Malabika Roy / Ray & Anr vs Chhabikar Chowdhury & 3 Ors

Justice Sudip Ahluwalia, Member

1.This Revision Petition has been filed by the Petitioners/ Complainants against Respondents/ Opposite Parties challenging the impugned Order dated 13.07.2017 passed by the State Consumer Disputes Redressal Commission, West Bengal, in Appeal No. A/1111/2015.  Vide such Order, the State Commission allowed the Appeal in part by modifying the Order dated 08.09.2015 passed by the Consumer Disputes Redressal Forum, Howrah,  in Complaint Case No. HDF 396 of 2013.

The brief facts of the case are that the Opposite Party Nos.1 to 4 are the land owners of the property bearing No. 4/5, Padma Pukur Lane, P.S. - Shibpur, H.M.C. Ward No. 41, District – Howrah, Pin – 711109 and the Opposite Party No.1 being the builder of aforesaid property entered into two Agreements with Complainants as purchasers for purchase of a Flat vide Agreement dated 18.06.1999 and Garage vide Agreement dated 07.08.1999. The Opposite Parties Nos. 2 to 4 had executed a Notarial General Power of Attorney dated 02.04.1997 appointing the Opposite Party No.1 as their true and lawful attorney for all acts and deeds pertaining to development of the said property and construction of multi-storied building thereon. By two separate Agreements, it was declared by all the owners and builder that they wanted to sell the scheduled flat measuring 850 sq. ft. and 127 sq. ft. of car parking space. The total consideration for the Flat was Rs.5,95,000/- and that for the garage was Rs.65,000/- totalling to Rs.6,60,000/-. It was further averred by the Complainants that the Opposite Party No.1’s husband received  payments on her behalf on several occasions totalling Rs.6,00,000/-. It was further submitted that as per the Agreements, the Opposite Party Nos. 1 to 4 had to deliver the said Flat and garage within 10 months from date of execution of said two Agreements and after completion of construction of the Flat and garage in fully habitable condition with all facilities. It was also submitted that on 16.04.2002, possession of the Flat was delivered in incomplete and unfinished condition and after taking possession of the said Flat, the Complainants had completed the entire floor with marble, the sanitation and electrical works.  It is further averred that the Opposite Party No.1 neither provided any lift facility in the building as mentioned in the Agreement, nor delivered the garage portion till date of filing the complaint.  It was also stated that the Opposite Party No.1 did not deliver the Completion Certificate till date to the Complainants and in this regard the Complainants sent two letters dated 17.01.2005 and 10.11.2005 to Opposite Party No.1. It was further submitted that the Complainants had duly discharged their duties as per the contract and they were still willing to perform the rest part of obligations under the contract by way of payment of balance amount at the time of execution and registration of Deed of Conveyance in their favour in respect of the Flat and the garage.

It was, thus, the case of the Complainants that the Opposite Party No.1 to 4 have failed and neglected to perform their part of contract by failing to execute and register the Deed of Conveyance and providing completion certificate. Hence, the complainants sent a Legal Notice dated 30.08.2013 through their Advocate seeking execution and registration of conveyance deed of Flat and garage, delivery of possession of car parking space measuring 127 sq. ft., and delivery of the Occupancy Certificate, and compensation for harassment. However, the Opposite Parties neither replied nor fulfilled any of the said demands and rather pressurised the Complainants to pay Rs.5,21,271/- with interest calculated upto 30.05.2013 as consideration for the extra work done by the Opposite Parties. Hence, the Complaint was filed before the District Forum being aggrieved by the deficiency in service of the Opposite Parties seeking the following reliefs-

“(i) direct the O.P. Nos. 1 to 4 to execute and register the Deed of Conveyance in favour of the complainants in respect of the schedule mentioned flat;

(ii) direct the O.P. Nos. 1 to 4 to deliver the possession of car parking space/ garage;

(iii) direct the O.P. Nos. 1 to 4 jointly to pay compensation of Rs.4,00,000/- (Rupees Four Lakhs) only for mental agony and harassment;

(iv) direct the O.P. Nos. 1 to 4 to provide Completion Certificate or Occupation Certificate to the complainants;

(v) cost of the case

(vi) or any other relief/reliefs to which the complainants are entitled to in law and equity.

(vii) leave under section 12(c) C.P. Act, 1986.”

