DATE OF FILING : 17-09-2010.
DATE OF S/R : 19-10-2010.
DATE OF FINAL ORDER : 07-09-2012.
Smt. Sharda Kaushal
alias Sarda Kaushal,
wife of Sri Dinesh Kaushal,
residing at 118/1, Raj Ballav Saha,
P.S. & District –Howrah---------------------------------------------------- COMPLAINANT.
- Versus -
Smt. Gita Rani Dutta,
wife of late Santi Ranjan Dutta,
residing at 118/1, Raj Ballav Lane,
P.S. & District – Howrah. -------------------------------------------------------OPPOSITE PARTY.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
as amended against the O.P. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant, Smt. Sharda Kaushal has prayed for direction upon the O.P. to execute and register the sale deed with respect to 850 sq. ft. flat on the 2nd floor at 118/1, Raj Ballav Saha Lane, Howrah, in terms of the agreement dated 01-04-2008 together with the prayer for compensation and litigation costs as the o.p. has been turning a deaf ear to the repeated requests of the complainant in spite of receiving the full consideration money.
2. The o.p., Smt. Gita Rani Dutta in her written version denied all the material allegations, challenged the maintainability of the suit and contended interalia that the complainant approached the o.p. for the suit flat at a total consideration of Rs. 7,70,000/- and also expressed her inability to pay the entire consideration money at a time and requested to execute an agreement for sale ; that the suit flat at the material point of time was under the occupation and enjoinment of a tenant namely Rama Kanta Mishra ; that such agreement for sale with the complainant and the amount accepted was practically a security deposit to be refunded at the time of vacating the suit flat ; that the constructive possession of the erstwhile tenant in respect of the suit flat remained with the complainant as before ; that Rama Kanta Mishra vacated the same in the month of March, 2008 after receiving the substantial amount towards refund of security deposit and valued of certain fittings and fixtures ; that the complainant paid the amount to the erstwhile tenant as a condition of vacating the suit premises ; that thereafter the complainant was requested to pay the balance consideration money of Rs. 4,69,000/- as a condition precedent to execute and register before deed of conveyance ; that the complainant fraudulently inserted Rs. 3 lacs instead of Rs. 4,69,000/- to dupe the o.p. ; that the o.p. is a simple minded lady and agreed to the proposal of the complainant in good faith ; that the agreement in dispute was an agreement for tenancy ; that the complainant delayed further payment on several pretexts and brought a Civil Suit being No. 193 of 2008 before the Ld. Civil Judge, Jr. Division ( 3rd Court ), Howrah ; that the complainant is not entitled to get any relief and as such the complaint should be dismissed.
3. Upon pleadings of both parties three points arose for determination :
i) Whether the complaint is maintainable ?
ii) Is there any deficiency in service on the part of the O.P. ?
iii) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
4. POINT NO. 1
It has been argued that the instant complaint is premature as the same was filed on 17-09-2010. The agreement for sale dated 01-04-20108 stipulates that the period for registration of the flat shall be 31st December, 2010. Before expiry of the stipulated date i.e. 31-12-2010 the complainant filed the instant complaint before nearly 2 ½ months. From the legal point of view, time, being the essence of the contract, this premature complaint requires to be dismissed. But at the same time if we place ld. Lawyer’s letter dated 17-03-2009 addressed to the complainant, side by side the agreement for sale we trace it was virtually an eviction notice to the complainant for vacating the premises on the ground of defaulter as alleged. This letter was issued on 17-03-2009 much earlier to the date of expiry of the date as per agreement. Naturally it is crystal clear that it is none but the o.p. herself who violated the terms of the agreement and posed a threat to the complainant prior to the expiry of the date of the contract ( 31-12-2010 ). Therefore, the dispute over prior filing of the complaint is set at rest. The other point raised on behalf of the o.p. is that a title suit was filed by the complainant before the Civil Court and as such no remedy lies before this Forum. On scrutiny of the T.S. No. 193 of 2008 we come across that the complainant prayed for temporary injunction against the o.p. for restraining her to dispossess the complainant from the suit flat. The instant complaint was filed praying for relief and direction upon the o.p. to execute and register the sale deed as per agreement dated 01-04-2008. Naturally the reliefs as prayed for before the two Forums are not identical. Section 3 of the Consumer Protection Act, 1986 empowers the complainant to seek for speedy relief. Therefore, this dispute over non maintainability of the complaint is set at rest.
5. POINT NOS. 2 & 3.
Both the points are taken up together for consideration. The money receipts dated 17-02-2008 and 30-03-2008 reveal that the complainant has paid Rs. 31,000 + Rs. 2,70,000 = Rs. 3,01,000/- and therefore Rs. 3,00,000/- remains due and to be paid to the o.p. by the complainant as per agreement dated 01-04-2008. This has been admitted by the o.p. in paragraph 11 of the written version. The submission put forward on behalf of the o.p. that the amount received was towards the advance money of tenancy with respect to the suit premises appears to us to be too fragile to merit acceptance. It is just an attempt on the part of the o.p. to misappropriate the amount in the garb of advance towards tenancy. Whatever be the submission of the ld. Lawyer for the o.p. with respect to the acceptance of the sum of Rs. 3,01,000/-, the money receipts indicate that the o.p. entered into an agreement for sale of the suit flat already in possession of the complainant. Therefore, the o.p. cannot have any respite from the rigours of law. The decision as cited on behalf of the o.p. reported in 1998(7) SCC 348 cannot have any application in the instant complaint, inasmuch as the o.p. herself violated the terms of the contract in serving the eviction notice much earlier to the stipulated date of expiry. By way of violating the terms of the agreement herself, the o.p. cannot pray for enforcement of the same term i.e., December, 2010 as the standard time to be followed.
Naturally in the light of the above we are of the view that this is a fit case where the complainant shall be granted relief as prayed for. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 74 of 2010 ( HDF 74 of 2010 ) be allowed on contest with costs against the O.P.
The O.P. Smt. Gita Rani Dutta be directed to execute and register the sale deed in terms of the agreement for sale dated 01-04-2008 with respect to the flat mentioned in the schedule within 30 days from the date of this order meanwhile the complainant shall pay Rs. 3,00,000/- to the o.p. which remains outstanding as yet.
The complainant is entitled to get a compensation of Rs. 20,000/- and litigation cost of Rs. 10,000/- from the o.p.
The o.p. be directed to pay the total amount aggregating Rs. 30,000/- ( Rs. 20,000 + Rs. 10,000 ) within one month from the date of this order failing the amount shall carry interest @ 12% per annum.
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, as per rule.
