainants upon their assurance that they would pay the balance consideration within a very short time but instead of doing so, they were enjoying the said flat for long without getting the Deed registered in their favour rather they intended to get the flat registered through the agency of the Forum. The OP No.2 on a number of occasions intimated the Complainants to pay the balance consideration to the OP No.2 before getting the deed registered in their favour but the Complainants did not make the payment of the rest of the consideration for a period of more than 20 years, for which they are liable to pay interest @ 21% per annum. The OP No.2 also contended that on physical measurement of the said flat the total area of the flat was found 1095 Sft super built up area instead of 1068 Sft super built up area for which he claimed a sum of Rs.42,47,407/- (Rupees forty two lakhs forty seven thousand four hundred seven: as per averment in para 17 of the written version.) Denying and disputing deficiency in service or unfair trade practice on his part, the OP No.2 prayed for dismissal of the Complaint Case.

On the basis of the pleadings of the parties, ld. Trial Forum found the Appellant responsible for executing and registering the Deed of conveyance in respect of the flat in question in favour of the Complainants and paying compensation of a sum of Rs. 20,000/- (Rupees twenty thousand) and litigation cost of Rs.5,000/- (Rupees five thousand) to be paid within 30 days from the date of communication of the order i.d. to pay interest @ 8% p.a. on the amount.

Ld. Counsel for the Appellant in course of argument drew our attention to the agreement (which are at pages 50 and 71 of the file) and pointed out that the said agreement did not contain the signatures of the Appellant who was none but the Developer and in the absence of any such signatures, it could not be said that his client was responsible for executing and registering the Deed of conveyance in favour of the Complainants/Respondents No.1 and 2. Further drawing our attention to the averments as contained in the Written Version, filed by this Appellant before the Trial Forum, he pointed out that the Respondent No.1 and 2 forcibly took the possession of the flat and enjoying the same for more than 20 years for which his client is entitled to interest @ 21% per annum over the total due till 10.12.1996. He further submitted that the Complainants entered into the Agreement for purchasing the flat measuring 1095 Sft and not measuring 1068 Sft and his client was entitled to have consideration of the flat measuring 1095 Sft super built up area @ 750/- (Rupees seven hundred fifty) per Sft. which they were enjoying for more than 20 years, accruing interest of the amount @ 21% p.a.as stated.

Ld. Counter-part on the other hand, expressed a contrary view over the issue and he submitted that the Complainants entered into the agreement for purchase with this Appellant/OP NO.2 on 10.12.1996. He also pointed out that another agreement was executed on the self same date in respect of the purchase and sale of the land after demolishing the old structure thereon for a consideration of Rs.80,100/- (Rupees eighty thousand one hundred) and the structure containing 1068 Sft of super built up area and one covered garage in the ground floor for a consideration of Rs.3,20,000/- (Rupees three lakhs twenty thousand) .

The materials on record revealed that the Complainants of C.C. 22 of 2014 produced a receipt showing payment of Rs.80,100/- (Rupees eighty thousand one hundred) by cheque No. 048658, drawn on the State Bank of India against the undivided share of land at 37/4C Northern Avenue on account of flat type A on the 2nd floor. The disputed agreement executed in faovur of the Complainants does not bear any signatures of the Developer/confirming party. Ld. Counsel for the Appellant confidently urged that the document i.e. the Agreement between the Developer and the intending purchaser of the flat not being signed by the Developer is an unilateral document and has got no effect in the eye of law. But when the said Developer/Appellant admitted that he accepted the consideration of the flat, there was no explanation what was the basis of such acceptance. The receipts showing payment to the Developer/Appellant, which is at page 28 of the file, conclusively established that a sum of Rs.3,10,500/- (Rupees three lakhs ten thousand five hundred) were paid to the concern of the Appellant (Anobik Construction) and a certificate of the State Bank of India , Northern Avenue (Dum Dum Branch) has been produced before ld. D.C.D.R.F. and on the basis of which ld. D.C.D.R.F. took a decision in favour of the Complainants.

Taking into consideration the fact that the Appellant/Developer received the consideration from the Respondents No.1 and 2 without showing any ground for accepting such amount, we find reasons to believe that he had an active consent about the execution of the agreement in favour of the Complainants /Respondents no.1 and 2 though he did not put his si

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gnatures in the said agreement at the initial stage. There was no such explanation what legal action was taken by the OP against the respondents No.1 and 2/Complainants for so-called illegal possession taken. In the background we are unable to take a different view taken by the ld. D.C.D.R.F., so far as the direction of execution and registration of the Deed of conveyance in favour of the Respondents No. 1 and 2/Complainants are concerned. Considering the fact that the Respondents No.1 and 2 were in possession of the flat since 26.7.1998. we like to reduce the compensation from Rs.20,000/- (Rupees twenty thousand) to Rs.10,000/- (Rupees ten thousand) . However, the litigation cost imposed by the Ld. D.C.D.R.F. is not interfered. The entire process shall be completed within the period of 60 days from the date of this Order. In default, the registration process will be conducted by the ld. D.C.D.R.F. concerned through its machinery. The Complainants shall bear the costs of such registration.
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