DATE OF FILING                    :     10.07.2015..

DATE OF S/R                            :      24.08.2015.

DATE OF FINAL ORDER      :     29.04.2016.

1.         Smt. Smritikana Saha,

daughter of  late Pran Gobinda Saha

of 13/28, Mohanilal Bhalwala Road, Bally,

Howrah 711 201.

2.         Sri Soumyen Mukherjee,

son of late Dhurebesh Mukherjee

of 5/51/1E, Dum Dum Road, P.S. Sinthee,

Kolkata 700030, …………………………………………… COMPLAINANTS.

-Versus   -

1.         Sri Rabindra Nath Das,

son of late Haripada Das,

of 12/58, Satish Chakraborty Lane,

P.O. & P.S. Bally,

Howrah – 711201,

having his place of business at

9/B/1, Fakir Pathak Lane, P.S. Bally,

District Howrah.

2.         Smt. Subra Das,

wife of  Sri Rabindra Nath Das

of 12/58, Satish Chakraborty Lane, P.O. & P.S. Bally,

Howrah 711201,

having her place of business

at 9/B/1, Fakir Pathak Lane, P.S. Bally,

Howrah 711201.……………………………………………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      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak.

F  I   N   A    L       O   R   D    E     R

1. This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioners, Smt. Smritikana Saha and Soumyen Mukherjee against the o.ps., Rabindra Nath Das and Subra Das, praying for direction upon the o.ps. to handover possession letter to the petitioners in respect of  their 400 sq. ft. flat situated in the 3^rd floor of Neer Apartment being premises no. 9/D/1, Fakir Pathak Lane, Bally, and to handover keys of the above flat to the petitioners and to handover sanctioned plan and completion certificate of the building to the petitioners and to cancel the o.ps.’s letter dated 21.6.2015 being void and inoperative and to execute and register the deed of conveyance and handover peaceful vacant khas possession of the flat in favour of the petitioner after receiving the balance consideration and to pay compensation of Rs. 3,30,000/- and Rs. 20,000/- as cost of proceeding.

2. The case of the petitioners are that they entered into an agreement on 13.9.2014 with the o.ps., Rabindra Nath Das for purchase of a 400 sq. ft. flat including 20% super built  up area at a consideration of Rs. 6 lakhs and out of the same paid Rs. 3,20,000/- as advance and booking money on condition that the schedule ‘B’ mentioned flat of said agreement dated 15.9.2014 be completed within two months from 15.9.2014 by the o.ps. and after receiving the balance consideration the o.ps. would execute and register the sale deed in favour of the petitioners. The petitioners failing to the pay the balance consideration, the o.ps. would be at liberty to sell the ‘B’ schedule mentioned flat to any 3^rd party and refund the advance money after deducting 20% from the total sum. The petitioner would have liberty to inspect the construction and to enter into the ‘B’ schedule property. The o.ps. claimed extra amount along with the residue consideration and the petitioners denied and repeatedly asked the o.p. to complete the flat and take the balance consideration of Rs. 2,64,000/- after adjusting Rs. 16,000/- paid to the o.ps. for depositing the same to the CESC. The o.ps. ultimately denying to give possession as well as execute and register the deed of conveyance the petitioners having no other alternative filed this case.         

3. The o.p. no. 1 contested the case by filing a written version denying the allegations made against them and submitted that the complaint filed by the petitioners is fake and baseless and they approached before the Forum not in clean hands and the o.ps. had no intention to harass the petitioners. It is true that one agreement was executed between the parties but the o.ps. cancelled the said agreement on the ground that the petitioner no. 1 is a lady of bad reputation and the local people objected against such sale of flat to the petitioners by the o.ps.      

4. As per agreement it was settled that the entire consideration would be paid within two months but till the date of filing the written version no such payment was made. The o.ps. sent notice but the petitioner did not pay the amount and on the plea of inspecting the construction of the flat both the petitioners engaged in illegal activities inside the flat. The local residence raised objection against the sale of flat to  the petitioner who  never paid any amount to the vendor and thus the case be dismissed with costs.    

5. Upon pleadings of  parties the following  points arose for determination :

1. Is the case maintainable in its present form ?
2. Whether the petitioners have any cause of action to file the case ?
3. Whether  there is  any deficiency in service on the part of the O.Ps. ?
4. Whether the complainants are   entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

6. All the issues  are  taken up together for the sake of convenience and  brevity for discussion and to skip of reiteration. In support of their case the petitioners filed affidavit as well as documents in the form of a deed of agreement for sale dated 15.09.2014 wherein both the petitioners and the o.ps. duly signed and it is specifically mentioned in page 7 para 2 that the petitioners paid Rs. 3,20,000/- to the o.ps. and the remaining sum would be paid to the o.ps. by the petitioners before taking possession of the ‘B’ schedule property i.e., 400 sq. ft. flat which would be delivered within two months from the date of the execution of the agreement for sale i.e., within 15.11.2014. In the  Agreement there is a memo of consideration showing  receipt of Rs. 3,20,000/- and several money receipts issued by the o.p. no. 1, Rabindra Nath Das, in favour of the petitioners, Smitikana Saha and Soumen Mukherjee, showing payment of Rs. 1,10,000/-, Rs. 20,000/- Rs. 40,000/-, Rs. 50,000/- Rs. 1 lakh respectively on different dates between 10.02.2013 to 25.7.2014 / 08.4.2014. The passbook of SBI in the name of Soumen Mukherjee showing deduction of said amounts in favour of Rabindra Nath Das specially on 23.8.2014 for electric meter amounting to Rs. 16,000/-. The petitioners also filed CESC bill in the name of Smitikan Saha in respect of the schedule mentioned flat. The o.ps. on the other hand filed one agreement for sale dated 13.3.2013 between the o.ps. and the petitioner no. 1, Smitikana Saha being an agreement for sale of 400 sq. ft. flat including super built up area at a consideration of Rs. 6 lakhs being Rs. 1,500/- only per sq. ft. and out of the above consideration of Rs. 1,10,000/- only was paid by the purchaser to the o.ps. and it was agreed that the said ‘B’ schedule property shall be completed within 18 months from the date of execution of the agreement for sale. At the end of such agreement for sale there is also a memo of consideration showing payment of Rs. 1,10,000/- in between 06.09.2013 to 07.06.2014 and also copy of plaint of the T.S. 425 of 2016 wherein the plaintiff, Subra Das, filed the suit against defendant Rabindra Nath Das, praying for a decree for declaration that the plaintiff Subra Das, was the owner of the ‘A’ schedule property and a declaration that the defendant Rabindra Nath Das had no right, title and interest to sell and transfer or execute agreement in respect of any flat in the 3^rd floor of the building and for permanent injunction.

