DATE OF FILING : 21-12-2011.
DATE OF S/R : 30-01-2012.
DATE OF FINAL ORDER : 28-03-2012.
Md. Afzal,
son of Md. Ismail,
resident of 3, B.R. 6th Lane,
Thana Makua, Lichubagan, New Basti,
P.O. Danesh Sheikh Lane, P.S. Sankrail,
District Howrah,
PIN 711109. Complainant.
- Versus -
Khurshid Ahmed Ansari,
son of Phool Mohammad Ansari,
resident 3, B.R. 6th Lane,
Thana Makua, Lichubagan, New Basti,
P.O. Danesh Sheikh Lane, P.S. Sankrail,
District Howrah,
PIN 711109. Opposite party.
P R E S E N T
1. Honble President : Shri T.K. Bhattacharya.
2. Honble Member : Smt. Samiksha Bhattacharya.
F I N A L O R D E R
This is a complaint case filed by the complainant U/S 12 of the C.P. Act,
1986, alleging deficiency in service against the O.P.
2. The complainant in filing the complaint has prayed for direction upon the
o.p. to register the suit property in his favour, restore the supply of water to the accommodation of the complainant, for a compensation of Rs. 1,00,000/- for mental pain and agony with other reliefs as the Forum may deem fit and proper, as the O.P. in spite of receipt of Rs. 1,57,500/-, the full consideration money from the complainant and also after receiving additional Rs. 60,000/- from him, and in spite of delivery of possession of the flat measuring 350 sq. ft. on the 1st floor at premises no. 3, B.R. 6th Lane, Thana – Makua, Lichubagan, New Basti, Danesh Sheikh Lane, P.S. Sankrail, the O.P. has not executed and registered the deed of conveyance in his favour. Hence this case.
3. The O.P. in his written version has altogether denied the complainants allegation and contended interalia that the agreement dated 16-04-2009 between the parties was actually an agreement for tenancy of a flat at the stated address and not for sale , that the amount as received by him from the complainant was in fact towards the Salami of the proposed flat and the additional sum was not actually paid in cash to him, rather building materials were supplied by the complainant as he was in a financial crunch in the midst of construction of the building. So there is no deficiency in service on the part of the O.P. So the case should be dismissed.
3. Upon pleadings of both parties two points arose for consideration.
Is there any deficiency in service on the part of the O.P.
Whether the complainant is entitled to get any relief as prayed for
DECISION WITH REASONS :
4. Both the points are taken up together for consideration. The sole dispute creeps in over the nature and character of the impugned agreement dated 16-04-2009. It is the contention of the o.p. that the agreement was actually an agreement for tenancy and not for sale of the flat in question. Ld. Lawyer for the O.P. argued that the caption of the agreement stands as agreement for tenancy and the terms thereto are also indicative to tenancy and not for sale. Let us have a glimpse over the terms of the agreement. In page 3 of the agreement it is embodied that the second party paid a sum of Rs. 50,000/- on 16-04-2009 and the balance amount will be paid then the first party i.e.( the O.P. ) will handover keys to the second party ( complainant ) of the said flat and also execute and register a sale deed in favour of the second party ( complainant ). In page 5 para 3 it is further embodied that the 1st party should execute a sale deed in favour of the second party after full payment of the consideration price to him ( O.P. ) by the second party ( complainant ) and also take responsibility for registering the same. It is further noted in the same page at paragraph 4 that if the second party pays the full amount of the consideration price to the 1st party and if the 1st party neglects to execute and register the sale deed in favour of the second party, then the second party shall have option to register the same with the help of the Court of Law.
5. Therefore, it is palpable that the impugned agreement is in fact an agreement for sale in the garb of an agreement for tenancy. The portion of the agreement as mentioned above may be taken as the cream of the agreement and the rest portion are just rubbish. It is well settled rule of interpretations of unambiguous documents that the clear and unambiguous words prevails over any intention. But if the words used are not clear and ambiguous, the intention will prevail. Court is to collect the intention of the parties from the expression they have used in the deed itself. The cardinal principle of interpretation of deed as elaborated in the Construction of Deeds and Statutes by Odgers is that if the provisions and expressions are contradictory and if there are grounds appearing from the face of instrument, affording proof of the real intention of the parties, then the intention will prevail against the obvious and ordinary meaning of the words. In all cases the object is to see what is the intention expressed by the words used. But some times from the imperfection of language it appears impossible to know what is the purport of the deed itself. It is well settled rule of construction of the deed that if one party put forward a printed form of words for signature by the other and if it is subsequently found that those words are inconsistent with the main object and intention of the transaction as disclosed by the terms specially agreed, then the Court will reject the printed words as rubbish so as to ensure the main object of the transaction.
6. In the instant case it has been pinpointed as discussed above that the tenor of the deed is for sale and not for tenancy. Simple user of a caption agreement for tenancy cannot ip-so- facto disentitle the complainant who made complete payment of the consideration money of Rs. 1,57,000/- and an additional amount of Rs. 60,000/- to the O.P. The complainant is already in possession of the accommodation / flat . The O.P. cannot have any respite from the rigors of law in depriving the complainant from his bonafide claim. From the petition as well as from the documents relied upon it is evident that the O.P. is guilty of gross negligence, deficiency in service as well as for unfair trade practice which is within the scope of the Consumer Protection Act, 1986. Even the O.P. to put the complainant in tremendous difficulty allegedly stopped the supply of water to his flat. All the gesture of the O.P. shall not go unpunished in the shape of compensation. This is a fit case for granting the reliefs to the complainant as prayed for. Both the points are disposed of accordingly.
Hence,
O r d e r e d
That the C. C. Case No. 116 of 2011 ( HDF 116 of 2011 ) H is allowed on contest against O.P. with costs.
The O.P. be directed to execute and register the sale deed in favour of the complainant with respect to the flat as mentioned in the schedule of the petition of complaint within one month from the date of this order failing legal consequences shall follow.
The complainant do get an order of compensation to the tune of Rs. 1,00,000/- from the O.P. for the tremendous prolonged mental agony perpetrated upon him.
The complainant do further get an order of costs of litigation to the tune of Rs. 5,000/- from the O.P.
The O.P. do pay the aforesaid amount to the complainant within one month from the date of this order failing the amount shall carry interest at 10 percent per annum till full satisfaction.
The complainant is at liberty to put the order into execution after the expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
