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



Subrata Kumar Kundu v/s Esenel Construction Pvt. Ltd. & Others

    First Appeal No. 224 of 2011

    Decided On, 31 August 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MRS. JUSTICE DEEPA SHARMA
    By, PRESIDING MEMBER

    For the Appellant: Aman Bhatnagar, Advocate. For the Respondents: Sunil Kumar Jha, Advocate.



Judgment Text


Oral

1. The above said appeals have been filed by both the parties i.e. the appellant – Subrata Kumar and the respondent – Esenel Construction against the order of the State Commission dated 24.3.2011 passed by West Bengal State Commission (in short, the State Commission), whereby the complaint of the appellant in Appeal No. 224 of 2011 was partly allowed and following order was passed:

“Hence it is ordered that the petition of complainant stands allowed in part on contest against the OPs with cost of Rs. 10,000 (Rupees ten thousand only). The OPs are jointly and severally liable to refund Rs. 6,00,000 (Rupees six lakh only) to the complainant with accrued simple interest @ 10% ( ten per cent) per annum from the date of receipt of the same till payment. The OPs are further directed to pay Rs. 5,00,000 (Rupees five lakh only) to the complainant by way of compensation. The OPs are jointly and severally liable to pay the above decretal amount to the complainant within 45 (forty five) days from the date of receipt of copy of this judgment, failing which the aforesaid amount will carry interest @ 9% ( nine percent ) per annum from the date of receipt of copy of this judgment till realization of the same in full.”

2. The brief facts of the case are that appellant – Subrata Kumar Kundu desirous of purchasing two flats, one on the second floor and another on the fourth floor. He had made complete and full payment of the consideration of the second floor and the possession of 2nd floor was handed over to the appellant and conveyance deed was executed. His grievance was that despite making payment of the consideration amount as agreed, the opposite party did not fulfil their part of the obligation and agreement and did not hand over possession of the 4th floor within the stipulated period. The complainant was always ready and willing to pay Rs. 20,00,000 in terms of the agreement. It is contended that Rs. 6.00 lakh were initially paid to the opposite party and Rs. 20.00 lakh were payable by 12.5.2008 after handing over of CC (form-H) of RGM as per second floor plan. His contention was that since CC (form-H) was not handed over to him, his loan could not be sanctioned by the bank and he did not pay the said amount. It is contended that opposite party had violated the terms of the agreement and there was deficiency in service, therefore, opposite party is liable to pay compensation as well as liable to hand over possession of the fourth floor on receiving the balance consideration.

3. It is further contended by the complainant in his complaint before the State Commission that besides payment of Rs. 6.00 lakh, he had also paid Rs. 3.00 lakh by cash on 5.2.2008, Rs. 60,000 by cash on 14.2.2008, 1,90,000 by cash on 19.4.2008, Rs. 10,000 again by cheque drawn on HDFC Bank on 19.4.2008, Rs. 2,00,000 on 5.52008 by self cheque and by cash on the same day a sum of Rs. 20,000 was paid and hence total sum of Rs. 13,80,000 had been paid to the opposite party against the fourth floor and this amount also includes initial payment of Rs. 6.00 lakh.

4. The case of the opposite party before the State Commission was that there was no deficiency in service on their part since it was the complainant who had not acted in terms and conditions of the agreement and had not made the payment and thus it was the complainant who had failed to comply his part of the obligation. It was further contended that complainant was given opportunity to comply with the terms of agreement but he failed to do so and the respondent was left with no alternative but to unilaterally rescind the agreement qua 4th floor. It was admitted that sum of Rs. 6.00 lakh was paid by the complainant to them relating to 4th floor at the initial stage and, thereafter, no payment was made towards 4th floor of the house. It is the case of the opposite party that complaint is, therefore, liable to be dismissed.

