C.F. CASE No. : CC/10/74
COMPLAINANT : Sri Ganapati Biswas,
S/o Late Judhistir Biswas,
Vill. Sikarpur, P.S. Murutia,
Dist. Nadia, West Bengal
Pin No. 741158.
OPPOSITE PARTY/OP : Sri Nikhil Sarkar
S/o Late Nabadwip Sarkar
Vill. Simhat, P.S. Haringhata,
Dist. Nadia, West Bengal
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SMT SHIBANI BHATTACHARYA MEMBER
SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 27th September, 2010
: J U D G M E N T :
In brief, the case of the complainant is that he is a BSF person. On 22.10.08 an agreement was executed between him and the OP on a non-judicial stamp paper of Rs. 10/- to the extent that OP would sell his property to him and at that time he paid Rs. 15,000/- as advance. His further case is that the OP is not willing to follow the terms of the contract. So on 24.01.09 he lodged a diary at the local P.S. Thereafter, he sent a lawyer’s notice to the OP with registered post and intimated the matter to his Commandant and thereafter to the SP and DM also. In spite of that no positive step was taken by the OP. Rather he intends to forfeit Rs. 15,000/- which was paid by him as advance. Therefore, having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
OP has filed a written version, inter alia, stating that the case is not maintainable in its present form and law. It is his specific case that there was a contract between this OP and the complainant to the extent that the OP would sell 04.626 satak of his property, under daag No. 23 at a price of Rs. 4,40,000/-. To that extent a bynanama was executed by him in presence of witness and on that date of bynanama the complainant paid Rs. 15,000/- and it was the contract that since the date of the bynanama the complainant would have to pay the balance amount of Rs. 4,25,000/- and he would transfer the suit property in favour of the complainant by executing a registered deed of Kobla. This OP requested the complainant so many dates to make the deed registered after payment of the balance amount, but to no effect. He has also stated that still now he is ready to execute and register the deed in favour of the complainant after receipt of the balance amount. So the complainant has no cause of action to file this case and the same is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No. 2: Is the case maintainable in its present form and nature?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint along with annexed documents and the written version filed by the OP it is available on record that admittedly the OP executed a bynanama in favour of the complainant on 22.10.08 in order to sell his property under daag No. 23 and the quantity of land was 04.626 satak at a price of Rs. 4,40,000/-. The bynanama was valid for four months since the date of its execution. At the time of executing this bynanama the complainant paid Rs. 15,000/- as advance. The complainant’s specific allegation is that the OP is not following the relationship of seller and buyer between them which took place by dint of this bynanama. So he lodged a complaint at the P.S. and subsequently, his Commandant, SP and DM also. From the complaint lodged at the P.S. it is available that on 05.01.09 he met the OP and asked him to fix a date for registration of the property and also to vacate the house in his favour at which the OP declined. Before execution and registration of the sale deed no question of vacating the house by the OP does arise. Besides this, he has stated that everything was done in presence of some witnesses namely, one Ganesh Chandra Mandol, Golok Biswas & others. But none of them has deposed in this Forum in support of the complainant. Even at the prayer of the complainant before the O.C. he has requested to take step to return Rs. 15,000/- which he paid to the OP and decided that he would not purchase that property from the OP. He made a complaint to the Commandant, BSF on 05.09.09 in which he also prayed for taking step to return of Rs. 15,000/- by the OP and he decided that he would not receive the land house as during his living with his family members, he apprehended themselves unsecured. He did not serve any notice or letter to this OP asking him to make the deed registered within the stipulated period and after that period also. No where, he has stated that he was ready to take the property after payment of the balance amount. Practically, he has prayed for refund of Rs. 15,000/- by the OP which he paid at the time of bynanama. OP has categorically stated that he is still now ready to execute and register his suit property in favour of the complainant subject to payment of the balance amount of money by the complainant. On this point the complainant is totally silent. Even at the time of argument he has not expressed his desire to take the suit property as per terms of bynanama after payment of balance amount of money.
Therefore, considering the facts of this case and after hearing the arguments advanced by the complainant and the ld. lawyer for the OP we find that this complainant is not at all interested to purchase the suit property from the OP on payment of balance amount as per terms of the bynanama. We do also hold that the complainant himself violated the terms of the bynanama by not taking any positive step for executing and registering the sale deed in his favour by the OP. Rather he is interested to get back Rs. 15,000/- which he paid as advance to the OP. Practically this OP has no fault in this case. So our considered view is that the complainant has no cause of action to file this case, as he has violated the terms of the bynanama.
Ld. lawyer for the OP submits that the complaint is not maintainable in its present form as the dispute is civil in nature. On a careful perusal of this case we find that there is no consumer and seller relationship between the parties. Rather the complainant is the buyer and the OP is the seller of the suit property. So we don’t find any deficiency in service on the part of the OP. The complainant has prayed for returning him Rs. 15,000/- which he paid in advance after following the terms of the bynanama by himself. So our considered view is that he is not entitled to get any relief in the present case and the same is not maintainable also. In result the case fails.
Hence,
Ordered,
That the case, CC/10/74 be and the same is dismissed on contest against the OP without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