The Opposite Parties appeared before the District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on their part. It was contended by the contesting Opposite Parties that the Ld. District Forum lacked jurisdiction to try the matter. It was also stated that the Complaint suffers from misrepresentation of facts and is irreconcilably contradictory to material aspects.  It was averred  by the Opposite Parties that an Agreement to sell the Flat was executed on 18.06.1999 and the joint measurement of finished Flat was found to be 876.33 sq. ft. at the agreed rate of Rs.700/- per sq. ft. with the total value of the finished Flat being Rs.11,21,271/- out of which the Complainants had paid Rs.6,00,000/- consequently leaving a payment deficit of Rs.5,21,271/- plus interest.  It was also  submitted that consideration for the garage was agreed to be Rs.65,000/- and only one instalment of Rs.10,000/- was paid as the 1st instalment advance and hence, the agreement for purchase of garage was cancelled, and the said advance of Rs.10,000/- has been shown as adjusted with the price of the Flat. Further the case of the Opposite Parties was that the Complainants had requested them to perform “Puja” on an auspicious day in the Flat and that they would pay the dues within a few days and hence, the Flat was never delivered officially on 16.04.2002. However, the Complainants have not paid even a single paisa. The Complainants took advantage of the fact that they were allowed in good faith to perform “Puja”  before payment and they cannot be allowed to take advantage of their own wrong. It was further stated that the Opposite Parties completed the construction and laid marble on the floor on verbal request of the Complainants and it was verbally agreed between the parties that the Complainants  would pay for the cost of extra work done in the Flat and the Complainants, only to avoid the cost of extra work, have manufactured the story of construction on their own.  It was submitted that the Complainants are bound to pay the cost of extra work including interest in respect of the actual measurement of flat which was 876.33 sq. ft.  It was further contended that the question of delivery of possession of garage or completion certificate did not arise at all as the Complainants never paid the agreed amount including cost of the extra work. It was also stated by the Opposite Parties that they were/are ready and willing to perform their part of obligations arising out of the contract but the Complainants were never willing to pay the balance money including the cost of extra work and maintenance charges.  It was further averred that all the construction work was done in the flat by the Opposite Parties. It was further submitted that the Opposite Parties sent a Legal Notice dated 11.07.2013 claiming balance sum of Rs.5,21,271/- including interest upto 31.05.2013. It is also claimed that the Complainants are not Consumers and they are not entitled to any false claims that they have made wrongfully. The Opposite Parties have also placed reliance on clauses 3.9 and 4 of the Agreement dated 18.06.1999. It is also stated that the issue of lift has been long settled and an extra bathroom has been provided. Hence, the Opposite Parties prayed for dismissal of the complaint with costs.

The Ld. District Forum vide order dated 08.09.2015 allowed the Complaint and observed that-

“5. This Forum heard the ld. Counsel for the petitioners as well as the o.ps. and keeping in mind the averments in the petition as well as in the written objection and also on scrutiny of documents find that there was agreement between the parties for sale of the suit flat to petitioners along with garage for a sum of Rs.6,60,000/- and out of the petitioners have already paid Rs.6 lakhs. It is noticed from the deed of agreement page 11 that the builder would be bound to deliver the possession of the flat to the purchaser when full payment made and here there is an arrear of Rs.60,000/- to be paid by the petitioners to the builder i.e. o.p. no.1. There is also one clause in the agreement that for any extra work the petitioner would be liable to pay the increased cost. Here the petitioner failed to produce any such documents asking him for extra work and thus now he cannot claim any amount for any extra work. As regards possession it is noticed from the cases of the parties that the petitioners are in possession of the schedule mentioned flat though it is mentioned in para 17 that upon completion and making the flat tenable and habitable the builder shall give notice to the purchaser and within 15 days from the date of such notice the delivery of possession would take place. Thus in the instant case it is noticed that in the constructed building named ‘Niharika’ the petitioners booked flat A/3 on the 3rd floor of the building wherein they are in possession and they prayed before the Forum directing the o.p.s for executing and registration of conveyance deed. This Forum also on careful consideration of the claim of the petitioners as well as the objection raised by the o.p. builders find that the builder though delivered the flat as per agreement but failed and neglected to execute and register the sale deed as per agreement and the petitioners also not paid Rs.60,000/- as per agreement and thus this Forum under the C.P. Act, 1986 would be justified in giving a direction to the o.p.s in executing and registering the deed of conveyance in favour of the petitioners receiving the dues of Rs.60,000/- from the petitioner. It is well within the knowledge of this Forum that this Forum has no jurisdiction to go beyond the terms of the contract between the parties and in the instant case the contract very clearly shows that the petitioners were to pay Rs.6,60,000/- to the o.p.s for the flat as well as the garage space and they had already paid Rs.6 lakhs within 06.03.2002 but after lapse of almost a decade the petitioner did not execute and register the deed of conveyance on the plea that no payment has been made for the extra work as well as for the extra area of the flat when there is no document filed by the o.p.s that the petitioners agreed in writing to pay them the cost of the extra are of the flat and also the cost of any extra work to be done like the replacement of the marble in place of mosique on the floor. In the instant case the tussle between the parties continued for 15 years and now this Forum is satisfied with the submission of the petitioners that they are entitled to get the reliefs as prayed for as successfully substantiated their case.

