DATE OF FILING : 15.12.2016.
DATE OF S/R : 31.03.2015.
DATE OF FINAL ORDER : 12.05.2017.
Sri Biswanath Chatterjee,
son of late Prafullya Kumar Chatterjee,
residing at flat no. 501, Ground Floor, Block ‘A’,
Susoma Apartment, Chand Piritola, Village Mohiary,
P.O. Andul – Mouri, P.S. Domjur,
District Howrah,
PIN 711302. ………………………………………………………… COMPLAINANT.
1. Samar Kumar Sadhukhan,
son of Kanailal Sadhukhan,
residing at village Kolorah, P.S. Domjur,
District Howrah.
2. Ashish Koley,
son of late Gopal Koley,
residing at village Kolorah, P.s. Domjur,
District Howrah.
3. Shyamal Koley,
son of Akrur Chandra Koley,
residing at village Kolorah, P.S. Domjur,
District Howrah.
4. Dipesh Poddar,
son of Bimal Kumar Poddar,
residing at 89/189/151/1, Bangur Park,
P.O. & P.S. Rishra,
District Hooghly.
5. Gouri San Kar Chatterjee,
son of late Sachiridranath Chatterjee,
residing at village Mohiary, P.S. Domjur,
District Howrah,
being partners of National Construction.
6. Subrata Bhattedcharya,
7. Sukanta Bhattacharya,
o.p. nos. 6 & 7 are sons of late Pabitra Bhattacharya,
residing at village Mohiary, P.S. Domjur,
District Howrah,
8.( a ) Smt. Pratima Bhattacharya,
wife of late Sushanta Bhattacharya,
(b) Sri Sudipta Bhattacharya,
( c ) Sri Subhankar Bhattacharya,
all sons of late Sushanta Bhattacharya,
all are residing at village Mohiary, P.S. Dokjur,
District Howrah.
9. Subhra Ghosal,
wife of Malay Ghosal,
residing at village Samta, P.S. Bagnan,
District Howrah. …………………………………………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 : Shri A.K. Pathak.
Hon’ble Member : Smt. Banani Mohanta ( Ganguli ).
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, Biswanath Chatterjee, against the o.ps., Samar Kumar Sadhukhan & four others, being promoters and o.p. nos. 6 to 9 being owners, praying for direction upon the o.ps. to execute and register the deed of conveyance in respect of the case mentioned property being flat no. 501 in the ground floor of Block ‘A’ of Susoma Apartment, Chand Piritola, P.O. Andul – Mouri, P.S. Domjur, in favour of the petitioner and to pay Rs. 2 lakhs as compensation for mental harassment and Rs. 50,000/- as litigation costs.
- The case of the petitioner is that he booked the above mentioned flat for purchasing the same at a total consideration of Rs. 10,60,000/- and he paid the whole amount on 09.03.2013, 18.3.2013 and 21.4.2013 and the o.p. nos. 1 to 5, promoters, issued proper money receipts. After accepting the total consideration of Rs. 10,60,000/-, the o.ps. promoters, handed over vacant possession of the flat to the petitioner. He requested the o.p. nos. 1 to 5, promoters, to execute and register the deed of conveyance but they have been dilly-dallying and avoiding to do the same. Then the petitioners sent lawyer’s notice on 15.10.2014. the o.ps. are guilty of unfair trade practice and deficiency in service and so the petitioner filed this case.
- The o.p. nos. 7 & 8 being land owners contested the case by filing separate written versions denying the allegations made against them and submitted that the petitioner has no right to sue against the o.ps. and the o.ps. filed partition suit in the Court of Civil Judge ( Sr. Division ), 1st Court, Howrah, wherein the ld. Court passed injunction order and they also have not received their share in the case mentioned property. There is no cause of action against them in the case which is not maintainable.
