JUDGEMENT
This is an application U/s 12 of the C.P. Act, 1986.
The complainant’s short case is that she is a house wife residing at Village Moira, Via-Ukhra, District-Burdwan.
The O.P. No.1 is a company, who registered under Indian Company’s Act, 1956 and O.P. No.2 is a director of O.P. No.1 Company.
The O.P. No.1 & 2 purchased different plots of land by registered deed of conveyance and adopted a master plan of those plots of land, which is described in the schedule-A and by dividing the said plots of land into sub-plots in the nature of residential and commercial purpose and it is published by electronic media, news paper, flex, signboard etc. to fetch customer.
The complainant after knowing the fact from such publication, accepting the proposal of the O.P. and interested to purchase a residential plot of land and accordingly, the O.P. allotted the Plot No.P-422 under Mouza-Rakshitpur, P.S.-Kanksha, District-Burdwan, which is described in the Schedule-B property.
The price and consideration for three cottahs of Schedule-B property was fixed by and between the complainant and O.P. total cost of Rs.1,80,000/- (@Rs.60,000/- per cottah) to be paid under the scheme of instalment payment vide an agreement dated 11.11.2009 made between the parties.
The complainant paid a sum of Rs.54,000/- towards part payment of the schedule-B property and further paid Rs.1,05,000/- in 30 instalment @ Rs.3,500/- per month by cheque, out of which the O.P.s encashed a sum of Rs.98,000/- but did not encash the cheque of two instalments inspite of receiving the cheque. Thereafter, the complainant repeatedly given the cheque of instalment but the O.P. refuse to receive the cheque, total refusal amounts hence become Rs.28,000/- out of total consideration Rs.1,80,000/-.
It is to be mentioned here that on 11.11.2009 an agreement for sale was executed by and between the complainant and O.P.s containing amongst other term and conditions, a clause in Paragraph No.10 of the said agreement for sale that the disputes and differences whatsoever arises shall be mutually settled and in case of further differences arise shall be referred to an arbitrator within the meaning of Arbitration and Conciliation Act, 1996 and the O.P. retained sole authority and right to appoint the arbitrator which shall be accepted by the petitioner.
On receiving the part payment of Rs.54,000/- as stated above the O.P. executed a booking certificate in favour of the complainant wherein date of issue was on 7.10.2009 valid upto three years. Giving any period of validity of any money receipt is illegal rather trap to put the complainant into troubles and complainant apprehends willful refusal of the cheque towards last eight instalments by the O.P., is a plan to quite the complainant from the valid, right, title and interest in the schedule-B property on the false plea of cease the validity of booking.
Inspite of repeated demands by the complainant the O.P. failed, neglected and refused to accept the part of instalment payment as per payment schedule and get the deed of sale/conveyance registered in favour of the complainant and finally the complainant through her lawyer served a notice on 19.5.2012 requesting the O.P. to accept the due entire amount for final payment of the schedule property and process of registration of deed of conveyance may be completed or to appoint an arbitrator but no positive measure has yet been taken. Finding no other alternative to protect the right, title and interest over the schedule-B property the complainant filed this case before this Ld. Forum for justice.
The O.P.s contested the case by filing written version, denying inter-alia all the material allegation as leveled against them. The O.P.s further stated that as per agreement to sale dated 19.11.2009 this complainant had agreed to purchase the schedule-B property of this case and to that effect paid Rs.54,000/- only at the time of booking of the property on 7.10.2009 through her attorney and also agreed to pay balance consideration money in equal 36 instalments @ Rs.3,500/- only towards these Opposite parties. The time limit of 36 months completed in month of October, 2012 but the complainant without perform fully her part of performance has filed this speculative case on 30.8.2012 on the basis of some false, fabricated allegations and statements only harass and destroy the goodwill of these O.P.s.
As per said agreement the complainant was responsible or liable to pay 36 monthly instalments within the month of October, 2012 but the complainant paid monthly instalments upto the month of February, 2012 through her attorney but never paid any further monthly instalment or never communicated with these O.P.s, after the month of February, 2012 to perform her part of performance as per said agreement. It is also stated by these O.P. that no such communication has been made by the complainant with these O.P.s and no such lawyer’s letter has been communicated towards these O.P.s. Although after perused this case record, it is became towards these O.P.s and it would be crystal clear before the Ld. Forum after perused the last portion of Para-3 of the said lawyer’s letter that the complainant does not accrue any right to file this case or any other case against these O.P.s on the basis of the said lawyer’s letter. The complainant never had any intention to pay monthly instalment after month of February, 2012 and to that effect, she became monthly instalment defaulter or EMI defaulter as per said Agreement dated 19.11.2009.
The complainant has no prima-facie or there is no such cause of action to file this case against these O.P.s because these O.P.s never denied to receive monthly instalments from the complainant or never denied to execute Regd. Sale Deed in respect of the schedule-B property in favour of the complainant. But without full part performance on the part of the complainant as per the agreement, how these O.P.s do their part performance.
