REINA BANERJEE vs Aloke Ganguly

S.C. Case Nos. 538/O/1994 and 539/O/1994 are heard together because common questions of fact and law are involved.

SMT. Reina Banerjee is the complainant in Case No. 538/O/1994. She has brought this action against the opposite party who were three in number with the following allegations. Opposite party No. 2 is the owner of the land whereas opposite party No. 1 is the promoter. Both of them have entered into an agreement for the development of the land by construction of a multi-storeyed building on 28.8.1992. It was stipulated in the agreement that the building would be raised as per plan santioned by the Municipal Corporation and self contained flats will be sold to intending purchasers. In pursuance of the said agreement opposite party No. 2 executed a Power of Attorney in favour of opposite party No. 1. Opposite party No. 1 thereupon started construction of the multi-storeyed building and invited offers from prospective buyers. The petitioners approached opposite party No. 1 through her husband for purchase of a suitable flat on the 2nd floor of the said premises comprising an area of 1,310 sq. ft. of super built area in the said building. The price of the said flat was fixed at Rs. 6,50,000/-. Thereupon, the petitioner made payment of Rs. 1,00,000/- as earnest money towards part payment of the said consideration. Opposite party No. 1 agreed to deliver possession of the said flat by May, 1993. Opposite party No. 1 upon proceeding with the construction insisted on further payment of consideration money and the petitioner paid a total sum of Rs. 6,20,000/- by various instalments on taking loan from the Housing Development Finance Corporation. The opposite party No. 1 failed and neglected to complete the building and to deliver possession of the same to the petitioner though he promised to deliver possession thereof by the second week of January, 1994. Subsequently, in the latter part of October, 1994 the petitioner for the first time came to learn that opposite party No. 1 has entered into an agreement with opposite party No. 3 for absolute sale of entire multi-storeyed building suppressing the pre-existing agreement for sale of the flat in her favour. She also came to learn that opposite party No. 1 had entered into similar agreement for sale in respect of self-contained flat to one Sri Gautam Bose. Consequently the petitioner and the said Sri Gautam Bose lodged a complaint with the police.

Subsequently, a meeting was arranged at the office of opposite party No. 3 on 9.11.1994 where opposite party No. 1 made a declaration on proper stamp paper in presence of her husband and the said Sri Goutam Bose and several responsible officers of opposite party No. 3 stipulating therein that he would pay Rs. 12,00,000/- to the petitioner, viz. Reina Banerjee and Rs. 8,84,000/- to Sri Goutam Bose and in consequence thereof they would forego their claim for the flats on 23.11.1994. The petitioner''s husband and the said Sri Goutam Bose went to the office of opposite party No. 3 to receive the payment in fulfilment of the promise made earlier, but opposite party No. 1 did not turn up nor did he make payment as promised. The petitioner submits that she had suffered irreparable loss because of this conduct on the part of the opposite parties which clearly amounts to deficiency in service. Accordingly she had approached this Commission praying for a direction upon the opposite party No. 1 to execute and register a proper deed of conveyance in her favour and for compensation for harassment. Sri Goutam Bose has likewise filed a complaint petition before this Commission praying for identical reliefs.

OPPOSITE party No. 1 contested the case by filing a written objection wherein it has been alleged that the complainants having failed to pay the entire sum so agreed as per time schedule mentioned in their respective agreements he had entered into a contract with opposite party No. 3 for sale of the entire multi-storeyed building. He had instituted Title Suit bearing No. 438/94 in the 1st Court of Munsiff at Alipore and the said learned Court has granted permission to him to clear the dues of the complainant in easy monthly instalments. Accordingly, he prayed for dismissal of the complaint petitions. Opposite party No. 3 has also filed a written objection wherein they claimed that they were unaware of the prior agreement said to have been entered into between the petitioners and opposite party No. 1. In view of the requirements of premises for residence of their staff they invited tenders and opposite party No. 1 submitted tenders in this respect which was accepted by the Purchase Committee and accordingly opposite party No. 3 entered into an agreement for purchase of the entire premises, for a consideration of Rs. 39,00,000/-. Out of consideration money for sale of the entire building Rs. 29,00,000/- was paid to opposite party No. 1 as advance.

THE case was decided by this Commission on 29.9.1995. Whereby certain directions were passed. As against this order opposite party No. 3 moved the National Commission in appeal. THE Hon''ble National Commission set aside the order of this Commission and remanded back the matter with direction to consider the case afresh on the basis of the complaint alleged before us and confine the dispute as between Reina Banerjee and Goutam Bose against the Aloke Ganguly, the promoter. It has been observed that the State Commission will be at liberty to pass whatsoever order it thinks fit in accordance with law. That is how the matter has fallen for consideration before this Commission. In this connection, some undisputed facts may be noticed. Mr. Aloke Ganguly has instituted Title Suit bearing No. 438/94 before the 1st Munsiff Court at Alipore, against Gautam Bose and Reina Banerjee and another which is still pending. In the said suit Mr. Aloke Ganguly prayed for permission of the Court to deposit some amount towards refund of the money due to the defendants. It appears that by order dated 15.3.1995 the Court observed upon hearing Mr. Ganguly that he may make the deposit of the amount at his own risk. National Agricultural Co-operation Marketing Federation of India Limited (opposite party No. 3) for short NAFED instituted Title Suit bearing No. 174/98 against Mr. Aloke Ganguly (Promoter), Priyabrata Mukherjee (land owner), Goutam Bose and Smt. Reina Banerjee before the 5th Court of Assistant District Judge at Alipore, South 24 Parganas for specific performance of contract. The said suit also awaits decision.

