M/s Shyama Enclave Pvt. Ltd vs Sujata Banerjee & 5 Ors

Sudip Ahluwalia, Member

This Appeal has been filed by ‘M/s Shyama Enclave Pvt. Ltd.’ against the impugned Order dated 19.09.2016 passed by the State Consumer Disputes Redressal Commission, West Bengal in Complaint No. 285 of 2013, vide which, the Complaint was allowed in favour of the Complainant.

The factual background, in brief, is that the Complainant Sujata Banerjee had entered into an Agreement for Sale on 30.01.2009 with the Opposite Party to procure a 3BHK Flat, spanning approximately 1350 Sq. Ft., at a total cost of Rs. 29,00,000/-. Across various dates, the Complainant fulfilled the entire stipulated consideration, acknowledged by receipts. Subsequently, an additional sum of Rs. 11,00,000/- was remitted in cash and by A/c payee cheque upon the Opposite Party's insistence, yet despite repeated requests, no receipt was issued for this supplemental payment. Moreover, an extra Rs. 15,000/- was allegedly remitted through an A/c payee cheque for the electricity connection, which also lacked acknowledgment. The Agreement specified that the Opposite Party would deliver possession of the Flat, and then execute the Deed of Conveyance in favour of the Complainant within 90 days from obtaining possession. The Opposite Party sent a notice of possession vide letter dated 20.01.2012 and also demanded huge amounts before handing over the possession. In response to the said letter, the Complainant sent a letter dated 01.08.2012 requesting a copy of Completion Certificate and also a copy of draft Deed of Conveyance. Notably, discrepancies arose concerning the Attornment charges, as the Agreement had stipulated a rate of 1%, while the Opposite Party actually demanded it at the rate of 2%. Despite the Complainant's readiness and willingness to fulfil her obligations, the Opposite Party failed to fulfil the commitments made, thus depriving the Complainant of the possession of the Flat and the extra payments made without proper documentation or acknowledgment. Dissatisfied with these unmet obligations and the lack of possession, the Complainant lodged her Complaint before the Ld. State Commission, West Bengal.

The Ld. State Commission vide the impugned Order dated 19.09.2016 allowed the Complaint. The Ld. State Commission directed the Appellant to refund an amount of Rs. 6,00,000/- to the Complainant/Respondent along with compensation of Rs. 5,00,000/- and Rs. 10,000/- as litigation cost aggregating to Rs. 11,10,000/-. The relevant extracts of the impugned Order are set out as below –

“It is quite apparent that the OP no.1 being developer has failed to fulfil his part of obligation, particularly, when inspite of payment of entire consideration amount by the Complainant within 30.01.2009, the OPs did not deliver possession and executed the Sale Deed as stipulated in the Agreement. In this regard, the reply given by the OP no.1 on 03.10.2007 against the letter of Advocate of Complainant dated 23.09.2013 is noteworthy. In the said reply, OP no.1 has mentioned - "Fact is this that your client Ms. Sujata Banerjee is not interested in getting the said flat registered whereas she is only interested in selling it out without registration for which she has negotiated with us several times and backing out with her proposal as soon as we come with a positive acceptance".

It is unbelievable that a person after payment of entire consideration amount will have no interest to get the property registered or executed in favour of him. This appears to be mere excuse which in turn indicates deficiency in service on the part of the developer. Needless to say, after acceptance the entire consideration amount, it is the statutory obligation on the part of the developer to execute the Sale Deed. There is no document whatsoever on behalf of the developer to show that they have ever expressed any willingness to execute the Sale Deed. On the contrary, inspite of specific clause that the purchaser shall pay only 1% as attorney fees at the time of execution/registration of the Agreement for Sale but by letter dated 20.01.2012, the OP/developer claimed attornment charges @ 2% amounting to Rs. 1,74,386/-. This is a glaring example of unfair trade titled to any relief is no claim on the count of unfair trade practice, the Complainant is not entitled to any relief on that ground.

