Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2382-2383 OF 2022
(Arising out of SLP (C) Nos. 20768-20769 of 2019)
BHARATI BHATTACHARJEE .....APPELLANT(S)
VERSUS
QUAZI MD. MAKSUDUZZAMAN & ORS. .....RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 2384-2385 OF 2022
(Arising out of SLP(C) Nos. 23401-23402 of 2019)
JUDGMENT
Dinesh Maheshwari, J.
Leave granted.
2. By way of these appeals, the appellant has essentially
questioned the common judgment and order dated 23.08.2018 in
Revision Petition Nos. 1468-1469 of 2015 whereby the National
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Consumer Disputes Redressal Commission, New Delhi has reversed the
order passed by the State Consumer Disputes Redressal Commission,
2
Kolkata ; and has restored the order passed by the District
Consumer Disputes Redressal Forum, South 24-Parganas District
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Court, Alipore granting relief to the complainants (respondents
herein) on their grievances against the appellant for execution of
the Deed of Conveyance in terms of the agreement for sale. The
appellant has also challenged the common order dated 27.09.2018,
whereby the National Commission has rejected the review
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2022.04.04
19:31:06 IST
Reason:
1 Hereinafter referred to as ‘the National Commission’
2 Hereinafter referred to as ‘the State Commission’
3 Hereinafter referred to as ‘the District Forum’.
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applications bearing Nos. 338 and 344 of 2018.
3. Shorn of unnecessary details, the relevant background
aspects of the matter are as follows: -
3.1. The contesting respondents herein had preferred respective
complaint cases before the District Forum with the grievance that
the present appellant and the respondent No. 3, in spite of having
received substantial sum of money against total consideration in
terms of respective agreements for sale, had not executed and
registered the Deed of Conveyance in relation to the property in
question.
3.2. In Complaint Case No. 111 of 2013, the complainants
[contesting respondents of SLP(C) Nos. 20768-69 of 2019] asserted
that the total sale consideration had been Rs. 9,00,000/- and they
had paid a sum of Rs. 5,79,000/-. In Complaint Case No. 112 of
2013, the complainants [contesting respondents of SLP(C) Nos.
23401-02 of 2019] asserted that the total sale consideration had
been Rs. 7,00,000/- and they had made payment of a sum of Rs.
4,92,000/-. In Complaint Case No. 111 of 2013, the present
appellant attempted to suggest before the District Forum that
there had been two separate agreements for sale, one for the
consideration of Rs. 7,00,000/- and another for the consideration
of Rs. 9,00,000/-; and the flat was agreed to be sold for a total
consideration of Rs. 16,00,000/-. In relation to Complaint Case
No. 112 of 2013, the appellant alleged that there had been two
agreements of Rs. 7,00,000/- each, leading to total sale
consideration of Rs.14,00,000/-.
4. The District Forum rejected the aforesaid suggestions of
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the appellant about existence of two agreements in each case; and
while finding that there was no misrepresentation by the
complainants, directed the appellant to execute and register the
Deed of Conveyance after receiving payment of the balance
consideration. Of course, the District Forum did not discuss the
matter in necessary details but, in substance, found it justified
to issue the directions in terms of the case of the complainants.
5. In appeal, however, the State Commission agreed with the
submissions of the present appellant with reference to the fact
that the complainant of Complaint Case No. 111 of 2013 had shown
the sale consideration as Rs.7,00,000/- in the Government
Department as also in the Bank while seeking loan. In relation to
Complaint Case No. 112 of 2013, the State Commission observed that
there were two agreements of even date without any explanation and
it indicated a foul play. On these considerations, the State
Commission dismissed both the complaint cases.
6. The National Commission, on the other hand, meticulously
examined the material on record and disagreed with the
observations of the State Commission.
