COMPLAINT CASE NO. HDF 35 OF 2010
DATE OF FILING : 19-04-2010.
DATE OF FINAL ORDER : 29-10-2010.
Sri Goutam Chowdhury,
son of Late Mahadev Chowdhury,
residing at 51, Kashinath Chatterjee Lane, P.S. Shibpur,
District Howrah COMPLAINANT.
Versus -
1. Sri Prabal Das,
son of Late Kashinath Das,
carrying ona proprietory business under the name and style of
Astha Construction, at 171, Sarat Chatterjee Road,
P.S. Shibpur, District – Howrah,
PIN - 711102.
2. Sri Bikash Banerjee,
3. Sri Subrata Banerjee,
both sons of Late Dibakar Banerjee,
4. Sri Suprakash Banerjee,
Son of Late Prabhakar Banerjee,
Residing at 225/1, Sarat Chatterjee Road, P.S. Shibpur,
District Howrah,
PIN 711102. OPPOSITE PARTIES.
P R E S E N T
1. Honble President : Shri J. N. Ray.
2. Honble Member : Dr. Dilip Kr. Chakraborty.
C O U N S E L
Representatives for the complainant : Shri Rabindra Nath Chowdhury,
Shri Debapriya Majumder,
Shri Tapan Ghosh Ray,
Smt. Dola Majumdar,
Ld. Advocate.
Representative for the opposite party no 1 : Shri Ramen Sadhukhan,
Ld. Advocate.
Representative for the opposite party nos. 2 to 4
: Shri Abhijit Dutta,
Ld. Advocate.
F I N A L O R D E R
This is to consider an application U/S 12 of the C.P. Act, 1986 filed by one Goutam Chowdhury, residing at 51, Kashinath Chatterjee Lane, P.S. Shibpur, District –Howrah, against the o.p. namely Prabal Das and others alleging deficiency in service.
The case of the complainant is that he entered into an agreement for sale of flat with o.p. on 30-01-2008 and paid earnest money of Rs. 1,50,000/- only as an advance and no further money has been paid by him till date in terms of said agreement. The further case of the complainant is that he requested the o.p. no. 1 Prabal Das, the developer, to book a flat of his choice and the o.p. no. 1 assured him that he would arrange home loan from Nationalized Bank for the purpose but ultimately no loan was sanctioned. It is further alleged that the o.p. no. 1 did not handover copies of the deed, original agreement for sale etc. and as such the complainant filed the instant case and prayed for relief as stated in the petition of complaint.
On the other hand the case of the o.p. 1 is that the property situated at 42, Kashinnath Chatterjee Lane, P.S. Shibpur, District –Howrah, belonged to the o.ps. no. 2 to 4. That the o.ps. no. 2 to 4 wished and /or developed the said property and they contacted a local contractor i.e., o.p. no. 1 of the instant case. Thereafter the o.ps. no. 2 to 4 and o.p. no. 1 entered into an agreement for development on 09-11-2005 to develop the said property and the o.ps. no. 2 to 4 executed a power of attorney in favour of o.p. no. 1 for execution of the work in terms of development agreement. Thereafter the o.p. no. 1 prepared the building plan in respect of said property and got sanction and constructed a G+3 storied building in the said property. Several intending purchasers contacted o.p. no. 1 to purchase the flat and similarly in this way the complainant requested the o.p. no. 1 for purchasing one flat situated at 1st floor south west corner of the building as per sanctioned plan measuring about 614 sq. ft. including all easements and apartment thereto in the said property. Accordingly an agreement was executed by and between the o.p. no. 1 and complainant on 30th January, 2008. As per said agreement the total consideration of the said flat was fixed at Rs. 7,06,100/- only at Rs. 1150/- per sq. ft. and the o.p. has to complete and handover the said flat within 18 months from the date of execution of agreement for sale subject to payment of balance consideration money as per terms of schedule D of the said agreement. The further case of the o.p. no. 1 is that at the time of execution of the said agreement for sale the complainant paid Rs. 1,50,000/- only to the o.p. no. 1. Later as alleged that the complainant included to make payment in terms of schedule D of the said agreement wherein the o.p. no. 1 requested several times to the complainant for making payment of the balance consideration money but of no avail. As such the o.p. no. 1 was compelled to issue notice through its advocate, Kalyan Roy, on 26-02-2010 asking for payment of balance consideration money failing the said agreement would be cancelled. In spite of receipt of the letter the complainant did not pay any amount to the o.p. no. 1 and as such the complainant violated the Clause 8 and 12 of the said agreement for sale dated 30-01-2008 executed by and between the parties to the suit. As per clause 8 of the said agreement the complainant has to pay part of the consideration money as per schedule D within seven days of demand and in the event of failure to make payment, the developer i.e., the o.p. no. 1 may grant a time of 15 days and if the failure still persists, the developer may rescind the contract and as per clause 12 of the said agreement until and unless the consideration money is paid in terms of schedule D of the said agreement, the developer i.e., the o.p. no. 1 has no responsibility to handover the possession of the B schedule flat. It is alleged by the o.p. that the petitioner did