DATE OF FILING : 22.10.2014.
DATE OF S/R : 08.01.2015.
DATE OF FINAL ORDER : 26.02.2016.
Rajesh Char,
son of Sri Netai Char both by faith Hindu, by occupation business,
residing at 42, Dakshin Buxarah, village Road,
P.S. Shibpur,
District Howrah, ……………..……………………………..………….. COMPLAINANT.
1. M/S Biswakarma Developer having its
Registered office at 85/5/1, Madhusudan Paul Chowdhury Lane,
P.S. Bantra,
District Howrah, represented by its proprietor
Sri Biswakarma Rajbhar,S/O, Sri Lalji Rajbhar,
Residing at 85/5/1, Madhusudan Paul Chowdhury Lane, P.S Bantra,
District Howrah,
2. Sri Goutam Bhattacharya,
3. Sri Mrinal Bhattacharya, both
sons of Late Shashti Charan Bhattacharya, by faith Hindu,
residing at 37/1, Aprakash Mukherjee Lane,
P.S. Shibpur,
District Howrah, ……………………………………......…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
- Complainant, namely, Rajesh Char, by filing a petition U/S 12 of the C. P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.ps. to execute and register the sale deed with respect to the scheduled flat in question in favour of the complainant, to pay Rs. 1,00,000/- as compensation and Rs. 20,000/- as litigation costs along with other relief or reliefs as the Forum may deem fit and proper.
- It is the specific grievance of the complainant that even after receiving a total advance amount of Rs. 10,00,000/- vide Annexures A and B,i.e Agreement For Sale and money receipts , out of total consideration price of Rs. 17,20,000/- towards the purchase price of flat measuring about 800 sq. ft. ( 1st floor ) including 15% super built up area, detailed under Schedule-B IN Agreement For Sale dt.15/02/2012, o.p.s have failed to execute and register the said flat in favour of the complainant since long. The said agreement for sale with respect to the scheduled flat was entered between the complainant and the o.ps. on 15.02.2012 vide Annexures. O.p1. received the total advance amount of Rs. 10,00,000/- from the complainant in respect of the flat in question by virtue of a Development Agreement entered by and between the O.Ps. on 30/08/2007. It is alleged by the complainant that as per the Agreement dt 15/02/2012, o.ps were supposed to deliver the flat in question to the complainant within six months from the date of such agreement. But till the filling this case , they have failed to do so. Even after passing away the long period ,the o.ps. did not care to execute and register the sale deed in favour of the complainant. Neither they have delivered the possession to the complainant. Ultimately ,complainant sent two notices dated 08.05.2014 requesting them to execute and register the flats in his favour upon payment of balance consideration amount vide annexure C,but the o.ps. did not pay any heed. Complainant was ready to pay the balance amount but the o.ps. remained silent. Being frustrated and finding no other alternative complainant filed this instant case with the aforesaid prayers.
- Notices were served. The o.p 1. appeared and filed written version. O.P nos 2 and 3 neither appeared nor filed w/v. Accordingly, the case was heard ex parte against the o.ps. 2 and 3 and on contest against o.p no 1.
- Two points arose for determination :
i) Are there any deficiency in service on the part of the O.Ps. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- Both the points are taken up together for consideration.. We have carefully gone through the w/v filed by the o.p no 1. and noted its contents. Denying and disputing all material allegations of the complainant, the specific plea taken by o.p no 1 is that the said Agreement For Sale dt 15/02/2012 was executed on Ten Rupee Stamp Paper and as per Section 35 of Indian Stamp Act, 1899, the said Agreement is not properly stamped, so, it cannot be considered as a piece of evidence. Here the Forum is to consider whether there is any deficiency in providing service on the part of O.Ps. We are not to deal with the right/ title issue. Accordingly, the Agreement dt 15/02/2012 is very well acceptable by this Forum. On perusal of the said Agreement and money receipts of different dates , we find that those money receipts were duly issued by o.p. no,1 on different dates.And it is clear that complainant has already paid Rs. 10,00,000/- to the o.p.s out of the total consideration amount of Rs. 17,20,000/- towards the purchase price of the schedule mentioned flat in 2012 itself . Complainant has filed all original money receipts at time of final argument. Even complainant sent letters to on 08.05.2014 vide Annexures to o.p.s with the request to deliver the possession and to execute and register the Deed Of Conveyance but the o.p.s did not pay any heed to that, thereby caused a severe mental and physical harassment to the complainant. We all know that without registration of the flat, the ownership of the said flat is not created in favour of the complainant. Complainant is suffering a lot since 2012 even after paying such a big amount. Shelter is a basic need. To run one’s life smoothly, it is the urgent need. By not executing and registering the sale deed, o.p.s have shown severe negligence of a great deal which should not be allowed to be perpetuated any more. Moreover, o.p nos 2 and 3 have not cared to appear before this Forum even after receiving notices. No w/v is filed by them wherefrom it is crystal clear that they have nothing to put forward in their favour and we have no difficulty to believe the unchallenged testimony of the complainant against o.p nos 2 and 3. So we are of candid opinion that it is a fit case where the prayers of the complainant shall be allowed. Points under consideration are accordingly decided.
Hence,
O R D E R E D
That the C. C. Case No. 553 of 2014 ( HDF 553 of 2014 ) be allowed on contest with costs against the O.P.no 1 and exparte against o.p nos 2 and 3 without cost.
That the O.P.s are jointly and severally directed to execute and register the flat in question in favour of the complainant after receiving the balance consideration amount being Rs. 7,20,000/- from the complainant and to deliver peaceful possession of the schedule flat to the complainant within 30 days from the date of this order i.d., Rs. 150/- per day shall be charged till actual registration. The complainant is to bear the registration costs.
The complainant do get an award of Rs. 25,000/- as compensation toward mental agony and harassment and Rs. 5,000/- as litigation costs and the o.p. no 1 is directed to pay the same within 30 days from the date of this order i.d., 8% p.a. interest shall be charged on Rs. 30,000/- till actual payment.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( Jhumki Saha)
Member, C.D.R.F., Howrah.