6.1. The National Commission took note of the stand of the
parties and found that in Complaint Case No. 111 of 2013, the
present appellant had not been able to produce the alleged second
agreement. The National Commission further observed that though in
Complaint Case No. 112 of 2013, two agreements for Rs. 7,00,000/-
each were filed but, both the agreements were of the same date and
the first one carried many corrections with ink whereas in the
second agreement, those corrections had been typed out. The
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National Commission, inter alia , observed as under: -
“14. This clearly goes on to show that OP-1 is
considering the mistake in signing the two agreements
whereas the complainant is not accepting the signing
of the two agreements. The complainants are accepting
only one agreement for Rs.9 lakhs in CC No.111/2013
and for Rs.7 lakhs in CC No.112/2013. It is also to
be considered that there are no document available on
the case file to show that the OP-1 demanded further
amount from the complainants nor made any
communication for refund of the amount as mentioned
in the written statement of OP-1. In the first
Complaint Case No.111/2013, respondent/OP-1 has not
been able to produce the second agreement which could
have been a direct evidence to support the claim of
the respondent. Though in the second case i.e., CC
No. 112/2013 two agreements have been filed for Rs.7
lakhs each, both the agreements have same date,
however, with different numbers of Rs.10/- stamp
papers. The First Agreement has many corrections
which have been done with the ink, however in the
second agreement those corrections have been typed
out. Therefore, this possibility cannot be ruled out
that the second agreement was typed out because there
were many corrections in the first agreement. Then
obviously the second stamp paper of Rs.10/- was
used.”
6.2. Further, with reference to Section 54 of the Transfer of
Property Act, 1882 and the material placed on record, the National
Commission observed that there could not have been two agreements
for sale between the same parties relating to the same property
and hence, while accepting the case of the complainants and
disapproving the approach of the State Commission, held as
follows: -
“16. From the above definition, it is clear that
sale is to take place as per the terms and conditions
given in the agreement. As the Contract of Sale dated
21.06.2010 for Rs.9 lakhs in CC
No. 111/2013 is already on record, then as per this
definition of contract of sale, it should have been
mentioned in this contract that there would be some
other agreement for Rs.7 lakhs. However, there is
nothing mentioned in this contract, therefore it is
difficult to believe that there would be any other
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agreement for sale of the same property. In fact, the
implication of this section is that there would be
only one Contract of sale for one property between
the same parties. Similarly, same argument applies in
the second complaint case i.e. CC No.112/2013 as
well.
17. From the above discussion it is brought out that
legally there cannot be two agreements to sell
between the same parties. As complainants are
accepting only one agreement which is also duly
signed by the OP and is in respect of the total
property i.e. for the full flat, the assertion of the
opposite party that there were two agreements of sale
in both these complaints is not sustainable. However,
when the direct evidence can be made available, the
circumstantial evidence cannot be relied upon in
derogation to the direct evidence. This is true at
least in CC No.111/2013 where the agreement is
available for Rs.9 lakhs. However, in respect of
other Complaint No.112/2013 the two sale agreements
are available for Rs.7 lakhs each, but as they are
identical with same date, it cannot be believed that
they are two agreements only on the basis of two
different number of the stamp papers of Rs.10/-. The
possibility is that the second one is the fair typed
copy of the first one which may had correction with
ink.
18. The State Commission has mainly relied upon the
order of the State Government of West Bengal giving
possession to the complainants to apply and obtain
loan from the bank and the sanction letter of bank
loan where the costs of the flats have been shown to
be only Rs.7 lakhs. These are only circumstantial and
incidental evidence which cannot take precedence over
the direct evidence and the legal position.”
6.3 The National Commission, therefore, set aside the order of
the State Commission and restored the order of the District Forum
with modifications that the appellant was held entitled to receive
the amount of sale consideration from the complainants, as per the
order of the District Forum, with interest at the rate of 10% per
annum from the date of filing of the complaint till actual
payment. The National Commission directed as under: -
“19. Based on the above explanation, I find that the
order of the State Commission dated 27.3.2015 is not
based on the correct application of facts and law and
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therefore it cannot be sustained. Accordingly, the
Revision Petition Nos. 1468/2015 and 1469 of 2015 are
allowed and the order of the State Commission dated
27.3.2015 in F.A. Nos. 135/2014 and 136/2014 are set
aside. The order of the District Forum dated
24.12.2013 in CC Nos111/2013 and 112/2013 is upheld
with modification that OPs will be entitled to
receive the remaining amounts from the complainants
as per the order of the District Forum with interest
@ 10% p.a. from the date of filing of the complaint
till actual payment.”
