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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Ricky Chandra —Appellant
versus
Sudeep Ghosh —Respondent
First Appeal No.150 of 2017
(Against the Order dated 04/11/2016 in Complaint No. 319/2013 of the State Commission West Bengal)
Decided on 3.5.2017
Counsel for the Parties:
For the Appellant:Mr. Sanjoy Kumar Ghosh, Advocate with Ms. Rupali S. Ghosh, Advocate
For the Respondent:Mr. Barun Prasad, Advocate
IMPORTANT POINT
When a person alleges of an oral agreement, he must necessarily prove, by way of cogent evidence, all necessary terms required for entering into agreement for purchase of immovable property.
Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Real estate—Agreement with petitioner for purchase of a residential flat—Denial of possession despite payment—When a person alleges of an oral agreement, he must necessarily prove, by way of cogent evidence, all necessary terms required for entering into agreement for purchase of immovable property—However, in present case, not only that agreement was not only oral, same having been evidenced by two admitted receipts and writing, essential terms of contract have been duly proved by complainant before State Commission—There is no merit in plea that there was no concluded contract between parties for sale of residential flat by appellant to complainant/respondent—No name of alleged owner was disclosed in written version filed by appellant—Appellant even did not allege before State Commission that he will not be in a position to execute conveyance deed in favour of complainant and it would be necessary to implead owner of building in order to enable complainant to obtain a valid conveyance deed in his favour—In absence of such a plea appellant cannot be allowed to claim at this stage that complaint was bad for non-joinder of owner of building—Considering agreement he has entered into with complainant, appellant must necessarily execute a conveyance deed after giving possession of flat to complainant in terms of order of State Commission—Appeal dismissed. (Paras 7 to 11)
Result: Appeal dismissed.
V.K. Jain, Presiding Member—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 Rs.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 30.11.2010) | Rs.16,25,000 |
| 10% | Foundation work | Rs.2,40,000 |
| 15% | 1st floor casting | Rs.3,60,000 |
| 15% | 2nd floor casting | Rs.3,60,000 |
| 15% | 3rd floor casting | Rs.3,60,000 |
| 15% | 4th floor casting | Rs.3,60,000 |
| 10% | Completion/possession/registration | Rs.2,40,000 |
| 100% | Total Payment | Rs.40,25,000 |
2. 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.
3. 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.
4. 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.”
5. Being aggrieved from the order passed by the State Commission, builder/opposite party is before this Commission by way of this appeal.
6. 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. v. Smt. Vasundhara Devi & Ors., JT 1990 (3) SC 252.
7. 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 w
