Order No. 8 Date 07/11/2016
08/11/2016
As 07/11/2016 declared holiday.
The record is put up today for final order Judgement is passed in separate sheets or papers.
DATE OF FILING : 18.12.2015.
DATE OF S/R : 05.02.2016.
DATE OF FINAL ORDER : 08.11.2016.
Buddhinath Jha,
son of late Bamdeo Jha,
residing at 86/4, Madhusudan Pal Chowdhury Lane( 2nd floor ),
P.S. Bantra,District Howrah.…………………………………………… COMPLAINANT.
1. Ram Singar Singh,
son of late Ram Salik Singh.
2. Vakil Singh,
son of late Surya Kanta Singh,
both are residing at 86/4, Madhusudan Pal Chowdhury Lane ( 1st floor ),
P.S. Bantra, District Howrah.
3. Biswakarma Developer,
being represented by its proprietor
viz. Biswakarma Rajbhar,
having its office at 85/5/1, Madhusudan Pal Chowdhury Lane,
P.S. Bantra, District Howrah,
PIN 711101. ………………………………………………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
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Buddhinath Jha, against the o.ps., Ram Sagar Singha, Vakil Singh, being the owners of property and Biswakarma Developer represented by its proprietor Biswakarma Rajbhar, being the promoter, praying for direction upon the o.ps. to execute and register the sale deed in respect of the schedule mentioned flat being 545 sq. ft. in 2nd floor in favour of the petitioner after receiving the balance consideration of Rs. 1,99,500/- and complete the pending works like outside plaster, interior plaster of paris, mosaic of floors, completion of kitchen works, electric wiring, outside colour paint and municipal water connection and also directing the o.ps. to pay Rs. 2,50,000/- for the work already done by the petitioner and to pay Rs. 2 lakh as compensation for mental agony and harassment and Rs. 10,000/- as litigation costs.
- The case of the petitioner is that the o.p. nos. 1 & 2 are the owners of about 4 cottach 3 chittak land at premises no. 86/4, Madhusudan Pal Chowdhury Lane, P.S. Bantra, Howrah, and in order to develop the said property the o.p. nos. 1 & 2 entered into an agreement dated 10.8.2007 with the o.p. no. 3 promoter for construction of a multi storied building after getting the municipal plan sanctioned and also they executed a general power of attorney dated 20.03.2007 in favour of the o.p. no. 3. As per proposal of o.p. no. 3 this petitioner on good faith booked one flat on 17.04.2009 and a booking amount of Rs. 1,00,000/- was paid to the o.p. no. 3 and it was settled that the petitioner would be provided with a 545 sq. ft. flat in the second floor @ Rs. 1100/- sq. ft. of the newly constructed building. It was agreed between the petitioner and the o.p. no. 3 that the building would be constructed within 12 months from the date of agreement for sale. After the lapse of one year the petitioner requested the o.p. no. 3 to deliver the possession and after such request of several times the o.ps. handed over possession and it was found that the measurement of the area was 545 sq. ft. The complainant already paid 4,00,000/- to the o.p. no. 3. After taking possession the petitioner found that the o.ps. did not complete the pending works and also did not execute and register the sale deed in favour of the petitioner and rather threatened him to transfer the flat to a 3rd party resulting which the petitioner filed this case with the above prayers. There is a due amount of Rs. 1,99,500/- of the consideration amount and the petitioner is ready and willing to pay the same at the time of registration of the deed to the o.ps.
- The o.p. no. 3 contested the case by filing a written version denying the allegations made against him stating that the petitioner has no right to file such a case because the o.p. no. 3 has already handed over possession of the said flat but due to obstruction on the part of the landlord the o.p. no. 3 was unable to execute and register the sale deed as well as complete the pending works and the petitioner should not have any grievance against the o.p. no. 3 who never harassed the intending purchasers or any tenant of the building. The o.ps. are ready and willing to execute and register the sale deed in favour of the petitioner and so the case be dismissed.
