DATE OF FILING : 04.03.2015.
DATE OF S/R : 28.05.2015.
DATE OF FINAL ORDER : 22.12.2015.
Sri Swaraj Koley,
son of Mohini Mohan Koley,
residing at 4/1, Gangamoni Road, P.S. Shibpur,
District Howrah,
PIN 711102. ………..………………………………………………….. COMPLAINANT.
1. Ratan Kumar Das,
son of late Gyanendra Nath Das,
2. Subrata Das,
son of Sri Ratan Kumar Das,
both of 2/6, NIdhiram Majhi Lane, P.S. Shibpur,
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
1. Complainant, Swaraj Koley, by filing a petition U/S 12 of the C. P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.ps. to deliver the possession of the flat in question, to execute and register the deed of sale in respect of the said flat as detailed in schedule ‘B’ on receipt of balance consideration amount, to complete the flat in all respects, to pay 10 lakhs as compensation along with incidental costs, to refund earnest money of Rs. 3,50,000/- along with other relief or reliefs as the Forum may deem fit and proper.
2. Brief fact of the case is that complainant made an advance payment of ₹1,50,000 on 23.11.2012 to the O.P.1 for purchasing a flat measuring 400sq. ft. on the 2nd floor as detailed in Schedule ‘B’ in the newly constructed building situated at 2/6, Nidhiram Majhi Lane, P.S. Shibpur, Dist. Howrah. One Agreement for sale was also executed by and between the complainant and O.P1 on 15.12.2012 vide annexure dt. 15.12.2012. After the execution of the said agreement, O.P.2, being the son of O.P.1, received another ₹2,00,000 from the complainant on different dates vide annexures, Declaration of O.P.2 duly signed by him. As per the terms of the agreement, the flat was supposed to be delivered within one year from the date of Agreement for sale. It is further alleged by the complainant that he was repeatedly requesting O.P.s to serve him the Xerox copies of Deed of title, sanctioned plan, Municipal Tax clearance certificate etc. But O.P.s remained silent. They neither handed over the possession of the flat to the complainant nor they executed and registered the said flat in favour of the complainant, which caused severe mental agony and pain to the complainant. It is also alleged by the complainant that at the time of getting the Agreement for sale dt.15.12.2012, typed, the total consideration money of the said flat was entered as ₹12,00,000 although it was agreed at ₹9,00,000. So, complainant requested O.Ps. to correct the same by sending Lawyer’s notice dt. 6.12.2014 with other requests like supply of necessary papers and delivery of possession of the flat in question. But O.Ps. paid no deed to his requests. So, being frustrated and finding no other alternative, complainant filed this instant case with the aforesaid prayers.
Notice were served upon O.P.s. But they neither appeared nor filed any W/V. Accordingly, the case was heard ex parte.
Upon pleadings of both parties two points arose for determination :
i) Is there 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 reason:
Complainant filed affidavit in support of his petition of complainant along with annexure and BNA. We have carefully gone through the Declaration dt.12.10.2012 given by O.P.2, the son of O.P.1. In that document, the price of the flat is mentioned as ₹9,00,000/- which was duly signed by O.P.2. But the main document for our adjudication is none other than the agreement for sale dated 15.12.2012 which is duly notarized and duly signed by complainant and o.p. no. 1. And we are to see whether any deficiency in service occurred on the part of the o.ps. on the basis of this particular documents and in that documents that is the agreement for sale dated 15.12.2012, the total consideration price of the flat is entered as 12 lakhs. And it is not at all tenable that one entire paragraph in page 4 of that agreement for sale dealing with the total consideration price of the flat has been written wrongly and complainant also put his signature in spite of knowing that the price of the flat was written wrongly. So we are to go by the agreement for sale dated 15.12.2012 and as per that agreement o.ps. have failed to discharge their part of duty in spite of receiving a total amount of Rs. 3,50,000/- from the complainant as the advance payment. Complainant paid such amount to O.P.s with a hope that O.P.s would deliver the possession of the flat in time. We all know that it is a basic need to have a shelter to lead life smoothly in a dignified way. O.Ps. did not mind to harass the complainant even for no fault on his part. Moreover, the O.Ps. have not cared to appear before this Forum even after receiving the summons. No W/V has been filed on their part. So the entire complaint petition remained unchallenged and uncontroverted. We have no difficulty to believe the unchallenged testimony of the complainant. O.ps. have neglected to play their role as per the terms of the agreement dt. 15.12.2012. So we are of the candid opinion that this a fit case where the prayers of the complainant should be allowed. Points under consideration are accordingly decided.
Hence,
O R D E R E D
That the C. C. Case No. 92 of 2015 ( HDF 92 of 2015 ) be allowed ex parte with costs against the O.Ps.
That the O.Ps. are jointly and severally directed to deliver the vacant possession of the flat as detailed in the schedule ‘B’ to the complainant and to execute and register the sale deed in respect of the said flat in favour of the complainant within one month from this order i.d., Rs. 50/- per day shall be imposed on them till actual registration. They are further directed to supply all necessary papers relating to the flat to the complainant before registration and to complete the flat in all respects as per the agreement for sale dated 15.12.2012. The complainant is also directed to pay the balance consideration amount being Rs. 12,00,000 – Rs. 3,50,000/- = Rs. 8,50,000/- to the o.ps. on the date of registration. Complainant shall bear the cost of registration.
That the o.ps. are further directed to pay to the complainant an amount of Rs. 25,000/- as compensation and Rs. 5,000/- as litigation costs within one month from this order i.d., the aforesaid amount shall carry an interest @ 8% per annum till full realization.
The complainant is 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.
