Rana Basu vs Lovely Ghosh W/O Apurba Ghosh

BY this order, I propose to dispose the above noted interlinked revision petitions pertaining to same development project. Both the revision petitions are directed against the dismissal of Appeal Nos. FA/319 of 2010 and FA/480 of 2010 filed by the petitioners against the respective respondents.

BRIEFLY stated facts relevant for the disposal of the revision petitions are that the petitioners are partners in the business of development and construction under the name and style of M/s ESSR Construction. They undertook a development project for construction of flats at plot no.14 -B Kalupara Lane, P.O. Dhakuria, P.S.Kasba, Kolkata -31 owned by Niranjan Basak - respondent no.4 in both the petitions.

LOVELY Ghosh and her husband Apurba Ghosh - respondent nos. 1 and 2 in RP No. 2799 of 2011 on 16.10.2007 entered into an agreement with the petitioners for purchase of flat measuring 755 sq. ft. super built -up area at the first floor of the building to be constructed at plot No.14B, Kalupara Lane, P.O. Dhakuria, P.S.Kasba, Kolkata on consideration of Rs.8,30,000/ -. It is the case of the said complainants that they paid a sum of Rs.3,50,000/ - against the consideration amount as agreed. As per the agreement, the petitioners were supposed to deliver possession of the flat within 18 months from the date of sanction of building plan by Kolkata Municipal Corporation ( in short, K.M.C.) i.e. 15.102007. The above said complainants have alleged that the petitioners instead of giving possession of the constructed flat within the stipulated period proposed the enhancement of price and as the complainants did not agree to pay the escalated price, the petitioners declined to accept the balance consideration and did not deliver possession of the flat in question. Claiming this to be deficiency in service, the above noted complainants filed consumer complaint praying for the possession of the flat in question and also for the direction to the petitioners as also the land owner to execute and register the conveyance deed. Revision Petition No. 2227 of 2012 has originated from consumer complaint filed by the complainants Jati Ranjan Gope and Jayanta Gope. The said complainants have alleged that with a view to purchase flat measuring 755 sq. ft. super built -up area on second floor of plot no14 -B, Kalupara Lane, P.S.Dhakuria, P.S.Kasba, Kolkata -31, the complainants entered into an agreement of sale with the petitioners. As per the agreement, the consideration amount of the flat was fixed at Rs.8,92,000/ - and the petitioners were supposed to deliver the complete constructed flat within 18 months from the date of sanction of the building plan by the Kolkata Municipal Corporation i.e. 15.10.2007. It is the case of the above said complainants that pursuant to the agreement, they have paid Rs.2,00,000/ - as earnest money, besides further payment of Rs.1,60,000/ - against the consideration amount. The petitioners on completion of brick work of the above stated flat in April 2008, proposed to revise the price of the flat on the pretext of abnormal increase in the cost of building material. When the complainants did not accede to the unreasonable demand of enhancement by the petitioners, the petitioners refused to accept further payment offered towards the consideration amount and threatened to sell the flat to some other purchaser. The matter was even reported to the police. Claiming this to be deficiency in service, the above noted complainants filed consumer complaint in District Consumer Forum South 24 Parganas, Alipore.

THE petitioners resisted both the complaints. In their response to the complaint filed by Lovely Ghosh and Others, the petitioners denied the allegation that they had agreed to sell flat at first floor to the respondents / complainants. The petitioners claiming that actually they had agreed to sell second floor flat to the complainants which is ready for delivery but the respondents / complainants with sole intention to take possession of first floor have filed the complaint with false allegations. The petitioners have however, admitted that as per the agreement, the consideration amount of the flat was Rs.8,30,000/ - and the petitioners have received Rs.3,50,000/ - as earnest money.

AS regards the complaint filed by Jati Ranjan Gope and Others, the petitioners admitted that they had agreed to sell flat to the said complainants for Rs.8,92,000/ - and against the consideration amount, they received Rs.2,00,000/ - as earnest money besides Rs.1,60,000/ - as further payment. The petitioners however, have denied that they agreed to sell second floor flat to the said complainants. Instead it is pleaded that the complainants have agreed to purchase the flat at top floor of the building i.e. third floor and it was contingent to the permission from K.M.C. to build above the second floor. The petitioners also alleged that it was agreed that if the petitioners failed to construct flat on the top floor, they shall refund money paid by the complainants with bank rate of interest.

