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Jayanta Dasgupta vs. Binata Debnath dated 2009-04-15
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
FIRST APPEAL NO. 503 OF 2006
(From the order dated 30/1/2006 in Complaint case No. 95 of 1999 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata) Jayanta Dasgupta Flat No.101, “Mainak” Police Station Karaya Kolkata – 700 019 - Appellant versus - 1. Binata Debnath C/o Nirmal Chandra Debnath, 9/10, 2. Amit Chatterjee 13, Bhowanipur Kolkata – 700 025 - Respondents BEFORE
For the Appellant In person For Respondents M/s B.K. Bhaumik and Sheo Kumar Gupta, Advocates and Dated ORDER ANUPAM DASGUPTA This appeal challenges the order dated 30.1.2006 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, the ‘State Commission’) in complaint case no. 95/O/1999. By this order, the State Commission: (i) allowed the complaint of respondent no. 1 in this appeal (the original complainant, hereafter referred to as ‘the complainant’) against opposite party (OP) no.1 (hereafter referred to as ‘the appellant’); (ii) dismissed that against OP 2; and (iii) directed the appellant to refund the sum of Pounds Sterling (£)9,500 to the complainant with interest @ 10% p.a. from the date of filing of the complaint till the date of the order. The State Commission further directed the appellant to pay this amount in equivalent Pounds Sterling, subject to observance of the rules of the Reserve Bank of India (RBI) in this behalf, within 30 days from the date of communication of the order, failing which it also directed payment of additional interest @ 8% p.a. for the period of default. 2. The facts established by the documents on record are that the complainant is a British citizen of Indian origin and a cousin (sister) of the appellant. It appears that sometime prior to May 1997, the complainant wrote to the appellant about their wish to construct/buy a residential accommodation in Kolkata so that they could settle down after retirement. By his letter of 08.05.1997 to the complainant (the first communication on record), the appellant clearly advised the complainant against undertaking construction personally and represented that, as a better mode, he was engaged in the business of property development/sale through builder(s) and could arrange a residential flat for her according to her choice and means. He mentioned two alternative localities of Kolkata, viz., Garia and Behala, the flat areas, their approximate costs, likely resale values and rental incomes and added that he was in a position to offer a flat in a multi-storeyed building project in Behala (a locality of Kolkata) for which he had a sanctioned building plan. Claiming that the construction of this building project would be completed by December 1998 (latest, March 1999), he strongly urged the complainant to go for this flat. He also spelt out a schedule of advance payment of £6,908 in respect of the flat in Behala, to be remitted to one Amit Chatterjee – OP 2 - (first remittance of £1,754) and him (three subsequent remittances amounting in all to £5,154) and the mode of each remittance to them. He further stated that this amount would include the stamp duty and registration charges for the flat and that soon thereafter he would send the agreement by post. In early June 1997, the complainant remitted the sum of £9,500 to the appellant by one bank draft (£6,500), four postal orders (£2,400) and cash (£600 – two instalments of £300 each). In a subsequent letter dated 12.11.1997, Amit Chatterjee informed the complainant (in reply to some letter of the latter) that he had booked a flat (D-1 on the first floor) in the names of the complainant and her husband and he would inform the date of likely delivery of possession in January 1999. However, despite their assurance to send the requisite documents like the agreement for sale, etc., by post, neither the appellant nor OP 2 did so. Instead, he sent a printed booklet with a sketch plan for the flat that he stated to have booked for the complainant and her husband. In his letter dated 02.02.1998 to the complainant, the appellant further informed the complainant that the construction of the building project would start in March/April, 1998, which was contrary to the information in the appellant’s letter dated 08.05.1997 as well as that dated 12.11.1997 of OP 2. As a result, the complainant’s husband came to Kolkata on 04.03.1998 and found that even the construction of the building project was yet to start. Concluding that the sum £9,500 remitted by them to the appellant for the said flat had actually been converted into Rupees and used by the appellant and/or OP 2 for their own purposes, the complainant arrange to serve a lawyer’s letter/notice on OP 2 seeking refund of the amount by 16.04.1998. Neither the appellant nor OP 2 responded to this notice, following which the complainant spoke with OP 2 on telephone, cancelled the booking of the flat and claimed refund of the money paid for the flat with interest. There was protracted correspondence between the parties thereafter. Finally, the complainant served another demand notice dated 04.08.1999 on both the appellant and OP 2 claiming £19,159 (including the principal sum of £9,500, interest and compensation) within 7 days from the date of receipt of the notice, which too did not elicit any response. This led the complainant to file the complaint in question before the State Commission in November 1999. 