- The o.p. nos. 1 & 2 being owners of the property filed written version denying the allegations made against them and submitted that the case is not maintainable against them and also submitted that the petitioner did not come in clean hands and is guilty of suppressing material facts and also the case is barred by limitation as laid down U/S 24A of the C. P. Act, 1986 because the sale agreement with the developer took place on 17.4.2009 and as per clause 6 of the said agreement the developer would deliver the flat within one year i.e., within 17.4.2010 but the case was filed after the expiry of the more than five years and there is no delay condonation petition filed by the petitioner as he filed the case on 18.12.2015 and thus the case is liable to be dismissed. The o.p. no. 3 completed construction in his allotted area of 60% of the building and did not complete construction in the 40% area which was allotted in favour of the land owner. Further the agreement of sale between the petitioner and the o.p. no. 3 is hit U/Ss 31 to 38 of the Indian Stamp Act, 1899 and it is the duty of the Court to see that the documents is duly stamped and is impounded. The petitioner has no cause of action against the o.ps. and so the case is liable to be dismissed.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is 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 :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip off reiteration. In support of her case the petitioner filed affidavit as well as documents being his sale agreement dated 17.04.2009 wherefrom it is noticed that the o.p. no 3 would complete the construction of the flat with such specification and fittings within 12 months from the date of execution of the agreement dated 17.04.2010 and deliver possession of the same to the petitioner and execute and register the sale deed in favour of the petitioner. It is clearly noticed that the agreement was duly signed by the petitioner, Buddhinath Jha, and the o.p. no. 3, Biswakarma Rajbhar, and the payment receipts showing payment of a sum of Rs. 4,00,000/- and there was a due amount ofRs. 1,99,500/- be paid by the petitioner to the o.p. no. 3 and the o.ps. to execute and register the sale deed in favour of the petitioner. It is also noticed from the possession letter dated 19.12.2014 that the possession in respect of 545 sq. ft. flat in the premises no. 86/4, Madhusudan Pal Chowdhury Lane ( 2nd floor ), P.S. Bantra, was handed over to the petitioner by the o.p. no. 3 Biswakarma Rajbhar and thus the allegation by o.p. nos. 1 & 2 that the case is barred by limitation does not have legs to stand here because the petitioner is already in possession within the limitation period and in support of his possession the petitioner further filed documents of his electric bill to substantiate his claim. In his written version the o.p. no. 3 categorically submitted that the o.ps. are ready to execute and register the sale deed in favour of the petitioner and due to some obstruction by the o.p. nos. 1 & 2 the pending works could not be completed and thus the petitioner should not have any grievance against the o.p. no. 3.
- It is further noticed that on 10.08.2007a general power of attorney was executed by the o.p. nos. 1 & 2 in favour of the o.p. no. 3 and on 10.8.2007 a development agreement was executed between the o.p. nos. 1 & 2 in one side and o.p. no. 3 on the other side for developing the property and the constructed area wherein the o.p. nos. 1 & 2 are owners of the property and would get 40% of the constructed area and o.p. no. 3 being the promoter of the property would get 60% of the constructed area.
- Thus, the o.p. no. 3 being the promoter having received the greater portion of the consideration money and willing to execute and register the sale deed in favour of the petitioner and the allegation raised by the o.p. nos. 1 & 2 being not sustained and they are also to follow the o.p. no. 3 in confirming such sale in favour of the petitioner after o.p. no. 3 received the balance consideration. Thus the petitioner succeeded in proving his case and entitled to the reliefs as prayed for and also Rs. 1,80,000/- for the work done by him as noticed from the documents placed before Forum showing that he purchased goods for construction.
In the result, the application succeeds.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. No. 441 of 2015 be and the same is allowed on contest with costs against the O.Ps.
The O.Ps. 1 and 2 be directed to execute and register the sale deed in respect of the schedule mentioned flat being 545 sq. ft. in 2nd floor in favour of the petitioner after receiving the balance consideration of Rs. 1,99,500/- and complete the pending works like outside plaster, interior plaster of paris, mosaic of floors, completion of kitchen works, electric wiring, outside colour paint and municipal water connection within 30 days from the date of this order and also to pay Rs. 1,00,000/- to the petitioner for the work done by him and to pay Rs. 20,000/- out of which Rs. 10,000/- in favour of Consumer Legal Aid A/c and rest Rs. 10,000/- to petitioner as compensation for mental agony and harassment and Rs. 10,000/- as litigation cost also within 30 days from the date of this order i.d., the above sum would carry interest @ 9% p.a. from the date of order till recovery and also the complainant is at liberty to put the final order into execution after expiry of the appeal period.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
