Quazi Md. Maksuduzzaman & 2 Ors vs Bharati Bhattacharjee

These revision petitions have been filed by the petitioners, Quazi Mohd. Maksuduzzaman Ors.  and  Mohd. Ainul Kazi & Ors. against the order dated 27.3.2015  passed by the State Consumer Disputes Redressal Commission, West Bengal, Kolkata (for short, 'State Commission') in  FA Nos. 135/2014 and 136/2014 respectively.

Brief facts of these cases are that appellants in both these revision petitions had filed Consumer Complaint Nos 111/2013 and 112/2013 before the District Forum. In the CC No.111/2013 it was alleged that the consideration of the flat was Rs.9 lakhs. However, the possession was not given by the OP. Similarly, in CC No.112/2013 the complainant had alleged  that the total consideration of the flat was Rs.7 lakhs, however, the possession was not given by the OP.

Both the complaints were resisted by the OPs on the ground that each complainant had executed two builder buyer agreements  with the OP. In the CC No.111/2013  it was alleged by the OP that the total consideration of the flat was Rs.16 lakhs and the complainant had executed two agreements one for Rs.9 lakhs and another for Rs.7 lakhs. Similarly, in CC No.112/2013, the total consideration of the flat was Rs.14 lakhs and two agreements were executed for Rs.7 lakhs each by the complainant. The District Forum decided both the complaints in favour of the complainants directing the OPs to register the deed of conveyance in respect of the properties in question as per agreement.

Aggrieved by the order of the District Forum, OP-1/respondent  herein preferred appeals  bearing no. FA 135/2014 and FA No. 136/2014 before the State Commission. The State Commission vide order dated 27.3.2015 allowed both the appeals filed by OP-1 and  dismissed the complaints vide two separate orders.

Hence, the present revision petitions.

As the facts in both the revision petitions are similar and same law points are involved, they are being decided together.

Heard the learned counsel for the parties and perused the record.

Learned counsel  for the petitioners/complainants stated that there was no question of their executing two agreements of sale as the same is not allowed under any law. For one property, there has to be only one agreement or if the property is sub-divided and for each  sub-division there is a separate agreement then only there could be two agreements for the same property. The State Commission has presumed that as the loan application to the Govt. Department was moved only for Rs.7 lakhs and the total consideration has been shown Rs.9 lakhs  in the complaint,  therefore, the complainant has not come with clean hands as would be clear from the following  observation of the State Commission in FA No.135 of 2014.

"From the facts as discussed above it is evident that the Respondent/ Complainant had shown the total consideration of the flat at Rs.7,00,000/- both in the concerned Government Department and also at the Bank while seeking loan as per the Agreement for Sale whereas in the Petition of Complaint the averment has been made that the total consideration amount of the flat was Rs. 9,00,000/-.  Creation of the two separate Agreements for purchase of self-same flat by the Complainants without making any disclosure to that effect as to the necessity therefor, goes to show that the Complainants have not come in clean hands.  Equity, therefore, will not come in the aid of the contention of the Respondents/Complainants.  In this context, reliance is place on a decision of the Hon'ble National Commission in Narendra Kr. Sodhi Vs. Narendra Kr. Jadab, reported in 2012 (2) CPR 322 (NC). Under the circumstances, the Complaint is not maintainable."

The State Commission has given similar observation in the other FA No.136/2014. The learned counsel further mentioned that no second agreement for Rs.7 lakhs has been filed by OP in CC No. 111/2013.  The District Forum has not agreed with the assertion of the OP-1 in the absence of any such document. However, the State Commission has relied upon the application given to the Govt. Department by the complainant and to the Bank for loan of Rs.7 lakhs. If the property is for Rs.9 lakhs, definitely a person can take loan of Rs.7 lakhs and there is no illegality or incorrectness in doing so. In the second CC No. 112/2013 leading to RP No. 1469/2015 the OP has filed two agreements for Rs.7 lakhs each where the language of both  the agreements is exactly the same, however only the stamp paper of Rs.10/- bears different numbers.  As the stamp paper was only of Rs.10/- it is the practice that both the builder  and buyer would have the original copy of the agreement and therefore, the two copies were typed on stamp papers of Rs.10/- each. Therefore, obviously they cannot be  treated to be different agreements as the language of both the agreements filed is exactly the same.  Both the documents are for whole property and not for  part of the property. There is no law which permits two sale agreements for the same property between the same parties. Therefore, even if two sale agreements are assumed,  one of them would have to be  treated as null and void.

On the other hand, learned counsel for the respondent/OP-1 stated that in respect of the RP No.1468 of 2015, the total consideration of the flat was Rs.16 lakhs and there were two agreements one for Rs.9 lakhs and another for Rs.7 lakhs. As the respondent is an  old and illiterate lady, the complainants convinced her to sign two sale agreements, however, copy of only one agreement mentioning total consideration of Rs.9 lakhs has been given to the respondent and other one has not been given to the respondent. Therefore, the  respondent is unable to produce the second agreement which was entered for Rs.7 lakhs, however, the same would be evident from the letter of the Government of West Bengal dated 10.8.2010 wherein permission  has been granted to the complainant Quazi Mohd. Maksuduzzaman to take loan from the bank for Rs.7 lakhs. It is clearly mentioned in this permission letter that total cost of the flat is Rs.7 lakhs.  On the basis of this letter, the complainant applied for loan of Rs.7 lakhs  from the Bank. This clearly goes  on to show that there was some other agreement where the cost of the flat was mentioned as Rs.7 lakhs. If the agreement for Rs.9 lakhs was the only agreement, the complainant should have stated before the Government and the Bank that cost was Rs.9 lakhs, however, it has been stated to be Rs.7 lakhs. Thus, the complainant used the agreement of Rs.7 lakhs to get the loan from the bank. However, for filing the complaint he has used the agreement for Rs.9 lakhs.  Similarly, in the other case in CC No. 112/2013 also the Government letter dated 10.8.2010 is mentioning the cost of Rs.7 lakhs. Thus, in both these cases the complainants have used second agreement for Rs.7 lakhs to get the Government permission to get the loan and the same agreement has been used to get the loan from the bank.  The State Commission has rightly passed its order based on the circumstantial evidence which is so strong that it cannot be countered by the complainants.

