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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
PREM NARAIN, J.
Md. Ainul Kazi and Others – Petitioners
Versus
Bharati Bhattacharjee – Respondent
Revision Petition No. 1469 of 2015, Appeal No. 136 of 2014
Decided On : 23-08-2018
Advocate Appeared:
For the Petitioners: Mr. Nadeem Sulaiman, Mr. P.K. Guha, Ms. Sunita Guha.
For the Respondents: Mr. Sambhu Sikdar, Mr. Mahaling Pandarge, Mr. Hirak Chakraborti.
Headnote:
Agreement - Property Dispute - Indian Contract Act, 1872, Section 20; Transfer of Property Act, 1882, Section 54 - The court discussed the legal provisions of the Indian Contract Act and the Transfer of Property Act. It emphasized that legally there cannot be two agreements to sell between the same parties and that the circumstantial evidence cannot take precedence over direct evidence and the legal position. The court found that the State Commission's order was not based on the correct application of facts and law and set it aside, upholding the District Forum's order with modification.
Fact of the Case:
The complainants filed consumer complaints alleging non-possession of flats despite paying the consideration. The District Forum ruled in favor of the complainants, but the State Commission allowed the appeals filed by the respondents, leading to the revision petitions.
Finding of the Court:
The court found that legally there cannot be two agreements to sell between the same parties and that the circumstantial evidence cannot take precedence over direct evidence and the legal position. It set aside the State Commission's order and upheld the District Forum's order with modification.
Issues: The main issue was whether the complainants had executed two separate agreements for the purchase of the same property, and if so, whether such agreements were valid and enforceable.
Ratio Decidendi: The court held that legally there cannot be two agreements to sell between the same parties and that the circumstantial evidence cannot take precedence over direct evidence and the legal position.
Final Decision: The Revision Petition Nos. 1468/2015 and 1469 of 2015 were allowed, and the order of the State Commission dated 27.3.2015 in F.A. Nos. 135/2014 and 136/2014 was set aside. The order of the District Forum dated 24.12.2013 in CC Nos. 111/2013 and 112/2013 was upheld with modification.
ORDER :
1. These revision petitions have been filed by the petitioners, Quazi Mohd. Maksuduzzaman and Others and Mohd. Ainul Kazi and Others, against the order dated 27.3.2015 passed by the State Consumer Disputes Redressal Commission, West Bengal, Kolkata (for short, ‘State Commission’) in FA Nos. 135/2014 and 136/2014 respectively.
2. Brief facts of these cases are that appellants in both these revision petitions had filed Consumer Complaint Nos. 111/2013 and 112/2013 before the District Forum. In the CC No. l 11/2013 it was alleged that the consideration of the flat was Rs. 9 lakh. However, the possession was not given by the OP. Similarly, in CC No. 112/2013 the complainant had alleged that the total consideration of the flat was Rs. 7 lakh, however, the possession was not given by the OP.
3. Both the complaints were resisted by the OPs on the ground that each complainant had executed two builder buyer agreements with the OP. In the CC No. 111/2013 it was alleged by the OP that the total consideration of the flat was Rs. 16 lakh and the complainant had executed two agreements one for Rs. 9 lakh and another for Rs. 7 lakh. Similarly, in CC No. 112/2013, the total consideration of the flat was Rs. 14 lakh and two agreements were executed for Rs. 7 lakh each by the complainant. The District Forum decided both the complaints in favour of the complainants directing the OPs to register the deed of conveyance in respect of the properties in question as per agreement.
4. Aggrieved by the order of the District Forum, OP-1/respondent herein preferred appeals bearing No. FA 135/2014 and FA No. 136/2014 before the State Commission. The State Commission vide order dated 27.3.2015 allowed both the appeals filed by OP-1 and dismissed the complaints vide two separate orders.
5. Hence, the present revision petitions.
6. As the facts in both the revision petitions are similar and same law points are involved, they are being decided together.
7. Heard the learned Counsel for the parties and perused the record.
8. Learned Counsel for the petitioners/complainants stated that there was no question of their executing two agreements of sale as the same is not allowed under any law. For one property, there has to be only one agreement or if the property is sub-divided and for each sub-division there is a separate agreement then only there could be two agreements for the same property. The State Commission has presumed that as the loan application to the Govt. Department was moved only for Rs. 7 lakh and the total consideration has been shown Rs. 9 lakh in the complaint, therefore, the complainant has not come with clean hands as would be clear from the following observation of the State Commission in FA No. 135 of 2014:
“From the facts as discussed above it is evident that the Respondent/ Complainant had shown the total consideration of the flat at Rs. 7,00,000 both in the concerned Government Department and also at the Bank while seeking loan as per the Agreement for Sale whereas in the Petition of Complaint the averment has been made that the total consideration amount of the flat was Rs. 9,00,000 . Creation of the two separate Agreements for purchase of self-same flat by the Complainants without making any disclosure to that effect as to the necessity therefor, goes to show that the Complainants have not come in clean hands. Equity, therefore, will not come in the aid of the contention of the Respondents/Complainants. In this context, reliance is place on a decision of the Hon’ble National Commission in Narendra Kr. Sodhi vs. Narendra Kr. Jadab, 2012 (2) CPR 322 (NC). Under the circumstances, the Complaint is not maintainable.”
9. The State Commission has given similar observation in the other FA No. 136/2014. The learned Counsel further mentioned that no second agreement for Rs. 7 lakh has been filed by OP in CC No. 111/2013. The District Forum has not agreed with the assertion of the OP-1 in the absence of any such document. However, the State Commissi
