This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant.
In a pith and marrow the complainants’ case is that they approached before the opposite parties Nos.1 to 3, who had developed the building with a joint collaboration. Janaki Devi, since deceased was the owner of the land. Said Janaki Devi entered into an agreement for sale dated 28.7.2004 with the complainants along with opposite party Nos. 1 to 3 as developer and agreed to sale a flat situated on the ground floor super built up area of 557 Sqft. more or less with proportionate share of land and common facilities of the multi storied building named “Karuna Apartment” lying and situated at premises No.372/229, Sukdeb Singh Road, Urdibazar, P.O. & P.S.-Chandannagore, Pin-712136, from the developers allocation in terms of the said development agreement. After negotiation with the opposite party Nos. 1 to 3 and predecessor of the opposite party Nos.5 & 6 the complainant intends to purchase a flat on the ground floor measuring 557 Sqft. situated at Sukdeb Singh Road, Urdibazar, P.O. & P.S.-Chandannagore. It was agreed between the parties that the consideration amount of the said flat was fixed at Rs.3,62,000/- only.
After completion of construction of the flat the opposite party Nos.1 to 3 handed over the possession to the complainants on 27.11.2006 and the complainants are enjoying possession since then. It is pertinent to mention here that it was agreed between the parties that balance sum of Rs.47,500/- (out of total consideration amount) would be paid by the complainants o the opposite parties at the time of execution and registration of the deed of conveyance.
On 27th September, 2013 Janaki Devi, the owner of the land, died leaving behind the proforma defendant/ opposite party Nos.4 & 5 respectively being the heirs of Janaki Devi who had inherited the estate of the said Janaki Devi including the said premises. Thereafter the complainants met with the opposite parties and requested to execute and register deed of conveyance in favour of the complainants but opposite parties refused and/or neglected to execute the deed of conveyance. On 4th April, 2015 the complainants sent a lawyer’s notice to the opposite parties requesting them to execute and register the deed of conveyance but inspite of receiving the said notice the opposite parties did not take any step except opposite party No.4.
Thereafter the complainants contacted with the opposite parties several times but they again refused and/or neglected to execute the deed of conveyance. Finding no other alternatives the complainants have compelled to file this instant case before this Forum with prayer to direct the opposite parties to execute and register the deed of conveyance in respect of the said flat in favour of the complainants, to pay Rs.1,00,000/- as compensation for harassment and mental agony and to pay Rs.10,000/- as litigation cost to the complainants.
Opposite party No.1 did not file written version.
Opposite party No.2 contested this case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that it is within the knowledge of the opposite party that the mother of Proforma opposite party No.5 and the developers have agreed to sold out Flat No.G/1 of ‘Karuna Apartment’ to the complainant and accordingly Mr. Sushil Singha Roy on behalf of the other partners as developers took advance money against the booking of said unit from the complainant nd executed one agreement for sale to that effect. Be it mentioned here that said Sushil Singha Roy used to deal with monetary transaction and all paper works in respect of booking and selling of units of ‘Karuna Apartment’. This opposite party could not able to attend the site and look after the business due to his health condition. Mr. Sushil Singha Roy used to provide the relevant updates regarding booking of flats at the impugned site. During the life time of Janaki Devi the possession of the flat No.G/1 of ‘Karuna Apartment’ was handed over to the complainants.
This opposite party further submits that he is always ready to execute the sale deed in respect of the Flat No.G/1 of Karuna Apartment in favour of the complainants as these complainants are bonafide purchaser but due to unavailability of other parties the execution of sale deed could not be performed, on which this opposite party has no control at all.
Opposite party No.3 contested this case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that it is within the knowledge of the opposite party that the mother of Proforma opposite party No.5 and the developers have agreed to sold out Flat No.G/1 of ‘Karuna Apartment’ to the complainant and accordingly Mr. Sushil Singha Roy on behalf of the other partners as developers took advance money against the booking of said unit from the complainant nd executed one agreement for sale to that effect. Be it mentioned here that said Sushil Singha Roy used to deal with monetary transaction and all paper works in respect of booking and selling of units of ‘Karuna Apartment’. This opposite party could not able to attend the site and look after the business due to his health condition. Mr. Sushil Singha Roy used to provide the relevant updates regarding booking of flats at the impugned site. During the life time of Janaki Devi the possession of the flat No.G/1 of ‘Karuna Apartment’ was handed over to the complainants.
