Judgment : Dt.27.6.2017
This is a complaint made by one Mrs. Babita Ganguly wife of Susanta Ganguly against (1) Sri Arup Roy, OP No.1 and (2) Smt. Sefali Rani Das, OP No.2 praying for direction for completing the construction of the property mentioned in schedule B and to execute a register a proper deed of conveyance, mentioned in schedule B and to pay compensation of Rs.1,00,000/- and litigation cost of Rs.25,000/- and also an interim order restraining the OP and their men, agents and associates from transferring the said two flats to some other persons.
Facts in brief are that OP No.1 is a Developer and runs a business of construction in his own name on the strength of deed of partition. OP No.2 became the owner in respect of 416 sq.ft. Thereafter, OP No.2 entered into a agreement with OP No.1 and OP No.2 executed a power of attorney on 19.10.2012. OP No.1 has acquaintance with the Complainant’s husband, Sri Susanta Ganguly and declared that he is entitled to sell two residential flats out of which one is located on the ground floor and another is located in the first floor each measuring 343 sq.ft. super built up area and each comprising o f one bed room with attached bath room, one dining cum kitchen and one balcony. Complainant with her family consisting of four members including her husband and two children used to live in hardship in one room. They became interested to acquire the said two small residential flats as one unit each measuring 343 sq.ft. super built up area. Accordingly, Complainant entered into an agreement for sale on 31.12.2014 with the OP No.1 as Developer and OP No.2 as land-owner, described in Schedule B for a total consideration of Rs.10,00,000/-. Before execution of the said agreement for sale, OP No.1 received from Complainant a sum of Rs.9,60,000/- out of the total consideration of Rs.10,00,000/-, by cheques. It was agreed that balance consideration of Rs.40,000/- would be paid by the Complainant to the OP No.1 at the time of registration of sale deed. It was also agreed that they would complete the said transaction within three months from the date of agreement for sale by executing and registering the sale deed in favour of the Complainant. Despite receiving the significant part of the total consideration money for the two flats, OP No.1 did not complete the construction. Suddenly, at the end of January, 2016 OP No.1 approached the Complainant and stated that the construction has been stopped due to lack of money and requested Complainant to pay another Rs.40,000/- and also to give some financial support. Complainant paid Rs.40,000/-. Despite receiving the entire consideration money and repeated requests and persuasion by the Complainant, OP No.1 delayed the progress of construction. Complainant made several requests for delivery of possession and also for executing the registration deed. But, OP No.1 made another demand of Rs.5,00,000/- on which Complainant stopped talking with him. Complainant further submits that she is always ready and willing to get the deed registered in her favour. So, Complainant filed this case.
OP No.1 filed written version and denied all the allegations of the Complainant. Further, OP No.1 has stated that Complainant never entered into any agreement for sale. Further OP No.1 has stated that the execution of agreement was for some other purpose and it was not an agreement for sale. OP No.1 has stated that Complainant went to the Jadavpur Police Station for lodging a complaint. But, the said Police Station instead of taking any appropriate action, only received the said complaint and did not take any action. So, this OP has prayed for dismissal of the complaint.
OP No.2 did not contest the complaint by filing written version and so the case is heard ex-parte against OP No.2.
Decision with reasons
Complainant filed affidavit-in-chief wherein she has reiterated the facts mentioned in the Complaint petition. Against this affidavit-in-chief, OP No.1 has filed questionnaire to which Complainant has filed affidavit-in-reply. Similarly, OP No.1 filed affidavit-in-chief to which Complainant filed questionnaires and OP No.1 filed affidavit-in-reply against that.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
Complainant has sought for a direction upon the OPs to complete the construction of the property mentioned in Schedule A. It is the contention of OP No.1 that agreement for sale which was entered into between the parties was not actually an agreement for sale but was an agreement for some other purposes.
On perusal of the agreement for sale, it appears that Babita Ganguly and Arup Roy, OP No.1 entered into the alleged agreement. It is the allegation of Complainant that she paid Rs.9,60,000/- to the Complainant by three cheques. In the written version OP No.1 has alleged that cheques which were given by the Complainant were dt.9.9.2014 and Rs.1,00,000/- and Rs.8,00,000/-. Two different cheque books were used on single day and another cheque was issued on 11.10.2014. OP No.1 did not encash cheque No.659331 of Rs.8,00,000/- on the date it was given. OP No.1 encashed it after 18 days and also encashed the other two cheques on 24.11.2014. This reveals that the agreement for sale was made for some other purposes and not with the intention to purchase any flat by the Complainant. Further, OP No.1 has alleged that Complainant did not give Rs.40,000/- as alleged.
Now the question arises as to whether the agreement for sale between the parties OP No.1 & 2 and Complainant is an agreement for sale or not is not question which can be decided by this Forum. Moreover, on perusal of the cause title of the complaint petition, it appears that the agreement took place with Mrs. Babita Ganguly on the one hand and Sri Arup Roy on the other. Since law is settled that if there is an agreement for sale between two persons the Consumer Forum does not have jurisdiction and it is covered under the provision of specific relief act.
Further, on perusal of affidavit-in-chief, questionnaire and affidavit-in-reply of both the sides, it appears that there is allegation and counter allegations. If for some time it is accepted that OP No.1 entered into agreement for sale and took the money as alleged by the Complainant, this becomes a case of agreement for sale between two parties and in such circumstance, it cannot be said that Arup Roy received Rs.9,60,000/- and entered into agreement for sale mentioned in 2nd schedule of the agreement for sale, it can be said that since the agreement took place between two individuals, does not covered by Consumer Protection Act.
Hence,
ordered
CC/309/2016 and the same is dismissed on contest.
