DATE OF FILING : 16.08.2013.
DATE OF S/R : 16.09.2014.
DATE OF FINAL ORDER : 08.09.2015.
1. Smt. Sarasi Das,
widow of late Gour Chandra Das,
2. Sri Supriyo Das,
son of late Gour Chandra Das,
3. Smt. Sunanda Das ( CHEL ),
wife of Haradhan Chel and daughter of
late Gour Chandra Das, residing at flat no. 401, 3rd floor,
22, Krishna Chatterjee Lane, P.O. & P.S. Bally,
District Howrah,
PIN 711201. ……………………………….. ……………… COMPLAINANTS.
- Loke Nath Construction,
aproprietorship firm having its office at
Apartment Janani ( 2 ),
30, P. K. GangulyRoad, Bally,
Howrah – 711201.
represented by its partners viz.
( a ) Smt. Tara Bala Bhowmick,
of 69/3, Dwan Gagi Road, P.O. & P.S. Bally,
District Howrah,
PIN 711 201.
( b ) Smt. Maya Saha,
of 4/91, M.L.B.Road,
within P.O. & P.S. Bally, Howrah.
PIN 711 201.
( c ) Smt Chabi Dutta,
wife of Sri Mantu Dutta,
of 11/6, M.L.B. Road, P.O. & P.S. Bally,
District Howrah,
PIN 711 201.
( d ) Sri Biswanath Saha,
son of Brojenddra Nath Saha,
of 4/91, M.L.B. Road, P.O. & P.S. Bally,
District Howrah,
PIN 711 201.
( e ) Sri Sibnath Saha,
son of Brojendra Nath Saha,
of 4/91, M.L.B. Road, P.O. & P.S. Bally,
District Howrah,
PIN 711 201.
- Smt. Manubala Das,
widow of late Ratan Das,
22/9, Padma Babu Road, P.O. & P.S. Bally,
Howrah 711 201.
- Sri Bulu Das,
son of late Ratan Das,
of 8, PanchantolaRoad, P.O. & P.S. Bally,
Howrah 711 201.
- Sri Sanat Das,
son of late Ratan Das,
4/1, Manomohon MukherjeeRoad,
P.O. & P.S. Bally,
Howrah 711 201.
- Sri Swapan Das,
son of late Ratan Das,
22/9, Padma Babu Road, P.O. & P.S. Bally,
Howrah 711201.
- Smt. Sandhya Adak,
wife of Kesto Charan Adak,
daughter of late Ratan Das,
of12, Padma Babu Road, P.O. & P.S. Bally,
Howrah 711 201.
- Sri Tapan Kanti Dey,
son of late Surobandhu Dey,
of 57/23, Dewazngazi Road, P.O. & P.S. Bally,
Howrah 711 201. ………………………………………………... Opposite Parties.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak .
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioners, Sarasi Das & two others praying for a direction upon the o.ps. to execute and register the sale deed in respect of the schedule mentioned property being 2nd floor flat measuring 700 sq. ft. including super built area situated at holding no. 30, Pran Krishna Ganguly Road, P.S. Bally, Howrah, and to pay Rs. 1 lakh as compensation for mental harassment and agony.
- The case of the petitioner is that they are consumers. The o.p. nos. 2 to 7 being the owners of the property who entered into an agreement with one local developer Bhola Nath Saha, predecessor of o.p. nos. 1(a) to 1(e) dated 17.12.2009 for purchase of the suit flat followed by a power of attorney. After demise of Bhola Nath Saha, the present o.ps. 1(a) to 1(e) started construction and entered into the sale agreement with petitioners who advanced a sum of Rs. 50,000/- out of total consideration of Rs. 8,40,000/- being the price per sq. ft. Rs. 1,200/-. The complainants were ready and willing to get the flat by paying the rest consideration but the o.ps. delayed and their acts amount to unfair trade practice and on 14.8.2013 the o.ps. told that they were unable to sell the flat to the petitioners and threatened them in dire consequences and they told that they would transfer the flat to 3rd party resulting which the petitioners filed this case.
- The o.p. nos. 1(a) to 1(e) & o.p. no. 6 did not contest the case and thus the case is heard ex parte against them.
- The rest o.ps. except o.p. no. 6 contested the case denying the allegations made against them and submitted that the petitioners are to give Rs. 4 lakhs to the o.ps. during the period of roof casting to finishing. But the petitioners did not pay the same and simply paid Rs. 50,000/- in 2011. The o.ps. suffered from financial crunch and they prayed for Rs. 2 lakhs as compensation.
- On the above case of the parties the following issues are framed :
- Is the case maintainable in its present form ?
- Whether the petitioners have any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.Ps.?
- Whether the petitioners were ready and willing to get the suit flat registered in their favour ?