This opposite party further submits that he is always ready to execute the sale deed in respect of the Flat No.G/1 of Karuna Apartment in favour of the complainants as these complainants are bonafide purchaser but due to unavailability of other parties the execution of sale deed could not be performed, on which this opposite party has no control at all.
It is true that the complainant sent one legal notice but as this opposite party was always willing to perform his duty and as the same has been verbally communicated to complainant by the son of the opposite party because this opposite party had subjected to several heart attacks during last few years. So, this opposite party was not physically fit to perform his day to day activities.
The opposite party No.4 also contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that the complainants were the license under the mother of the answering opposite party for a certain period on and over the LR Plot No.295 & 297, RS Dag No.247 & 249, Khatian No.115 under Mouza Chandannagore, Dist.-Hooghly. After development of said plot the mother of the answering opposite party gave possession to the petitioners as a licensee at the ground floor in the year 2006 for a certain period. Neither the mother of the answering opposite party No.4 nor this opposite party agreed to sale the said property in favour of the complainants at any point of time. Neither said Janaki Devi nor this answering opposite party received any single money from the petitioners at any point of time. Be it mentioned here that with a view to gain something by illegal means with collaboration of opposite party No.5 i.e. Sudarshan Shaw, the complainants made some forge documents and with a view to grab the schedule property of the answering opposite parties, they have filed this case with an oblique motive. After demise of said Janaki Devi, this answering opposite party is the co-sharer having 1/2 share of the schedule flat/room in question. This opposite party never received any money from the complainant. Moreover this opposite party did not want to sale the said property in favour of the complainant and he did not enter into any alleged agreement with the complainant. Hence, this case.
The proforma opposite party, Sri Sudarshan Shaw has contested the case by filing written version denying the material allegation against him and contended inter-alia that mother of him (Proforma O.P.) and the developers have agreed to sale flat No.G/1 of ‘Karuna Apartment to the complainants and accordingly opposite party No.1 on behalf of the developers took advance money against the booking of said flat from the complainant and executed one agreement for sale to that effect. He also states that opposite party No.1 used to deal with monetary transactions and all papers works in respect of booking and selling of all flats of that apartment. However, during life time of Janaki Devi opposite party No.1 handed over the possession of the flat No.G/1 of ‘Karuna Apartment’ to the complainants and complainant is still possessing the said flat. He further states that he was always willing to perform his legal obligation by executing sale deed in respect of that flat and he knows that complainant is a bona-fide purchaser, but due to unavailability other parties the execution of sale deed would not be perform over which he has no control at all. He also states that he willing to perform his legal obligation and he is not at all responsible for the harassment and mental agony of the complainant.
Complainant filed affidavit in chief. That apart record shows that complainant also filed separately affidavit in chief against the written version of opposite party No.4.
It may be pointed out that on behalf of the opposite party No.2, 3 & 4 no affidavit in chief have been filed.
On behalf of the complainants brief note of argument has been filed. Whereas on behalf of opposite party No.4 brief note of argument has been filed.
Upon the above pleadings following points have been framed for determination.
- Whether the complainants are consumers of the opposite party?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try this case?
- Whether Janaki Devi, since deceased was the owner of the land in question and she herself during her life time along with Opposite party No.1 to 3 have entered into an agreement for sale of the flat in question dated 28.7.2004 at a price of Rs.3,62,000/- with the complainants?
- Whether the opposite party No. 1 to 3 handed over the possession of the flat in question to the complainants?
- Whether complainants already tendered money of Rs.3,14,500/- in connection with the said agreement in question.
- Whether the opposite parties are liable to execute and register proper deed of conveyance in respect of the said flat in question in favour of the complainant?
- Whether complainants are entitled to have award as prayed for ?
- To what other relief if any, are the complainants entitled?
