Judgment dated 03-06-2016
This is a complaint made by one Shri Kanailal Mondal son of Late A. K. Mondal residing at 31/2, Middle Road, Santoshpur , P.S. Purba Jadavpur, Kolkzata – 700 075 at present residing at E-25, New Garia Housing Co-operative Limited, P.O. Panchasayare , P.S. Purba Jadavpur, Kolkata- 700 094 against L.P. Enterprise sole proprietorship firm, represented through its proprietor Shri Subrata Paul son of Shri Ranjit Kumar Paul residing at 21, Baikuntha Saha Road, P.S. Purba Jadavpur, Kolkata – 700 075, Smt. Elna Sinha daughter of Late Pradyot Kumar Sinha, Shri Semon Sinha son of Late Pradyot Kumar Sinha praying for direction upon the OP for execution and registration of Deed of Conveyance in respect of schedule flat alternatively registration through Ld. Forum and also a direction upon the OP to complete the incomplete work and deliver possession of the flat and also pay compensation and litigation cost.
Facts in brief are that Complainant entered into an agreement for sale with the owner and developer which was executed on 5th March, 2012 registered before the District Sub Registrar III at Alipore and was recorded in Book No.1, Volume No.5. Complainant paid entire consideration money to the OP on the same day.
OP No.1 has received the said money and also acknowledged the same at page no.9 of the above registered agreement as constituted attorney of the owner. Owner Pradyot Kumar Sinha also executed a power of attorney in favour of the developer for constructing multi-storied building. OP, owner died on 7.4.2012 at Siegen, Germany leaving behind OP No. 1 & 2 as only legal heirs OP No.1 being developer after entering into the agreement for sale on 5.3.2012 received the consideration money and constructed a building. It was agreed that the building would be completed within ten months. Developer completed some of the portion of the said flat but did not complete it. Complainant paid Rs.15,36,720/- total consideration money at the time of entering into agreement for sale. Suddenly OP No.1 issued a letter after lapse of 15 months to the petitioner making false allegation that consideration money was not paid and the agreement is not valid one. After receiving that letter Complainant replied on 17.6.2013 which was received by OP No.1 but OP No.1 did not reply to that. OP No.1 neglected to make complete construction. So Complainant was denied to receive possession of flat despite Deed of Conveyance has been made in his favour.
OP No.1 filed written version and denied all the material allegations made out in the complaint. Further OP No.1 has stated that Complainant requested to the OP No.1 who was very well known to the Complainant for purchasing a flat and selected a flat measuring about 674 Sq. ft. and the price was negotiated as Rs.15,36,720/- lesser than existing market value of that time. Since OP and Complainant were acquainted for a long time an agreement for sale was prepared and Complainant assured OP No.1 that he will pay maximum consideration money but Complainant any how managed the OP No.1 and got the said agreement for sale executed and registered in his favour.
After a day or two Complainant assured OP No.1 that he will pay the maximum consideration money but did not pay single paisa. OP No.1 continuing the construction works relying upon the verbal assurances of the Complainant. Complainant always assured OP No.1 that he will pay consideration money. On 15.04.2013 OP No.1 asked the Complainant to pay the money but he did not receive any positive reply and so he issued a legal notice on 03.06.2013 through his Ld. Advocate Shri Biswadeb Chatterjee asking for payment of total consideration money with a statutory interest which was duly served upon the Complainant but Complainant replied to this stating that he has already paid the money upon which OP No.1 filed a suit before the Ld. 5th Civil Judge, Senior Division at Alipore which was registered as title suit no.151 of 2013 and Complainant is contesting that by filing written statement.
Complainant suppressed this case before this Forum. So OP No.1 denied the claim that Complainant paid the total consideration money at the time of agreement for sale. As such OP No.1 has prayed for dismissal of this case.
OP No.2 & 3 have filed written statement denying all the material allegations of the Complainant and supported the contention of the OP No.1 made out in his written version and prayed for dismissal of the complaint case.
Decisions with reasons
Complainant has filed affidavit-in-chief for proving the allegations of the complaint petition against which OP has filed questionnaire. Complainant has answered the questions. Thereafter OP No.1 has filed evidence on affidavit. OP No. 2 & 3 have also filed evidence on affidavit against which Complainant have filed questionnaire to which OP No. 2 & 3 have replied.
In the form of documents copy of agreement for sale has been filed. OP No.1 has filed certified copy of the order sheet issued by Ld. Civil Judge, Senior Division, 5th Court.