However, considering the evidence on record and the submission advanced by the Ld. Advocates appearing for the parties, we have no hesitation to hold that the Complainant being a consumer within the meaning of Section 2(1)(d) of the Act was not provided the required 'service' ought to have been provided by the developer after accepting the entire consideration amount. Accordingly, Complainant is entitled to get the deed registered in respect of the property as mentioned in 'B' Schedule to the petition of complaint, to refund of Rs.6,00,000/-. Apart from it, the Complainant is entitled to compensation for harassment and mental agony as she suffered for long seven years for which she had to stay away from her own shelter which purchased by her with hard earned money from retirement benefits and as such a compensation of Rs.5,00,000/- in the facts and circumstances of the case would meet the ends of justice. The Complainant had no occasion to approach this Commission with this complaint but the inaction and apathy on the part of the developer compelled her to initiate the complaint and as such the Complainant is also entitled to litigation cost which we quantify at Rs.10,000/-.

In view of the above, all the three points are decided in favour of the Complainant and disposed of accordingly.

Consequently, the instant consumer complaint is allowed on contest against OP no.1 with cost of Rs. 10,000/- and exparte against OP nos. 2 to 6 without any order as to costs.

The OP no.1 is directed to refund Rs.6,00,000/-, to pay compensation of Rs.5,00,000/- and Rs.10,000/- as litigation cost aggregating Rs.11,10,000/- in favour of the Complainant within thirty days from date otherwise the amount shall carry an interest @ 12% p.a. from date till its full realisation.

The OP no.1 is directed to execute and register the Deed of Conveyance in favour of the Complainant within thirty days and in this regard, the registration cost and stamp duty and other expenses must be borne by the Complainant,

The Registrar of this Commission is directed to send a copy of this order to the OPs for information and compliance.”

This Commission has heard the Ld. Counsel for both the Petitioner and the Respondent No. 1, and perused the material available on record.

The Appellant is aggrieved that the Ld. State Commission not only allowed the complaint by directing refund of an amount of Rs. 6.00 lakhs to the Respondent/Complainant, to which according to it, the Complainant was not entitled in the first place, but also additionally awarded exorbitant compensation to the tune of Rs. 5.00 lakhs for “harassment and mental agony”, apart from litigation costs, when according to the Appellants, the complaint was liable to be dismissed in the first place on account of totally false and incorrect allegations and averments made by the Complainant. Consequently, this Commission is to consider firstly, whether the Complainant/Respondent was able to make out a credible case that an amount of Rs. 11.00 lakhs had been unauthorizedly taken from her by the Appellant/Opposite which was over and above the sale price of Rs. 29.00 lakhs for the dwelling Unit in question, and also, whether in the given facts and circumstances, the Complainant was at all entitled to any compensation.