5. The parties have led their evidences before the State Commission and on the basis of evidences which were produced before the State Commission, the State Commission gave its findings on the issue whether the complainant made any further payment besides the payment of Rs. 6.00 lakh. The findings of the State Commission is as follows:

“We have duly considered the submissions so put forward on behalf of the complainant and have also carefully gone through the materials on record and find that though the complainant has tried to put up a case of subsequent payments to the tune of Rs. 7,80,000 in favour of the OPs, but unfortunately there is complete absence of any reliable and cogent evidence in support of such payments. When parties enter into an agreement for purchase of an immovable property, in our opinion, the obligation to fulfil respective terms and conditions lies equally on each party to the agreement. From the materials on record it is not clear that the complainant was really ready and willing to fulfil his part of the contract.

If that be the position, we are unable to accept the proposition so put forward on behalf of the complainant so far as it relates to directing the OPs to execute and register a sale deed in favour of the complainant in respect of the flat in question. However, when it is an admitted position that the OPs did receive Rs. 6,00,000 pursuant to the agreement in question entered into between the parties, we are of the opinion that there was some sort of deficiency in service at the instance of the OPs in not returning the amount so accepted in due course of time when admittedly the OPs have unilaterally rescinded the contract.

In our opinion, such conduct on the part of the OPs certainly tant-amounts to unfair trade practice and deficiency in service. Considering the present case in the light of above observation we are of the considered opinion that ends of justice would be met if the OPs are directed to return Rs. 6,00,000 to the complainant forthwith together with interest accrued thereon @ 10% per annum. At the same time, as we have already held that there is deficiency in service and unfair trade practice adopted on the part of the OPs, which has put much mental strain and agony upon the complainant, we are of the opinion that ends of justice would be met if the complainant is awarded a compensation to the tune of Rs. 5,00,000 in this aspect. Before concluding we hold that the complainant is a Consumer as per provisions of the consumer Protection Act , 1986. The case is very much maintainable and that the complainant is entitled to the reliefs as discussed above. In the result, the petition of complaint succeeds in part.”

6. Both the parties have impugned this order before the Commission. The Complainant has argued that State Commission has erred in holding that there were no sufficient documents to prove the further payment of Rs. 13,80,000. Since there is a document dated 15.2.2008 which clearly shows that opposite party had received total sum of Rs. 6,60,000 and, therefore, finding that only Rs. 6,00,000 was paid, is perverse. It is, however, argued that agreement itself shows that Rs. 20,00,000 which was to be paid by 12.5.2008 was subject to the handing over of CC (Form-H) as per second floor plan. Since, it was not done and the payment was not made, the State Commission has erred in granting refund of Rs. 6.00 lakh. Instead, it ought to have ordered the opposite party to execute the sale deed of the 4th floor of the house on receipt of the balance money from the complainant. It is also stated that cheque dated 5.5.2008 was issued as self and it was encashed as per the bank report by Rajdeep Sahah. A similar cheque dated 19.4.2008 of Rs. 10,000 was also issued as self and was encashed by opposite party No. 3. It is contended that this shows that cheques have been paid in self to the opposite party.

7. In appeal No. FA/369 of 2011 filed by the opposite party, the opposite party has contended that State Commission has wrongly reached to the conclusion that there was deficiency on their part. Since the payment was not made by the complainant and he had not fulfilled his part of the obligation under the agreement, the agreement was rescinded. It is submitted that besides sum of Rs. 6.00 lakh, no payment has been made by the complainant in respect of the price of 4th floor. It is submitted that any other payment if had been made by the complainant, that was for 2nd floor, of which he got possession and sale deed was also executed. In that case he had fulfilled his part of the agreement. It is further contended that the fact that no payment was made except Rs. 6.00 lakh towards the fourth floor, also finds support from the admission of the complainant which he has made in the notice dated 9.6.2008 wherein he himself has stated that he had paid only a sum of Rs. 6.00 lakh as initial payment out of the total consideration of the fourth floor. It is submitted that in view of these facts, the State Commission has rightly ordered refund of Rs. 6.00 lakh only. It is also submitted that since there was no deficiency in service on the part of the opposite party, the State Commission has erred in granting compensation to the complainant.

