This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that while he was in search of a shelter to stay with his family and getting the news of the sale of new flats by the OPs, he approached them and expressed his willingness to purchase a flat from the OPs and enter to an agreement for sale with the OPs for a flat measuring 700 sq. ft on the first floor building at 2G/1A, Dum Dum Road, Kolkata – 700 002 and that agreement was executed on 21-04-2012 and complainant agreed to pay a sum of Rs.16,50,000/- towards the consideration money for the said flat and also additional sum of Rs.50,000/- for marveling of the floor and as per terms of agreement dated 21-06-2012 complainant advanced a sum of Rs.4,50,000/- to the OPs and the remaining portion of the consideration amount of Rs.12,00,000/- would be paid at the time of registration of the Deed of Conveyance. During construction work complainant supplied marvels of Rs.50,000/- to the OPs and in terms of agreement of Sale dated 21-04-2012 complainant was assured to get possession of the said flat within three months from the date of signing of the agreement of sale i.e. within 21-07-2012.
In the month of July, 2012 as per verbal instruction of the OPs the complainant arranged for balance payments of Rs.12,50,000/- and for which the complainant took loan from private financers in order to collect the same and after arrangement of the balance amount complainant informed the same to the OPs and the OPs fixed a date of registration of the said flat in the name of the complainant on 30-07-2012 and the draft of the Deed of Conveyance was drafted and settled by the Ld. Advocate Mr. Ranjit Das who is the Legal advisor of the OP but on the date of registration as fixed by the OPs on 30-07-2013 OPs did not reach the A.D.S.R. at Sealdah and when the complainant contacted with the AOPs, the OPs refused to answer to any of the queries of the complainant and OPs stated that they will not be signing the Deed of Conveyance in favour of the complainant and the complainant can take any step against them and on hearing the said version of the OPs complainant was very much shocked and finding no other alternative filed a case for injunction before the Civil Court and complainant was granted injunction by the Ld. Civil Court and the order was duly communicated to the OPs so that the OPs cannot sale the same and in the above situation complainant after harassment, negligence and deficient manner of service and truth is that complainant is always ready to pay balance amount and to get the said flat and registered deed.
On the other hand OPs by filing written statement submitted that OPs have 2 storied building ancestral house in the said premises at the address as mentioned in the complaint and OPs’ family has been staying all along with their family members and same was used as residential house but due to financial hardship and loss in the potato business the OPs were in dire need of money and had approached the complainant for a loan and at the time of providing the loan the complainant had asked to sign an agreement to sale of the 1st floor of the ancestral house and accordingly without finding any alternative the OPs were compelled to sign the agreement and the said agreement was prepared by the Advocate of the complainant and thereafter OPs signed in the said agreement without understanding the purport of the agreement but the purchaser was supposed to pay Rs.16,50,000/- for the entire 1st floor of the building within two months of the signing the agreement which the purchaser had failed and thereafter filed a suit being T.S. 260 of 2012 before the Ld. Sealdah Court wherein the main dispute as alleged was due to failure of the vendors in bringing their sisters to sign the agreement and further due to some difference in the measurement of the flat and the OPs contested the suit and the Ld. Court had granted injunction against selling the property which has been pleaded by the complainant in his complaint. But complainant had withdrawn the suit filing a petition therein and the complainant thereafter filed this complaint in spite of civil suit at Sealdah yet the complainant proceeded with the complaint as complainant was aware of the fact the case is barred by principle of res sub judice but knowing about the present Forum’s passing of strict order to all authority against other developers, complainant appeared and filed this case to get the relief. Moreover it is specifically mentioned that sale of property is sale simpliciter and purchase transaction and there are some irregularities in the agreement and also about other matters. It is not a case of housing construction and in the agreement no such future clause to be followed by the OPs and it is not housing construction property but it is a mere agreement to sale in respect of part of old house of the OPs so the present complaint should be dismissed and fact remains complainant had no capacity to pay the fund and never deposited the said amount to them and for which the present complaint should be dismissed.
