DATE OF FILING : 05.10.2015.
DATE OF S/R : 17.11.2015.
DATE OF FINAL ORDER : 09.08.2017.
1. Mr. Rockwell Borrison,
son of B.S. Borrison,
2. Mrs. Madhumita Borrison,
wife of Mr. Rockwell Borrison,
both residing at 223/13, Golmohar Rly. Colony, P.S. Golabari,
District Howrah,
Pin 711106. ………………………………………………… COMPLAINANTS.
1. SREE MAA CONSTRUCTION,
a registered partnership firm
having its office at 51/1/A/22, Rabindra Sarani, P.S. Liluah,
District Howrah,
PIN 711 204,
represented by its partners –
2. Sri Surojit Roy,
son of Sankar Roy,
of 51/4/C, Rabindra Sarani,
P.O. & P.S. Liluah, District Howrah,
PIN 711204.
3. Sri Santu Roy,
son of Sri Prafullya Roy
of 132/15, Netaji Subhas Road,
Kolkata 700034.
4. Smt. Arati Adhikari,
wife of Sri Gobardhan Adhikari,
residing at 93, Daspara Road, under Liluah P.S.,
District Howrah,
PIN 711204.………………………………………………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 petitioners, Mr. Rockwell Borrison and another, against the o.ps. SREE MAA CONSTRUCTION and others, represented by partners, Surojit Roy and Santu Roy, and the land owner, Arati Adhicary, praying for a direction upon the o.ps. to execute and register the sale deed as per terms and conditions of the sale agreement dated 02.03.2015 in favour of the petitioners in respect of the schedule mentioned flat being flat no. 101 in the first floor and under Bally Municipality Area under H.M.C. holding no. 23/C, Daspara Road, P.S. Liluah, District Howrah, measuring about 802 sq. ft. including 20% super built up area and also to pay compensation of Rs. 1 lakh and to pay Rs. 50,000/- as litigation costs.
- The further case of the petitioner is that he entered into an agreement with the o.p. nos. 1 to 3 for purchasing the above mentioned flat at a consideration of Rs. 9,60,000/- out of which he paid Rs. 6 lakhs to the o.p. nos. 2 & 3 who issued receipts to that effect. He approached the o.p. nos. 2 & 3 on several occasions to executer and register the flat but on vague plea they intentionally refused to register the deed of conveyance in favour of the petitioner and in this case the o.p. no. 4 is the land owner. The petitioner lodged a complaint before I.C., Liluah P.S. on 15.9.2015 and also sent an advocate’s letter on 06.06.2015 requesting the o.ps. to execute and register the sale deed after receiving the balance consideration of Rs. 3,60,000/- but the o.ps. failed and neglected to execute and register the deed and their acts and conducts amounts to deficiency in service on their part compelling the petitioners to file this case.
- The o.p. nos. 1 to 3 contested the case by filing a written version denying the allegations made against them and submitted that the case is not maintainable and the petitioner have no cause of action to file the case and also the case is barred by limitation and the petitioners suppressed material facts and so the case is liable to be dismissed.
- The o.p. nos. 1 to 3 further submitted that they are always ready and willing to execute and register the deed of conveyance in respect of the case mentioned flat after receiving the balance consideration of Rs. 7 lakhs, as they have already received Rs. 2,60,000/- only. They requested petitioners to pay the balance consideration amount but they failed to pay the same and filed this false complaint before this Forum as well as before the police and it is luxury for the petitioner to file this case which must be dismissed with costs.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioners have any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.Ps. ?
- Whether the complainants are 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 their case the petitioners filed affidavit and documents in the form of sale agreement dated 26.3.2015 held between the o.p. nos. 1 to 4 as first party, owner / vendor, and o.p. nos. 1 to 3, second party being developer / promoter confirming party and the petitioners being the purchasers as 3rd party. It is clearly mentioned in page 5 para I of the agreement dated 26.3.2015 that the total price for the said flat no. 101 was fixed Rs. 9.60,000/- and out of the same Rs. 2,60,000/- was paid by the purchaser to the developer as noticed from page 6 para 4 of the agreement. It is further noticed that the balance consideration of Rs. 7 lakhs shall be paid within six months from the date of agreement i.e., 26.3.2015 by the petitioners to the o.ps. when they would execute and register the deed of conveyance.
- It is noticed from the documents filed by the petitioners that they further paid Rs. 3,40,000/- to the o.ps. SREE MAA Construction and the partners, Surojit Roy later on and thus out of the total consideration of Rs. 9.60,000/- there was a total payment of Rs. 6 lakhs and thus the balance consideration remains Rs. 3,60,000/-. It is also clear from the agreement that the o.ps. would transfer the property to the petitioners within six months from the date of execution of agreement but the same has not been done even though legal notice was served upon the o.ps. by the petitioners and also the o.ps. appearing before the Forum conceded in their written version that they were always ready and willing to execute and register the sale deed in favour of the petitioners who did not pay the balanceconsideration of Rs. 7 lakhs and so it is a fanciful case of the petitioners which be dismissed.
- It is clear from the case of the parties as well as from the available oral as well as documentary evidences in the form of written agreement dated 26.3.2015 and money receipts dated 24.1.2015 for Rs. 2,60,000/- and another payment for Rs. 3,40,000/- proved the fact that the petitioners paid Rs. 6 lakhs to the o.ps. who would now get Rs. 3,60,000/- only as balance consideration and to execute and register the sale in favour of the petitioners as they conceded that they are always ready and willing to execute and register the sale deed.
In view of above discussion and findings this Forum finds that the petitioners proved their case successfully and are entitled to get the reliefs as prayed for and to pay balance consideration of Rs. 3,60,000/- and o.ps. to execute and register the deed of sale.
In the result, the application succeeds.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. No. 347 of 2015 be and the same is allowed on contest with costs against the O.P. nos. 1 to 3 and allowed ex parte without cost against the o.p. no. 4.
The petitioners are entitled to the relief as prayed for and the O.Ps. directed to execute and register the deed of conveyance in favour of the petitioners in respect of the schedule mentioned flat no. 101 of the 1st floor, as specifically mentioned in the 1st para of this final order after receiving the balance consideration of Rs. 3,60,000/- from the petitioners within 60 days from the date of this order and also to pay Rs. 50,000/- out of which Rs. 20,000/- would go to the petitioners as compensations and the rest of Rs. 30,000/- would be deposited in the Consumer Legal Aid Account of this district within 60 days from the date of this order.
The o.ps. are to pay Rs. 10,000/- to the petitioners as litigation costs also within 60 days from the date of this order.
The above order not being carried out by the opposite parties within the stipulated period of 60 days, the petitioners are at liberty to put the final order 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.