8. I have given my thoughtful consideration to the rival contentions of the parties and perused the record.

9. In an appeal filed by the complainant, his main contention is that he did not pay the amount as per the schedule because in terms of Sub-clause (2) of Clause 4 of the agreement, the opposite party had failed to hand over the CC (form-H) of RGM as per second floor plan. Similarly, it is also argued that he had paid Rs. 13,,80,000 to the opposite party towards the agreed consideration price of the fourth floor. Now, the two contentions of the complainant are self contradictory. As per the agreed schedule of the payment, he was to pay Rs. 6,00,000 at the time of agreement, which he had paid. Second instalment of Rs. 20,00,000 was to be paid by him by 12.5.2008 only after handing over of CC (Form-H) of RGM as per second floor plan. If his contention is accepted that the opposite party had to hand over to him CC (form-H), then there was no occasion for him to pay further sum of Rs. 7,80,000 as alleged in the complaint. The complainant has failed to point out any document/receipt showing payment of Rs. 7,80,000 in addition to payment of Rs. 6,00,000. Although he has relied on certain cheques which were self cheques and it was alleged by him that it was encashed by the opposite party but one should not lose sight of the fact that complainant had also booked another house in the same building with the opposite party, which is second floor and he was to pay Rs. 40.00 lakh towards consideration price of that floor. These documents on which he had relied i.e. self cheques, does not in any way specify if the payment was for second floor or fourth floor. No covering letter at the time of handing over of these cheques are there. Neither the back of the cheque shows that the cheques had been issued towards the payment of the consideration price of the fourth floor. These facts coupled with his own admission in his notice dated 9.6.2008 wherein he only admits that he had paid only sum of Rs. 6,00,000 out of the total consideration in respect of purchase of 4th floor, strengthens the fact that besides Rs. 6,00,000 , he did not pay any money towards the consideration price relating the fourth floor. Had he paid any other money, he would have certainly mentioned in his legal notice dated 9.6.2008. I, therefore, find no illegality or infirmity in the impugned order of the State Commission wherein State Commission held that the complainant had paid only Rs. 6,00,000 and no other money was paid by him towards the consideration price of the fourth floor.

10. The contention of the complainant is that opposite party had failed to fulfil his part of the commitment under the agreement and, therefore, there was deficiency in service and non-payment of balance amount cannot be considered as default on the part of the complainant and, therefore, the State Commission has erred in refunding the money and not asking the opposite party to execute the sale deed when the complainant had always been ready to pay the balance amount and thereby fulfilling his part of the commitment under the agreement. He has further contended that did not pay the amount since as per the agreement, the opposite party did not hand over the CC (Form-H) of RGM as per second floor plan. The opposite party has denied that there was any such condition in the agreement for payment in the payment schedule.

11. Both the parties have produced the original agreements before this Bench. From the perusal of both the agreements, it is apparent that there is an interpolation in Sub-clause (2) of Clause 4 of the agreement dated 5.2.2008, which relates to the fourth floor. The said Clause 4 of Agreement produced by the opposite party is reproduced as under:

“4. ALL THAT entire (4th ) floor on the 4th floor containing superbuilt floor area of 3000 sq. ft. hereinafter referred to for the sake of brevity as the ‘Apartment’ as per plan and specification inspected, seen, approved and accepted by her/him at or for the total consideration a sum of Rs. 40,00,000 (Rupees forty lacs) only comprised of:

(1) At the time of agreement Rs. 6,00,000 (Rupees six lacs) only to be paid.

(2) Rs. 20,00,000 (Rupees Twenty Lacs to be paid within 12h May, 2008

(3) Rs. 7,00,000 ( Rupees seven lacs) only to be paid within May, 2008.

(4) Rs. 6,00,000 (Rupees six lacs) only to be paid after work of brick work, plaster, parish and flooring work. The entire work to be completed within June, 2008 (approx.)

