The present case arises over a complaint filed by one Sri Abhishek Agarwal against Sri Tirtha Prasad Deb, praying for a direction upon the OP to execute the Sale Deed in his favour, and also for an injunction against the OP restraining him from transferring the said flat and cost and damages for a sum of Rs. 50,000/-.
Case of the Complainant, in short, is that, he entered into an Agreement for Sale with the OP on 21-10-2007 in order to purchase a 720 sq. ft. flat situated at Premises No. 8/12, (Now 8/12A) Netaji Nagar, P.S. Jadavpur (Now Netaji Nagar), Kolkata – 700 092, at a total consideration of Rs. 5,04,000/-. The Complainant, from time to time paid a sum of Rs. 4,22,300/- to the OP. Complainant was even ready to purchase the said flat after paying rest of the consideration money of Rs. 81,700/- subject to completion of the said flat, roof plastering, colour of outside walls and receipt of completion certificate. It is alleged that the OP is trying to sell out the said flat to a third party. Further allegation of the Complainant is that, the OP, with an ulterior motive, lodged a GD with Netaji Nagar P.S. and also filed M.P. Case No. 5071/2015 before the Ld. 2nd Executive Magistrate at Alipore u/s 144 (2) Cr.PC on 28-10-2015 and the Ld. Magistrate passed an order and directed the OC to see that no illegal act was done by any of the parties. Against this backdrop, Complainant filed this case.
Defending his case, OP filed a WV, whereby he denied all the material allegations of the complaint. Admitting that an Agreement for Sale was executed in between them, it is stated by this OP that although the Complainant initially paid Rs. 51,000/- to him, subsequently, the Complainant deliberately failed and neglected to pay further amount of consideration of the flat in question as were stipulated in the said agreement. After repeated persuasion of the matter, the Complainant paid another sum of Rs. 2,10,000/- to this OP in several installments. However, rest of the consideration amount is yet to be paid. Since time is the essence of any contract, after expiry of the stipulated period of time, as was envisaged in the said Agreement for Sale, the OP cancelled the said instrument and refunded a total sum of Rs. 3,65,000/-. Apart from that, another sum of Rs. 2,50,000/- was paid by the OP to the father-in-law of the Complainant, namely, Sri S. K. Bhandari. Accordingly, this OP prayed for dismissal of this case.
Point for determination is whether the Complainant is entitled to the relief, as prayed for.
Decision with reasons
The first relief sought for by the Complainant is to execute the Sale Deed in respect of the schedule flat in favour of the Complainant. On going through the photocopy of Agreement for Sale dated 21-10-2007, it appears that, it was agreed in between the parties that the flat in question would be handed over to the Complainant within the year 2009. Quite naturally, whatever grievance the Complainant had in respect of the flat in question, including non-delivery of flat, should have been agitated by the year 2011. However, it appears that the Complainant has filed this case before us on 27-11-2015. Thus, we find, the instant case is hopelessly time barred.
Although there is no dispute as to the total consideration amount of the flat in question, there remains a dispute as regards the quantum of payment made by the Complainant to the OP. It is claimed by the Complainant that he has paid a sum of Rs. 4,22,300/- to the OP. On the other hand, it is asserted by the OP that Complainant has paid only Rs. 2,61,000/- to him. It is indeed strange that despite such counter-claim on the part of the OP, Complainant has not furnished relevant vouchers/money receipts to substantiate his claim. Thus, we are afraid, the very factum of payment of consideration money, to the extent as claimed by the Complainant, remains unproven.
Finally, OP claimed to have refunded more than what he received from the Complainant. To substantiate such claim, OP filed some original money receipts and bank statements, wherefrom it transpires that the OP paid more than Rs. 6,00,000/- to one Sri Raj Agarwal. Although by filing (1) copy of one letter dated 17-06-2015 written by said Sri Raj Agarwal, claiming himself to be the representative of the Complainant and (2) copy of one GD dated 15-10-2015, addressed to the Officer-in-Charge, Netaji Nagar P.S. that too was written by said Sri Raj Agarwal on behalf of the Complainant, the OP has tried to establish there remains a nexus in between the Complainant and Sri Raj Agarwal. On the other hand, such fact has been strongly denied by the Complainant. To our mind, in order to come to a definite conclusion about the veracity of such claim and counter-claim, the matter requires elaborate evidence/cross-examination of witness which is not possible under the summary proceedings.
In the light of our aforesaid findings, we are of opinion that the Complainant is not entitled to any relief.
Hence,
O R D E R E D
that CC/49/2015 be and the same is dismissed on contest against the OP but without any order as to costs.