THE complainants, viz. Reina Banerjee and Goutam Bose lodged a complaint with the police against Mr. Aloke Ganguly (opposite party No. 1) and on the basis of their complaints a criminal case was started and upon investigation charge-sheet has been submitted. THE said case is also pending before the competent Criminal Court.

THE learned Counsel appearing for Mr. Aloke Ganguly (opposite party No. 1) submits that in view of pendency of the Title Suit hearing No. 438/94 and Title Suit No. 174/98 brought by National Agricultural Co-operative Marketing Federation of India Ltd. (NAFED), praying for specific performance of the agreement, the present cases cannot proceed. According to the learned Counsel appearing for the complainants both the aforesaid suits were instituted long after the present proceedings were started. According to him the subject-matter of the said suits is totally different from that of the present litigation. Title Suit No. 438/1994 was a suit for injunction whereas Title Suit No. 174/1998 was a suit for specific performance brought by National Agricultural Co-operative Marketing Federation of India Ltd., for short (NAFED). As per the order of the Hon''ble National Commission, the said Federation is not a party to this proceeding but the present dispute is confined to Smt. Reina Banerjee and Goutam Bose on one side and Mr. Aloke Ganguly on the other side. Learned Counsel for the complainants submits that Title Suit No. 438/1994 was instituted by Mr. Aloke Ganguly to circumvent the present proceeding. According to him this Commission is quite competent to adjudicate the present dispute. In this connection, he has referred to a case reported in II (1995) CPJ Page-97 (NC), wherein National Commission held that a consumer should not suffer merely because a civil suit has been filed by the opposite party. He has also referred to a case reported in III (1999) CPJ Page-39. According to the Hon''ble Supreme Court filing of a suit by the respondent during the pendency of the proceeding before the Consumer Forum for a different type of relief could not oust the jurisdiction of Consumer Forum. We have noticed earlier that this is a proceeding instituted by Reina Banerjee and Goutam Bose alleging deficiency in service on the part of Mr. Aloke Ganguly (opposite party No. 1) in this proceeding praying for a direction upon the latter to execute and register proper Deed of Conveyance in respect of the flat in question and for compensation. But the suit brought by Aloke Ganguly (opposite party No. 1) is a suit for injunction with consequential reliefs. Similarly, NAFED has filed Title Suit No. 174/98 against Mr. Aloke Ganguly impleading the present complainant as well as the other defendants. This is a suit of specific performance of contract. THE NAFED is no longer a party to this proceeding. THErefore, in view of the decisions of the Hon''ble National Commission and Hon''ble Supreme Court we have no hesitation to conclude that pendency of civil suits does not oust the jurisdiction of this Forum to proceed with these cases. It is not disputed that upon receiving complaints from the present complainants, the police registered a case and upon completion of investigation submitted charge-sheet against Mr. Aloke Ganguly (opposite party No. 1). The said case is still pending. It is contended by the learned Counsel for Aloke Ganguly that this Commission in view of the circumstances has no jurisdiction to adjudicate the dispute. We are not inclined to agree with this contention. In the present complaint the complainants have alleged the deficiency in service on the part of Aloke Ganguly whereas Reina Banerjee and Goutam Bose lodged a complaint with the police alleging fraudulent conduct on the part of Mr. Aloke Ganguly. Therefore, the scope of enquiry in this complaint is quite different from that of enquiry in the criminal case. We, therefore, do not see any substance in the contention. Accordingly, we hold that pendency of civil suits and criminal proceeding could not oust the jurisdiction of the Commission and this Commission is quite competent to adjudicate the dispute between the parties.

Another important fact may be noticed here. There was a talk of amicable settlement at the joint conference convened at the office of the NAFED wherein the present complainants agreed to forego their right under the present agreement upon receipt of Rs. 12,00,000/- and Rs. 8,84,000/- respectively. The NAFED is no longer a party to the proceeding and it is not disputed that Aloke Ganguly received the sum of Rs. 6,20,000/- from Smt. Reina Banerjee and Rs. 6,80,000/- from Goutam Bose in pursuance of agreement. It is also clear that by suppressing agreement with the complainants, Aloke Ganguly (opposite party No. 1) entered into agreement for sale of the entire multi-storeyed building to NAFED. The NAFED has instituted a suit for specific performance of contract before a Civil Court at Alipore. In the event the said suit is ultimately decreed, the present complainants will not be able to get delivery of possession of the flats for which they have advanced money. So we deem it appropriate, in view of the subsequent development to direct opposite party No. 1 to pay Rs. 6,60,000/- to Smt. Reina Banerjee and Rs. 6,68,000/- to Goutam Bose together with interest @ 18% per annum from the date of receipt of the amount till final payment. In fact, Aloke Ganguly (opposite party No. 1) has approached the Civil Court praying for permission to deposit the amount due to the present complainants and the Civil Court permitted him to deposit the amount at his own risk. It is not clear whether any deposit has been made with the Civil Court in pursuance of the order. Anyway, we think that it would be just and proper to direct Mr. Aloke Ganguly (opposite party No. 1) to pay Rs. 6,20,000/- to Reina Banerjee and Rs. 6,80,000/- to Goutam Bose within three months from the date of this order together with interest @ 18% per annum from the date of receipt of the amount till the full payment which we hereby do.

WE direct the opposite party No. 1 to pay compensation of Rs. 1,00,000/- to each of the said complainants herein within a period of 3 months from this date. With this observation the cases are disposed of. This judgment will govern both the cases. Cases disposed of.