Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 30.09.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite parties to hand over/deliver the possession of the flat as mentioned in the agreement.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has filed this case on prescribed format directing the opposite parties to hand over the possession of the flat as mentioned in the agreement. It appears that an “agreement for sale” between the complainant and the opposite parties was executed on 19.12.2007 whereby and where under the complainant was to give possession of the aforesaid flat, details of which has been mentioned in Para – 4(4) of the agreement for sale referred above. It further appears from the aforesaid agreement that complainant was to pay Rs. 1,00,001/- to the opposite parties and the balance amount of Rs. 6,19,000/- was to be paid to opposite parties within one month after sanctioning the loan amount.
The grievance of the complainant is that he had paid aforesaid Rs. 1,00,000/- at the time of registration of the agreement for sale on 19.12.2007 and as per consent of the opposite parties the complainant has installed door, electric connection etc. but the opposite parties are not giving possession/ entry of the aforesaid flat.
On behalf of opposite party a written statement has been filed stating therein that as per the agreement the price of the schedule – I property was fixed as Rs. 7,19,000/- out of which the complainant has only paid Rs. 1,00,000/- as advance at the date of execution of registered agreement for sale. The complainant after taking possession of the flat installed electric connection but had not paid the remaining amount of Rs. 6,19,000/- to opposite party even after twenty one months of taking possession. In Para – 17 of written statement the opposite party has been stated that vide annexure – B he has returned the sum of Rs. 1,00,000/- to the complainant which he had received at the time of execution of registered agreement for sale.
No rejoinder has been filed by complainant of the aforesaid written statement filed by the opposite parties.
Heard the learned counsel for the petitioner.
We have perused the record of this case carefully.
It is the case of the complainant that despite payment of Rs. 1,00,000/- and installing door etc. the opposite parties are not giving entry to complainant in the aforesaid flat.
Opposite parties have asserted that as per Para – 7 of agreement for sale the complainant has not paid Rs. 6,19,000/- even after passing of twenty one months and thereafter the opposite parties had returned Rs. 1,00,000/- to the complainant vide annexure – B.
It would be proper for us to quote Para – 7 of agreement for sale referred above which is as follows:- “the second party has taken possession of the aforesaid flat in the month of 1st December 2007 after paying the said advance consideration amount Rs. 1,00,001/- and now he will be bounded to pay the balance amount of Rs. 6,19,000/- to the said developer/company within one month after sanctioning the loan. Then the second party will be entitled for possession over the said flat absolutely from the said developer/company and she will have right to use the same as she likes.”
The learned counsel for the complainant has asserted that the amount containing in annexure – B has not been credited in the account of the complainant. He has further stated that if the aforesaid amount containing in annexure – B stands credited in the account of complainant then complainant has no case.
Replying the aforementioned submission the counsel for the opposite parties has relied on annexure –B and stated that disputed facts cannot be decided by this Forum.
The opposite parties has admitted that he has received Rs. 1,00,000/- from complainant. He has also not denied that after receipt of aforesaid amount the complainant has fitted door etc. from his own pocket. However the opposite party has stated that he has returned the aforesaid advance of Rs. 1,00,000/- to the complainant vide annexure – B but has not stated on oath that the aforesaid cheque ( annexure – B) was credited in the account of the complainant.
In our opinion, if the amount of Rs. 1,00,001/- contained in annexure – B has not been credited in the account of complainant then the complainant has right to get possession of the flat after paying the rest amount as per agreement for sale referred above.
Hence we direct the opposite parties to hand over physical possession of the flat in question to the complainant within the period of one month from the date of receipt of this order or certified copy of this order.
The complainant after coming in the physical possession of flat in question shall pay the rest amount of Rs. 6,19,000/- to the opposite parties at the time of registration of flat in question.
The opposite parties are further directed to get the flat in question registered in the name of the complainant within the period of three months from the date of receipt of this order or certified copy of this order.
Accordingly this case stands allowed to the extent referred above.
Member President