The O.P. further stated that if the complainant had good intention to pay monthly instalment after the month of February, 2012 and for the sake of argument, if it is presume that these O.P.s denied to receive the same, then the complainant had opportunity to send the monthly instalment through Postal Money Order towards these O.P.s but the complainant did not take any measure to show her intention to pay monthly instalment after the month of February, 2012, inspite of above, she has filed this case by stating that she was ready to pay her dues in respect of the schedule-B property, which is totally false fabricated & concocted.
During the pendency of this case the attorney of complainant filed a complaint vide M.P. Case No.94/2013 U/s 420/406/120B of IPC before the Ld. ACJM, Durgapur on 25.4.2013 against these O.P.s in respect of self same subject matter of this case and also filed an affidavit dated 25.4.2013 in the said criminal case by swearing that ‘he never filed any case before any court or authority over the self same matter’.
As per aforesaid complaint vide M.P. Case No.94/2013 the concerned police officer lodged FIR vide No.284/2013 on 29.4.2013 and the concerned police officer also lock & key the office of these O.P.s on 1.5.2013 and also sent letter to the concerned Branch Manager of the bank to which these O.P.s maintain bank account, to fridge up transactions of the account on 3.5.2013 and also arrested several employees of these O.P. and the O.P. No.2 compel to surrendered on 20.7.2013 and release on bail on 13.8.2013. Save and except what are specially admitted in this written objection these O.P.s denied each and every allegations made in the complaint and prayed for dismissal of the case.
Point for consideration in this case is;
- Whether there is any deficiency in service on the part of the by O.P.s ?
DECISION WITH REASON
At the outset it must have to state that complainant has miserably failed to proved any deficiency in service as well as unfair trade practice against the O.P. because complainant himself is a defaulter in making payment of instalment and we find that validity period was three years from the date of booking i.e. on 7.10.2009 to 7.10.2012. It has argued by the Ld. Advocate of the complainant that O.P. did not construct metal road to reach the plot of land, alongside drains and other necessary works pertaining to the basic infrastructure in second schedule of the property. It has also submitted that in terms of the agreement at Para-4 it has specifically mentioned that “unless prevent by any circumstances beyond it control, the first party shall complete all necessary works of the said land within three years from the date of execution of this agreement.” This agreement was made on 19.11.20009 and the first party is the Opposite Party. This argument of the Ld. Advocate of the complainant is no doubt attractive but no substances in the eye of law because complainant himself is a defaulter in paying remaining instalments after April, 2012 to till October, 2012 since the entry of the pass book of the complainant reflects the payment till April, 2012. Complainant ought to have paid the remaining instalments and then and then raise her hands to compliance of the part of the O.P.
Be that as it may, we want to redress the dispute of the parties through this Forum, for which on the basis of the agreement made between the parties, we direct the complainant to pay remaining amount of Rs.21,000/- within one month together with interest @18% p.a. for unpaid outstanding instalments in terms of agreement of clause No.13 and such payment will be made together with interest as stated above on completions of the obligation of the O.P. mentioned in Para-3 & 4 of the agreement i.e. metal road and drains etc. Thereafter, O.P. will hand over the physical positions of the land after making habitable in all respect in terms of the agreement and thereafter complainant have to bear the registration and processing charges, the cost of registration, stamp duty etc. in terms of clause No.5 of the agreement. The entire directions have to be complied with within 45 days from the date of this order, failing which complainant is directed to inform this Forum if she at all ready and willing to perform her part but O.P. unwilling to perform their part in the light of the observation made in above in terms of Para-3 & 4 of the agreement. It may be specifically mentioned here that Para-3, 4 & 5 and 13 is strictly binding upon the parties to redress the disputes in healthy manner so that their cordial relationship may restore. Hence it is
ORDERED
the application U/s 12 of the C.P. Act is disposed of in the light of the observation made in the body of the order in toto, failing which the complainant is directed to come before this Forum, if she is ready and willingness to perform her part of obligation in terms of the agreement then this Forum will act accordingly to comply the direction given to the O.P. in terms of agreement as mentioned above. It may be mentioned here that if the complainant is unwilling to make remaining payment from May, 2012 to October, 2012 along with interest @ 18% p.a. then O.P. is at liberty to refund entire money already received i.e. 1,59,000/- together with interest in terms of Para-14 of the agreement, otherwise O.P. cannot invoke that clause No.14 in any circumstances if the complainant is agreed to satisfy the clause No.13 in toto. Let the plain copy of this judgment be handed over to all the parties.
(Udayan Mukhopadhyay)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
(Udayan Mukhopadhyay)
President
D.C.D.R.F., Burdwan
(Silpi Majumder) (Durga Sankar Das)
Member Member
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
