DATE OF FILING : 14-03-2014.
DATE OF S/R : 18-06-2014.
DATE OF FINAL ORDER : 16-03-2016.
1. Sri Naresh Agarwal,
son of late Biswanath Agarwal,
residing at 37, Bhagawan Ganguly Lane,
P.S. & District Howrah,
PIN 1.
2. Sri Mukesh Gupta,
son of late Biswanath Gupta,
residing at 37, Bhagawan Ganguly Lane,
P.S. & District Howrah,
PIN 1. ……. ……….. ……..………….…………………... COMPLAINANTS.
1. M/S. MAA Gita Construction,
a partnership firm having its registered offce at
18, Dr. P.K. Banerjee Road,
P.S. & District Howrah,
PIN 1.
2. Sri Bablu Kumar Jaiswal,
son of Tarak Nath Show,
partner of M/s. Gita Construction,
residing at 18, Dr. P. K. Banerjee Road,
P.S. & District Howrah,
PIN 1.
3. Sri Heeralal Shaw,
son of Sri Indradev Shaw,
partner of M/S. Gita Construciton,
residing at 127, Netaji Subhas Road, P.S. Bantra,
District Howrah,
PIN 1.
4. Sri Mukesh Kumar Shaw,
son of Madan Lal Shaw,
partner of M/S. Gita Construciton,
residing at 1, Rammohon Bera Lane, P.S. Beniapukur,
District Howrah,
PIN 700014.
5. Sri Gour Baran Sett,
Son of late Basanta Kumar Sett,
residing at 1, Kedar Bhattacharjee Lane,
P.S. Shibpur, District Howrah,
PIN 4.
6. Smt. Gita Sadhukhan,
w/o. Gour Mohan Sadhukhan,
residing at village Maju, P.O. Munshirhat,
P.S. Jagatballavpur, District Howrah.
7. Smt. Mausumi Sett,
w/o. late Gautam Sett,
residing at 1, Kedar Bhattacharjee Lane, P.S. Shibpur,
District Howrah,
PIN 4.
8. Sri Kuntal Sett,
son of late Gautam Sett,
residing at 1, Kedar Bhattacharjee Lane, P.S. Shibpur,
District Howrah,
PIN 4. .…….……..…………………………………………………………..…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
- The instant case was filed by complainants, namely, Sri Naresh Agarwal and Sri Mukesh Gupta, U/S 12 of the C.P. Act, 1986 wherein the complainants have prayed for direction upon the o.ps. to execute and register the flat in question and to pay compensation of Rs. 2 lakhs and costs along with other relief or reliefs as the Forum may deem fit and proper.
- It is the case of the complainants that they were willing to purchase a flat measuring 820 sq. ft. including 20% super built up area on the 3rd floor as detailed under schedule ‘A’ & ‘B’ at a total consideration amount of Rs. 13,12,000/- and for that purpose they entered into an Agreement For Sale with the o.p. nos. 1 to 4 on 16.4.2013 vide Annexure Agreement for Sale on the basis of Development Agreement entered between o.p. nos. 1 to 4, being developers and o.p.no. 5 to 8, being the landlords. It is stated by the complainants that at the time of execution of the said Agreement dated 16.4.2013, complainants advanced a sum of Rs. 9 lakhs to the o.p. nos. 1 to 4 and after that Rs. 3 lakhs was paid in cash totaling Rs. 12 lakhs out of total consideration amount of Rs. 13,12,000/-. It is to be mentioned here that o.p. nos. 1 to 4 entered into a development agreement with the o.p.nos. 5 to 8 with respect to the schedule premises on 16.09.2010. And by virtue of that development agreement o.p. nos. 1 to 4 constructed a multi storied building at the schedule premises vide Annexure 1 of written objection filed by o.p. nos. 1 to 4. Subsequently complainants requested the o.ps. for executing and registering the deed of conveyance but they refused to do the same even they did not deliver the possession of the flat in question. After that, complainants met o.ps. on 03.03.2014 with the same request but they threatened with dire consequences that they would not execute the deed of conveyance rather they would transfer the flat in question to any third party at a higher value. Being frustrated and finding no other alternative, complainant filed this instant case with the aforesaid prayers.
- Notices were served upon the o.ps. All the o.ps. appeared and filed written versions. Accordingly the case is heard on contest against all the o.ps.