It may be noted first of all that on the first date listed for admission hearing in this Commission (15.5.2018), Mr. Rajinder Nischal, Advocate, had appeared on behalf of the Complainant, and the parties had agreed on that date that the amount of Rs. 6.00 lakhs would be delivered to the Complainant against receipts and Conveyance Deed in respect of the Flat, would be executed on 25.5.2018. Such Agreement to make payment of Rs. 6.00 lakhs was in view of the fact that the Appellant had failed to file proof of payment of the said amount which it had been originally directed on 2.12.2016 to deposit in this Commission. So, the Agreement to make over such payment directly to the Complainant instead of depositing the said amount with the Commission, was clearly without prejudice to the rights, contentions and entitlements of both sides. Subsequently, on 29.5.2018, it was agreed before this Commission that the Conveyance Deed shall be executed on 6.6.2018, since the Complainant herself had not turned up for that purpose of the originally stipulated date i.e. 25.5.2018. It transpires that subsequently not only the possession of the Flat had been delivered to the Complainant /Respondent, but also the Conveyance Deed in her favour was also executed by the Appellant/Opposite Party. With regard to the controversy as to payment of the additional charges of Rs. 11.00 lakhs as claimed by the Complainant, Ld. Counsel for the Appellant has, first of all, drawn attention to the fact that the offer of possession was made from its side long ago on 20.1.2012, vide the letter which is on record at Page No. 84 of the Paper Book. In the said letter, a total amount of Rs.9,00,713/- was demanded from the Complainant within 07 days before delivery of possession to her. All the heads under which such payments were demanded, were actually to be paid by the Complainant in terms of the original Agreement for Sale. There was, however, a controversy regarding the Attornment charges which were demanded @ 2% whereas the same ought to have been @ 1% in accordance with the terms of the original Agreement. In response to the aforesaid letter offering possession, the Complainant on 1.8.2012, which was more than 06 months later, wrote to the Appellant/Opposite Party regarding the unlawful demand of Attornment charges @ 2%, but made no mention whatsoever of her subsequent claim that she had already paid an excessive amount of Rs.11.00 lakhs to the Developers/ Appellant, and consequently, was not required to make any further payment. About seven weeks later thereafter on 23.9.2013, the Complainant then sent a Legal Notice to the Opposite Party / Appellant in which she claimed that apart from the entire consideration amount of Rs. 29.00 lakhs, she had “also paid an extra sum of Rs. 11,00,000/- in cash from time to time to M/s. Shyama Enclave Private Ltd.” Such Legal Notice issued by the Complainant’s Advocate- Shri Pralay Kumar Roy was subsequently replied to on behalf of the Appellant, after which the Complainant filed her complaint in the State Commission on 28.11.2013. But in Para 17 of the complaint, she described the additional payment of Rs. 11.00 lakhs had been paid “only in cash”.

Now, it is seen from the Order dated 29.5.2018 passed by this Commission that the direction had been given that, “both the parties shall obtain the certification from their respective Banks about the debit and credit of the amount of Rs. 6.00 lakhs in question and file the same with the Registry”. From her side, the Complainant/Respondent completely failed to show any document or record as to how and by whom the aforesaid cheque of Rs. 6.00 lakhs had been encashed. On the other hand, on a subsequent date (25.10.2018), it was submitted on behalf of the Appellant that the said cheque had not been encashed by the Appellant/Company nor was it credited to its Bank account, and that the same had been given to Tara Chandra Gupta representing the Appellant “towards purchase of 1000 shares of Rs. 10/- each at premium of Rs. 15/-“.

Taking into account such submission raised on behalf of the Appellant, the Division Bench hearing the matter on that date passed an order, the relevant portion of which is re-produced as under–

“In these circumstances and in order to solve the controversy, we direct the Learned Counsel for both the parties to file an affidavit as to whether the amount of cheque of ₹6.00 Lakhs has been credited to the account of Tara Chandra Gupta. So far as the Appellant is concerned, the personal affidavit of Tara Chandra Gupta has to be filed, giving the details of his personal account, HUF account and also any other account, which he is operating as the Director, Partner or the Proprietor. So far as Respondent No.1 is concerned, an affidavit has to be filed, giving the details of the cheque and in whose favour it has been issued.”

Subsequently, both Shri Tara Chandra Gupta and Respondent/Complainant filed their Affidavits after which the matter was reserved firstly on 4.1.2019 by the Division Bench. But strangely again after one year and nine months, another Bench passed another Order on 19.10.2020 that “Arguments heard. Orders reserved. Orders to be pronounced on 07.12.2020”. But actually no order was pronounced, possibly due to outbreak of COVID-19 in the meantime, on account of which the matter never got listed again for almost 2 ½ years before it was again directed to be listed for hearing before an appropriate Bench on 4.5.2023.