DISTRICT Forum on consideration of pleadings of the parties and evidence so adduced in the respective complaints allowed the respective complaints vide separate orders.

THE operative portion of the order passed in consumer complaint filed by Lovely Ghosh & Others reads as under: ''''That the case is allowed in part. OPs 1 to 3 are directed to refund the earnest money of Rs.3,60,000/ - with interest @ 12% p.a. with effect from 16.10.2007 till the payment is made. OPs are also directed to pay compensation of Rs.5 lacs to the complainants within 30 days, failing which, the said amount shall carry interest @ 12% p.a. till the payment is made. The OPs are also directed to pay litigation cost of Rs.5000/ - to the complainants within 30 days from this date of order. The case against OP -4 is dismissed without cost ''''.

THE operative portion of the order of the District Forum in the complaint preferred by Jati Ranjan Gope is reproduced as under: ''''That the case is allowed on contest against OP No.1 to 3 with cost of Rs.4000/ - and exparte without cost against OP -4. The complainants are directed to pay balance consideration money to the OPs within 15 days from this date of order. The OPs are directed to execute and register the deed of conveyance and in respect of the subject flat at second floor and car parking space in the ground floor after receiving the balance consideration money i.e. Rs.5,32,000/ - within 30 days from the date of order and also directed to hand over the completion certificate copy of building plan to the complainants within further 60 days. If the OPs fail to comply with the aforesaid order after expiry of 60 days, each of the OPs shall pay penalty of Rs.50/ - per day to the complainants till the order is complied with ''''.

BEING aggrieved of the orders in the respective complaints, the petitioners filed separate appeals being FA No. 319 of 2010 and 480 of 2010 respectively. The State Commission West Bengal after hearing the parties and on perusal of the record dismissed both the appeals vide separate impugned orders which are under challenge in the above said revision petitions.

MR . Sanjoy Kumar Ghosh, Advocate for the petitioners have contended that the impugned orders are not sustainable for the reason that both the foras below have passed the orders in utter disregard of the agreement between the parties. Expanding on the argument, learned counsel for the petitioner has submitted that admittedly the building comprising of flats in question has been constructed on the land owned by respondent Niranjan Basak. It is contended that as per the agreement between the petitioners and Niranjan Basak, in lieu of plot of land provided by Niranjan Basak, the petitioners were supposed to construct the building comprising of ground floor, first floor, second floor and the top floor. The ground floor was supposed to be the garage and the construction of the top floor was subject to the permission from K.M.C.. Learned counsel has contended that as per the agreement between the petitioners and Niranjan Basak, the first floor flat was to be given to the owner Niranjan Basak. Therefore, there was no occasion for the petitioners to enter into agreement to sell first floor flat to the respondents / complainants Lovely Ghosh and Apurba Ghosh. Counsel has argued that infact, the agreement between the petitioners and Lovely Ghosh and Others was in respect of second floor flat but the petitioners with malafide intention have fabricated copy of the agreement to sell by converting the word ''''second floor flat to first floor flat '''' by making over -writing. In support of this contention, he has referred to the petitioner ''s copy of agreement which is in respect to second floor and submitted that the respondents / complainants with a view to cheat the petitioners have fabricated his copy of the agreement by scoring the word 2nd floor in the agreement and converting it into first floor, which cutting is not even signed by the parties. Learned counsel has thus urged us to accept the revision petition and dismiss the complaint.

AS regards Revision Petition No.2227 of 2012, Mr.S.K.Ghosh, counsel for the petitioner has contended that complainants Jati Ranjan Gope & Others have filed a false complaint. Actually, they had entered into a contingent contract for purchase of flat on the top floor of the building i.e. third floor subject to permission from K.M.C. to construct at third floor level. It was, therefore, agreed that if by any chance, the petitioners failed to construct and deliver the flat, they shall return the money paid by the respondents with bank rate of interest.

MR . Amalendu Chakrabarti, Advocate for the respondents / complainants in the revision petitions on the contrary has argued in support of the impugned orders. He has contended that impugned orders are based upon the evidence adduced by the parties and cannot be faulted. Learned counsel in support of his contention has drawn our attention to the respective agreement of sale entered into between the petitioners and the respondents of respective revision petitions.

WE have considered the rival contentions and perused the material on record. Before adverting to the contentions of the parties, it would be useful to have a look on the law relating to the extent of powers of this Commission in exercise of revisional jurisdiction.

SECTION 21 (b) of the Consumer Protection Act, 1986 deals with the revisional jurisdiction of this Commission and it reads as under: ''''b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity ''''.