3. The impugned judgment of the State Commission notes that in his written version, the appellant denied the material allegations and contended, inter alia, that the complaint was not maintainable. The matter could be agitated only before an appropriate civil court as it involved issues of recovery of the money the complainant stated to have paid. The appellant’s second argument in his written version was that the consumer complaint was also not maintainable because the complainant had filed a criminal case against the opposite parties for the same cause of action. The State Commission pointedly observes that the appellant did not advance any pleadings on the merits of the complaint and that OP 2 contested the case by merely filing written note of arguments. 4. On consideration of the pleadings and averments of the parties and the documentary evidence brought on record, the State Commission held that the complaint was maintainable under the Consumer Protection Act, 1986 and the appellant had practically admitted the receipt of the money from the complainant and expressed his readiness to pay back the amount to her. Therefore, the State Commission held that the limited, surviving dispute was whether the appellant should refund the amount in Rupees or Pounds Sterling and passed the impugned order. 5. We have heard the appellant in person and the learned counsel for the complainant and considered the memorandum of appeal, documents brought on record and the written submissions of the parties. Respondent no. 2 (OP 2) has chosen to remain unrepresented before us (despite service of dasti notice, on the ground of ‘illness’) but has once again filed his written submissions. 6. In this appeal too, the appellant does not deny receipt of the sum of £9,200 from the complainant. It is an admitted position that some time before May 1997, the complainant sent to the appellant the sum of £300, to enable him to defray the costs of medical treatment of his wife. In his letter of 08.05.1997, the appellant assured the complainant that she could use the Rupee equivalent for buying furniture for their new flat! In this appeal, the appellant’s principal arguments are three-fold. First, that in October 1997, the complainant entered into an agreement with OP 2 who was the land owner-cum-builder-developer of the building project in Behala. The appellant was merely advising and assisting the complainant, as a close relative, in securing a flat in the proposed building complex, as she and her husband, being non-resident Indians, had sought his help in this regard. This agreement is between OP 2 and the appellant, as the “constituted attorney” for the complainant! Secondly, the appellant paid the entire sum of £9,200 (£9,500-£300), converted into Rs. 5.25 lakh at the prevailing exchange rates, to OP 2 and the latter admitted the receipt of this payment. Thus, the privity of contract was between the complainant and OP 2, not the appellant (OP 1). Thirdly, the Kolkata Municipal Corporation (KMC) had held up grant of requisite sanction of the building project. The KMC finally accorded the sanction in June 2007 after protracted litigation before the Calcutta High Court. Thus, the appellant has argued that there being a written contract between the complainant and OP 2 and the entire consideration for the flat having been paid to OP2, the latter alone could be liable for recovery, if any, and not him. 7. However, in his written submissions, OP 2 has admitted the receipt of Rs. 4 lakh only, not Rs. 5.25 lakh, as contended by the appellant. Apart from emphasising the ‘privity of contract’ between the complainant and himself, OP 2 has also stated that the flat is now ready and he can deliver its possession to the complainant. Alternatively, OP 2 has offered to refund to the complainant the amount of Rs. 4 lakh, in Rupees, without any interest. He has claimed that there was no deficiency in service on his part as the delay in the construction was attributable to non-receipt of KMC sanction for the construction, and that the refund can be only in Rupees, not Pounds Sterling because of the RBI regulations. 