This is a complaint made by one Dr. Ruchira Mukherjee, wife of Sri Sanjay Mukherjee, residing at 12/1/5 Maya Dasi Road, P.S. & P.O.- Parnashree, Kolkata-700 060 against (1) Sri Manab Paul, son of Narayan Chandra Paul, residing at 10, New Bikramgarh, P.S.-Jadavpur, Kolkata-700 032, OP No.1, (2) M/S Sree Balaji, a proprietorship firm having its office at 12/4K/6, Prince Gulam Hossain Shah Road, P.S.-Jadavpur, Kolkata-700 032, OP No.1, (2) M/s Sree Balaji, Jay Industrial Co-operative Building, 90/1, Prince Gulam Hossain Shah Road, Kolkata-700 095, OP No.3, praying for (a) an order directing the OP to get the property registered and an order directing the OP to pay the differential amount of stamp duty and registration cost which might be incurred by the Complainant for delay in getting the property registered, (b) compensation for Rs.2,00,000/- (c) litigation cost of Rs.15,000/- and also for (c) injunction restraining the OP in selling the flat No.4D, and (d) alternatively direction upon the OP to refund the entire consideration money of Rs.2,26,213.02 along with refund of Rs.22,547.19 and additional improvement cost of Rs.12,000/- with an interest of 21% from 30.12.2013 till the date of payment and realization of such payment.
Facts in brief are that Complainant is by profession an Associate Professor in a renowned technical institute after having Post Doctoral Research and permanently residing at the address mentioned in this cause title.
OP No.1 is a promoter by profession and OP No.2 is the proprietorship Firm being run by the OP No.1. OP No.3 is the office of OP No.1. OP No.1 claimed to have acquired a property in Mouza – Ramnagar, J.L. No.130, Khatian No.907 at Plot No.1764, for construction a housing complex, namely Panthniwas and approached the Complainant through their marketing representative.
Complainant being desirous of owning one residential flat in and around Santiniketan, Bolpur, filed an application on 17.12.2010 and paid Rs.10,000/- by cheque No.571798 of State Bank of India, Nabapally branch. Complainant booked top floor flat and opted for two year payment option in eight equal quarterly instalment of Rs.21,250.
Thereafter, OP issued an allotment letter dated 8.1.2011 and also raised a demand letter seeking Rs.41,287.50 and asking Complainant to enter into agreement for sale for flat No.4D of Panthniwas, Block-9.
Complainant and the OP entered into an agreement for sale on May 31, 2011 which was signed and executed at the office of the OP at Jay Industrial Co-operative Building, 90/1, Prince Gulam Hussain Shah Road in presence of sole witness Smt. Rekha Dutta.
Complainant states that she made all the payments of the flat on top floor, Block-9, Flat No.4D.
Further, Complainant has stated that the agreement for sale clearly provided that the land owner shall sell and the purchaser shall purchase the said flat for Rs.2,20,000/- along with service tax. The OP raised one bill for Rs.22,547.19 including maintenance amount of Rs.12,000/- for the period October, 2013 to September, 2015 and Rs.10,000/- for maintenance security deposit which Complainant paid. But despite all efforts the flat could not be registered in favour of the Complainant. So, Complainant filed this case.
OP filed written version and denied all the allegations of the complaint specifically. Further, OPs have stated that the notice of Mr. Pranab Kumar Goswami, Advocate, Calcutta High Court, is still legal and regular. They have further stated that the cancellation of the said agreement for sale is not arbitrary, whimsical and never done with mala fide intention for making any lawful gain. So, they have prayed for dismissal of the complaint.
Decision with reasons
Complainant filed affidavit-in-chief wherein she has reiterated the facts mentioned in the complaint petition. Against the affidavit-in-chief OPs have put questionnaire which Complainant has replied.
Thereafter, OPs filed affidavit-in-chief to which Complainant put questionnaire and OPs replied to the questions.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
First relief of the Complainant is for a direction upon the OP for registration of the sale deed in favour of the Complainant and compensation of Rs.2,00,000/- with litigation cost of Rs.15,000/-. These reliefs have been sought with alternative reliefs of refund of Rs.2,26,213.02 and maintenance amount of Rs.22,547.19 and Rs.12,000/- litigation cost with interest of course @ 21% from 30.12.2013.
Annexure A is one application for allotment of an apartment at Panthniwas which does not bear signature of any body. This annexure reveals the payment schedule also. But, surprisingly this has not been signed by anyone.
Annexure B is one demand letter for entering into an agreement issued by M/s Sree Balaji.
Annexure C is an agreement for sale between the Complainant and the OP. This document is a Xerox copy of agreement of sale. But it has been signed by all the OPs. This document reveals that OPs received Rs.2,45,665/- and also Rs.20,000/- from the Complainant.
Annexure D is a letter issued by the OP claiming Rs.22,547.19 for the purpose of registration of the flat in favour of the Complainant.
Annexure E is a copy of e-mail requesting the Complainant by the OP for reply of the earlier letter. Annexure E reveals that OP made request for registration to the Complainant.
Annexure F is a letter issued by Ruchira Mukherjee, Complainant, on December 20, 2013 replying the e-mails of the OP, wherein she has expressed her willingness to get registration of the flat.
Annexure G is another letter by which OP cancelled the agreement for sale.
Now, the question arises as to whether Complainant was at fault or OP for cancellation of the agreement for sale.
On perusal of the Annexure F, it appears that OPs made attempt to register the flat in favour of the Complainant. But due to the fault of both the parties, it could not be registered. Finally, the OP by Annexure F which is dated 20th December, 2013 cancelled the agreement.
It appears that both the parties have contributed in it and OP was compelled to cancel the agreement.
In the circumstances, we are of the view that the question of first category of prayer cannot be allowed. Further, the alternative prayers may be allowed, but, with some conditions. It is clear from the questionnaires, replies and evidences filed by the parties that Complainant was also at fault due to which the registration could not be done. As such, the question of refund of maintenance amount of Rs.22,547.19 and additional improvement cost do not arise and subsequently, the allowing interest @ 21% on the amount claimed does not appear to be justified. Complainant has claimed Rs.2,26,213.02. However, this total amount cannot be ordered to be refunded because the conduct of Complainant contributed to the non-registration of the flat in her favour.
So, we are of the view that if an amount of Rs.2,00,000/- is ordered to be refunded the justice should be served.
Hence,
ordered
RBT/CC/413/2016 is allowed in part on contest. OPs are directed to refund Rs.2,00,000/- to the Complainant within two months of this order, in default the same shall carry interest @ 12% p.a.
