The fact of the complaint case in a nutshell is that the complainant wanted to purchased a flat measuring 750 Sqft. consisting of two bed room, dining space, kitchen, bath & privy situated at 61/U/III/3, G.T. Road(W) from Samarjit Banerjee and his wife Kalpana Banerjee, who jointly purchased the said flat by virtue of registered deed.
Samarjit Banerjee and his wife offered the complainant to sell the schedule flat at a total consideration amount of Rs.15,50,000/-. The complainant paid Rs.50,000/- as advance money. In this regard an agreement for sale was made on 8.5.2014. Due to sudden illness of said vendor execution of deed of conveyance was deferred.
But unfortunately Samarjit Banerjee and his wife Kalpana Banerjee died without making registered the sale deed. Since after death of Samarjit Banerjee and Kalpana Banerjee O.P. No.1 to 4 are the legal heirs of said vendor. O.Ps. mutated their names before the Serampore Municipality. The O.ps. after perusing the said agreement which is done on 8.5.2014, they undertake to executed a deed of conveyance after taking balance consideration of money. When petitioner asked to fixed a date of registration of deed O.Ps. deferred a date of various pretext, the reason best known to them. In the month of 3rd March, 2016 the Opposite Parties told the complainant that they are unable to execute the deed of conveyance on the basis of the said deed of agreement dated 8.5.2014 but agreed to refund the said earnest money with interest within the month of April, 2016 and also told that on behalf of O.P. No.2 to 4 the O.P. No.1 deal the matter but inspite of repeated request O.Ps. failed to repay the earnest money of Rs.50,000/-.
The complainant came to know from the outsight that the O.ps. are trying to sell the schedule flat in favour of stranger purchaser in a higher price as well as to cheat the earnest money of the complainant. In view of such existing agreement with complainant, O.Ps. have no right to sell or transfer the schedule flat other than complainant. The complainant on 30.11.2016 went to O.Ps. for registration of deed of conveyance or refund the same but they refused with ulterior motive. That the acts and nature of the O.Ps. caused suffering to the complainant as well as mental pain and agony. Finding no other alternative the complainant filed this case before Ld. Forum for relief and prayed to direct the O.Ps. to execute the deed of conveyance after receiving the balance amount from the complainant or refund the money of Rs.50,000/- with interest, to restrained the O.ps. to sell the ‘B’ schedule flat in favour of any third party, to pay Rs.30,000/- towards litigation cost.
O.P. No.1 contested the case by filing written version denying all the material allegations as leveled against him. This O.P. submits that Samarjit Banerjee andhis wife Kalpana Banerjee were the owner cum possessor of flat No.61/U, G.T. Road (W), Swapna Neer, P.O.-Mallickpara, P.s.-Serampore, Dist.-Hooghly and answering O.P. is the brother of Samarjit Banerjee. However, suddenly Samarjit Banerjee died on 04.09.2014 and his wife Kalpa Banerjee was also died on 12.09.2014.
That after the death of Samarjit Banerjee, O.P. being his brother, started to reside at the flat left by his elder brother but all on a sudden petitioner claimed that she has an agreement with Samarjit Banerjee but this O.P. has no knowledge about the agreement as his brother Samarjit Banerjee never told about existence of such type of agreement or during his life time he never disclosed his intention to sale out his flat to anybody even he never told to the O.P. that he took any advance amount from anybody and O.P. No.1 is his younger brother and Samarjit Banerjee who used to put signature in every documents never told such type of agreement with petitioner. So, O.P. No.1 is totally in dark about the alleged agreement of petitioner.
The O.P. No.1 is now residing at the said flat along with his wife and they are old aged ailing person without having any issue. So, to avoid conflict with a doctor having influence in the locality, O.P. No.1 informed her about his insufficient knowledge and requested her to show the agreement but petitioner never shown the agreement even after filing of petition before this Forum.
That O.P. No.1 never took any advance amount from the petitioner or any other persons and he is a law abiding citizen. So, he is always ready and willing to follow and abide by the law. That the agreement is manufactured one and Samarjit Banerjee and Kalpana Banerjee never put their signature or thumb impression in it.
That if it will be proved that Samarjit Banerjee and Kalpana Banerjee took Rs.50,000/- from the petitioner then the O.P. No.1 being the brother of the co-sharer of the property left by his deceased brother is always ready and willing to refund the money to the extent of 1/4th share as he has no intention to sale the said flat as he is residing there, it is necessary to mention here that the alleged agreement is false one.
That complainant suppressed all the facts and filed the case falsely only to harass the old aged O.P. and to create pressure upon him and wife and for which the case is required to be dismissed.
DECISION WITH REASON
The complainant stated that though she is busy with her medical practioner but she along with her husband went to the house of the O.P. for registration of the deed of conveyance or refund the money. The O.P. refused the complainant with ulterior motive and inspite of readiness and willingness to performance her part of the contract the O.P. men failed to execute the deed of conveyance of schedule flat, for which the complainant sustained loss and injury.
The O.P. No.1 appeared and contested the case by filing written version denying the material allegation but later knowing fully aware of the complaint O.P. failed to contest the case and the case is fixed by ex-parte hearing. But the O.P. did not turn up.
It is hold that the complainant has been proved the deficiency of service against the O.Ps. In this connection to prove this case some documents have been filed by the complainant such as affidavit of evidence, brief notes of argument. The complainant also filed Xerox copies of acknowledgement of Anima Mukherjee, Ranjit Kumar Mukherjee, Kalyani Mukherjee, Sunil Mukherjee, Notarial certificate, deed for sale, return memo of statement, letter of Advocate, Jitendranath Mukherjee addressed to Ranjit Kumar Mukherjee along with Kalyani Mukherjee, Anima Mukherjee and Sunil Mukherjee.
From the above documents it is transpires that in this case the O.P. though appeared and filed written version but in the complaint case as per material is prove, has not been challenged by the O.P. The uncontested testimonial of complainant proves the case of the complainant. Thus the case succeeds exparte and as such the complainant do get the relief as prayed for. There is nothing to disbelieve the complaint of the complainant. Hence, it is
ORDERED
that the complaint case be and the same is allowed on exparte against the O.Ps. with litigation cost of Rs.5000/-. The O.Ps. are directed to execute and registered the said deed for B schedule flat within A Schedule mentioned in the schedule below on accepting the balance consideration money from the complainant or alternative refund the earnest money of Rs.50,000/- along with interest @ 8% p.a. to the complainant. The O.ps. are further directed to pay the complainant to tune of Rs.20,000/- as compensation for mental pain, agony and harassment. All the payments are made within 45 days from this date of order. At the event of failure to comply with the order O.P. shall pay cost of Rs.50/- for each days delay, if caused on expiry of 45 days by depositing the amount in the Consumer Legal Aid Account.
Let the copies of this order be supplied to the parties free of cost.
