12.12.2014
MRIDULA ROY, MEMBER.
The instant appeal is directed against the judgment and order being No. 13 dated 12.12.2013 passed by Ld. District Forum, Hooghly in Complaint Case being No. CC/49/2013 allowing the same on contest with cost of Rs.5,000/- directing the O.P. to supply documents to the Complainant as per her prayer mentioned in para 13 (Ka) and to execute and register the sale deed mentioned in the schedule of petition after getting balance consideration money from the Complainant before execution and registration of sale deed of the flat mentioned in the schedule of complaint, directing the Complainant to pay the balance consideration amount within one month from the date of the order, further directing the O.P. to pay Rs.10,000/- to the Complainant for mental anxiety, agony and sufferings, directing the O.P. to pay Rs.5,000/- as litigation cost plus Rs.10,000/- as compensation totaling Rs.15,000/- to the Complainant within one month from the date of the order in default interest @ 9% per annum would accrue upon the aforesaid sum for default period.
Being aggrieved by the impugned order the O.P. – developer has preferred the instant appeal on the grounds, inter alia, that the Ld. District Forum failed to consider that the Complainant had paid Rs.4,00,000/- only although she claimed that she had paid Rs.4,10,000/- and further the complainant defaulted in making payment of the consideration amount for which the Appellant issued one demand letter dated 07.01.2013 upon the Complainant/Respondent requesting to pay the balance amount of consideration and subsequently, came with a new story of inclusion of her daughter’s name in the agreement for sale.
The case of the Complainant (Respondent herein) before the Ld. District Forum in brief, is that she entered to purchase a flat at a multistoried building constructed by the O.P. – developer on a piece of land situated at Municipal Holding No. 70/27 Mahalla, Chantagali, Chinsura, Hooghly. The consideration amount was settled as Rs.9,75,000/-. It was also agreed by and between the Complainant and the Developer that the Complainant’s daughter’s name would be included in the Agreement for Sale as a purchaser. Having such assurance from the Developer, the Complainant asked him to execute and Agreement for sale and the developer executed the same and handed over a copy to the Complainant. Accordingly, the Complainant on 05.03.2012 advanced an amount of Rs.1,00,000/- to the Developer towards consideration of the proposed flat. The Complainant further stated that she had paid an amount of Rs.4,10,000/- in total including the allowance on subsequent dates by instalments. However, the Complainant had found that the Developer did not include her daughter’s name in the said agreement for sale and owing to that the Complainant could not arrange for money since the Financial Institutions to which she applied for obtaining loan did not sanction the loan considering her old age. The Complainant requested the Developer to register the Agreement for Sale so that she could apply for loan to other financial institutions but the Developer did not do so. Subsequently, the Complainant served a letter dated 20.02.2013 upon the Developer expressing her willingness to pay 4th instalment amount asking him to hand over the authenticated documents relating to the property subsequently some correspondences were exchanged between the parties and finally the developer intimated the Complainant by a letter dated 04.02.2013 that he had cancelled the Agreement since the Complainant did not pay the instalment in time. Hence, the Complainant filed the complaint praying for directions upon the O.P. to handover the documents as mentioned in the schedule (Ka) of the petition of complaint, to execute and register the deed of conveyance in respect of the flat as described under Schedule (Kha) of the petition of complaint, to pay the litigation of cost to the Complainant.
The O.P. entered appearance by filing Written Version denying and disputing all material allegations contending inter alia, that the case was not maintainable in the law as well as in the fact. It was the specific contention of the O.P. that the Complainant never told him to incorporate her daughter’s name in the agreement for sale so that she could get bank loan in favour of her daughter. The O.P. further stated that the Complainant never expressed her willingness and readiness to pay the balance consideration in respect of the flat in question. Accordingly, the O.P. prayed for dismissal of the petition of complaint with cost.
In course of hearing of the appeal Ld. Advocate for the Appellant has submitted that the consideration amount has not been within stipulated time. Ld. Advocate has further submitted that the Complainant had paid Rs.4,00,000/- only but claimed to have paid Rs.4,10,000/-. Ld. Advocate has furthermore stated that the Complainant had been intimated on several occasions to pay the instalments towards balance consideration but she did not bother and ultimately the O.P. compelled to cancel the agreement for sale.
Ld. Advocate for the Respondent has submitted that the Complainant being a senior citizen failed promptly to act. Further, not several letters but only one letter dated 20.03.2013 was served upon the Complainant asking her to pay the next instalment towards consideration and thereafter vide a letter dated 02.04.2013 the O.P. intimated the Complainant regarding cancellation agreement for sale.
Having heard submissions made by both sides and on perusal of records it appears from the record that the Respondent/Complainant entered into an unregistered agreement on 05.03.2012 with the Appellant/Developer for purchasing a flat. The Appellant/Developer admitted of receiving Rs.4,00,000/- although the Complainant claimed to have paid Rs.4,10,000/- towards consideration. It is alleged by the developer that the Complainaint defaulted in making payment of the balance amount of consideration to the Developer and thus, cancelled the agreement for sale dated 05.03.2012. On perusal the letters from the Complainant dated 20.02.2013, 23.03.2013, 10.04.2013 and 22.04.2013 it appears that the Respondent/Complainant has been willing to purchase the flat all along by paying the consideration amount in full. But the Appellant – Developer by his letter dated 02.04.2013 intimated her that the said Agreement dated 05.03.2012 has been cancelled although no copy of cancellation of deed has been filed.
Admittedly, both the parties entered into agreement on 05.03.2012. But the developer informed the Complainant that he himself cancelled the said Agreement. However, the unilateral cancellation has no force at all. Further, in summery trial the intricate point of law cannot be adjudicated so that the force of an unregistered agreement be looked into.
However, the Complainant claimed to have paid Rs.4,10,000/- towards consideration amount which the O.P. specifically denied. The O.P. admitted of receiving of Rs.4,00,000/- and the Complainant could not file/furnish any document towards payment of the disputed amount of Rs.10,000/-. Therefore, it is construed that the Complainant had paid Rs.4,00,000/- towards consideration.
The Ld. District Forum directed the O.P. to pay Rs.10,000/- towards compensation to the Complainant. But, in our view the Complainant cannot get compensation from the O.P. since a large portion of consideration amount is yet to be paid. Further, the Ld. District Forum did not mention the time limit of the execution and registration of the deed of conveyance after receiving amount of balance consideration amount from the Complainant.
In view of that, we are of considered view that the impugned order should be modified to the extent stated as follows :
The Complainant is directed to pay the balance amount within one month from the date of this order and the O.P. – Appellant is directed to execute and register the deed of conveyance within two months after receiving the balance amount of consideration. The compensation part of the impugned order is set aside. Other directions of the impugned order is affirmed.