I have considered the arguments advanced by learned counsel for both the parties and examined the material on record.

The OP in the written statement filed in CC No. 111/2013 has stated as under:

" It is pertinent to mention herein that as per Section 20 of Indian Contract Act, both  the documents i.e. Two Agreements for Sale in question were signed by the parties herein due to mistake of facts which goes to the root of the contract and thus frustrates the object  of the Agreements the same will be considered as void one and not enforceable in  the eye of law, but the fact remains the Opposite party no.1 has received a sum of Rs.5,79,000/- Rupees Five Lacs and Seventy Nine thousand) only in total and thus for the purpose of justice and equity the opposite party no.1 is ready to re-pay the said amount with statutory interest to the complainant but no point of time or at all the complainant is entitled to get any  relief from your Honour's Forum as sought for being himself a wrongdoer."

Similar averment agreement has been made in written statement in CC No.112/2013 which reads as under:

" It is pertinent to mention herein that as per Section 20 of Indian Contract Act, both  the documents i.e. Two Agreements for Sale in question were signed by the parties herein due to mistake of facts which goes to the root of the contract and thus frustrates the object  of the Agreements the same will be considered as void one and not enforceable in  the eye of law, but the fact remains the Opposite party no.1 has received a sum of Rs.4,92,000/-  (Rupees Four Lacs and Ninty Two thousand) only in total and thus for the purpose of justice and equity the opposite party no.1 is ready to re-pay the said amount with statutory interest to the complainant but no point of time or at all the complainant is entitled to get any  relief from your Honour's Forum as sought for being himself a wrongdoer."

This clearly goes on to show that OP-1 is considering the mistake in signing the two agreements whereas the complainant is not accepting the signing of the two agreements. The complainants are accepting only one agreement for Rs.9 lakhs in CC No.111/2013 and for Rs.7 lakhs in CC No.112/2013.  It is also to be considered  that there are no document available on the case file to show that the OP-1  demanded further amount from the complainants  nor made any communication for refund of the amount  as mentioned in the written statement  of OP-1. In the first Compliant Case No.111/2013, respondent /OP-1` has not been able  to produce the second agreement which could have been a direct evidence to support the claim of the respondent. Though in the second case i.e. CC No. 112/2013 two agreements have been filed for Rs.7 lakhs each, both the agreements have same date, however, with different numbers of Rs.10/- stamp papers.  The First Agreement has many corrections which have been done with the ink, however in the second agreement those corrections have been typed out.  Therefore, this possibility cannot be ruled out that the second agreement was typed out  because there were many corrections in the first agreement. Then obviously  the second stamp paper of  Rs.10/- was used.

As per the Section 54 of the Transfer of Property Act, 1882 , the Contract of Sale is defined as under:

"A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."

From the above definition, it is clear that sale is to take place as per the terms and conditions given in the agreement. As the Contract of Sale dated 21.6.2010 for Rs.9 lakhs  in CC No. 111/2013 is already on  record, then as per this definition of contract of sale, it should have been mentioned in this contract that there would be some other agreement for Rs.7 lakhs. However, there is nothing mentioned in this contract, therefore it is difficult to  believe that there would be any other agreement for sale of the same property. In fact, the implication of this section is that there would be only one Contract of sale for one property  between the same parties. Similarly, same argument applies in the second complaint case i.e. CC No.112/2013 as well.

From the above discussion it is brought out that legally there cannot be two agreements to sell between the same parties. As complainants are accepting only one agreement which is also duly signed by the OP and is in  respect of the total property i.e. for the full flat, the assertion of the opposite party that there were two agreements of sale in both these complaints is not sustainable. However, when the direct evidence can be made available, the circumstantial evidence cannot be relied upon in derogation to the direct evidence. This is  true at least in CC No.111/2013 where the agreement is available for Rs.9 lakhs. However, in respect of other Complaint No.112/2013 the two sale agreements are available for R.7 lakhs  each, but as they are identical with same date, it cannot be believed that they are two agreements only on the basis of two different number of the stamp papers of Rs.10/-.  The possibility is that the second one is the fair typed copy of the first one which may had  correction with ink.

The State Commission has mainly relied upon the order of the State Government of West Bengal giving possession to the complainants to apply and obtain loan from the bank and  the sanction letter of bank loan where the costs of the flats have been shown to be only Rs.7 lakhs.  These are only circumstantial and incidental evidence which cannot take precedence over the direct evidence and  the legal position.

Based on the above explanation, I find that the order of the State Commission dated 27.3.2015 is not based on the correct application of facts and law and therefore it cannot be sustained.  Accordingly, the Revision Petition Nos. 1468/2015 and 1469 of 2015 are allowed and the order of the State Commission dated  27.3.2015 in F.A.  Nos. 135/2014 and 136/2014 are set aside.  The order of the District Forum dated 24.12.2013 in CC Nos111/2013 and 112/2013  is upheld with modification that OPs will be entitled to receive the remaining amounts from the complainants as per the order of the District Forum with interest @ 10% p.a. from the date of filing of the complaint till actual payment.