DATE OF FILING : 29-10-2010.
DATE OF FINAL ORDER : 18-02-2011.
Smt. Mukti Rani Sukul,
Residing at 32B, Rani Park, P.S. Belghoria,
Kolkata 700056. COMPLAINANT.
Versus -
Smt. Bithika Ghosh,
Wife of Sri Jiten Ghosh,
Residing at flat no. G-3 ( ground floor ),
13, Paulghat Lane, P.O. Belurmath, P.S. Bally,
District Howrah 711202,
At present residing at C/o. Janardan Kundu,
Kona Road, Sasthitala, Ramrajatala,
Howrah 711104. OPPOSITE PARTY.
P R E S E N T
1. Honble President : Shri J. N. Ray.
2. Honble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representatives for the complainant : Shri Alok Kumar Laha,
Shri Manojit Bandyapadhyay,
Shri Pallob Saha,
Ld. Advocates.
Representatives for the opposite party
: Shri Mridul Ranjan Khan,
Shri Bikash Ranjan Bhunia,
Ld. Advocates.
F I N A L O R D E R
One Smt. Mukti Rani Sukul, resident of 32B, Rani Park, P.S. Belghoria, Kolkata
– 700056, has filed a petition of complaint against the O.P. Smt. Bithika Ghosh, Wife of Sri Jiten Ghosh, Residing at flat no. G-3 ( ground floor ), 13, Paulghat Lane, P.O. Belurmath, P.S. Bally, District – Howrah – 711202, U/S 12 of the C.P. Act, 1986 and amended till date alleging deficiency in service.
The case of the complainat is that the O.P. is the owner of all piece and parcel of one flat measuring an area of 587 sq. ft. including super built up area comprised in Bally Municipality premises no. 13, Paul Ghat Lane, P.O. Belurmath, P.S. Bally, District – Howrah, along with all easement, privileges, amenities user of common stairs attached thereto as fully described in the schedule A to the petition of complaint and the O.P. entered into an agreement of sale dated 27-10-2008 with the complainant on the condition to transfer a flat on the ground floor being flat no. G-3 measuring 587 sq. ft. and the price of the said flat was settled at a sum of Rs. 5,50,000/- and out of said total consideration the petitioner / complainant initially paid a sum of Rs. 1,50,000/- as earnest money by one account payee cheque bearing no. 116556 dated 27-10-2008 drawn of State Bank of India, Belghoria Brnach to the O.P. and issued a separate receipt and agreed to deliver possession of the said premises within six months from the date of execution and registration of the agreement for sale but the O.P. failed to deliver the said flat to the complainant on the terms and conditions settled threin. The complainant immediately after the agreement for sale dated 27-10-2008 requested the O.P. to execute and register the deed of sale in favour of the complainant on receipt of the balance consideration when the O.P. asked the complainant to wait for some period and only on making arrangement of alternative accommodation, the O.P. shall execute and register the same and as a result the complainant waited for some time on request of the O.P. It is alleged that all on a sudden on 24-07-2009 and 11-08-2009 the O.P. through her authorized agent and advocate Bikash Ranjan Bhunia issued a a letter to the complainant on false allegation and on receipt of the same the complainant through her authorized agent and advocate Mr. Debasis Banerjee issued a letter of reply to the allegation mentioned in the letter dated 11-08-2009. In the said reply the complainant stated that she was / is ready and willing to get the registration of the deed of sale in respect of the suit property on payment of balance consideration. In the said reply the complainant sent a draft copy of deed of sale for the approval of the O.P. with the intimation to submit tax clearance certificate of Bally Municipality. After the said reply dated 20-08-2009 was sent to the advocate the O.P. further issued letters dated 01-09-2009, 24-09-2009 and 11-11.2009 making false allegation that the complainant was / is not ready and willing to get registration of the property in schedule B to the complaint though the complainant was / is ready and willing to get registration of the deed of sale in respect of the suit property as described in reply dated 20-08-2009 and as such the letter dated 01-09-2009, 24-09-2009 and 11-11-2009 are all false, malafide, motivated and concocted. It is stated that the O.P. deliverd all the copy of documents as to the title of the O.P. and on being satisfied with the title she ( the complainant ) was agreed to purchase the flat in schedule being the suit property and she is still ready and willing to purchase the same. Complainant also stated that for registration of the agreement in sale the complainant has already spent a sum of Rs. 35,230/- apart from other expenses and accordingly she was / is willing to purchase the flat in question. The complainant was agreed to purchase the said flat at a consideration of Rs. 5,50,000/- along with all common privileges and amenities and for this reason she has already paid Rs. 1,50,000/- as earnest money and accordingly registered agreement for sale was executed on 27-10-2008 but the O.P. was / is not agreed to transfer the same though the complainant repeatedly asked the O.P. to execute the deed of sale in favour of the complainant in respect of the said flat in schedule B and as a result the compolainant has been suffering mental pain and agony for failure to execute the deed of sale and on delivery of the said flat within the stipulated time in spite of making payment as referred herein above. The complainant lastly asked the O.P. to execute the deed of sale through her authorized agent and advocate Bikash Ranjan Bhunia and sent several advocates letter to the complainant denying her liability to execute the deed of sale. In spite of repeated requests the O.P. did not agree to settle the matter amicably by execution and registration and by delivery of possession of flat on receipt of the balance consideration. Thus the conduct of the O.P. appears to be very suspicious to which he is bound to execute the same as the O.P. has received the earnest money of Rs. 1,50,000/- out of entire consideration price of Rs. 5,50,000/- in respect of the said flat and in consequence the complainant has been suffering mental pain and agony and she is intending to deceive the complainant from her lawful right to purchase the property and from enjoying the possession thereof inspite of making payment of the earnest money to the O.P. for purchasing the said flat and the O.P. have been failing in discharging her duties to execute the deed of sale and has adopted an unfair means to deceive the complainant by delivery of the said flat.
