This is a complaint made by one Piyali De, wife of Sri Bhabatosh De, residing at 30, Pallysree, P.O.-Regent Estate, Kolkata-700 092 against (1) Debabrata Dey, son of Late Debi Prasad Dey, residing at 49A, Regent Colony, P.O.-Regent Park, P.S.- Jadavpur, Kolkata-700 040 and (2) Bhabatosh De, son of Late Harendra Nath De, residing at 30, Pallysree, P.O.-Regent Estate, P.S.-Netaji Nagar, Kolkata-700 092, praying for a direction upon the OPs (a) to provide physical and habitable possession of the flat mentioned in the schedule, (b) to execute the deed of conveyance in favour of the Complainant, (c) to pay Rs.2,000/- per day as compensation for delay, (d) Rs.1,500/- per day from the date of cause of action till the possession, (e) Rs.1,000/- per day to the Complainant from the date of cause of action till possession and (f) litigation cost.
Facts in brief are that Complainant expressed her interest to purchase a flat measuring about 700 sq.ft. super built up area on the 2nd floor of the multi-storied building lying at premises No.40/18, Chand Mohammad Road, P.S.-Netaji Nagar. Complainant approached the OPs and it was settled that for a price of Rs.15,60,000/- the flat will be sold. An agreement for sale was entered into between the parties. Complainant paid Rs.15,50,000/- by cash out of Rs.15,60,000/-.
OP No.2 is the husband of the Complainant and took the advantage of this and befooled the Complainant and took almost entire amount of Rs.15,50,000/-. It was agreed by both the parties that the flat would be provided within 12 months of the date of agreement for sale. It was also written in this agreement for sale that in the event of failure on the part of the developer to comply the terms and conditions, the Complainant shall have every right to seek legal protection. OP No.1 forcefully drove OP No.2 from the said project during construction of the building. Complainant requested OP No.1 to allow to inspect the said flat. But, he intentionally refused to allow her. After a lapse of the stipulated time Complainant issued a demand notice on May 17, 2016, but of no use. OPs did not reply to the notice.
On June 1, 2016 one Sri Sahadev Halder, Ld. Advocate of OP No.1 replied the letter of Complainant dt. 1.6.2016. In the letter OP expressed that they are not in a position to complete the building. Thereafter, Complainant issued notice, but of no use. So, Complainant filed this case.
OP No.1 filed written version and denied the material allegations of the complaint. Further, OP No.1 has stated that OP No.2 used to maintain good terms with OP No.1 before the development agreement and she was aware of shortage of money of OP No.1. Further, OP No.1 has stated that Complainant paid Rs.15,50,000/- in cash as loan. It is submitted that the value of the said flat was much higher than the agreement amount. The agreement for sale is security against this loan of Rs.15,50,000/-. This complaint petition has been filed in connivance with her husband. So, OP No.1 has prayed for dismissal of this case.
OP No.2 has also filed written version wherein he has denied the allegations that Complainant gave Rs.15,50,000/- as loan. He has also denied that the agreement for sale is a loan agreement. OP No.2 has stated that he requested his partner OP No.1 to handover the flat. But, OP No.1 did not handover the flat.
Decision with reasons
Complainant filed affidavit-in-chief wherein she has stated the facts mentioned in the complaint petition. OP No.1 has filed questionnaire against the affidavit-in-chief. OP No.1 has replied to the questionnaire of the Complainant. OP No.2 has also put questionnaire to the affidavit-in-chief of the Complainant. OP No.1 has filed evidence wherein he has asserted his case mentioned in the written version. OP No.2 has also filed evidence wherein he has averred his case mentioned in the written version.
Main point for determination is whether the Complainant is entitled to the reliefs as prayed for.
On perusal of the complaint petition, it appears that Complainant has sought for a direction upon the OPs for physical possession of the flat mentioned in the schedule of the complaint and for registration of the said flat. Main dispute in this case is whether the agreement for sale which is a registered agreement is a document of agreement for sale or is a document reflecting a loan transaction. It is the allegation of OP No.1 that this document is a document of loan transaction and not an agreement for sale. It is admitted that Complainant paid Rs.15,50,000/- in cash at the time of agreement after entering into an agreement for sale, the recital of which is in page 15 of the agreement for sale filed before this Forum.
Now, the question arises why and under what circumstances a person will pay Rs.15,50,000/- in cash to the developer at the time of agreement for sale. This payment though admitted reflects something which is beyond contemplation of a common man. Anybody while taking a flat is expected to give booking money and not the total consideration money. It is because this agreement for sale, though registered, is not a sale deed and the flat in question was not ready on the date when this agreement for sale was entered into. That means, the contention of the OP No.1 that he was running short of money, appears somewhat believable. Further, on perusal of this agreement for sale, it appears that it is mentioned that for urgent need of money being intended to sell the allocation of this agreement for sale was made.
Hence, it is clear that there is some doubt about the transaction made between the parties. This also gets support from the fact that OP No.2 who is the husband of the Complainant is a partner to the business of the OP No.1 and is one of the developers. If this Forum passes an order for handing over possession and for registration of the flat the liability is of both the OPs. Here OP No.2 by the written version has contended that he also is a partner and OP No.1 is doing mischief by not handing over possession.
On perusal of the agreement for sale, it appears that this has been signed by the Complainant as well as both the parties. That means that 50% of the consideration money i.e. Rs.15,50,000/- was received by OP No.2 and he is also liable for that. As such, OP No.2 cannot shift his liability totally to OP No.1 about the facts clearly indicate that there is something behind what is mentioned in the agreement for sale and this Forum does not appear to have jurisdiction to adjudicate a matter where a document which is agreement for sale has been alleged as a document reflecting loan transaction and for that Civil Court has jurisdiction.
Hence,
ordered
CC/313/2016 and the same is considered and dismissed on contest.
