Order No. 24 / Dated 19/02/2015.

Today is fixed for passing order in respect of the application submitted by the Jdr on 11.12.2014 and against that application Dhr has already filed written objection on 09.02.2015.  Fact remains that Jdr has submitted that in fact for non-execution of registered deed by Dhr, Jdr has failed to start the construction and fact remains that Dhr has been residing in a newly constructed temporary room within the case land and that was constructed by the Jdr.  But even then Dhr has claimed before this Forum for paying of Rs. 5,000/- as shifting rent per month to the Dhr.

          But truth is that Dhr Supriya Pal is already paid Rs. 90,000/- and Rs, 1,80,000/- as per decree.  Now question is whether part decree shall be complied by the Jdr or not.  In this regard Dhr Supriya Pal submitted that there is an agreement for Sale Deed executed by the Dhr and other co-sharers on 25.05.2010 and at the time of agreement of Sale Deed, Dhr paid Rs. 70,00,000/- which is admitted position as per agreement and this Dhr including other co-sharers of the said land executed Power of Attorney in favour of the Jdr.  But anyhow final Sale Deed has not been executed by the Dhr and other co-sharers in respect of the agreement of Sale dated 25.05.2010 and Jdr has already paid a sum of Rs. 13,36,282/- to the Kolkata Municipal Corporation in respect of arrear property tax of the present land in respect of which Dhr and other co-sharers are owner.

          But fact remains that it was subsequently found that the said land upon which the construction would be made by the Jdr has already mortgaged by the Dhr and his other co-sharers at K.I.T. and it is alleged that Jdr asked the Dhr and other co-sharers to release the said land from the mortgage from the KIT.  But Dhr and other co-sharers did not comply it and did not execute the Sale Deed in favour of the Dhr.

          Admitted position is that Supriya Pal and Sipra Pal entered into an agreement for Sale of a flat of 600 Sq. Ft. out of the flats which would be constructed by the Jdr and Supriya Pal and Sipra Pal paid Rs. 50,000/- and in that said agreement Deed it was specifically mentioned that on shifting from the said old house, Jdr shall have to pay Rs. 5,000/- rent charge to Supriya Pal and Sipra Pal.  But it is admitted position that Supriya Pal and Sipra Pal have been residing in a temporary structure within the disputed land and that was constructed by the Jdr and the above fact has not been challenged by the complainant and his Ld. Lawyer submitted that and fact remains that Dhr Supriya Pal and Sipra Pal have been residing in the said newly constructed temporary structure made by the Jdr and it is also fact that Supriya Pal has been running a business from the said temporary structure constructed by the Jdr within the case land.

          It is the contention of the Jdr that even after enjoying the temporary structure constructed by the Jdr within the case land present Dhr Supriya Pal practically suppressing that fact managed to procure a decree for arrear against payment of Rs. 5,000/- as rent for shifting charge.  But truth is that he has not yet shifted from the case land and the temporary structure.  But it is fact that Jdr already paid Rs. 90,000/- and Rs. 1,80,000/-.  Now question is whether the decree was procured by the Dhr by suppressing the entire fact or not? 

          In this regard Dhr has admitted that he is possessing that temporary structure as godown space wherefrom he is running his business.  Then question is how he can claim shifting rent charge per month and how he can file such case before this Forum for releasing shifting rent charges?  Because it admitted position that Dhr has been possessing an area in temporary structure of the case land and that has been constructed by the Jdr.  Then till he vacates that temporary structure, Dhr cannot get any claim shifting rent charges  at the rate Rs. 5,000/- in respect of which decree has been passed.  But anyhow Jdr to obey the order of the Forum already paid Rs. 1,80,000/-.  But truth is that DHR has not vacated that temporary structure as yet.  So, in this way he is not entitled to get any further shifting charges from Jdr and in this regard Jdr’s plea is no doubt legal and valid and for which no further shifting charge the Dhr as complainant is entited to get from the op/Jdr.