7. This Forum heard the ld. counsel of both sides on the subject and keeping in mind the averments of the main petition as well as the written version and also keeping in mind the agreement for sale executed between the parties and other documents like the plaint of the Civil Suit being no. 425 of 2016 filed by Suvra Das, o.p. no. 2, against o.p. no. 1 Rabindra Nath Das, praying for declaration of his title in the schedule mentioned property and for permanent injunction. In the instant case this Forum finds that there was an agreement for sale in the year 2013 and most specifically on 13.3.2013 between o.ps. Rabindra Nath Das and Suvra Das as vendors / owners and Smitrikana Saha as purchaser by virtue of which the o.ps. were to complete the construction of the 400 sq. ft. flat within 18 months from the date of execution of the agreement and hand over the same to the purchaser having received the rest consideration money and also having accepted an advance of Rs. 1,10,000/-. There was an further agreement between the present o.ps. Rabindra Nath Das and Suvra Das on 15.9.2014 as vendors / owners with Smt. Smitrikana Saha and Shri Soumyan Mukherjee wherein the agreement mentioned sale of 400 sq. ft. flat as mentioned in the previous agreement at a consideration of Rs. 6 lakhs and the ‘B’ schedule mentioned flat would be completed within two months from the date of execution of agreement and then the consideration money of Rs. 6 lakhs, the o.p. paid Rs. 3,20,000/- between 11.6.2012 to 04.8.2014 through cheques of Bank of India, Chowrangee Branch and State Bank of India, Indian Express Branch, and also Rabindra Nath Das  received Rs. 16,000/- for CESC connection. Thus it is noticed that the petitioners are to pay the rest consideration money and get the schedule mentioned flat executed and registered in their favour as well as possession being handed over in their favour by the o.ps. Regarding objections raised as to the illegal activities as well as civil case pending this Forum finds that for the criminal acts, if any, the o.ps. are to approach before the appropriate Forum for proper relief and cannot deny the petitioners from getting the terms of the agreement fulfilled in their favour. Regarding the civil suit pending the ld. counsel for the o.ps. filed one decision of the State Commission, West Bengal, published in 2013(4) WBLR CPSC page 957 wherein the State Commission stayed the appeal proceeding which arose out of the C.C. wherein the District Forum directed the o.ps. to execute and register the deed of conveyance in favour of the complainant even if civil suit was pending on the self same matter. The above referred case actually differs  factually from this case and thus the above decision is not applicable here.

8. In the instant case the civil suit no. 425 of 2016 has been pending before the ld. Civil Judge, Howrah,  between o.p. no. 1 and o.p. no. 2 who filed civil suit against the o.p. no. 1 praying for a decree for declaration that the o.p. no. 2, Subra Das, is the owner of the ‘A’ schedule mentioned property of that suit wherein the present case flat of 400 sq. ft. is the ‘B’ schedule mentioned property and also in the case the plaintiff prayed for permanent injunction and the present petitioner have no connection with the said title suit and not parties there and also in the sale agreement between the present petitioners and the o.ps. the plaintiff  and defendant of the suit no. 425 of 2016 namely, Smt. Smritikana Das signed, as well as defendant therein Rabindra Nath Das  signed the agreement for sale and so the issues in both the cases being different. This Forum does not find that if this case is disposed of on merit then the o.ps. would suffer at all because both these proceeding before this Forum and before    this civil court are not mutual destructive and can run concurrently because in the civil suit the issues and subject matter of decision are different from the subject matter and issues to be decided in the CC Case  before this Forum.

           In view of above discussion and findings this Forum finds that the petitioners succeeded in proving their case and are entitled to the relief as prayed for.                     

      Hence,

                       O     R     D      E      R      E        D

      That the C. C. Case No. 252 of 2015 ( HDF 252  of 2015 )  be  allowed on contest with  costs  against  the O.Ps. 

      The petitioners are entitled to the reliefs as prayed for. The O.Ps. are directed to handover possession letter to the petitioners in respect of their 400 sq. ft. flat situated in the 3^rd floor of Neer Apartment being premises no. 9/D/1, Fakir Pathak Lane, Bally, and to handover keys of the above flat to the petitioners and to handover sanctioned plan and completion certificate of the building to the petitioners and to execute and register the deed of conveyance and handover peaceful vacant khas possession of the flat in favour of the petitioner after receiving the balance consider and to pay compensation of Rs. 20,000/- and litigation costs of Rs. 10,000/- within 30 days from the date of this order failing the petitioners would be at liberty to put the order in execution after expiry of the appeal period and also the whole amount of compensation and cost would carry interest @ 9% from the date of 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.