In the result, the claim case succeeds. All the issues are decided in favour of the petitioners. Court fee paid is correct………”

Consequently, the District Forum directed the Opposite Parties to execute and register the Deed of Conveyance within 30 days from the date of the order and litigation costs of Rs.5,000/-.

Aggrieved by the above order, First Appeal bearing No. A/1111/2015 was filed by Appellants/ Opposite Parties against the Respondents/ Complainants before the State Consumer Disputes Redressal Commission, West Bengal.

The Ld. State Commission vide impugned Order dated 13.07.2017 allowed the Appeal in part and modified the Order of District Forum while observing that-

“……The Parties to the litigation, we are afraid, are playing a game of hide and seek, instead of coming before the court with clean hands. Since it is established that there was an argument between the parties for sale of the flat to the respondents, the appellants cannot deny the same after a lapse of more than 13 years. The receipts showing payment of Rs.5,95,000/- (Rupees five lakh ninety five thousand only) to the appellants (Annexure – ‘C’), as pointed out earlier stands in the way of denial of the purchasers’ claim but at the same time they (respondents) cannot be allowed to be fanciful of their desire in enjoying the benefits as per agreed terms without paying any farthing. Since there was an agreement between the parties to pay extra amount for extra works done by the developer, their (appellants) claims cannot be denied or overlooked. Ld. Trial Forum in the impugned judgement did not notice the same and directed the appellant to execute the deed in respect of the flat and the car parking space when it is manifestly clear that Rs.65,000/- (Rupees sixty five thousand only) was yet to be paid to the developer/appellants. The appellants in the brief notes of argument stated the following:-“The Respondents illegally had started residing at the flat after getting the key of the said flat on and from 16.04.2022 without paying a sum of Rs.2,20,800/- as demanded by the Appellant No.1 developer for extra works done by her in the aforesaid flat of the Respondents.”

In view of such argument as advanced by Ld. Counsel for the appellant with reference to the relevant part of the BNA as quoted above, we are of the view that the appellants are entitled to realise the consideration i.e. Rs.6,60,000/- (Rupees Six lakh sixty thousand six hundered) – Rs.5,95,000/- (Rupees five lakh ninety five thousand) = Rs.65,000/- (Rupees sixty five thousand) + Rs.2,20,800/- (Rupees two lakh twenty thousand eight hundred) towards extra work done from the respondents herein and they (the appellant) are duty bound to execute and register the deed of conveyance in favour of the respondents. Having regard to the facts of the case we would like to impress upon the parties concerned for bringing an end to their litigation and in view of the above observations, we come to the conclusion that the Ld. Forum concerned was justified in directing the appellants herein to execute and register the deed in favour of the respondents but on payment of Rs.2,85,800/- (Rupees two lakh eighty five thousand eight hundred only), to be paid to the appellants within two months from the date of this order. Thus the appeal stands allowed in part in a modified form. The appellant is directed to execute and register the deed of conveyance in respect of the flat no. A/3 on the 3rd floor of the building of the premises no.4/5 Padmapukur Lane, Howrah – 711109. The entire process shall be completed within a period of 3 (three) months from the date of the order. We do not make any order either with regard to cost of litigation or any compensation for mental agony or harassment, since the parties to this proceeding were fighting against each other for a petty long time as a luxury without having any justified reason……. ”

