The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a couple against the developer/builder (Opposite Party No. 1) and the landowners (Opposite Party Nos. 2 and 3) on the allegation of deficiency of services, primarily on the part of the developer in a dispute of housing construction.
Succinctly put, complainants’ case is that on 10.11.2014 they entered into an agreement with the Opposite Party No. 1 to purchase of 3 flats measuring about 904 sq. ft., 778 sq. ft. and 713 sq. ft. super built up area on the 2nd floor in a building lying and situated at in R.S and L.R plot Nos. 969 and 970 appertaining to R.S. Khatian Nos. 357 and 452 corresponding to L.R. Khatian Nos. 3042 and 3043 in Mouza- Baluria, P.S.- Barasat, Dist- North 24 Parganas within the local limits of ward No. 6 of Barasat Municipality at a total consideration of Rs. 48,00,000/-. The complainants have stated that they have already paid Rs. 35,00,000/- to OP No. 1 as part consideration amount towards the said total consideration amount. The complainants have also stated that they booked the flat No. A measuring 904 sq. ft. for their own use and occupation, flat No. B measuring about 778 sq. ft. for the use of their daughter and flat No. C measuring about 713 sq. ft. for the residence of Dharitri Sarkar i.e. mother of complainant No. 2. The complainants submit that they were/are ready and willing to pay balance consideration amount of Rs. 13,00,000/- to OP No. 1 for getting delivery of possession and registration of sale deeds in respect of those flats in favour of them but OP No. 1 on the different pretexts has been causing unnecessary delay to complete the construction and to deliver possession of the flats to them. Hence, the complainants have lodged the complaint with prayer for following reliefs, viz.- (a) to direct the Opposite Party No. 1 to receive the balance consideration amount of Rs. 13,00,000/-; (b) to direct the Opposite Parties to execute and register the deed of conveyance in respect of the flats in the names of the complainants, their nominees or legal representatives, alternatively, to direct the Opposite Party No. 1 to refund Rs. 35,00,000/- along with interest thereon @ 12% p.a.; (c) to direct the Opposite Party No. 1 to pay compensation of Rs. 1,00,000/- for harassment and mental agony; (d) to award Rs. 50,000/- as costs of litigation.
The Opposite Party No. 1 by filing written version has stated that the complaint is defect for non-joinder of necessary party for not impleading Ms. Soma Roy, who used to handle and managed the business of him on behalf of proprietor, who subsequently became hand in glove with the complainants and intended to usurp money from him. The Opposite Party No. 1 further states that the entire transaction between the parties was for commercial purpose to develop business. The OP No. 1 has stated that he and the said Soma Roy formed partnership firm namely A Anmol Developers and by betraying the trust and good faith of OP No. 1 entered into further agreement with the complainants by using signatures of OP No. 1 with regard to the said property. The OP No. 1 has also stated that the documents submitted along with the complaint are needed to be proved and authenticated upon obtaining expert opinion and the same can be done further adducing exhaustive oral and documentary evidence including the opinion of expert and as such the complaint cannot be decided in a consumer forum. The OP No. 1 has stated that he never received any advance against booking of any flat from the complainants and the documents sought to be relied upon by the complainants are all fabricated and manufactured. The OP No. 1 has also stated that the complainants has advanced a business loan in favour of him for commercial purposes to develop the business of him but exploiting the bona fide of OP No. 1 in collusion with Ms. Soma Roy, the complainants manufactured some fabricated documents to institute false and fabricated claim against OP No. 1. Therefore, the complaint should be dismissed with costs.
The Opposite Party Nos. 2 and 3 by filing a separate written version have stated that the OP No. 1 has no authority to sell any flat without aid of landowners. The OP Nos. 2 and 3 have specifically stated that on 24.02.2014 they entered into an agreement with OP No. 1 for development of their property and they had also executed one registered Power of Attorney on 25.02.2014 in favour of OP No. 1. However, in the Power of Attorney it has been specifically mentioned that OP No. 1 shall not be entitled to execute any agreement for sale alone and OP Nos. 2 and 3 must be signatories to the agreement for sale and in the contrary, such agreement for sale shall be treated as void. The OP Nos. 2 and 3 have stated that the alleged agreement for sale dated 10.11.2014 does not contain the signature of OP Nos. 2 and 3. Therefore, the agreement for sale itself is illegal and void ab-initio. So, the complaint should be dismissed.
