Ujjal Chakraborty vs Rupa Ghosh

Ram Surat Ram Maurya, Presiding Member

Heard Karan Sinha, Advocate, for the appellant and Mr. Pawan Kumar Ray, Advocate, for the respondent.

Above appeal has been filed against the order of State Consumer Disputes Redressal Commission, West Bengal, dated 28.11.2022, passed in CC/620/2018 whereby the complaint has been allowed ex-parte and the appellant has been directed to execute the sale deed in favour of the complainant of premises no. 303A, Vivekanand Road, Kolkata and pay a cost of Rs.30000/-, compensation of Rs.250000/- within a period of 60 days from the date of judgment.

The office has submitted report that the appeal has been filed with delay of 41 days.  The impugned order was passed on 28.11.2022 and the appeal was filed on 07.02.2023. The appellant has filed IA/8834/2024 for condoning the delay in filing the appeal.  In the IA, the appellant has stated that they had engaged late Goutam Kumar Das, Advocate on their behalf before the State Commission.  However, Goutam Kumar Das, Advocate became seriously ill and was hospitalized for a period of 40 days and died on 04.01.2023.  Due to his illness, he could not attend the case and the case was decided ex-parte and also, no information has been given to the appellant about judgment dated 28.11.2022.  The appellant visited the chamber of the advocate on 19.01.2023.  Then, he came to know about his death.  He immediately applied for issuance of certified copy of the impugned order on 20.01.2023 which was received on 28.01.2023 and the appeal has been filed on 07.02.2023.  Cause shown is sufficient.  The delay in filing the appeal is condoned.  IA is allowed.

Smt. Rupa Ghosh, respondent filed CC/620/2018 for directing the appellant to execute the Sale Deed of unit no.303A, situated at Vivekanand Road, P.S. Maniktala, Kolkata and other incidental reliefs.  The complainant stated that the opposite party was engaged in construction of group housing project.  The opposite party obtained the building plan sanction on 17.02.2014 and launched a housing project at Vivekanand Road, P.S. Maniktala, Kolkata in the year 2014.  On coming to know about the aforesaid project, the complainant booked flat no.303A, admeasuring 1000 sq. ft. for a total sale consideration of Rs.27 lacs and deposited Rs.1 lac. The opposite party executed an Agreement for Sale dated 16.12.2014 in respect of the aforesaid unit.  As per clause 16 of the Agreement for Sale, the possession has to be delivered within 18 months.  As per demand of the opposite party, the complainant gave Rs.22 lacs from time to time through bank.  The construction was however, delayed but the opposite party gave possession of the aforesaid unit to the complainant in September, 2017.  In the meantime, the wife of the opposite party fell ill and the opposite parties had asked the complainant to give the balance sale consideration of Rs.5 lacs and assured the complainant that shortly after recovery of his wife, the Sale Deed would be executed.  Therefore, the complainant gave the balance amount of Rs.5 lacs.  When the complainant insisted for execution of the Sale Deed, then the opposite party gave a legal notice to the complainant on 22.05.2018 asking the complainant to vacate the premises in dispute.  In this legal notice, the complainant was shown to be as a licensee and permitted to reside in the flat in dispute for the time being.  The complainant gave reply to the legal notice on 28.06.2018 and called upon the opposite party to execute the Sale Deed in pursuance of the Agreement dated 16.12.2014 inasmuch as the entire agreed consideration has been paid and possession has also been delivered.  Inspite of the service of the notice, the opposite party failed to take any steps.  Then, this complaint was filed.

