30.01.2015.

MRIDULA ROY, MEMBER.

The instant appeal is directed against the judgment and order dated 31.08.2012 passed by the Ld. District Forum, South 24 Parganas in Complaint Case No. CC/166/2010 allowing the same on contest with cost against the O.P. No. 7 and without cost against other O.Ps, directing all the O.Ps to execute and register the deed of conveyance in respect of the flat in question as described in the Schedule – ‘B’ of the petition of complaint within one month from the date of the order, failing which the Complainant would be at liberty to put the decree into execution in accordance with the law, directing the O.P. No. 7 to pay the cost of Rs.10,000/- to the Complainant within one month from the date of order, failing which the said amount would carry an interest @ 10% per from the date of default till realization.

Being aggrieved by and dissatisfied with the impugned judgment and order, the O.P. No. 7 has preferred the instant appeal.

The case of the Complainant, in brief, is that being an intending purchaser she entered into an agreement for sale with the O.P. – Developer firm on 20.10.2000 for purchasing a flat as described in the Schedule ‘B’ of the petition of complaint at a consideration of Rs.6,50,000/- which the Complainant paid to one of the partners, namely, Ramesh Singh.  However, till date the O.P. – developer neither delivered the possession of the said flat nor executed and registered the deed of conveyance in favour of the Complainant in respect of the said flat although the Complainant requested the O.P. – developer on several occasions for the same.  Hence, she filed the petition of complaint praying for direction to execute and register the deed of conveyance for transferring the right of ownership in favour of the Complainant by executing and registering the sale deed in respect of the said flat, to pay Rs.50,000/- towards compensation for harassment and mental agony and to pay Rs.50,000/- to the Complainant towards litigation.

It appears that the O.P. No. 7 i.e. the wife of the deceased developer has filed the Written Version and contested the case.  The O.P. Nos. 1 to 6 are the co-owners of the scheduled property.  The O.P. No. 6 had already died and the O.P. Nos. 1 to 5 did not file any Written Version and the case was proceeded ex parte against them.

In course of hearing of the appeal the Ld. Advocate for the Appellant has submitted that the Complainant – Respondent Mrs. Bula Mukherjee is the wife of the O.P. No. 8 Sri Biplab Mukherjee who is the other partner of the developer firm.  The Ld. Advocate for the Appellant has further submitted that the Complainant forcibly entered into the flat although possession of the said flat, as he already claimed, has been delivered.  The Ld. Advocate for the Appellant has further stated that a civil suit has already been instituted before the Civil Court on selfsame cause of action and, therefore, the complaint case cannot be proceed simultaneously.  The Ld. Advocate for the Appellant has further submitted that there is no witness in the money receipt other than one Mr. Gopal Karmakar, who on cross-examination, admitted that he did not know anything regarding the payment.

The Ld. Advocate for the Respondent – Purchaser has submitted that Mr. Gopal Karmakar has put his signature as witness in the agreement for sale and he was present at the time of execution of the agreement.

Having heard both sides and on perusal of papers on record it is evident that the Complainant entered into an agreement for sale with one of the partners of O.P. – developer under certain terms and conditions and paid the entire amount of consideration as per terms of the agreement.  Therefore, liability lies on the part of the Appellant – developer to transfer the flat in question in favour of the purchaser.  However, the Appellant – O.P. did not dispute the agreement or money receipt before the Ld. District Forum.

In view of that, we are of opinion that the Ld. District Forum has rightly passed the impugned order.

In the result, the appeal fails.

Hence, ORDERED that the appeal is dismissed on contest without any order as to cost.  The impugned judgment is affirmed.