Decision with Reasons
On proper retrospection of the complaint, written version including the record and particular the agreement to sale dated 21-04-2012 it is clear that within two months from the dated of execution of the said agreement OPs shall have to handover 700 sq. ft of flat of first floor and complainant shall have to pay full and final price within that period and it is specifically mentioned that within three months from the date of execution balance consideration money i.e. Rs.12 lakhs shall be paid by the complainant and no doubt in this case complainant has failed to show that he paid balance Rs.12 lakhs within three months from the date of execution of sale. No doubt, in the present case the agreement to sale of the first floor is not a part of any housing construction but first floor is part of the ancestral house of the OPs and apparently OPs have claimed that it is a sale simplicitor and a purchase transaction and another factor is that in respect of the said house OP’s sisters are also the co-sharer who did not sign in the said agreement and ultimately that agreement cannot be properly matured so complications arose and for which complainant no doubt filed a Civil Suit before the Sealdah Civil Judge, Junior Division, being T.S. No.260 of 2012 and from the said document it is found that complainant was the plaintiff and ultimately complainant did not proceed with the case on 03-12-2012 for which said suit was dismissed for non-prosecution whereas the complaint was filed on 21-07-2013 but prior to that the present Civil Suit was pending. Most interesting factor is that complainant has not filed the copy of the plaint of the said Civil Suit. Anyhow, at this stage after considering the materials it is found that the agreement was not valid in view of the fact other owners of the said building did not enter into the said agreement with the complainant. So, in the eye of law agreement cannot be executed by the OPs but truth is that OPs themselves admitted that they received the said amount and took the said money by executing that agreement. So, considering that fact it is clear that agreement was executed by the OPs and in support of that OPs received a sum of Rs.4,50,000/-. Now, considering legal aspect it is found that it is not possible for the OPs themselves to execute the deed of sale on the basis of the agreement because sisters are co-sharers in respect of the entire property then present agreement in between the complainant and the OPs cannot be finally matured for the registration of Sale Deed and in view of the above facts we find that at best the complainant is entitled to get back Rs.4,50,000/- from the OPs treating that agreement as a piece of receipt in advance in support of selling the property so, OPs had or have no absolute right in executing such agreement to sale or any sale deed or execute any deed of sale in respect of the first floor of the premises but OPs liability is fixed as per law to refund of the entire Rs.4,50,000/- which has been received by the OPs from the complainant after executing such sort of agreement to sale on 21-04-2012 and no doubt OPs have enjoyed the benefit of the said capital by investing it in his potato business because they admitted that they are potato merchant and so they must have to pay interest @8% over the same since 21-04-2012 over the said amount to the complainant and accordingly OPs are bound to refund Rs.4,50,000/- as received by the OPs from the complainant as advance money for selling the said first floor of their house along with interest @8% with effect from 21-04-2012 and till its final payment to the complainant and for adopting such deceitful manner of business or transaction by the OPs, OPs shall have to pay compensation to the complainant for harassing the complainant for causing mental agony to the complainant also.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OPs.
OPs are hereby directed to pay and refund a sum of Rs.4,50,000/- to the complainant along with interest @8% with effect from 21-04-2012 and till its final payment to the complainant.
Further OPs jointly and severally are directed to pay a compensation of Rs.20,000/- for harassing and causing mental pain and agony to the complainant.
For adopting such sort of unfair trade practice and deceitful manner of real estate trade by the OPs, OPs shall have to pay Rs.5,000/- as penal damages to this Forum and it is imposed only to check such sort of unfair trade practice, deceitful manner of trade in the market and to save the customers from the hands of such traders said amount shall be deposited to this Forum by the OPs jointly and severally.
OPs are directed jointly and severally to comply the order within stipulated period of time failing which for non-compliance and disobeyance they shall have prosecuted u/s.27 of the C.P. Act and even penal interest @Rs.200 per day shall be assessed by this Forum against the OPs till full satisfaction of the decree.