7. The appellant sought review of the order so passed by the
National Commission but the review applications were rejected by
the order dated 27.09.2018 for being devoid of substance and the
order impugned not disclosing any error apparent on the face of
the record.
8. Seeking to question the orders aforesaid, in relation to
Complaint Case No. 111 of 2013, the learned senior counsel for the
appellant has referred to Section 24A of the Consumer Protection
Act, 1986 (‘the Act of 1986’) and has submitted that the complaint
could have been filed only within two years from the date of
accrual of cause of action. While referring to the terms of
agreement, learned counsel for the appellant would submit that as
per Clause 3 thereof, the Deed of Conveyance was to be registered
within 90 days from the date of execution of the agreement.
According to the learned counsel, the Deed of Conveyance having
not been executed within 90 days of the date of agreement i.e.,
within 90 days from 21.06.2010, the complaint could have been
filed within two years commencing from the end of those 90 days
i.e., from 21.11.2010; and hence, the complaint filed on
21.03.2013 was clearly barred by limitation.
8.1. The learned counsel would submit with reference to the
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decision of this Court in the case of State Bank of India v. B.S.
Agriculture Industries (I) : ( 2009) 5 SCC 121 that the question of
limitation goes to the root of the matter and deserves
consideration even if not raised before the three fora. Learned
counsel would further submit that the relief as prayed in the
complaint was essentially of the nature of specific performance of
an agreement for sale; and for seeking such a relief, the personal
bars in terms of Section 16 of the Specific Relief Act, 1963 would
apply and thereby, it was incumbent for the complainant to aver
and prove that he was always ready and willing to perform his part
of the contract. This having not been done, the National
Commission has been in error in granting relief to the
complainant. In the third limb of submissions, learned senior
counsel has referred to the questionnaire served on the
complainants and has particularly referred to question No. 4
therein, whereby the complainant No. 1 was asked if he would be
ready to call for the records from his office as well as from the
concerned Bank and the answer thereto was in the affirmative.
Learned counsel would submit that such a record, having material
bearing on the case, having not been called, adverse inference per
Section 114 of the Evidence Act ought to have been drawn. Learned
counsel for the appellant has lastly and in the alternative has
submitted that in any case, interest ought to have been awarded to
the appellant from the date when the amount was due and not only
from the date of complaint and, therefore, that part of the order
impugned deserves to be modified.
8.2. In relation to Complaint Case No. 112 of 2013, apart from
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the above, the learned senior counsel has particularly referred to
the observations and findings of the State Commission on the
question of existence of two agreements and has submitted that it
had been a bona fide defence raised by the appellant and when the
existence of two separate documents disclosing two separate
agreements remains indisputable, bona fide defence of the
appellant ought to have been accepted, as rightly done so by the
State Commission.
9. Per contra , learned counsel for the contesting
respondents(complainants) has duly supported the judgment and
order passed by the National Commission and has submitted that the
suggestions about existence of two agreements in each of these
cases remain entirely baseless and have rightly been rejected by
the National Commission.
9.1. The learned counsel has also referred to the averments by
the complainants about serving of notice on 09.11.2012 for
executing the Deed of Conveyance and has submitted that the cause
of action accrued to the complainants when the deed was not
executed despite notice and, therefore, the complaints in question
could not have been considered barred by limitation. This was the
reason, according to the learned counsel, that such a plea of
limitation was not even raised before the three fora by the
appellant.
9.2. The learned counsel would further submit that there would
arise no question of drawing any adverse inference in this matter
because the complainants-respondents had not withheld any evidence
in their power or possession. Learned counsel would submit that
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answer to a vague question in the interrogatories cannot result in
an adverse inference against the complainant when the proposition
of existence of two agreements itself remains baseless and has
been rejected by the District Forum as also by the National
Commission.
10. Having given thoughtful consideration to the rival
submissions and having examined the material placed on record with
reference to the law applicable, we are satisfied that these
appeals remain totally bereft of substance and deserve to be
dismissed; and the appellant, for having dragged the matters with
pretentious propositions, deserves to be saddled with costs.