- The o.p. nos. 1, 3 & 5 contested the case by filing separate written version denying the allegations made against them and submitted that the case is not maintainable and is barred by law of limitation. They further submitted that the petitioner entered into an agreement for purchase of the schedule mentioned flat with the terms and conditions contained therein at a total consideration of Rs. 10,60,000/- but it is not true that the above consideration price included the registration charges and stamp duty and advocate’s fees. They further submitted that one of the owners, Shri Subrata Bhattacharjee, filed title suit against the o.ps. and other co-owners and obtained an order of injunction in T.S. 96 of 2012 even if the said owner has already been given his allocation. These o.ps. are ready and willing to execute and register the deed in favour of the petitioner if the petitioner pays the stamp duty, registration charges and advocate’s fees. Thus the case against the o.ps. be dismissed.
- The o.p. no. 6, Subrata Bhattacharya, contested the case separately by filing a written version denying the allegations made against him and submitted that there is no allegation against him. He has no direct knowledge about the said transaction either being agreement for selling the flat or anything else and so he has no responsibility for any injury caused to the petitioner and the case against him 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 his case the petitioner, BiswanathChatterjee, filed affidavit and documents in the form of money receipts dated 18.3.2013 showing payment of Rs. 3,30,000/- and another money receipt dated 21.4.2013 showing payment of Rs. 5,30,000/- and another money receipt dated 09.03.2013 showing payment of Rs. 2 lakhs in favour of the o.p. nos. 1 to 5 who received the said money amounting to Rs. 10,60,000/- in total on different dates. The petitioner also filed one development agreement dated 25.01.208 arrived at between the owners of the property, Subrata Bhattacharya, Sukanta Bhattacharya, Sushanta Bhattacharya & Subhra Ghosal in one side as owners and National Construction represented by Samar Kumar Sadhukahn and others being the o.p. nos. 1 to 5 being promoters for developing ‘A’ schedule mentioned property therein in the development agreement measuring 41 decimal in several dag numbers being 17712 sq. ft. in total area wherein o.p. nos. 6 to 9 are owners. It is mentioned in the said development agreement that the developers have 74% share in the constructed building and the owners of the property would have 26% share in the same. It is further mentioned therein that the owners would execute and register the general power of attorney in favour of the promoters for smooth and peaceful functioning of the project including right to transfer to the transferee. The said power of attorney, however, is not filed before this Forum. But this petitioner having paid the full consideration money for the schedule mentioned flat and the promoters / o.p. nos. 1 to 5 having accepted the total consideration money and they appearing before the Forum and submitting that they are ready and willing to execute and register the sale deed if the petitioner is ready to get the property in his name by paying the full registration charges, stamp duties and also charges for counsel.
Under such circumstances this Forum finds noreason not to pass final order in favour of the petitioner as the o.p. agreed to execute and register the deed and the owners being o.p. nos. 6 to 9 are to sign the property conveyance deed as a confirming party
In view of above discussion and findings the C.C. no. 18 of 2015 be and the same is allowed on contest with costs against the o.p. nos. 1 to 5, promoters,and also allowed on contest without cost against the contesting owners and ex parte against the non contesting owners.
In the result, the application succeeds.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. No. 18 of 2015 ( HDF 18 of 2015 ) be and the same is allowed on contest with costs against the O.P. nos. 1 to 5, promoters, and also allowed on contest without cost against the contesting owners and ex parte against the non contesting owners.
The petitioner is entitled to the relief as prayed for. The O.Ps. i.e., nos. 1 to 5, promoters, are directed to execute and register the sale deed in favour of the petitioner who would make payment of the registration charges etc. within 30 days from the date of this order and the o.p. nos. 6 to 9 being owners would sign the registration deed as confirming party.
The o.p. nos. 1 to 5, promoters, are to pay a sum of Rs. 20,000/- as compensation to the petitioner for causing mental agony and harassment and to pay Rs. 50,000/- out of which Rs. 10,000/- would go to the petitioner as litigation costs and the rest Rs. 40,000/- would be deposited in Consumer Legal Aid A/c of this District also within 30 days from the date of this order failing the whole amount would carry interest @ 9% p.a. till 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, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