The parties to the proceeding have tendered evidence through affidavit. The Opposite Party No. 1 and Opposite Party Nos. 2 and 3 have given reply against the questionnaire set forth by the complainants. However, the complainants did not give reply through affidavit against the questionnaire set forth by OP No. 1 or OP Nos. 2 and 3. Besides the same, parties have relied upon several documents. During final hearing, on behalf of OP No. 1 and OP Nos. 2 and 3, BNAs have been filed. Though the complainants were represented through their Ld. Advocate yet in accordance with the Regulation 13(2) of the Consumer Protection Regulations, 2005 no BNA has been filed by the complainants. It would also be pertinent to record here that the complainants have not filed the reply against the questionnaire set forth by OP No. 1 and OP Nos. 2 and 3 through affidavit and as such the reply is given by the complainants suffers authenticity and inconsistent in view of decision of the Three- Judge Bench of the Hon’ble Supreme Court reported in (2002) 6 SCC 635 (Dr. J.J. Merchant –vs- Srinath Chaturvedi and Anr.).
The pleadings of the parties and the evidence on record, make it quite clear that the OP Nos. 2 and 3 are the landowners in respect of a piece of land measuring about 7 cottahs 8 chittaks 15 sq. ft. recorded in R.S.- and L.R. Plot Nos. 969 and 970, P.S.- Barasat, being holding No. 1495/4, Baluria Road, Barasat, Dist- North 24 Parganas within the local limits of ward No. 6 of Barasat Municipality. On 24.02.2014 the OP Nos./ 2 and 3 being landowners had entered into a development agreement with the OP No. 1 for development of the above property. In accordance with the said development agreement, the OP Nos. 2 and 3 being landowners are entitled to 40% and OP No. 1 being developer is entitled to 60% share of the total construction. In the development agreement, it was stipulated that the OP No. 1 shall pay Rs. 20,00,000/- as security deposit to OP Nos. 2 and 3 on condition to adjust the same at the time of realisation of booking money from the buyers. It was also agreed that the construction work of the proposed multi-storied building will be completed by the developer within 36 months from the date of execution of agreement. The materials on record also speaks that on 25.02.2014 i.e. on the following day of execution of development agreement, the OP Nos. 2 and 3 had also executed one registered Power of Attorney authorising OP No. 1 to raise construction. Clause 9 of the development agreement dated 24.02.2014 stipulates:
“9. That the developer shall have every right to sale and/or dispose of and/or transfer and/or lease out and/or let out and/or keep for their use of the developer’s allocation of the said buildings (excluding owner’s allocation) to the intending purchasers and/or lease etc.”
Again in Clause Nos. 24 and 25 of Power of Attorney dated 25.02.2014 provides:
“24. Subject to the terms and conditions at the developemtn agreement between the parties herein and therein, the attorney shall execute the agreement for sale jointly with the landowners to the proposed intending buyers of the flats, shops, garages/units etc.
25. The attorney and land owners of the below schedule land jointly shall execute and register the sale deed to the intending buyers of the flats, shops, garage/unit etc. and the sale proceeds shall be divided as per 60% attorney’s share and 40% landowners share of the total project of below schedule land.”
Therefore, from the above, it is palpably clear that though OP Nos. 2 and 3 had executed one development agreement with OP No. 1 and agreed is to provide 60% of the total allocation to OP No. 1 but no demarcation has been created in respect of the said allocation of the property in between the developer and the landowners. In other words, without any specific demarcation of allocation of flats between the OP No. 1/developer and OP Nos. 2 and 3/landowners, the OP No. 1/developer had no locus standi to enter into agreement for sale with any intending buyer and further when the agreement for sale does not contain the signature of the landowners, certainly it violates clauses 24 and 25 of Power of Attorney executed by the landowners.
In any case, the complainants have asserted that they entered into agreement for sale with OP No. 1 on 10.11.2014 to purchase three flats measuring about 904 sq. ft., 778 sq. ft. and713 sq. ft. being flat Nos. A, B, C respectively at a total consideration of Rs. 48,00,000/-. The agreement for sale speaks that the an amount of Rs. 35,00,000/- has been received by OP No. 1 by cash of Rs. 1,000/- denomination of 3,500 pieces of notes. The agreement for sale does not contain the name of scribe. It also does not show the signature of the landowners. OP No. 1/developer has taken a plea that the document of agreement for sale has been fabricated for wrongful purpose. Ld. Advocate for OP No. 1 has drawn my attention to page Nos. 3 and 4 of the alleged agreement for sale and submitted that the signature of OP No. 1 construction firm was obtained by one Ms. Soma Roy in collusion and connivance with the complainants. Ld. Advocate for OP No. 1 has submitted that some portion of recitals were recorded over the signature and seal of OP No. 1 company which indicates that after obtaining the signature of OP No. 1 the document was converted into agreement for sale. Ld. Advocate for the OP No. 1 has also drawn my attention to a document dated 17.05.2013 which speaks that OP No. 1 along with Ms. Soma Roy being Directors of Anmol Developers had obtained loan of Rs. 30,68,000/- for the purpose of raising multi-storied building for a period of 2 years. The complainants in the petition of complaint did not disclose why and under what circumstances he has granted loan of Rs. 30,68,000/- to OP No. 1. The documents filed on behalf of OP No. 1 also speaks that on 01.08.2015 Soma Roy issued one cheque of Rs. 10,68,000/- to complainant No. 1 and another cheque of Rs. 10,00,000/- on 20.08.2015 aggregating Rs. 20,68,000/-.