11. The suggestion on behalf of the appellant about existence
of two agreements is required to be rejected in relation to
Complaint Case No. 111 of 2013 altogether for want of any such
second agreement on record. The sale price shown by the
complainant in the Bank for the purpose of loan or in the
Government department does not lead to any inference about
existence of any other agreement.
11.1. Moreover, when we look at the agreement between the parties
disclosing total sale consideration of Rs. 9,00,000/-, the
material terms are found in the following form and expression: -
“3. That the consideration price shall be payable by
the Purchasers to the Vendor as consideration of the
said complete flat be Rs.9,00,000/- (Rupees Nine
lacs) only and the mode of such payment is to be as
follows:-
a) At the time of booking/agreement Rs.50,000/-
(Rupees Fifty thousand) only.
b) At the time of Rs.6,50,000/- (Rupees Six Lakh
fifty thousand) only will be payable by the
Purchasers to the Vendor at the time of Registration
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i.e. within 90 (Ninety) days from the date of
execution of this agreement.
c) Rs.2,00,000/- (Rupees two lacs) only will be
payable within 60 months ( sic ) from the date of
registration of the conveyance.”
11.2. Obviously, the third component of the sale consideration of
Rs. 2,00,000/- was payable only after registration of the Deed of
Conveyance. Hence, while applying for loan, the complainant could
have only stated the consideration payable for registration of the
sale consideration until then. In any case, the difference in sale
consideration, as stated before the Bank vis-à-vis that stated in
agreement does not lead to even a remote inference that there were
two separate agreements.
12. As regards Complaint Case No. 112 of 2013, though there are
shown to be existing two documents of the same date but, they do
not appear to be separate agreements for different properties or
for different parts of the same property or for segregating the
total amount of sale consideration. They could only be read as one
being a copy or draft of the other. In any case, it would be
rather preposterous to assume that because of the alleged two
documents of the same date, the sale consideration would be
arrived at by adding up the consideration amount stated therein.
The State Commission seems to have approached the entire case from
an altogether wrong angle and has acted illegally in accepting the
baseless propositions of the appellant. Thus, we are satisfied
that the National Commission has rightly disapproved the orders so
passed by the State Commission. 13. The other submissions as
made for the first time before this Court also do not make out any
case for interference.
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13.1. There is no, and there cannot be any, quarrel with the
proposition stated in the case of State Bank of India (supra) that
if the complaint is barred by time and yet the Consumer Forum
decides the same on merits, it would be a case of illegality on
the part of the Forum. However, the question is as to whether the
bar of limitation was at all operating in relation to the present
complainants? In our view, the answer is in the negative.
13.2. So far the question of limitation is concerned, Section 24A
of the Act of 1986 reads as under: -
“24A. Limitation period.-(1) The District Forum, the
State Commission or the National Commission shall not
admit a complaint unless it is filed within two years
from the date on which the cause of action has
arisen.
(2) Notwithstanding anything contained in sub-section
(1), a complaint may be entertained after the period
specified in sub-section (1), if the complainant
satisfies the District Forum, the State Commission or
the National Commission, as the case may be, that he
had sufficient cause for not filing the complaint
within such period:
Provided that no such complaint shall be entertained
unless the National Commission, the State Commission
or the District Forum, as the case may be, records
its reasons for condoning such delay.”
13.3. This Court, in the case of V.N. Shrikhande v. Anita Sena
Fernandes :(2011) 1 SCC 53 has pointed out that the term ‘cause of
action’ has not been defined in the Act of 1986 and the same has
to be interpreted keeping in view the context in which it has been
used in Section 24A(1) and the object of the legislation. In that
case, relating to the question of medical negligence, this Court
held that no strait-jacket formula could be applied for
determining as to when the cause of action had accrued to the
consumer and each case has to be decided on its own facts.
