Bharati Bhattacharjee vs Quazi Md. Maksuduzzaman

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

Consumer Disputes Redressal Commission, New Delhi1 has reversed the

order passed by the State Consumer Disputes Redressal Commission,

Kolkata2; and has restored the order passed by the District

Consumer Disputes Redressal Forum, South 24-Parganas District

Court, Alipore3 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’.

1 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

2 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

3 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

4 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

5 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

6 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

7 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

8 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

9 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.

10 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. 11

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

12 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

13 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

14 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.

15