Landmark judgements

D.K. CONSTRUCTION—versus ARUP BANERJEE & ORS.—

Equivalent Citation:- 2016(4) C.P.R. 167)

II (2017) CPJ 74 (NC)

NATIONAL CONSUMER DISPUTES

REDRESSAL COMMISSION, NEW DELHI

Dr. B.C. Gupta, Presiding Member

D.K. CONSTRUCTION—Appellant

versus

ARUP BANERJEE & ORS.—Respondents

First Appeal No. 1072 of 2016 from Order dated 28.7.2016 in Consumer Complaint No. CC 159/2013 of West Bengal State Consumer Disputes Redressal Commission, Kolkata—Decided on 29.9.2016

Consumer Protection Act, 1986 — Sections 2(1)(g), 21(a)(ii) — Housing — Purchase of flat — Non-delivery of possession — Deficiency in service — State Commission allowed complaint — Hence appeal — Appellants themselves filed copy of ‘agreement for sale’ stated to have been executed on 30.6.2011 between complainant and builder — Terms of agreement are binding between parties — Execution and registration of deed of conveyance directed in respect of property on receipt of balance consideration amount — Impugned order upheld.

[Paras 8, 10, 11]

Result : Appeal dismissed.

Case referred:

Bharti Knitting Company v. DHL Worldwide Courier, II (1996) CPJ 25 (SC)(Relied)

[Para 10]

Counsel for the Parties:

For the Appellant : Mr. Alok Mukhopadhyay, Advocate.

For the Respondents : None.

ORDER

Dr. B.C. Gupta, Presiding Member —This appeal has been made under Section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986, against the impugned order dated 19.7.2016, passed by the West Bengal State Consumer Disputes Redressal Commission, (hereinafter referred to as “the State Commission”) in Consumer Complaint No. CC/159/2013, Sri Arup Banerjee v. M/s. D. K. Construction & Ors., filed by the present respondent No. 1, Arup Banerjee against the appellant builder and others, vide which, the said complaint was allowed.

2. Briefly stated, the case of the complainant Arup Banerjee is that he entered into an agreement with the appellant/OP-1 on 30.6.2011 for purchase of a flat in a residential project, being developed by the said builder on the land owned by respondent Nos. 2 and 3/OPs-2 and 3. The total consideration for the said property was Rs. 25 lakh, out of which, a sum of Rs. 21.5 lakh was paid to the developer on the date of the agreement. However, in spite of several requests, the appellant builder failed to handover the possession of the building to him, along with the completion certificate. The complainant filed the consumer complaint in question, seeking directions to the OPs to deliver the possession certificate and the completion certificate in respect of the property, and also to get the conveyance deed registered in his favour, after taking the balance consideration from him. The complainant also requested that a sum of Rs. 10 lakh be paid to him for compensation against mental agony etc. and Rs. 30,000 against litigation cost.

3. The appellant/OP-1 filed written version before the State Commission, in which they denied the allegations in the complaint and stated that the complainant had collected a copy of a draft agreement from his office, with a promise to return the signed agreement along with cheque/draft of Rs. 21,51,000 towards part payment of Rs. 25 lakh. However, the complainant did not return the signed agreement, nor made any payment to the OP-1. It was stated in the written version that the consumer complaint should be dismissed and criminal action should be initiated against the complainant under Section 340 of Cr.P.C. and also under Sections 177/181, Cr.P.C. for making false statements.

4. The State Commission, after considering the averments of the parties, decided the consumer complaint in favour of the complainant and directed as follows:

“That the complaint is allowed on contest with costs of Rs. 10,000 to be paid by the OP No. 1 in favour of the complainant.

The OP Nos. 1 to 3 are directed jointly and severally to execute and register the Deed of Conveyance in respect of ‘B’ Schedule Property as mentioned in the petition of complaint within 30 days on receipt of balance consideration amount. The Complainant is directed to make payment of the aforesaid amount within 30 days from the date. In the event of failure on the part of OP No. 1 to comply with the order inspite of payment of balance consideration amount, the Complainant shall have liberty to take appropriate steps in accordance with the provision of the Act.

