RICKY CHANDRA vs SUDEEP GHOSH S/O. SRI ASHUROSH GHOSH

The complainant/respondent allegedly entered into an agreement with the petitioner for purchase of a residential flat, admeasuring 1210 square ft. of super built area, to be situated on the third floor, southern side of the building to be constructed by the appellant at 15A, Chetla Road, Kolkata, with one covered car parking. A sum of 2,40,000/- was paid by the complainant/respondent to the appellant on 22.07.2009 followed by payment of identical amount on 12.08.2009 for which two receipts were executed by the appellant. This is also the case of the complainant/respondent that the following was the payment schedule agreed between the parties:-

PAYMENT SCHEDULE

10% Booking amount (on cheque amount i.e. 24 lacs Rs.2,40,000

10% Balance Booking amount (on or before 10-8-2009) Rs.2,40,000

Cash to be paid before agreement for sale (within 30.11.20109) Rs.16,25,000

10% Foundation work Rs.2,40,000

15% 1 st floor casting Rs.3,60,000

15% 2 nd floor casting Rs.3,60,000

15% 3 rd floor casting Rs.3,60,000

15% 4 th floor casting Rs.3,60,000

10% Completion/possession/registration Rs.2,40,000

100% TOTAL PAYMENT Rs40,25,000

The grievance of the complainant/respondent is that the possession of the flat was not delivered to him by the appellant for more than four years, despite he having repeatedly approached him for the purpose. The complainant/respondent allegedly sent a legal notice dated 20.02.2013 to the appellant, followed by a reminder notice dated 14.11.2013, both through advocate. There was no response to the said legal notices. The complainant/respondent, therefore, approached the concerned State Commission by way of consumer complaint, seeking possession of the flat, subject matter of his agreement with the appellant.

The complaint was resisted by the appellant who took a preliminary objection that the complaint was bad for mis-joinder or non-joinder of necessary parties. On merits the appellant accepted the receipt of the payment, pleaded by the complainant, but denied terms of the agreement as pleaded by the complainant.

The State Commission vide its order dated 20.12.2013 directed as under:-

"That the complaint is allowed on contest against OP with cost of Rs.10,000/-.

The OP is directed to execute and register Deed of Conveyance and hand over possession of property as mentioned in schedule of the petition of complain within two months from the date of the order on payment of balance consideration amount as per terms of the Agreement. The OP is also directed to make payment of compensation of Rs.1,00,000/- in favour of the Complainant.

The amount of compensation and litigation costs aggregating Rs.1,10,000/- must be paid within one month from date otherwise the amount shall carry an interest @ 9% p.a. from this date till its full realization."

Being aggrieved from the order passed by the State Commission, builder/opposite party is before this Commission by way of this appeal.

The first and foremost contention of the learned counsel for the appellant is that there was no concluded contract between the parties since neither sale consideration was finalized nor was the time period for delivery of possession of the flat and in the absence of the aforesaid terms, it cannot be said that the parties had entered into a valid agreement for sale for an immovable property by the appellant to the complainant. He also contended that the alleged oral agreement has not been duly proved by the complainant. In support of his contention, learned counsel relied on the decision of Hon''ble Supreme court in Prem Mohan & Ors. Smt. Vasundhara Devi & Ors., JT 1990 (3) SC 252

It is admitted position that the receipts dated 22.07.2009 and 12.08.2009 were executed by the appellant. The area of the flat as well as building in which it was to be constructed has been specified in the receipts. The number of flat as well as its location have also been noted in the said receipts, which are admitted documents. It is also specified in the receipts that the flat would be a three bedroom flat and will also have a covered car parking. The complainant/respondent, placed before the State Commission, Annexure B which purports to have been written by the same person who has written the admitted receipts Annexure D and Annexure C, therefore, I see no good reason not to consider Annexure B for the purpose of deciding the issue involved in the complaint. As per Annexure B, the total consideration for the flat was to be 40,25,000/- out of which 24 lacs were to be paid by cheque and 16,25,000/- were to be paid in cash. The payment schedule required the complainant/respondent to pay two installments of 10% of the cheque amount i.e. 24 lacs each, which admittedly stand paid to the appellant. Admittedly, rest of the installments as per Annexure B have not been paid. However, there is no evidence of the appellant having demanded the remaining installments from the complainant/respondent at any point of time. The remaining installments were linked with construction and therefore, it was necessary for the appellant to demand the same from the complainant on the construction reaching the specified milestone. Since no demand had been raised, the complainant/respondent had no occasion to pay the same to the appellant. As far as time for completion of the construction and delivery of possession is concerned, even if I assume that no specific time period was fixed, the appellant was required to complete the same and deliver possession within a reasonable time. Since the complaint was filed in December 2013, more than four years had already expired by that time, which was more than a reasonable period.

It is true that when a person alleges of an oral agreement, he must necessarily prove, by way of cogent evidence, all the necessary terms required for entering into an agreement for purchase of an immovable property. However, in the present case, not only that the agreement was not only oral, the same having been evidenced by two admitted receipts and writing Annexure B, the essential terms of the contract have been duly proved by the complainant before the State Commission. Therefore, there is no merit in the plea that there was no concluded contract between the parties for sale of residential flat by the appellant to the complainant/respondent.

It is next contended by the learned counsel for the appellant that since the appellant was only a builder it was necessary for the complainant to implead owner of the property as a party to the complaint and no valid conveyance deed in favour of the complainant can be executed by the appellant. A perusal of the written version filed by the appellant before the State Commission will show that he did not specifically plead that the complaint was bad for non-joinder of owner of the building in which the flat was to be constructed. No name of the alleged owner was disclosed in the written version filed by the appellant. The appellant even did not allege, before the State Commission that he will not be in a position to execute conveyance deed in favour of the complainant and it would be necessary to implead the owner of the building in order to enable the complainant to obtain a valid conveyance deed in his favour. In the absence of such a plea, the appellant cannot be allowed to claim at this stage that the complaint was bad for non-joinder of the owner of the building. The appellant did not file the copy of his agreement with the owner of the building before the State Commission. In the absence of terms of alleged agreement between the appellant and the owner, it cannot be known whether appellant is competent to execute the conveyance deed of the flat in favour of the complainant or not. In my opinion, considering the agreement he has entered into with the complainant, the appellant must necessarily execute a conveyance deed after giving possession of the flat to the complainant in terms of the order of the State Commission. He must convey to the respondent, whatever rights he possesses in the flat subject matter of his agreement with the respondent. If there is any objection from the owner of the building in this regard, it is for him to come forward and file such an objection before the State Commission during the execution proceedings and thereafter, it will be for the State Commission to pass appropriate order on such objection if filed by the owner of the building.

Mr. Ghosh states that owner of the property has since expired. If this is so, obviously his legal heirs under the law of succession applicable to him, would have now become the owner of the property subject ofcourse to right if any conferred upon the appellant under the agreement with him.

For the reasons stated above, I find no merit in the appeal and same is accordingly dismissed with no order as to costs.