5. Balance amount to be paid at the time of registration.”

12. Clause 4 of agreement produced by the complainant is reproduced as under:

“4. ALL THAT entire (4th) floor on the 4th floor containing superbuilt floor area of 3,000 sq. ft. hereinafter referred to for the sake of brevity as the ‘Apartment’ as per plan and specification inspected, seen, approved and accepted by her/him at or for the total consideration a sum of Rs. 40,00,000 (Rupees forty lacs) only comprised of :

(1) At the time of agreement Rs. 6,00,000 (Rupees six lacs) only to be paid.

(2) Rs. 20,00,000 (Rupees Twenty Lacs to be paid within 12th May, 2008, “after hand over of CC (Form-H) of RCM as per 2nd floor plan .

(3) Rs. 7,00,000 (Rupees seven lacs) only to be paid within May, 2008.

(4) Rs. 6,00,000 (Rupees six lacs) only to be paid after work of brick work, plaster, parish and flooring work. The entire work to be completed within June, 2008 (approx.)

5. Balance amount to be paid at the time of registration.”

13. On perusal of these documents, it is apparent that there are many corrections in the payment of schedule. The date of 12 th May, 8 in Sub-clause (2) seems to have been changed in both the documents by putting white ink on the previous typed date. This correction in Sub-clause (2) bears the signature of both the parties. Similarly in Sub-clause (4) there are changes in the words ‘entire’ and ‘completed’ and these words are added by putting white ink over the earlier typed words and both the parties had put their initials against those corrections as well. Similarly, in Sub-clause (4) of Clause 4 of the agreement, words ‘entire’ and ‘completed’ have been added by scoring out the already typed word by the use of white ink. In both the agreements produced by the complainant and opposite party, initials of the parties appear at this place. On comparing Sub-clause (2) of Clause 4 of both the original documents produced by both the parties, it is apparent that there are empty spaces while in the agreement produced by the complainant, the sentence “after handover of CC (Form-H) as per 2nd floor plan” is added in Sub-clause (2) of Clause 4. Counsel for the complainant has submitted that this condition was added at the time of execution of the document and that is why initial of opposite party appears against this Clause. There is no doubt that initial appears in Sub-clause (2) but it is also is also noteworthy that there is change in the date in Sub-clause (2) from some date of April to 12.5.2008 by putting white ink over the earlier typed date and it is obvious that initials have been put by the opposite party against this correction. Had these conditions been in existence from the very beginning, this ought to have appeared in the document of opposite party as well. Had it been there from the very beginning, the opposite party would have removed only

Please Login To View The Full Judgment!

by erasing it by using whitener and in that case there won’t be empty space after 12.5.2008 in that Sub-clause. This addition is nothing but an interpolation. The fact that complainant contends that he made payment of Rs. 7,80,000 subsequently, although he has failed to prove it, itself shows that this condition of payment of any money beyond Rs. 6 lakh was payable only on submission of CC (form H) of RGM as per second floor plan, bely his plea that this condition was there from the very beginning. Had it been so, he certainly would not have alleged to have made the payment of money to the opposite party unless CC (form H) was handed over to him. I also find it strange that in respect of payment schedule of 4th floor, the opposite party would have agreed for handing over the CC form of second floor plan. 14. This is nothing but interpolation made by the complainant in order to make out a case that he had not defaulted in honouring the terms and conditions of the agreement. He has failed to honour the terms and conditions of the agreement and did not make the payment as per the payment of schedule agreed upon. In the lights of these facts, if the opposite party has rescinded the contract, I find no deficiency on the part of the opposite party. Since there was no deficiency in service, complaint itself is liable to be dismissed. Since complainant had paid sum of Rs. 6.00 lakh which the opposite party is ready to return, while dismissing the complaint and setting aside the order of the State Commission, I order that amount of Rs. 6.00 lakh be refunded to the complainant with simple interest @ 10% p.a. from the date of receipt of the said payment. The amount be refunded within four weeks. While the appeal of the complainant is dismissed having no merit, the appeal of the opposite party is hereby partly allowed with above directions.
O R