The OP No. 1 is also directed to make payment of Rs. 50,000 as compensation in favour of the Complainant within 30 days from this date. In the event of failure on the part of the OP No. 1 to make payment of Rs. 60,000 imposed as compensation and cost, it shall carry interest @ 9% p.a. till its full realisation.”

5. Being aggrieved against the above order of the State Commission, the appellant is before this Commission by way of the present appeal.

6. During arguments at the time of hearing, the learned Counsel for the appellant stated that the complainant had not paid any consideration amount to the appellant, neither he had produced any valid proof in support of having made the payment. The learned Counsel also stated that no agreement had been effected between the parties. The order passed by the State Commission, therefore, did not reflect a correct appreciation of the facts and circumstances on record and hence, the same should be set aside, and the consumer complaint should be dismissed.

7. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

8. The main point for consideration in the matter is whether any agreement was executed between the complainant and the appellant/builder in respect of the property in question and whether the complainant had made part payment as consideration for the said property. The appellants have themselves filed a copy of the ‘agreement for sale’ stated to have been executed on 30.6.2011, between the complainant and builder. A perusal of the said copy indicates that on its last page i.e. page No. 18, the signatures of the complainant as well as the developer/appellant are there. Both of them signed in the presence of two independent witnesses. In addition, the signatures of the developer appear on every page of the said agreement. As brought out in the order of the State Commission, the appellant/OP-1 has nowhere denied his signatures on the document in question. His version is that copies of the draft agreement, duly signed by the appellant were there in his office in routine, while the appellant was busy with the construction work and other matters. The complainant got hold of a copy of such agreement and promised to return the same after putting his signatures, and after payment of the requisite consideration amount. However, the complainant did not return the agreement duly signed by him. This version is however belied on perusal of the agreement dated 30.06.2011 submitted by the appellant itself. A copy of another document titled ‘memo of consideration’ has also been produced on record by the appellant. It has been stated in the said document that the appellant received a sum of Rs. 21,51,000 from the purchaser, as part payment, out of the total consideration amount of Rs. 25 lakh. The appellant has put his signatures in the presence of two witnesses on this document as well. The column regarding the manner of payment in this document has been left blank, but it is stated categorically that the said amount was received by the appellant from the purchaser. The complainant stated in his affidavit filed before the State Commission that he had paid a total amount of Rs. 21,51,000 to the appellant by the time the agreement was executed on 30.06.2011.

9. During arguments before me, the learned Counsel for the appellant argued that the complainant should be asked to disclose the sources from where he arranged payment, alleged to have been made to the appellant. This contention of the appellant does not cut any ice, because the receipt of the money in question has been proved in view of the documents executed by the appellant himself and he has not denied that he did not put his signatures on the same.

10. In the impugned order, the State Commission has rightly observed that the terms of the agreement are binding between the parties. The State Commission relied upon the decision of the Hon’ble Apex Court in Bharti Knitting Company v. DHL Worldwide Courier, II (1996) CPJ 25 (SC)=(1996) 4 SCC 704, while coming to the said conclusion. The State Commission also noted that 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 needed to be established.

11. While passing the impugned order, the State Commission have directed the OPs jointly and severally to execute and register the deed of conveyance in respect of the property in question on receipt of the balance consideration amount. The complainant was also directed to make payment of the balance amount within 30 days. Considering the overall facts and circumstances of the case, it is found that there is no illegality, irregularity or jurisdictional error in the impugned order of the State Commission, which may require any interference in the exercise of the appellate jurisdiction. The appeal is, therefore, ordered to be dismissed and the order passed by the State Commission upheld. There shall be no order as to costs.

Appeal dismissed.

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Citation

Decided On

Party Name

 

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