Hence, the present Revision Petition has been filed by the Petitioners/ Complainants against the above mentioned impugned Order of the Ld. State Commission on the following grounds-

a. That the Ld. State Commission erred in exceeding its jurisdiction and acted in exercise of its jurisdiction illegally by passing an Order directing for extra payment towards alleged extra work done by the Respondents herein, when admittedly the document in support of the same were not produced before the Ld. District Forum and which bears no signature of any of the purchasers;

b. That the Ld. State Commission erred in passing the Order for payment of Rs.65,000/- + Rs.2,20,800/- towards extra work without any documents and just mere surmise and conjecture;

c. That the Ld. State Commission erred in considering the evidence produced by the respondents at the appellate stage as they didn’t file same in the trial fora in CC 396/2013 before the DCDRF Howrah. That the Respondents herein did not file any affidavit in chief or any documents in support of their pleadings before the trial Fora;

d. That the Ld. State Commission erred in passing an order in contravention to agreed terms of the contract. A consumer court cannot go beyond the terms and conditions of the Agreement;

e. That the Ld. State Commission has erred in passing an order for payment of Rs.2,20,800/- for extra work and failed to appreciate that the Petitioners never requested or sent any letters to the respondents for doing any extra work;

f. That the Ld. State Commission failed to appreciate that the contention raised by the Respondents were not sustainable in an appellate proceeding and accordingly the appeal filed by the Respondents on the basis of new documents is not maintainable;

g.That the Ld. State Commission has failed to consider that no bills have been made for any extra work nor generated in the name of any of the Complainants by the respondents till the filing of the Complaint Case.

Hence, the present Revision Petition has been preferred by the Petitioners.

Heard the Ld. Counsel for the parties. Perused the material available on record.

It has been argued by the Respondents in addition to the above pleadings that as per Part II of Schedule III, Agreement for Sale dated 18.06.1999, the specification for construction was given in clause 4 and in view of the same, the purchaser had to pay extra costs in case of any extra fitting or better quality of materials. It is also argued that the Respondents had raised a bill to the Petitioners for a sum of Rs.2,20,800/-.  It is also argued that the Flat was purportedly delivered on 16.04.2002 and the Complaint was filed on 20.11.2013 and, therefore, the claim of the Petitioners is barred by limitation.

The relief granted to the Complainants by both the Ld. Fora below is similar to the extent that in either case the Respondent/Opposite Party has been directed to execute and register the Conveyance Deed of the disputed Flat in favour of the Complainants.  The State Commission upheld this direction but also directed the Complainant to pay an additional amount of Rs. 2,20,800/- towards the extra works done by the Opposite Party/Respondent which were otherwise not covered in the Sale Agreement.  The Petitioners are only aggrieved to this extent although they admit that an amount of Rs. 65,000/- was still to be paid by them towards final payment in terms of the original Agreement.  In the opinion of this Commission, the failure of the Respondent/Opposite Party to credibly make out a case that any extra work was actually done on the demand of the Complainants has the effect of weakening its defence.  During the course of hearing on 18.1.2023, this Commission had specifically asked the Ld. Counsel for the Respondent to verify whether there was any timely response to the Complainant’s initial Demand Letter issued as far back as on 17.1.2005, for which Ld. Counsel sought some time to revert back.  But, it transpired subsequently that actually there was no response to the aforesaid letter as also to the subsequent letter of demand issued by the Complainants on 10.11.2005.  Both these letters are collectively on record as Annexure-B.  On the contrary, Bills on account of payments towards the alleged extra  charges for works not produced by the Respondent in the District Forum but were brought on record later on in its Appeal filed before the State Commission.  In this view of the matter, this Commission is of the opinion that much reliance on such bills ought not to have been placed as the same were brought on record at a manifestly late stage especially when no direct rebuttal of the demands raised in the Complainant’s earlier letters issued as far back as in the year 2005, was made promptly at any stage.  The Ld. State commission would appear to have erred in setting aside the well-reasoned decision of the District Forum.

For the aforesaid reasons, the present Revision Petition is allowed and the impugned Order passed by the State Commission is, accordingly, set aside and the decision of the District Forum is restored.

Parties to bear their own costs.

Pending application(s), if any, also stand disposed off as having been rendered infructuous.