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Applying the principles with necessary modulations in relation to
the subject-matter before us, in the case of the dispute relating
to the agreement for sale, where the appellant is standing in the
capacity of a seller qua the complainants who stand in the
capacity of consumer, the term “consumer dispute” shall have to be
understood in terms of the definition provided by Section 2(e) of
Act of 1986 that reads as under: -
“2(e)“consumer dispute” means a dispute where the
person against whom a complaint has been made, denies
or disputes the allegations contained in the
complaint;”
13.4. In the case at hand, relating to Complaint Case No. 111 of
2013, the relevant facts had been pleaded by the complainant in
the following terms: -
“11. That thereafter the Complainant made several
representations to the Opposite Party and asked her
to perform her duties and obligations as stipulated
in the said Agreement however the Opposite Parties
always gave assurance that the flat will be completed
by shortly but neither the same was completed nor the
Deed of Conveyance in respect of the said flat was
executed in his favour and the Complainant had also
sent a Registered Letter with A/D dated 9th November,
2012 requesting the Opposite Party to execute the
Deed of Conveyance in respect of the flat in their
favour.”
13.5. In the matters relating to the sale of immovable property
where the appellant had received a substantial part of sale
consideration and had failed to perform her duties and
obligations, even for the relief of specific performance, the
period of limitation would have begun, if the complainants were to
file a suit for specific performance of contract, only from the
period of expiry of notice dated 09.11.2012, when they would have
had the notice that the performance was being refused. In any
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case, so far the consumer dispute is concerned, when the appellant
failed to execute the Deed of Conveyance despite receiving notice
from the complainant, it could safely be taken that the cause of
action accrued for the purpose of the complaint only after the
expiry of period of notice dated 09.11.2012. Thus, the complaints
as filed on 21.03.2013 had been well within limitation.
14. As regards other submissions about the proof of readiness
and willingness for performing the part of contract by the
complainants, the averments taken by the parties and totality of
the facts and circumstances of the case leave nothing to doubt
that nothing substantial was to be performed on the part of the
complainants. Rather, the essential part of performance was only
the burden of the appellant which the appellant failed to
discharge. Noteworthy it is that as against the agreements in
question, the appellant had received major part of the sale
consideration inasmuch as in Complaint Case No. 111 of 2013, the
appellant had received a sum of Rs. 5,79,000/- as against the sale
consideration of Rs. 9,00,000/-; whereas in Complaint Case No. 112
of 2013, the appellant had received a sum of Rs. 4,92,000/-
against the sale consideration of Rs. 7,00,000/-. The payments
made to the appellant included substantial amount of loan taken by
the respective complainants. It has been pointed out that after
obtaining such loan, the complainants had been regularly making
payment of EMIs to the lender institutions. There does not appear
any personal bar operating against the complainants even in terms
of the Specific Relief Act, 1963.
15. The submission as regards drawing adverse inference remains
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totally baseless because it has not been shown if the complainants
withheld any material evidence that was in their power or
possession. The vague question put in the questionnaire to the
effect as to whether the complainant would call for the record
from his office and Bank and its answer in the affirmative, do not
lead to any adverse inference because, the record in question is
not shown to be in power or possession of the complainant. Rather,
we have reservations, if such a question was at all permissible by
way of a questionnaire on the principles of Order XI of the Code
of Civil Procedure, 1908. Be that as it may, no case of drawing
any adverse inference is made out.
16. The other submission in the alternative for allowing
interest starting from 90 days from the date of agreement is also
of no substance. Contrary to this suggestion, when we notice that
the appellant had received a substantial part of sale
consideration in both the cases and had yet not executed the
requisite deed and had not carried out performance of other parts
of the contract due on her part, even the interest as allowed by
the National Commission appears to be excessive. Having said so,
we would leave the matter at that because the complainants have
not questioned that part of the order of the National Commission
allowing interest to the appellant at the rate of 10% per annum
from the date of filing of complaint.
17. Therefore, these appeals are required to be dismissed.
However, we have taken note of the fact that these appeals were
entertained on 26.08.2019 and 23.09.2019 with interim relief in
favour of the appellant. This has only delayed the execution of
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the Deed of Conveyance in favour of the respondents. For this
unnecessary litigation and delay, the appellant deserves to be
saddled with costs.
18. Therefore, these appeals are dismissed with costs
quantified at Rs. 50,000/- (Rupees Fifty Thousand) each.
19. All pending applications also stand disposed of.
....................J.
(DINESH MAHESHWARI) 1
....................J.
(ANIRUDDHA BOSE) 1
New Delhi;
March 23, 2022.
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