          In this case Dhr by filing objection submitted that he along with other co-sharers executed the Development Agreement and also executed Power of Attorney in favour of the Jdr.  But truth is that no Development Agreement was executed in between the Dhr and Jdr and Dhr’s other co-sharers.  But actually agreement for sale was executed amongst Saralendu Paul, Purnendu Pal, Smt. Raikishori Paul, Subroto Paul, Debobroto Paul, Smt. Sandhaya Paul, Supriya Pal, Smt. Chandra Hury, Smt. Tandra Halder, Smt. Sulekha Paul, Smt. Soma Bhattacharya, Narayan Chandra Paul, Madhu Sudan Paul, Gobinda Chandra Paul, Barun Kumar Paul, Somnath Paul, Smt. Mira Rani Mullick, Smt. Chandra Paul, Smt. Kalpana Paul, Sunanda Saha, Smt. Suchanda Nandi, Sourav Paul, Smt. Sipra Paul, Saswati Paul and Swati Paul the land owners 25 in numbers who are land owners joint land owners of the disputed land situated at Holding No. 66, in Sub Division – 11, Division – 11 Dihi Panchanngram Thana Maniktola, Sub Registrar Office Sealdah, Dist. 24 Parganas and present address of the property 1/1, Satin Sen Sarani in Ward No. 14 under Kolkata Municipal Corporation having Assessee No. 3014160001.

          Another factor is that Dhr has failed to prove that there is/was a Development Agreement in between the Dhr including other co-sharers with the Jdr.  On the contrary the Agreement for Sale dated 25.05.2010 supports that all the co-sharers jointly agreed to sell the property and handed over the possession of the property including old structure and received as per their share a total sum of Rs. 70,00,000/- and from the said document which is admitted by the Dhr Supriya Pal as per his share already received huge amount, Sipra Pal also received huge amount and in total Jdr already paid Rs. 13,36,282/- as property tax which shall be included as part of the total payment of consideration and as per Agreement for Sale, it is clear that total consideration of the Sale Deed was Rs. 70,00,000/- and already Jdr has paid Rs. 60,44,980/- to the DHR and other co-owners and also Rs. 13,36,282/- as arrear property tax that means Jdr already paid the entire consideration amount including property tax and complainant has received the same that has not been denied by the complainant (DHR) in his objection.

          Then it is proved that unless and until Dhr including other co-sharers execute the Sale Deed in favour of Jdr.  It is impossible for the Jdr to construct the flat and on completion of the Sale Deed, the Jdr shall have to construct the flat when the present Dhr shall get two get flats as per agreement.  But it is proved that this Dhr with some mal intention did not execute the Sale Deed and he has been creating problem only for getting the shifting charges rent.  But most interesting factor is that by suppressing the entire fact this Dhr has managed to procure a decree from our Forum.  But we are convinced to hold that the Jdr has no fault but it is proved that the present Dhr is a treacherous person who has managed to procure a decree from the Forum by practicing fraud and suppressing the fact that he has been enjoying a temporary structure within the disputed land constructed by the op/Jdr and then under any circumstances the present Dhr is not entitled to get any further order and there is no question of compliance of the decree by the Jdr on the ground that the Dhr has procured the decree by suppressing the fact that he has not shifted from the case land. 

          Now it is admitted by the DHR that he has been enjoying the temporary structure and running his business.  So we are convinced to hold that a truthful picture has been presented by the Jdr and it is also proved that by suppressing the truth, the Dhr has managed to procure a decree and in fact Dhr is not entitled to get any shifting charge in view of the fact that he has been possessing temporary structure and that structure is within the disputed land on which Jdr have got possession partly and already demolished the structure/construction.  But Sale Deed has not been executed by the co-sharers and that is including the present Dhr.