ON reading of the above, it is clear that revisional jurisdiction of this Commission is limited and the Commission can interfere with the impugned order only if there is some jurisdictional error or material irregularity in the orders of the foras below. In this connection the observation made by the Hon ''ble Supreme Court in the case Mrs. Rubi (Chandra) Dutta Vs. M/s. United India Insurance Co. Ltd. 2011(3) Scale 654 may be noted as under: ''''23. Also it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. ''''

IN the background of the above settled position in law, now I propose to consider the submissions made by the respective parties. From the pleadings and the line of submissions made on behalf of the parties, the controversy in respective revision petitions is about the identity of subject matter of respective agreements. Case of the petitioners is that they had entered into agreement to sell flat at second floor to the complainants Lovely Ghosh and Apurba kumar Ghosh in RP No. 2799 of 2011 and flat on the third floor (top floor) subject to permission for construction by K.M.C. to the complainants Jati Ranjan Gope and Jayanta Gope in RP No.2227 of 2012.

IN order to find answer to the above controversy, it would be useful to have a look on the relevant clause of agreement of sale entered into by the respective parties. The petitioners have placed on record photocopy of the agreement of sale dated 19.12.2007 between the petitioners, respondents Jati Ranjan Gope and Others of RP No. 2227 of 2012 and the owner of land Sh. Niranjan Basak. On perusal of this agreement, we find that agreement relates to sale of building flat at second floor of the proposed building to respondents Jati Ranjan Gope and Jayanta Gope. The relevant clause dealing with the Purchasers Allocation is reproduced as under: ''''8. PURCHASER ''S ALLOCATION shall mean a complete flat at 2nd floor (Top Floor) of the proposed building along measuring a covered area including two bed rooms, one kitchen, one dining, two bath -cum W/C, one verandah equivalent to 755 sq. ft. super built -up area and 150 sq. ft. single car parking at ground floor of the proposed building as per KMC sanction plan no. 393 dated 08.10.2007 to be constructed and completed on the said premises as per plan together with doOthers, windows, water and drainage line, electrical and sanitary fittings thereto be exclusively allocated to the flat Owners (PURCHASER) ''''.

Further, Article -III (CONSIDERATION) Clause 02 of the agreement reads as under: ''''02. The developer hereby undertake to construct and complete the new building at the said premises with a period of 18 months from the date of Plan Sanction, and handover the Ownership Flat on the 2nd Floor to the Purchaser within 18 months from the date of Plan sanction ''''.

ON reading of the above, there is no doubt left in my mind that the petitioners had agreed to sell flat at second floor, which is described as top floor of the building alongwith single car parking on the ground floor of the subject building as per sanction plan no. 393 dated 08.10.2007 to the respondents/complainants. Thus, it is clear that the orders of the foras below are in terms of the agreement between the parties. As such the impugned order so far as RP No. 2227 of 2012 is concerned, cannot be faulted.

COMING to the Revision Petition No. 2799 of 2011. The controversy in this matter is whether the petitioners had agreed to sell flat at first floor or the second floor of the subject building to the respondents / complainants Lovely Ghosh and Apurba Ghosh. No doubt, on perusal of purchasers copy of the agreement of sale dated 16.10.2007, it transpires that in this agreement in the clause pertaining to identity of flat to be allocated to the respondents, typed words ''''second floor '''' have been scored off and converted into first floor with ink and said cutting is not signed or initialled by either of the parties. The question is, does it mean that the respondents / complainants have fabricated this document by changing the word ''''second '''' to ''''first '''' in their copy of agreement? In my opinion, answer to this question is in the negative. Admittedly, the proposed building was to have only one flat at each floor excluding the ground floor. In view of the discussion in relation to RP No. 2227 of 2012, it is evident that petitioners had agreed to allocate flat at second floor to the complainants of the said revision petition. That being the case, it is impossible that the petitioners might have entered into the agreement of sale of second floor flat with the complainants Lovely Ghosh and Apurba Ghosh because same flat could not have been allotted to the complainants of respective revision petitions. It appears that the petitioners are trying to take benefit of the fact that the cuttings in the copy of the agreement supplied to the respondents / complainants are not initialled or signed by the parties. Thus, under the circumstances, findings of the State Commission cannot be faulted.

IN view of the discussion above, the revision petitions are devoid of merit. Both the revision petitions are accordingly dismissed.