In the circumstances stated above the complainant has come up before this Forum for getting relief as per provision of the Consumer Protection Act.
The O.P. has appeared before the Forum raising dispute that the suit is barred by limitation and several disputes mentioned in the written version filed by the O.P. The O.P. also intended to return the amount of earnest money received by her though the O.P. did not acknowledge that the complainant sent the draft copy of deed of sale to her who afterwards did not take any initiative to execute the deed of sale in favour of the complainant. The O.P. at last refused to execute any deed of sale in favour of the complainant for which the complainant has filed this complaint on the prayer made therein.
Point for consideration as to the registered agreement for sale whether enforceable according to law and whether the O.P. has got any authority to challenge the registered agreement for sale
In support of the case ld. Advocate for the complainant submits that the O.P. admitted the execution of the registered agreement for sale dated 27-10-2008 and also admitted the receipt of the amount of Rs. 1,50,000/- as earnest money out of Rs. 5,50,000/- and further demanded Rs. 4,00,000/- being the balance consideration vide agreement for sale dated 27-10-2008. It is pointed out that the complainant was ready to pay the balance consideration as it will appear from the series of correspondences made by the complainants advocate and the O.P. or her advocate which prove that the complainant was/is all along ready and willing to get execution and registration of the deed of sale on payment of the balance consideration and if the complainant was ready to pay the balance consideration why the O.P. did not execute and register the deed of sale and deliver peaceful possession of the concerned flat to the complainant. It is submitted that it is absolutely unjust and improper on the part of the O.P. to undertake to refund the principal sum received as earnest money and registration of the property and to deliver peaceful vacant possession of the said flat and it appears that the O.P. did not honour the terms of the agreement for sale dated 27-10-2008 by execution and registration of the deed of conveyance in favour of the complainant though the draft of the deed was made ready a long before filing of this complaint, a copy of which was sent to the O.P. by advocate of the complainant namely Debasish Banerjee by his letter dated 20-08-2009 which has also been admitted by the advocate of the O.P. by his letter dated 11-11-2009 wherein he has received of the letter dated 20-08-2009 and in the said letter dated 22-10-2009 the O.P. has stated in paragraph 5 of the said letter i.e., she is ready to return the earnest money to the complainant and she is also not willing to sell her said flat to the complainant and as such it appears from the conduct of the O.P. that she is ready to pay the balance consideration of Rs. 4,00,000/- thought he complainant was/is always ready to pay the balance consideration even today and the complainant never refused to pay the balance consideration to the O.P.
