West Bengal

South 24 Parganas

CC/467/2014

NETAI ACHARYYA, S/O LATE PHANINDRA CHANDRA ACHARYYA - Complainant(s)

Versus

DEBABRATA SARKAR, S/O LATE KRISHNA CHANDRA SARKAR. - Opp.Party(s)

22 Apr 2015

ORDER

     DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _467_ OF ___2014_____

 

DATE OF FILING : 18.9.2014     DATE OF PASSING JUDGEMENT: 22.4.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Dr. (Mrs.)  Shibani Chakraborty

                                                                             

COMPLAINANT             :  Netai Acharyya,s/o late Phanindra Chandra Acharyya of

                                              18/2-Halder Para Road, P.O & P.S Budge Budge, Kol-137.

 

-VERSUS  -

 

O.P/O.Ps                           :   1.  Debabrata Sarkar,s/o late Krishna Chandra Sarkar ,

Vill. & P.O Shyampukur, P.S. Maheshtala, Kolkata – 137.

2.    Sri Pintu Pakhira, s/o Ananda Kumar Pakhira of Vill. Sarangabad,

Chanditala, P.S. Maheshtala, Kolkata – 137.

3.     Partha Adak,s/o Sri Brojendra Nath Adak, Vill. Sarangabad, P.S. Maheshtala, Kolkata – 137.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                     

            It is the short case of the complainant that The O.P nos. 1 and 2 are the developers and the O.P-3 is the land owner. The O.Ps were mutually decided to develop a multi storied building on the land of O.P-3 ,for which a development agreement was entered into amongst them. But due to paucity of funds the O.p nos. 1 and 2 asked to the complainant to help financially to complete the said project and the complainant also searched a flat in the said locality, the complainant agreed to help the O.Ps and it was mutually agreed that after completion of the said project the O.Ps register one flat measuring 800 sq.ft  being flat no.3 F/A at a consideration of Rs.17,60,000/- in favour of the complainant In view of the said understanding the O.P nos. 1 and 2 entered into an agreement for sale dated 24.5.2013 with the complainant and complainant paid Rs.8,80,000/-.  

            After taking part consideration amount from the purchaser/complainant the O.P nos. 1 & 2 failed and neglected to deliver the subject flat to the complainant and refused to register the deed of conveyance in favour of the complainant, taking balance consideration money.  Several requests followed by lawyer’s notice dated 4.6.2014 yielded no result and hence the case.

            The O.Ps are  contesting the case by filing written version and has denied all the allegations leveled against them. It is the positive case of the O.Ps that complainant is a money lender by profession and lent Rs. 2 lacs as loan to the O.P-2 and for securing the loan amount the complainant pressurized the O.P nos. 1 and 2 to execute the alleged agreement for sale for the flat knowing fully well that the flat in question was also agreed to sell to a third party and nowadays this is a practice of the money lender to secure their loan. It has also stated that the O.P-3 is the land owner and did not put his signature in the agreement. So, O.P-3 is not a necessary party in the above case. It has also stated that debt is a personal debt which cannot be adjusted by a Farm and accordingly the case is not maintainable. It has claimed that the complainant did not file any document to show the payment of Rs.8,80,000/- to the O.P-2. It is the further case of the O.Ps that the complainant is well aware regarding the sale of the said flat in question to a third party who is in possession of the said flat and the case is nothing but a harassing one and O.P never acted any deficiency of service .

            Points for consideration is whether there is any deficiency of service on the part of the O.Ps or not.

                                                            Decision with reasons

            On perusal of the agreement for sale dated 24.5.2013 we find that O.P-3 was not made a party to the agreement. Apart from that said agreement for sale is an un-registered document which has no legal force in the Eye of Law in respect of transfer of immovable property. So, this document which is the heart of this case has no legal force to alive the complainant in this case.

            So, it is very difficult to believe the case of the complainant that there was agreement for sale of transfer of flat as claimed by the complainant. Rather, it is a proof of documents of loan since it is the allegation of the O.P that complainant is a money lender and in that regard this document will be helpful to the complainant to recover the said money from appropriate court. But by that transaction of debt to O.P-2 as claimed by the complainant in para 4 there was no question of providing any service i.e. loan in transaction. If the actual motive of the complainant is to get the flat, then definitely complainant would have made agreement for sale with the O.P through registration after paying necessary stamp duty arisen from the Registering Authority but the inevitable did not happen. That is why, the complainant will not get any relief in this case since there was no payment for the flat as mentioned in the agreement for sale dated 24.5.2013 , since the un-registered document has no legal binding in the eye of Law.

            Hence,

                                                            Ordered

That the application filed under section 12 of the C.P Act ,1986 is dismissed on contest in the light of the observation made hereinabove.   

Let a plain copy of this order  be sent to the O.Ps through this Forum and one copy be handed over to the complainant free of cost.

 

                                                Member                                               President

 

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

Ordered

That the application filed under section 12 of the C.P Act ,1986 is dismissed on contest in the light of the observation made hereinabove.  

Let a plain copy of this order  be sent to the O.Ps through this Forum and one copy be handed over to the complainant free of cost.

 

                                                Member                                               President