- Upon pleading of the parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
- Whether the complainants are 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 written versions filed by the o.ps. along with the documents and noted their contents. Denying and disputing all material allegations of the complainants, it is the specific plea of the o.p. nos. 1 to 4 that there is no such agreement for sale entered into between the complainants and the o.p.s. on 16.4.2013. Accordingly, no question of delivery of possession as well as execution and registration of the deed of conveyance with respect to the schedule flat in favour of the complainants arises. But on perusal of the Agreement for Sale dated 16.4.2013 entered into between the complainant and o.p. nos. 1 to 4 and the written version field by o.p. nos. 1 to 4 in this case, we find the signatures of o.p. no.2, namely, Bablu Kumar Jaiswal, in both the documents are same and identical. So the agreement for sale dated 16.4.2013 cannot be said to be a manufactured or vague one as stated by the o.p. nos. 1 to 4 in their written version. So the claim of o.p. nos. 1 to 4 on this point is turned down by this Forum. And that agreement was entered into between the parties after making an advance payment of Rs. 9 lakh by the complainants to the o.p. nos. 1 to 4. Although complainants claim that they have paid Rs. 12 lakhs in total to o.p. nos. 1 to 4 but failed to furnish any documents, whatsoever, with respect to payment of Rs. 3 lakhs. Accordingly we have no alternative but to accept the payment of Rs. 9 lakhs by the complainants to the o.ps. 1 to 4 towards the purchase of the said flat. But it is a fact that o.p. nos. 1 to 4 have dared to sell out the flat in question to a 3rd party as it is evident from Deed of Conveyance dated 12.12.2014 executed and registered in favour of one Mr. P.V. S. Krishnan and others, filed by o.p. nos. 1 to 4 in course of the proceeding, in spite of the fact that there was an interim order passed by this Forum in favour of the complainants restraining the o.p. nos. 1 to 4 not to sell, transfer and alienate the said flat to any 3rd party. The said Mr. P.V.S. Krishnan filed a petition praying for addition of necessary parties in this case and the Forum did not find any merit. Accordingly the petition was rejected. However, the allegations of the complainants have also been denied by the o.p. nos. 5 to 8 with a specific prayer that developers i.e., o.p. nos. 1 to 4 have not yet delivered the entire landowners’ allocation to them. Here we take a pause. Here in this case we are to adjudicate the prayers of the complainants in terms of the provision of the C.P. Act, 1986 as amended up to date. If there is any dispute between the land owner and the developer, it is to be set at rest in another application if filed before the Forum. For that complainants should not suffer in spite of making payment of such a huge amount of Rs. 9 lakhs to the developer being o.p. nos. 1 to 4 towards the consideration amount of the flat in question. By virtue of Power Of Attorney given by o.p nos. 5 to 8, o.p nos 1 to 4 entered into Agreement For Sale dt. 16/04/2013 with the complainants. O.p. nos. 1 to 4 have not even cared to return the amount paid by the complainants after executing and registering the deed of conveyance in favour of 3rd party knowing fully well that there was an interim order in favour of the complainants which is nothing but gross violation of the provision of the C. P. Act, 1986, full of disregard and disrespect towards the Act. And this is nothing but a clear case of unfair trade practice adopted by o.ps nos 1 to 4. O.ps 1 to 4. have miserably failed to keep promise which certainly amounts to deficiency in service coupled with unfair trade practice on their part which should not be allowed to be perpetuated for an indefinite period. So, we are of the candid opinion that it is a fit case where the prayers of the complainants should be allowed. Points under consideration are accordingly decided.
Hence,
O R D E R E D
That the C. C. Case No. 143 of 2014 ( HDF 143 of 2014 ) be and the same is allowed on contest with costs as against the O. p.nos. 1 to 4 and dismissed without cost against o.p nos 5 to 8.
The O.Ps 1 to 4. be jointly or severally directed to return Rs. 9,00,000/- to the complainants within 30 days from the date of this order.
The o.ps 1 to 4 be directed further to pay jointly or severally a sum of Rs. 50,000/- as compensation to the complainants for causing mental pain and prolonged harassment together with litigation costs of Rs. 10,000/- within one month from the date of this order i.d., the total amount of Rs. 9,60,000/- shall carry @8% interest till realization.
The complainants are 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.