On the other hand ld. Advocate appearing on behalf of the O.P. submits before us that after few months of purchase the said flat Jiten Ghosh, the husband of the O.P., becomes seriously ill . He was suffering from heart trouble and kidney troubles and most of his earning money were expended in purchasing the said flat but a vast amount of cash money was necessary for the treatment of the husband of the O.P. so the O.P. and her husband were very anxious and they had no other source to collect the cash money except to sell their newly purchased flat. In this situation the complainant and her husband Joy Krishna Sukul came to the said flat and then O.P. and her husband requested Joy Krishna Sukul to search a customer to purchase the said flat of the O.P. Joy Krishna Sukul wanted to purchase the said flat of the O.P. in the name of his wife Mukti Rani Sukul at the cost of Rs. 5,50,000/- to which the O.P. and her husband became agree to the said proposal and accordingly the agreement for sale was executed on 27-10-2009 in respect of the said flat. It is also submitted before execution the said sale agreement the complainant and her husband promised before the O.P. that they must purchase the flat within three months from the date of execution of sale agreement though it was written in the condition of the sale agreement that the complainant must purchase the said flat within six months from the date of execution of the same. It is also submitted the complainant would take all responsibility to collect all municipal papers in respect of the said flat because the O.P. has no son and daughter and at that time she was busy and anxious for seriously ill husband. It is stated that the complainant did not comply with the aforesaid promise/words and purposely on 20-04-2009 the complainant sent a letter alleging that the O.P. inspite of repeated requests of the complainant did not take any active part to execute the deed of sale which is totally false. As the O.P. needed cash money and in this situation she had not any negligence or fault and the matter is nothing but to create a plea to take time or delay in respect of purchasing the said flat. The O.P. gave reply to this letter of the complainant’s lawyer on 20-04-2009 through her lawyer and considering the good relationship gave extra three months time to the complainant for purchasing the said flat. On the basis of the lawyer’s letter dated 27-04-2009 of the O.P. the complainant must have to purchase the said flat within 27-07-2009. On 24-07-2009 again sent a letter / notice through her lawyer requesting the complainant to take immediate step to purchase the said flat within 15 days from the date of receiving this letter but the complainant and her husband did not give any reply of that letter. So on 11-08-2009 O.P. serving lawyer’s notice to the complainant warning / final letter stating that if the complainant does not take any step to purchase the said flat within 15 days from the date of receving that letter the O.P. will compel to sell her said flat to another person because she has urgent necessity to collect the huge amount of cash money for the treatment of her husband. But on receiving the said letter the O.P. dated 11-08-2009, the complainant through her lawyer sent a letter on 20-08-2009 to the O.P. with a draft copy of the sale deed and in that letter the complainant imposed the responsibility upon the O.P. relating to the collection of municipal papers though the complainant and her husband knew it well that it would be impossible for the O.P. to collect municipal paper within a short time and it would take a lot of time to collect those papers. The complainant also told that the registration of the sale deed should be completed on production of those municipal papers. Again on 01-09-2009 the O.P. through her lawyer letter sent a letter to the complainant regarding the complainant’s silence and negligence in respect of purchasing the said flat. But the complainant did not give any answer of that letter. Again on 24-09-2009 the O.P. through her lawyer sent a letter to the complainant stating that the O.P. was aggrieved with the behaviour of the complainant and so she was unwilling to sell her said flat to the complainant and through this letter, the O.P. also requested the complainant to take back her earnest money of Rs. 1,50,000/- only but the complainant did not give any answer to this letter. It is further submitted that on 11.11.2009 the O.P. again sent a letter through her lawyer to the complainant stating that the O.P.s unwillingness to sell the said flat to the complainant and through the letter the O.P. also requested the complainant to take back her earnest money of Rs. 1,50,000/- only but the complainant did not give any answer to this letter. It is further submitted that on 11.11.2009 the O.P. again sent a letter through her lawyer to the complainant stating that the O.P.s unwillingness to sell the flat to the complainant and the O.P. demanded from the complainant the original registration receipt of her flat. But the complainant did not give any answer to this letter. Again on 19-08-2010 the O.P. through her lawyer sent a letter to the complainant informing her to this matter that the O.P. had sold her said flat to another person in the month of March,2010 according to the direction of her husband for the treatment of her husband. But her husband died on 26-05-2010 and in the said letter the O.P. requested the complainant to take back her aforesaid earnest money but the complainant gave any answer of the letter. It is submitted on behalf of the O.P. that the O.P. has / had no bad intention / motive to deceive / cheat the complainant and the complainant in order to avoid their fault have intentionally brought the false allegation against the O.P. and the complainant did not suffer from extreme mental agony and pain for the non delivery of the O.P.’s flat to her and the complainant very cleverly brought this false allegation to give relief which is very unfair and not entitled to get as prayed for. This case is not maintainable in law and this agreement became valid and ineffective after 14-07-2009. The complainant purposely delayed to make payment by missing the responsibility upon the O.P. to collect all papers of municipality regarding the said flat which is not unjust after the agreement.
Having heard on both sides and also considering the correspondences on record between the parties we find that the complaint had no proper intention to purchase the flat when they imposed certain obligation on the part of the O.P. collection of municipal papers and on the basis of reply made by the O.P. the complainant ought to have take positive step for offering the balance consideration money with the O.P. and nothing papers to show that any such step have been taken from the part of the complainant. there is no such refusal came from the O.P. that they refused to receive the balance money as offered by the complainant. On the contrary the complainant imposed certain conditions to produce the municipal papers at the time of execution of deed of sale. From the letter dated 11-08-2009 the O.P. clearly stated that if the complainant does not take any step to purchase the said flat within 15 days from the date of receiving the letter / notice the O.P. will be compelled to sell her said flat to another person because she was urgent need to collect the huge amount of cash money for the treatment of her seriously ill husband.
Thus considering the pros and cons on the papers of records we are of the view that the complainant was not ready to purchase the flat from the O.P. as per agreement and delayed the execution raising some plea causing much harassment to the O.P. and moreover, the sale of agreement is not tenable in law on the basis of ineffective agreement which already barred.
In the result the application fails.
Hence,
O R D E R E D
That the complaint petition U/S 12 of the C.P. Act, 1986 filed the complainant is dismissed on contest but without cost in the facts and circumstances of the case.
The complaint petition is thus disposed of.
Supply the copies of the order to the parties, free of costs.