The appellant filed its written version in the complaint and contested the complaint.  The appellant has admitted execution of the Agreement for Sale dated 16.12.2014 and also payment of Rs.22 lacs.  However, the appellant took plea that the complainant approached the appellant through one Debasish Ghosh who was posted in Kolkata Municipal Corporation.  Although the premises in dispute was given on license to the complainant for residing in it, but she cleverly got the Deed headed as ‘Agreement for Sale’.  He further took plea that total consideration of the flat in dispute was Rs.70 lacs out of which only Rs.22 lacs were paid.  The balance amount of Rs.48 lacs was payable.  However, the complainant did not agree to pay the balance amount and got the Sale Deed executed.  Therefore, the opposite party had no option but to give legal notice dated 22.05.2018.  When this complaint was filed, the appellant was surprised to see the copy of the Agreement dated 16.12.2014 attached with the complaint inasmuch as only two beginning pages and one last page of the said Agreement bear the signatures of the opposite party while the other pages were not signed and it appears that the complainant had committed forgery and changed the material pages of the Agreement which contained the amount of total sale consideration of Rs.70 lacs and by changing the pages, amount of total consideration of Rs.27 lacs has been shown.  Since the complaint is filed on the basis of fabricated documents, no relief can be granted to the complainant.

The State Commission, by the impugned order dated 28.11.2022, found that the plea taken by the opposite party that the Agreement as filed by the complainant was a fabricated document, was not liable to be accepted in view of the contradictory pleadings raised by the opposite party.  Since, in the Agreement for Sale, the total consideration of Rs.27 lacs has been mentioned out of which, payment of Rs.22 lacs has been admitted by the opposite party and a payment of Rs.5 lacs in cash is disputed but it was proved from the evidence of the complainant.  It is also admitted to the opposite party that possession of the flat in question was delivered to the complainant in September, 2017.  Therefore, the plea raised by the opposite party about total sale consideration of Rs.70 lacs as well as payment of Rs.28 lacs only, has not been believed and the complaint was allowed and direction as mentioned above is passed.  Hence, this appeal has been filed.

Counsel for the appellant has pointed out that the Agreement which was filed at page no. 29 of paper-book of the appeal, only two beginning pages and one last page of the Agreement bear the signatures of both the parties but other pages are not signed.  Therefore, the forgery committed by the complainant is apparent.  The State Commission has illegally relied upon this document and the decree passed by the State Commission is illegal and liable to be set aside.

We have considered the arguments of the counsel for the parties and have examined the record.  The appellant took two pleas in order to challenge the validity of the Agreement namely (i) He has executed the license and (ii) only two beginning page and last page bear the signatures of the appellant while other pages are not signed.  Therefore, by changing the material pages, the total consideration of Rs.27 lacs has been made in it in place of Rs.70 lacs.  On page 84 of the paper-book of the appeal, the appellant has filed the other copy of the Agreement which according to the appellant, it bears the signatures of the complainant alone and as per this Agreement, the total consideration of the unit in question was Rs.70 lacs.  The appellant has not filed any document to prove that consideration of other similarly situated flat was Rs.70 lacs at that time.

The plea raised by the appellant in respect of the execution of the license not the Agreement for Sale is concerned, it is not liable to be believed inasmuch as the two pages which bear the signatures of the appellant and respondent both; on the top of the first page mentioned ‘Agreement for Sale’ and on the next page, mentioned the purchaser.  Therefore, the plea that the opposite party that he had executed a license, is not liable to be believed inasmuch as if the license had to be executed, then mentioning it as Agreement for Sale and denoting the complainant as purchaser, was not expected.  Even the deed which has been produced by the opposite party on page 84 is concerned, it also used the same wording ‘Agreement for Sale’ and ‘purchaser’ respectively.  Therefore, the State Commission has not committed any illegality in not believing the plea of the appellant and accepting the plea of the complainant in this respect.

It is admitted to the appellant that the possession of the premises in dispute was given in September, 2017 to the respondent.  Since the appellant has failed to prove that possession was delivered in lieu of the licence and not in lieu of the Agreement to Sale, therefore, the State Commission has rightly believed that balance consideration of Rs.5 lacs has also been paid.  In such circumstances, the finding of the State Commission that the Agreement for Sale as produced by the complainant is a genuine document and not a fabricated document, does not suffer from any illegality.  Since the appellant has already taken entire consideration and handed over possession to the complainant in September, 2017 therefore, denial of the execution of the sale deed was malafide on the part of the appellant and the State Commission has not committed any illegality in allowing the complaint and also directing the appellant to pay compensation to the respondent.

ORDER

In view of aforesaid discussions, the appeal has no merit.  It is accordingly dismissed.  The appellant is granted two months’ time to comply with the order of the State Commission.