Main point for determination are as follows :
- Whether a registered agreement for sale can be disputed on the basis that consideration money was not transacted ;
- Whether the allegations of the Complainant can be believed ;
- Whether contention of the OPs that no payment was made to OP No.1 developer can be believed and
- Whether the conduct of the parties point to believe all allegations of Complainant or assertion made by OPs.
Point No.1 & 2 are taken up together.
At the out set there is registered agreement for sale in favour of the Complainant. It is of common prudence that registration of a document has certain presumption. But the presumption can be debarrted if the conduct of the party is contrary to the contents of agreement for sale. The settled principal of law is that any civil proceedings is decided on the basis of pre-ponderence of probability. So in order to resolve the present dispute we are to examine in whose favour there is pre-ponderence of probability.
Ld. Advocate for OPs submitted that there is no evidence that payment was made to OP No.1 by the Complainant and registration was made due to the long friendship between Complainant and OP No.1.
It is the contention of the Complainant that the payment was acknowledged by the OP No.1. it is mentioned in page no.9 on registered agreement for sale. It is of common prudence that when a registered agreement or deed is executed the factum of payment remains mentioned in the document which is here in the present case. But no receipt is being filed on behalf of the Complainant to establish that he paid total consideration money to the OP No.1.Ld. Advocate for OPs rightly submitted that no document or Statement of Bank Account is forthcoming to prove that payment was made.
It is of common knowledge that nobody will make full payment at the time of agreement for sale. Generally at the time of agreement for sale a part of consideration money is paid and registration of agreement for sale does not convert an agreement for sale into a sale deed. So there remains suspicion as to why the Complainant paid total consideration money at the time of agreement for sale.
No doubt there is suspicion towards the conduct of OP also as to why without receiving any money they registered the agreement for sale in favour of the Complainant. But their explanation is that due to long friendship and promise made by the Complainant; OP No.1 was compelled to comply the words in the hope and expectation that the friend would pay the money as promised which did not occur.
Accordingly, we are of the view that allegations of Complainant in making total payment is clouded with the fact that Complainant failed to show any receipt or any Statement of Bank Account or any other document for establishing that. Suddenly on a single day he made payment of such a huge amount and also there is no whisper from where he brought this money for making payment.
Point No. 3 & 4
It appears from the written version of OP No.1 that after about a lapse of 15 months he issued a legal notice to the Complainant for paying the money which brought utter surprise to the Complainant. But OP No.1 has explained it that during this period he made several requests persuasion to Complainant to make payment but of no use and so he was compelled to issue a legal notice to the Complainant demanding the payment on 03.6.2013. After receiving this notice Complainant replied on 17-06-2013 that he has already paid this money to OP No.1. Immediately OP No.1 filed a title suit bearing no.151 of 2013 on 01.07.2013 i.e. just after about a month of receipt of the reply by the Complainant relating to the payment. The certified copy of the order sheet has been filed which reveals that the case is fixed for framing of issues as per order dated 24.11.2015 and the delay appears to have been largely caused by the conduct of the defendant in the suit.
It is the contention of the Complainant as mentioned in the paragraph 8 of the complaint that the possession shall be handed over within 05.12.2012 as per clause no.27 of the agreement for sale otherwise developer shall be liable to pay Rs.5,000/- per day as compensation which is unheard. However, if we admit this fact it is clear that the submission of Ld. Advocate for OP gets vindicated that agreement for sale was either prepared by the Complainant or at his behest.
Compensation of Rs.5,000/- per day in an agreement for sale where the total consideration money is Rs.15,36,720/- is unbelievable and takes us against the Complainant’s conduct.
As such it is clear that complainant perhaps did not pay any money at the time of registration of the agreement for sale. It is because had the Complainant paid the total money he would have persuaded and requested the OP after December, 2012 for paying compensation of Rs.5,000/- per day for which there is no evidence forthcoming. Complainant remained silent and replied to the notice of OP No.1 which he received in June, 2013 that means unfortunate Complainant after paying Rs.15,36,720/- also lost Rs.5,000/- per day compensation from December, 2012 till date which would perhaps being more than what he allegedly paid at the time of agreement for sale at the time of execution of sale deed. This is totally unbelievable and pre-ponderance of probability which is revealed from the evidence filed by both the parties and also the questionnaire and affidavit in reply made by them favours OP No.1.
So far prayer for compensation and litigation cost is concerned we are afraid that the Complainant since failed to prove the allegations that he is not entitled for the compensation and any litigation cost. So finally it emerges that Complainant did not prove the allegations and not entitled to any relief.
Hence,
O R D E R E D
RBT/CC/124/2016 and the same is dismissed on contest.