8.1 At the outset, we notice that at the stage of admission of this appeal, this Commission recorded the following observations in the order dated 31.10.2006: “One of the grounds taken in the written objection dated 4.6.2003 is that “the OP no. 1 (Jayanta Dasgupta) is the constituted attorney of the complainant who under instructions of the complainant entered into an agreement with Opposite Party no.2 and as such the complaint cannot be filed in its present form against Opposite Party no.1.” If the learned counsel states that there is no Power of Attorney executed by the complainant and he is unable to produce the same, then it would mean that Mr. Jayanta Dasgupta while filing the written version had made wrong statements. We shall take into consideration that aspect before making (sic) further submissions.” 8.2 Right from the start, the correspondence on record between the appellant and the complainant (or, her husband) is in Bangla (Bengalee). While the appellant has provided the English translations, understandably the latter do not adequately capture the nuances and emotional undertones. It is clear from a reading of the original handwritten correspondence that the complainant completely trusted her older cousin, the appellant (whom she addressed as ‘Dada’ - the affectionate Bangla term for addressing an elder brother). The complainant entrusted the entire deal to her ‘knowledgeable’ older cousin who represented himself to be actively engaged in the business of property development/sale and both eager and able to help his cousin in securing a residential flat in a reasonably good locality of Kolkata where she and her husband could come back to live in their retirement. This backdrop has to be kept in view while addressing the issues of law that the appellant and his associate (OP 2) now seek to rely upon. 8.3 The complainant has emphatically contested the purported agreement referred to above. In their written submissions as well as during arguments, learned counsel for the complainant have stressed that this was a self-serving document executed by the appellant in collusion with OP 2, behind the back of the complainant, to which the complainant never consented and hence the agreement was not registered. The title of OP 2 to the land for the planned construction of the Behala apartment complex was ab initio defective and ceased to exist after 1995. Though the appellant brought up this agreement in his correspondence with the complainant, he clearly admitted in his letter of 23.081998 to the complainant that the agreement was “a most temporary affair”. He further admits that because of the “most temporary” nature of this agreement, he did not intimate the receipt of the complainant’s foreign exchange remittances to him, mentioned in schedule E to the agreement (‘memo of consideration’, amounting to Rs. 5.25 lakh), to the Income Tax Department before March 1998. Incidentally, both the appellant and OP 2 have duly signed this schedule. In this letter, the appellant also admitted his liability to refund the money to the complainant with interest and asked her to obtain a certificate about the rate of interest from her bank in 9. In view of the preceding discussion, we have no hesitation in holding the appellant guilty of gross deficiency in service as well as repeated misrepresentation amounting to unfair trade practice under sections 2(1)(o) and 2(1)(r), read with section 2(1)(d)(ii) of the Consumer Protection Act, 1986. To that extent, we uphold the order of the State Commission that having himself received the entire sum of £9,500 from the complainant, the appellant alone is liable, on his own showing, to refund that sum with a reasonable rate of interest. However, ordering that refund in Pounds Sterling would not be justified. It was, after all, for the complainant and her husband, both clearly educated enough, to insist on opening an appropriate bank account to receive the foreign exchange remittances for eventually purchasing the flat, in accordance with the RBI and Income Tax regulations in this behalf. 10. The complainant has not contested the correctness of the figure of Rs. 5.25 lakh as the converted amount of £9,500 at the relevant time (June 1997). Based on the ratio of the Apex Court’s decision in the case of Ghaziabad Development Authority v Balbir Singh [(2004) 5 11. Accordingly, we partly allow the appeal and modify the impugned order to the extent that the appellant shall refund to the complainant the sum of Rs. 5.25 lakh with interest @ 18% per annum from 1st July 1997 upto the date of actual payment. The appellant shall make this payment within six weeks of the date of this order, failing which he shall be liable to pay interest on the entire defaulted amount @ 18% per annum. In addition, the appellant shall pay Rs. 50,000/- as costs to the complainant within the same period of six weeks from the date of this order. 12. As regards the appellant’s remedy vis a vis OP 2, he shall be at liberty to pursue that before any appropriate court, if so advised, and also permitted by the relevant court to prosecute the claim under law. …………………………………. [R. C. JAIN, J] ………………………………… [ANUPAM DASGUPTA] |
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