Thereafter, the matter came up before this Bench for hearing on 11.10.2023, on which date the following Order was passed –

“The moot points involved in this case are as follows:-

i) Whether there was any unjustified delay on the part of the respondents/complainants in paying the Stamp Duty and ancillary charges when the offer of possession was made to her on behalf of the appellant?

ii) Whether the Complainant was justified in refusing the payment demanded of her in such letter offering possession, on the pretext that an additional amount of Rs.11,00,000/-(but determined as Rs.6,00,000/-by the Ld. State Commission) had been illegally taken from her by the appellant over and above the agreed consideration price of offer of Rs.29,00,000/-?

iii)Whether the purported receipt issued towards acceptance of the said amount of Rs.6,00,000/- which is at 251 of the Paper Book is a genuine document, and if so what inferences may be drawn from the contents noted therein?

2) In answer to specific query of the question, Ld. Counsel for the respondents/complainants submits that the signature on the Revenue Stamp affixed on the said document is that of Mr. Tara Chandra Gupta, Director of the Appellant Company whose name has also been depicted in the Director of the Appellant Company, who had himself sworn the Affidavit in support of this Appeal.

3) Considering the delicate nature of controversy involved which essentially revolves around questions of fact, and also considering that the complainant is an old lady of around 75 years as also the fact the litigation between the parties is already over 10 years old now, it would not be called for at this stage to relegate them any Civil Court as even this Court is vested with appropriate power to accept evidence, as any Civil Court.

4)The record shows that the document had been on filed on or about 26.07.2018 along with the complainant’s Affidavit, and copies of the same were sent to Ld. Counsel for the appellant by Speed-Post the same date.”

On the same date, Ld. Counsel for the Appellant sought some more time to take instructions from his client about the facts and circumstances concerning the receipt which admittedly bore the signatures of Tara Chandra Gupta.

Shri Tara Chandra Gupta, Director in the Appellant Company subsequently filed his Affidavit on 5.12.2023 alongwith which he also filed a copy of the application for issuance of 10000 equity shares (Annexure-A1) addressed to “Panchanan Developers Private Limited” dated 9.12.2008, which bears the signatures of the Respondent/ Complainant- Ms. Sujata Banerjee. Further, copy of “Form 2” depicting allotment of 10000 equity shares in the name of the Complainant for a consideration price of Rs. 6.00 lakhs and copy of Challan G.A.R.7 of the Ministry of Corporate Affairs (Annexure-A2) has been filed collectively.

The aforesaid documents go to show that the amount of Rs. 6.00 lakhs paid by the Complainant/ Respondent to Shri Tara Chandra Gupta was clearly towards purchase of 10000 equity shares for which he had correctly issued the receipt mentioned earlier, and the said shares were actually allotted in favour of the Complainant in pursuance of her personally signed application for such allotment dated 9.12.2008 which was the same date as of the cheque No. 850017, claimed by her to be paid to Shri Tara Chandra Gupta. She, further, in her Affidavit filed on 20.12.2018 had stated that –

“3. That inspite of my best efforts I could not trace out the counter file or the bank cheque book relating to cheque No. 850017 for the Rs. 6,00,000/- (Rupees Six Lakhs)only.

I had given a blank cheque in respect of the name of the payee to Shri Tara Chand Gupta who is appellant in the instant matter. This amount stands withdrawn from my saving bank account. Shri Tara Chand Gupta issued a receipt duly signed by him in lieu thereof.”

Therefore, in view of the manifest contradictions in the version of the Complainant regarding over payment of an amount of Rs. 11.00 lakhs, which she first claimed to have paid, “in cash” in her Legal Notice, which was issued a month after her letter dated 1.8.2012, in which she had not made any mention of any such payment, and thereafter by changing her version of having made the payment of Rs.11.00 lakhs by cash to the extent of Rs. 5.00 lakhs, and by cheque for the balance amount of Rs. 6.00 lakhs, as claimed in her complaint filed subsequently, have the effect of totally falsifying her claim to this end. It is a matter of record that the date of agreement for purchase of the Flat entered into between the parties was 30.1.2009 which itself was after a substantial period of time from the date of issuance of the cheque of Rs.6.00 lakhs (9.12.2008), which was acknowledged by the Appellant’s Director Shri Tara Chandra Gupta, who had duly mentioned in the Acknowledgment Slip that it was towards purchase of 10000 equity shares, which were subsequently shown to have been actually allotted in the name of the Complainant against her own signed Application (Annexure A1) under her own signatures.

