Date of Filing: 24.11.2020

Date of Judgment: 18.07.2022             

Mrs.  Sashi Kala Basu, Hon’ble  President

This complaint is filed by the complainants 1) Smt. Saswati Halder and 2) Sri Uttam Halder, under section 12 of the C.P Act, 1986 against the Opposite parties (referred as O.P hereinafter ) namely 1) Rudra Bhanu Chakroborty 2) Soumen Das and 3) Sri Salil Das, alleging deficiency in service on their  part.

          The case of the complainants is short is that O.P no.1 is the Proprietor of the construction Firm namely  M/s Chakraborty & Company. O.P nos. 2 and 3 are the land owners of the property. They had entered into a Development Agreement . Subsequently by an Agreement for sale dated 14.11.2017 complainants agreed to purchase a flat described therein from the O.P no.1 on payment of consideration price of Rs.13 lac. A sum of Rs. 1,30,000/- in cash was paid by the complainants as earnest money. As per the terms of the agreement the possession of the flat and the deed was to be executed within the month of April,2018. On repeated occasions complainants requested the O.Ps to supply him relevant papers and documents so that they can apply for the loan but he O.Ps failed and neglected to provide those documents. Thereafter O.P no.1 failed to contact the complainants and even the complainants when visited their office , it was found under lock and key. So, the present complaint has been filed by the complainants praying for directing the O.Ps to deliver khas possession of the flat and to execute and register the deed of conveyance in favour of the complainants, in alternative to pay back the entire amount paid by the complainants of Rs. 1,30,000/-  along with interest @12% p.a , to pay compensation of Rs.2 lac and litigation cost of Rs.75,000/-.

            On perusal of the record it appears that the notices were sent to the O.Ps but since no step was taken by the O.Ps, the case was directed to be proceeded exparte.

            So, only point requires determination is whether the complainants are entitled to the relief as prayed for.

Decision with reasons

            In order to substantiate their claim complainants have filed copy of the agreement for sale entered into between the parties and notice sent by the complainant to the O.Ps dated 1.10.2020. It is the specific case of the complainants that out of settled consideration price of Rs. 13 lac they paid an amount of Rs. 1,30,000/- but the complainants have not filed any money receipts to show the said payment. Complainants have mainly relied upon the Memo of Consideration in the Agreement itself that an amount of Rs. 1,30,000/- was paid.

In this contest it may be pertinent to point out that on a careful scrutiny of the agreement for sale, it appears that the same was executed on 8^th day of October, 2017. But it is strange that stamp paper being the first page of the alleged agreement for sale was purchased on 14^th November, 2017 from the stamp vendor. So, if the stamp paper was purchased on 14^th November, 2017, then the execution of the agreement on 8^th day of October, 2017 i.e before the purchase of the stamp paper could not have taken place. So, the very execution of the agreement for sale between the parties becomes doubtful. The complainants have nowhere explained either in the complaint or during the evidence as to how the agreement for sale could be executed on 8^th day of October, 2017 when the non-judicial stamp paper was purchased much later i.e after about a month on 14^th November, 2017. So as the very execution of the agreement becomes doubtful, the complainants were under obligation to file the relevant receipt showing payment of Rs. 1,30,000/- as claimed by them but no separate money receipt has been filed. The Memo of consideration is a part of the said agreement, the execution of which is doubtful for the reason as highlighted above.

            Apart from this, it is not stated in the Memo of consideration whether the amount of Rs. 1,30,000/- was paid in cash or by cheque. The same is also vague. In such a situation, when the execution of the agreement itself cannot be relied upon, the claim of the complainant cannot be accepted and thus the present complaint is liable to be dismissed.

Hence,

             ORDERED

That the CC 302 of 2020 is dismissed exparte.