Judgment dated 31-5-2016
This is a complaint made by one Sri Rathijit Modak, son of Sri Ranjit Modak, resident of 55, Kasaripara Road, under Kalighat P.S., Kolkata – 700 025 against Raj Construction a proprietorship firm running its business from the office situated at 423/1Diamond Harbour Road, Kolkata – 700 063, praying for handing over possession of the flat mentioned in schedule B to the Complainant and execution of deed of conveyance in favour of the Complainant by receiving the balance amount of Rs.4,00,000/- and direction upon the OP to pay Rs.5,00,000/- as compensation and Rs.50,000/- as litigation cost.
Facts in brief are that the OP is a land developer and running a construction firm, who entered into a development agreement on September 9, 2009, with the co-owner of a plot of a land as mentioned in the schedule A. After demise of Rathindranath Kar, being a co-sharer, his legal heirs Smt. Rama Kar, Sri Amitava Kar, Smt. Sunipa Modak and Smt. Sampa Manna entered into a supplementary agreement with OP on 17.10.2012. On August 17, 2013 Complainant and the opposite parties entered into an agreement for sale of a flat measuring about 600 sq. ft. super built area against a consideration amount of Rs.8,00,000/-. Complainant paid Rs.4,00,000/- to the opposite party on August 17, 2013 and it was agreed that rest Rs.4,00,000/- will be paid on the date of registration of the sale deed. As per agreement of the same the OP was to hand-over the possession of the flat within November, 2014, to the Complainant. But OP did not comply the terms. Complainant met in the 1st week of October, 2015 with the OP and requested to handover the flat and make the conveyance deed, but of no use. OP has a mala fide intention to handover the possession and make the deed of sale in favour of the Complainant and so this case was filed by the Complainant.
OP filed written version against the complaint and denied all the allegation mentioned therein. It is stated that the complaint is not maintainable. Further, it has been alleged that Complainant entered into an agreement of sale with the OP. OP approached the Complainant for a loan of Rs.4,00,000/- , who agreed to give the loan with an interest of Rs.1,00,000/- payable with the principal and a loan agreement was drafted on 3.5.2012. As a security purpose an agreement for sale was drafted which was un-dated one and no date was mentioned in the said agreement for sale, contains the sign of the Complainant and OP being represented by Raja Mallik and Rathijit Modak. Complainant has forged the document by filling the vacant portion. This document was not entered into in 2013. OP refunded Rs.2,00,000/- out of Rs.4,00,000/- and OP is ready and willing to refund another Rs.2,00,000/-. So, OP prayed for dismissal of this complaint.
Decision with reasons :
Both the sides have filed affidavit-in-chief and questionnaire.
Complainant has filed Xerox copy of the loan agreement and Xerox copy of the agreement for sale. On the other hand, OP has filed Xerox copy of the loan agreement and Xerox copy of the agreement for sale. OP has also filed a deed of cancellation of agreement. On the contrary, Complainant has filed original agreement for sale to establish that he entered into an agreement for sale with the OP for purchasing the flat mentioned in the schedule. He has also filed original receipt dated 17.8.2013 showing that OP received Rs.4,00,000/- from the Complainant.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for and whether there was an agreement for sale between the parties and if there exists an agreement for sale the Complainant becomes consumer. So far as the dispute relating to loan agreement is concerned, we do not have jurisdiction to deal with it.
Complainant in order to establish the existence of agreement for sale has filed original agreement which was entered into between the parties on 17th August, 2013. On perusal of the stamp paper of Rs.10/- it appears that this stamp paper was purchased on 23.8.2012 which means that for about one year OP did not use this stamp paper and he entered into an agreement for sale with the Complainant after a lapse of one year. Again on perusal of the Xerox copy of the agreement for sale it appears that this is an undated agreement and it does not depict that it was with the date which is put in the original.
Furthermore, it appears that vacant portion of page 6 have been filled in the original document in hand by the Complainant.
So, prima facie on perusal of the document it appears that the original has been filled up afterwards. Moreover, page No.12 of the Xerox copy reveals that the witness columns are not filled, whereas the original reveals that there are several names in it.
So, this discrepancy suggests that there is a suspicion in execution of the agreement for sale.
So far as loan agreement is concerned, it appears that there is a loan agreement which was entered into between parties on 3.5.2012 and which has been duly signed by both the parties.
In addition, it appears that Complainant has filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint. Complainant has also filed an additional affidavit-in-chief wherein he has denied that the agreement for sale was un-dated on the ground that receipt has been filed by the Complainant where it appears that date is 17.8.2013.
However, Complainant is silent about mode of payment. OP has admitted that he received a loan of Rs.4,00,000/- as loan but complainant has not stated as to whether he paid that amount by cheque or by cash.
On perusal of answer to the questionnaires of OP by the Complainant, it appears that he has stated that date of purchase of stamp paper is 23.8.2012. But he has not explained as to why he used after one year for entering into the sale agreement.
The value of purchased stamp is also Rs.10/-. So, it suggests that it was easy to purchase Rs.10/- stamp paper on the date when the agreement for sale was entered as per Complainant.
OP in his evidence has denied the allegations of the Complainant and has submitted that he has stated in his written version the fact that the agreement was loan agreement.
Coming to the argument submitted by both the sides it appears that Complainant has asserted that he entered into a sale agreement on 17.8.2013,. On the contrary, OP has asserted that he has taken loan of Rs.4,00,000/- and as a security he was forced to sign an agreement for sale.
So, it appears that the Complainant has not come to the Forum with clean hands and agreement for sale appears to be susceptible.
So far as question of loan taken by the OP is concerned, this Forum does not have jurisdiction to decide as to whether the transaction of Rs.4,00,000/- was a loan transaction or not, we are of the view that since Complainant failed to prove the allegations; he is not entitled to the reliefs as prayed for.
Hence,
O R D E R E D
CC/73/2015 and the same is dismissed on contest.