not make payment of the balance consideration money to him in respect of B schedule flat and on the other hand the complainant sent a reply through his advocate against the letter of o.p. no. 1 and the basic allegation was not tenable as because ld. Lawyer of the complainant alleged in the said letter that the o.p. no. 1 did not handover the deeds, documents etc. relating to the said property to his client and took some money for getting a bank loan for the said flat. The o.p. no. 1 has stated that he filed relevant documents annexed to the brief notes of argument that he handed over all the relevant copies of the deed relating to the said property as the flat in question to the complainant. It is further stated that the complainant never showed any gesture and readiness and willingness to pay balance consideration money for discharge his obligation. It is alleged on behalf of the o.p. no. 1 that the complainant instituted a false case before this Forum and the matter in controversy is purely civil in nature and a civil suit is pending being T.S. No. 145 of 2010 before the Civil Court, Jr. Division, Howrah, wherein the o.p. sought for declaration of cancellation of the said agreement dated 30-01-2008 and prayed for injunction. The o.p. no. 1 also preferred Misc. Appeal No. 194 of 2010 before the Ld. District Judge at Howrah and Ld. District Judge, Howrah, was pleased to pass an order of injunction in the nature of status quo of the said flat and the order is in force till now. So the o.p. no. 1 is not at all binding to perform the contract dated 30-01-2008 and the complainant has not acquired any right, title on the basis of agreement dated 30-01-2008. So the o.p. prays for dismissal of the case.
Point for determination is that whether the complaint is to be allowed or not
DECISION WITH REASONS :
Admittedly the complainant has booked a flat with the o.p. by advancing a sum Rs. 1,50,000/- on 14-12-2007. It is also admitted that the o.p. no. 1 / promoter cum developer agreed to hand over the schedule flat within 18 months from the date of execution of the flat in question to the complainant. The complainant has stated that the o.p. no. 1 never asked him for payment as per terms in schedule D of the flat and as such the question of making payment by the complainant did not arise at all as o.p. no. 1 failed to produce any documentary evidence to the effect.
At the outset of the hearing of the case the ld. Advocate appearing on behalf of the complainant has submitted before us that he was always ready to make payment in terms of the agreement and further submits that as the o.p. no. 1 / developer never asked for making payment in terms of agreement i.e., schedule D of the agreement wherein he requested the o.p. no. 1 for compliance of the terms. Ld. Advocate appearing on behalf of the o.p. no. 1 has submitted before us by raising objection that his client o.p. no. 1 has given the relevant documents to the complainant for which a xerox copy of receipt has been filed with the brief notes of argument.
Having heard on both sides and also perusal of the firisty filed by the o.ps. it goes to show that the complainant has received the relevant documents including sanctioned plan, searching report etc. from the o.p. no. 1. Further it is admitted that there is a civil suit pending before the civil court being T.S. No. 145 of 2010 wherein the o.p. no. 1 has sought for declaration for cancellation of the said agreement dated 30-01-2008 and prayed for injunction and the o.p. no. 1 further referred Misc. Appeal No. 194 of 2010 before the Ld. District Judge at Howrah wherein the Ld. District Judge, Howrah, was pleased to pass an order for injunction in the nature of status quo over the said flat and the said order is in force uptil now. Xerox copy of the plaint of T.S. No. 145 of 20010, Misc. Appeal no. 194 of 2010 and the order no. 8 dated 29-09-2010 in respect of T.S. No. 145 of 2010 supports the contention to that matter.
Thus we find that a civil case is pending in between the parties in respect of the flat in question and injunction order was also passed in that case. It is not disputed that the subject matter of the case relates to the very deed of agreement i.e., sale agreement in between the parties which was duly executed on 30th January, 2008. If the o.p. no. 1 succeeds in the said suit then there is every scope of multiplicity of suit in the instant matter which may cause infractuous order if passed in this case.
Considering the state of affairs arising for civil dispute in the matter we are refrained from passing any order to dispose of the matter. The complainant if he so advise he may approach before the Civil Court for appropriate order in order to get relief in the case. Such being the position we are of the view that the case is not tenable in this Forum at this stage which is liable to be dismissed.
Hence,
O R D E R E D
That the complaint petition U/S 12 of the C.P. Act, against the o.ps. be dismissed on contest but without cost in the facts and circumstances of the case.
Supply the copies of the order to the parties, free of costs, as per rule.
