Date of filing : 08/12/2016

Order No.  15  dt.  22/03/2018

        The case of the complainant in brief is that the complainant entered into a regd. agreement for sale dt.18.4.07 to purchase a flat with o.p. no.1 being the developer and total consideration price was fixed at Rs.10,35,000/-. The complainant has already paid a sum of Rs.10,25,000/-, only balance of Rs.10,000/- is yet to be paid by the complainant. The complainant repeatedly requested the o.ps. for handing over the possession as well as execution and registration of the deed of conveyance in respect of the said flat in favour of the complainant, but o.ps. refused to accept the request of the complainant for which the complainant filed this case praying for direction upon the o.ps. to hand over the possession as well as to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant along with compensation and litigation cost.

             The o.p. no.1 being the regd. partnership firm being represented by o.p. nos.2 and 3 who contested this case by filing their respective w/vs and denied all the material allegations of the complaint. In their w/v o.p. no.2 stated that a letter was sent to the complainant by regd. post issued on behalf of the partners of o.p. no.1 requesting the complainant to take delivery of possession of the said flat and get it registered, but in spite of that the complainant failed and neglected to comply the offer of o.ps. and as such, there was no fault on the part of o.ps. It was further stated that the complainant has no locus standi to file this case as earlier he filed a title suit being title suit no.153/2018 before the 1^st Court of Civil Judge, Junior Division at Sealdah against the o.ps. and the complainant in order to have the illegal gain against the o.ps. filed this case. on the basis of the said fact o.p. no.2 prayed for dismissal of the case.

            In their w/v o.p. no.3 stated that the complainant had earlier filed the said title suit and the next date was fixed on 27.4.17. It was further stated that Ld. Civil Judge passed an ad interim order of injunction in the said case directing the parties to maintain statuesque. The o.p. no.3 further stated that because of the said order the construction work could not be proceeded and the flat in question has remained incomplete and o.p. no.3 could not comply his contractual obligation. The complainant by suppressing the said fact falsely filed this case. On the basis of the said fact o.p. no.3 prayed for dismissal of the case.   

            On the basis of the pleadings of parties the following points are to be decided:

1. Whether the complainant entered into an agreement with o.ps. for purchasing a flat?
2. Whether the o.ps. failed and neglected to provide the flat in question?
3. Whether any civil suit is pending between the parties?
4. Whether there was any deficiency in service on the part of o.ps.?
5. Whether the complainant will be entitled to get the relief as prayed for?

Decision with reasons:

            All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

            Ld. lawyer for the complainant argued that the complainant entered into a regd. agreement for sale dt.18.4.07 to purchase a flat with o.p. no.1 being the developer and total consideration price was fixed at Rs.10,35,000/-. The complainant has already paid a sum of Rs.10,25,000/-, only balance of Rs.10,000/- is yet to be paid by the complainant. The complainant repeatedly requested the o.ps. for handing over the possession as well as execution and registration of the deed of conveyance in respect of the said flat in favour of the complainant, but o.ps. refused to accept the request of the complainant for which the complainant filed this case praying for direction upon the o.ps. to hand over the possession as well as to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant along with compensation and litigation cost.

            Ld. lawyer for the o.p.2 argued that a letter was sent to the complainant by regd. post issued on behalf of the partners of o.p. no.1 requesting the complainant to take delivery of possession of the said flat and get it registered, but in spite of that the complainant failed and neglected to comply the offer of o.ps. and as such, there was no fault on the part of o.ps. It was further stated that the complainant has no locus standi to file this case as earlier he filed a title suit being title suit no.153/2018 before the 1^st Court of Civil Judge, Junior Division at Sealdah against the o.ps. and the complainant in order to have the illegal gain against the o.ps. filed this case. on the basis of the said fact o.p. no.2 prayed for dismissal of the case.

            Ld. lawyer for the o.p.3 argued that the complainant had earlier filed the said title suit and the next date was fixed on 27.4.17. It was further stated that Ld. Civil Judge passed an ad interim order of injunction in the said case directing the parties to maintain statuesque. The o.p. no.3 further stated that because of the said order the construction work could not be proceeded and the flat in question has remained incomplete and o.p. no.3 could not comply his contractual obligation. The complainant by suppressing the said fact falsely filed this case. On the basis of the said fact o.p. no.3 prayed for dismissal of the case.   

            Ld. lawyer for o.p. no.3 during the argument cited some rulings as reported in 2017(4) CPR 322 (SC) wherein it was held that the complainant cannot get relief if he comes with uncleaned hands. Ld. lawyer also relied on other rulings as reported in 2017(4) CPR 179 (NC) and 2018(1) CPJ 275 (NC) wherein it was held that if a matter is pending before Civil Court same cannot be considered by Fora simultaneously, pending suit in Civil Court issues to be decided by one Forum only and that Forum would be Civil Court. Ld. lawyer also relied on other rulings in support of the said contention. On the basis of those rulings as well as the submissions made for o.p. no.3, ld. lawyer for o.p. no.3 prayed for dismissal of the case.

            Considering the submissions of the respective parties it is an admitted fact that the complainant entered into an agreement with o.ps. for purchasing a flat and the complainant paid the amount of Rs.10,25,000/- out of total consideration price of Rs.10,35,000/-. Ld. lawyer for o.ps. stated that between the self same parties as civil suit is pending before the 1^st Court of Civil Judge, Junior Division at Sealdah and since the Civil Court is hearing the matter, therefore dispute raised between the parties cannot be raised before this Forum. In this respect we can rely on the evidence adduced by the complainant whereby it has been specifically stated that civil suit is pending before the 1^st Court of Civil Judge, Junior Division at Sealdah being title suit no.153/2018 relating to removal of encroachment made by the parties over common passage on the ground floor of the building. The o.ps. could not file any certified copy of the plaint to deny the claim of the complainant that the suit filed by the complainant relates to the encroachment of the common passage not relating to the agreement entered into between the parties for purchasing the flat in question. Moreover, from the evidence on record as well as o.p. no.2 in their w/v stated that the complainant was informed of the completion of the flat in question in the year 2008. The complainant has denied the same. The o.p. no.2 could not file any document to that effect that notice was served upon the complainant stating that the flat was completed in the year 2008. The o.p. no.3 in their w/v stated that because of the order of injunction passed by Civil Judge, Junior Division at Sealdah  the flat in question could not be completed. The o.p. nos.2 adn3 are the partners in respect of the partnership firm known as G R Properties being o.p. no.1. In one breath one partner is saying that the construction of the flat has already been completed and another partner has claimed that the construction has not been completed. Though from the materials on record it appears that the complainant has paid the entire consideration excepting the balance amount of Rs.10,000/- only. It appears that o.ps. in spite of receiving the consideration price failed and neglected to provide the flat in question to the complainant and thereby the rulings cited by o.ps. cannot be applied in this case. Having regard to the facts and circumstances of the case we hold that there is gross deficiency in service on the part of o.ps. and the complainant will be entitled to get the relief as prayed for. Thus all the points are disposed of accordingly.

            Hence, ordered,

            That the CC No.509/2016 is allowed on contest with cost against the o.ps. The o.ps. are jointly and/or severally directed to hand over the possession as well as to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant after completion of the said flat, if at all required, after receiving the balance amount of Rs.10,000/- (Rupees ten thousand) only from the complainant and the o.ps. are  also jointly and/or severally directed to pay to the complainant compensation of Rs.1,00,000/- (Rupees one lakh) only for harassment and mental agony and litigation cost of Rs.20,000/- (Rupees twenty thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.