Therefore, on perusal of materials on record it appears that there was monetary transaction in between the complainants and OP No. 1 and one Ms. Soma Roy being Directors of A Anmol Developers to which OP No. 1 was also another Director. The complainants should have explained the circumstances under which he along with his wife granted loan of Rs. 30,68,000/- to OP No. 1 and the said Soma Roy.
The OP No. 1 has alleged that the complainants are involved in commercial activities. Though in paragraph No. 14 of the petition of complaint, complainants have tried to establish the need of them to purchase three flats but the complainants did not mention the family composition of the complainants and their family members. On the contrary, from the copy of Leave and License Agreement dated 01.02.2018 executed by complainant No. 1 in favour of one Sri Subrata Chakravarty, it is transpired that he has granted license to the said person for a flat lying and situated on 2nd floor at premises No. 84/1, Selimpur Road, P.S.- Garfa, Kolkata- 700031 on payment of a sum of Rs. 12,800/- per month and taken an advance of Rs. 24,000/-. Therefore, it cannot be said that the complainants have no other accommodation or that they are not involved to invest in the flats for commercial purposes.
Admittedly, the complainants filed affidavit by way of evidence but did not give reply when they were cross-examined by OP No. 1 and OP Nos. 2 and 3 through questionnaire. In such a situation the only irresistible conclusion should be drawn that the complainants are tried their level best to suppress some material facts before the court. In AIR 1994 SC 853 [S.P Chengal Varaya Naidu (dead) by L.R’s –vs- Jagannath (dead) by L.R’s another] the Hon’ble Supreme Court has held:
“The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the Opposite Party.”
It is totally unbelievable that without perusal of contents of development agreement or the registered Power of Attorney the complainants had entered into an agreement for sale with OP No. 1 to purchase three flats at a time at a total consideration of Rs. 48,00,000/- and out of which paid Rs. 35,00,000/- as part consideration amount by cash. The payment of 35,00,000/-by cash also creates doubt as to the genuineness of the claim of the complainants, more particularly, when it is evident that the complainants had granted loan of Rs. 30,68,000/- to OP no. 1 and one Soma Roy, a partner of OP No. 1 on behalf of A. Anmol Developers.
It is well settled that a consumer forum is meant for disposal of the complaint in a summary way for a limited purpose and it shall not enter into any disputed question of facts and law. In the case before hand, I noticed several discrepancies and complainants have failed to advance any explanation with regard to the facts and circumstances under which he entered into agreement with OP No.1 by passing the landowners i.e. OP No. 2 and 3. In this regard, a decision of the Hon’ble Supreme Court reported in AIR 1996 SC 2005 (Bharati Knitting Company –vs. – DHL Worldwide Express Courier Division of Airfreight Ltd. ) appears to be relevant where it has been observed:
“It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F.Nariman, Ld. Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M.N.Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon it own facts. In an appropriate case wh
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ere there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract” Having heard the Ld. Advocate for the respective parties and on going through the materials on record, it appears to me that there are several disputed question of facts and law which are involved in this case. The factum of payment of Rs. 35,00,000/- by cash and suppression of existence of the agreement of loan by the complainants amounting to Rs. 30,68,000/- paid by them to OP No. 1 and one Ms. Soma Roy and more particularly, when there is no statement on behalf of the complainants to that effect, it appears to me that the dispute is a complicated one which requires extensive cross-examination which is beyond the scope of a Forum constituted under the Act, specifically when the complainants have not been able to prove their case on a reasonable standard and even they withheld to give reply against the questionnaire set forth by OP No. 1 or OP Nos. 2 and 3 through affidavit, it appears to me that the instant dispute should be relegated to a competent civil court for effective adjudication. For the reasons aforesaid, the complaint is rejected on contest. There will be no order as to costs. However, this order will not prevent the complainants to approach appropriate forum/court in accordance with law and to overcome the hurdle of limitation, they may seek assistance of the decision of Hon’ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works –vs- P.S.G. Industrial Institute).