Consequently, it becomes clear that the Ld. State Commission had erroneously come to a conclusion that an amount of Rs. 6.00 lakhs had been wrongfully realised by the Appellant/Opposite Party in addition to the actual consideration price of Rs. 29.00 lakhs for the Flat in question. At the same time, it is to be noted that the State Commission had otherwise determined, “however, Complainant has failed to prove the payment of Rs. 5.00 lakhs by cash”. In this view of the matter, it becomes clear that the Complainant’s version of having paid an additional amount of Rs. 11.00 lakhs over and above actual consideration price stands totally falsified, and consequently the direction passed by the Ld. State Commission upon the Appellant/ Opposite Party No. 1 to refund the amount of Rs. 6.00 lakhs allegedly taken from the Complainant wrongfully is unsustainable.’

However, as already noted earlier, during pendency of this Appeal, the amount of Rs.6.00 lakhs was paid to the Respondent/Complainant on behalf of the Appellant without prejudice to its rights and obligations, and also in view of the fact that possession of the Flat was also made over to the Complainant apart from execution of the Conveyance Deed in her favour, appropriate balancing measures are therefore called for at this stage, since this Commission has already come to a finding that the claim of the Complainant/Respondent of having paid such amount to the Opposite Party/Appellant over and above the actual consideration money for the Flat in question is not true. It is, however, undisputed that in terms of the Agreement dated 30.1.2009, possession of the Flat had to be delivered to the Complainant within a year thereafter i.e. latest by 30.1.2010. But the actual offer of possession was made only on 20.1.2012, which was almost two years after the promised date. The Complainant however instead of paying rest of the charges required from her i.e. deposits towards common maintenance, house tax, cost of non-judicial stamp paper for registration, registration fees, and cost of electric meter, which were all payable by her in terms of the original Agreement, instead challenged the demand for Attornment charges @ 2% p.a. when it should have been 1% p.a. The difference on this account would therefore have come only to Rs. 87,193/-, but the remaining amount in excess of Rs. 8,00,000/- towards rest of the charges was still payable by her. Instead of making such payment, she unnecessarily filed the complaint making false averments regarding payment of money to the Opposite Party in excess of the consideration price, although the amount of Rs. 6.00 lakhs paid by cheque from her side has been found to be unrelated to the consideration price of the Flat, and had been used for purchase of 10000 equity shares in her name.

Consequently, this Appeal is allowed after setting aside the impugned Order passed by the Ld. State Commission. It is now directed that the Appellant/ Opposite Party shall pay delay compensation charges @ 9% p.a. on the consideration price of Rs. 29.00 lakhs paid by the Complainant to it from the date of each respective deposits, till its actual realization. Such delay compensation charges would be payable for the period between 31.1.2010 to 20.1.2012 i.e. till the date of issuance of offer of possession letter. She will however be liable to refund the amount of Rs.6.00 lakhs delivered to her during the pendency of this Appeal, and in addition shall also pay the requisite charges demanded from her in the letter offering possession dated 20.1.2012 coming to Rs. 9,00,713/- minus Rs. 87,193/- which was the excess amount demanded on account of Attornment charges, and the delay compensation payable to her shall be off set against these liabilities of the Complainant. No interest on such delayed payment by the Complainant is however awarded now in favour of the Appellant, considering that she is a very old senior citizen and reported to be suffering from a serious brain tumor.

In accordance with the above directions, the parties shall settle and clear their respective liabilities within two months from the date of this Order failing which either of the dissatisfied sides would be at liberty to seek execution of the same.

Parties to bear their own costs.

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