- Whether the complainants are entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of their case the petitioners filed one copy of agreement for sale dated 09.02.2011 and copy of money receipt showing payment of Rs. 50,000/- on 19.01.2011 and one advocate’s letter dated 15.03.2013. On scrutiny of the agreement for sale it is noticed that the sale agreement was between Manubala Das, Gour Chandra Das, Sanat Das, Swapan Das & Sandhya Adak ( all owners ) represented by their constituted attorney Sri Bhola Nath Saha in the 1st part and Sri Gour Chandra Das ( purchaser ) in the second part and M.S. Loke Nath Construction represented by proprietor / developer Bholanath Saha in the 3rd part. The parties of the 1st part were joint owners who entered into an agreement with the developer Bhola Nath Saha for developing their property and constructing multi storied building. The party in the second part being purchaser of flat namely Gour Chandra Das approached the developer for the suit mentioned flat of about 700 sq. ft. inclu8dng 15% super built up area for a consideration of Rs. 1,200/- per sq. ft. amounting to Rs. 8,40,000/- and the purchaser advanced a sum of Rs. 50,000/-. In the mean time both the purchasers as well as the developer expired and their heirs stepped into their shoes. It is mentioned in the agreement that the developer would execute and register the sale deed and to give possession of the suit flat within 12 months from the date of agreement. It is further mentioned that at the time of roof casting the petitioners were to pay Rs. 1 lakh and at the time of brick work the petitioners were to pay another Rs. 1 lakh and at the time of making floor Rs. 1 lakh be paid and another Rs. 1 lakh at the time of finishing work and the rest money would be paid on or before registration i.e., Rs. 3,90,000/-. The case of the petitioners is that they were ready and willing to pay the rest consideration money but the o.ps. did not insist on the same resulting the case.
- The o.p. / promoter also expired and his heirs did not contest the case and so the matter be heard ex parte against them. The other o.ps. namely o.p. nos. 2 to 5 in their written version submitted that they were ready to perform their part but the petitioners were never ready to perform their part and so the case be dismissed against them.
- On scrutiny of the documents it is clear that the petitioners entered into a sale agreement and the o.ps. after receiving Rs. 50,000/- did not execute and register the sale deed as per terms and conditions of the agreement and so being aggrieved they filed this case. Neither the agreement is denied by the o.ps. nor payment of the advance consideration money of Rs. 50,000/- which proved the fact that the petitioners being intending purchasers rightly filed this case for getting reliefs. The o.p. nos. 1 (a) to 1(e) and 6 not appearing before the Forum and rather accepting the case of the petitioners against them this case. It becomes clear that simple denial of the case would not suffice. The o.p. nos. 2 to 7 except 6 never denied to perform their part. Ld. counsel for the o.p. nos. 2 to 5 & 7 submitted that the petitioners are not consumers and there was no cause of action against them and they never played any unfair trade practice or deficiency in service against petitioners and so the case be dismissed against them as the petitioners never paid the four installments as per the terms of agreement to the promoter. They are also waiting for getting their flats of their share. Further from the agreement itself we notice that as per the terms of agreement the petitioners have not paid the 1st four installments at the time of roof casting, brick work, flooring and at the time of finishing and no document has been field by them to prove that they were always ready and willing to get the flat registered in their names as well as their possession. No document also coming from the o.p. / developer 1(a) to 1(d) that they offered such execution and registration of the sale deed in favour of the petitioners. Except the latches in making payment of Rs. 4 lakhs after making advance of Rs. 50,000/- in 2011 they are entitled to get the suit flat registered in their names on payment of the rest consideration of Rs. 7,90,000/- in favour of the o.ps. and for non payment of the installment the petitioners are to pay interest @ 9% p.a. over the 4 lakhs for the said period i.e., from the date of roof casting till the actual payment made. In view of above discussion and findings this Forum finds that the petitioners are able to substantiate their case for getting the suit property registered in their names and the o.ps. be directed to execute and register the sale deed in their favour on receiving the rest consideration of Rs. 7,90,000/- with 9%interest of Rs. 4 lakhs from the date of roof casting to till realization. Thus the claim case succeeds. Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 290 of 2013 ( HDF 290 of 2013 ) be and the same is allowed on contest without costs against the O.P. nos. 2 to 5 & 7 and ex parte with costs against the o.p. nos. 1(a) to 1(e) and 6.
The petitioners are entitled to get the suit flat registered in their names by the o.ps. as per terms of agreement and the o.ps. are directed to execute the deed of conveyance in favour of the petitioners within 30 days from the date of this order failing the petitioners would be at liberty to put the order in execution and the whole amount would carry interest @ 9% p.a. till realization after the expiry of the stipulated 30 days and o.ps. entitlement of interest @ 9% from the date of roof casting till payment on Rs. 4 lakhs be adjusted with the dues. .
No compensation is awarded in favour of the petitioners considering the special facts and circumstances of the case. The o.p. nos. 1(a) to 1(e) and 6 are directed to pay cost of proceeding being Rs. 5,000/- to the petitioners.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