          Ld. Lawyer for the Dhr tried to say that he has already executed Power of Attorney but probably it is not known to DHR and his legal agent that the seller cannot give any Power of Attorney to the purchaser for execution of the decree.  But Power of Attorney was given only for the purpose of demolishing the same or constructing further structure etc. and to secure KMC report before final execution and registration of the Sale Deed, when there is no existence of any Development Agreement in between the Dhr and other co-sharers and the Jdr.  So, it is clear that present complainant is most treacherous person and practically he has already practiced fraud before this Forum which is proved.

          So, in the above circumstances, we are convinced to hold that the amount which is already been paid as per decree by the Jdr should be repaid by the present Dhr to the Jdr and fact remains that Dhr shall have to show that Sale Deed has been executed in favour of the Jdr and when that Sale Deed shall be completed, thereafter Dhr may file any such complaint under C.P. Act.  If it is not otherwise delivered by the Jdr and when Sale Deed in respect of land has yet been executed in favour of the Jdr, Dhr cannot invoke the Agreement for purchase flat from the Jdr.  Admitted position is that there is an agreement for sale in respect of Godown of 300 Sq. Ft. carpet area on the ground floor and that agreement was executed on 05.05.2010 when Supriya Pal was the owner in respect of the disputed land upon which construction shall be constructed by the Jdr and in respect of that land there is no Development Agreement in between the Jdr and Dhr and including other co-sharers of the Dhr.   So, under any circumstances, any deed of Agreement for Sale executed in between the Jdr and Dhr in respect of purchasing the flat by the Dhr and other co-sharers cannot be anyway placed before this Forum for any decree unless the Dhr and other co-sharers executes Deed of Sale to the Jdr and further agreement of purchasing flat from that construction shall be valid only when the Deed of Sale in respect of the land as executed by all the owners including Dhr in favour of the Jdr on 25.05.2010 shall be executed finally and registered by the DHR and other co-owners.

          So considering all the above fact and circumstances, we are convinced to hold that there is no liability on the part of the Jdr to satisfy the decree and in view of the fact that the decree has been procured by the Dhr fraudulently and at the same time the Dhr cannot invoke and cannot get any relief in respect of the Deed of Agreement dated 05.05.2010.  Accordingly we are allowing the objection of the Jdr and passing such final order, holding that the decree has been procured by the Dhr by practicing fraud upon this Forum and he managed to secure a decree in respect of payment of shifting charge to the extent of Rs. 5,000/- per month but such an order should not be passed if it would be reflected that Dhr has been processing the temporary structure within the case land and running his business.

          In the result the application succeeds.

          Hence, it is

                                                          ORDERED

          That the objection filed by the Jdr is hereby allowed subject to payment of cost of Rs. 5,000/- by the Dhr to the JDR.

          Accordingly this execution case is disposed of finally with a specific finding that the decree as passed by this Forum was procured fraudulently by the Dhr and Dhr is not entitled to get any amount as shifting charges per month from the Jdr and Jdr has no liability to pay any such amount to the Dhr and Dhr is hereby directed to refund the entire amount which has been paid during execution proceedings by the Jdr to Dhr and that is Rs. 1,80,000/-, in default for realisation of the same penal action shall be started against the Dhr.

          But a condition is imposed if Sale Deed is executed by the Dhr and other co-sharers in favour of the Jdr within one month from the date of this order and Dhr vacates the temporary structure which is under possession at once in favour of the Jdr, in that case, the Forum shall consider about payment of Rs. 1,80,000/- by DHR.

          Dhr is hereby directed to comply the order and Jdr to report whether the order has been complied by the Dhr and he has got the Registered Sale Deed and possession of the temporary structure from the Dhr or not and the matter shall be reported to this Forum by both the parties after lapse of one month.

          Accordingly the application is disposed of finally on contest.

Order No. 25 / Dated 15/07/2015.

JDr. Pravat Pan has filed a petition praying for taking step  against DHr.  for refunding Rs.1,80,000/- and for compliance of the order No. 24 dated 19/02/2015. Considered the petition but before taking any penal step send a show cause notice upon the DHr. to comply the order i default penal action shall be started.

DHr. to show cause by 30/07/2015.