DECISION WITH REASONS
Point No.1
From the materials on record it is transpired that the complainants are “Consumers” as provided by the spirit of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. As most of the opposite parties in their written version have admitted the agreement in question. Thus, complainants are none but the consumers under the opposite parties.
Point No.2
Complainants and opposite party No.4 including Proforma opposite party No.5 are the residents of District-Hooghly. It appears that flat in questions of ‘Karuna Apartment’ stands within the jurisdiction of this Forum. That apart the agreement in question also notarized on 28.7.2004 at Chandannagore in District-Hooghly. More over the registered office of Mile Stone Buildtech is at 167A, Palpara Main Road, District-Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try this case.
Point No.3, 4 & 5
These Points are interlinked with each other and as such those three points are taken up conjointly for the sake of convenience and brevity of discussion.
According to the case of the complainants Janaki Devi since deceased was the owner of the land where on the ‘Karuna Apartment’ was constructed and complainants intended to purchase the flat in question in that apartment. Accordingly an agreement for sale was executed and ultimately opposite party No.1 to 3 handed over the possession in question to the complainants on 27.11.2006.
Opposite party No.2 in his written version admitted that mother of proforma opposite party and the developers have agreed to sale out a flat in question and accordingly opposite party No.1 on behalf of other partners as developers took advance money against the booking of said flat. Nowhere in his written version opposite party No.2 raised any dispute about the actual ownership of the land in question owned by the mother of the proforma opposite party. Similarly from the written version of opposite party No.3 and 4 including proforma opposite party we are not seen any departure in the their version challenging the ownership Janaki Devi, since deceased over the land in question where on ‘Karuna Apartment’ has been constructed.
More or less from the pleadings of the parties including the affidavit in chief of the complainants it appears that Janaki Devi, since deceased during her life time entered into a development agreement with opposite party No.1 to 3 for construction of multistoried building on the land in question and as the complainants approached opposite parties No.1 to 3 (developers) of the said multistoried building and entered into an agreement for sale in respect of the flat in question.
From the copy of the agreement for sale dated 28.7.2004 it reveals that Janaki Devi, since deceased, wife of Late Badri Prasad Shaw alias Badri Shaw, was the land owner and opposite party No.3 (M/s. Mile Stone Buildtech) being represented by its partner namely 1. Sri Anil Kumar Singh 2. Sri Sushil Kumar Singha and 3. Sri Rabin Chakraborty being the developers entered into the agreement for sale in respect of the flat in question with the present petitioners being the purchasers. Further from the said copy of agreement for sale it appears that one Sudarshan Shaw and Gopal Shaw, both sons of late Badri Prasad Shaw alias Badri Shaw became the consenting parties in the said agreement for sale of the flat in question.
It may be pointed out that within four corners of the written versions of the opposite parties No.2, 3 & 4 including proforma opposite party we are not seen that there is any strong challenge about the contents of that agreement for sale. Even, from the brief note of argument on behalf of the opposite party we are not getting any scent about any departure from the position of the aforementioned persons appearing in the agreement for sale. So, we can safely conclude that there is no shadow of doubt that there was an agreement for sale in between the parties mentioned above on 28.7.2004 in respect of selling of the flat in question.
From the said copy of the agreement for sale it is palpably clear that the cost of the said flat computed to Rs.3,62,000/-.
Further from the copies of money of receipts issued on behalf of the M/s. Mile Stone Buildtech (developers) it shows that on different dates complainants paid different sum amount totaling Rs.3,14,500/-. Complainants also in their complaints high lighted the said amount of Rs.3,14,500/- towards their payment in respect of the flat in question. Further it appears that from the said money receipts one Subhas Chandra Dutta signed on the money receipts and one Sushil Singha Roy also signed in one money receipt. In fact, there is no contrary and adverse evidence is forthcoming from the end of the opposite parties challenging those money receipts. So, we can safely come to a conclusion that complainants already paid Rs.3,14,500/- in connection with the said flat in question.
Further it appears that on behalf of the complainants one copy of electric bill stands in the name of complainant No.1 showing the address G/1, Karuna Apartment, Urdi Bazar, CND which clearly indicates about the electric meter in the name of complainant No.1, Jatin Chandra Das in respect of the said flat in question.
It is pertinent to note that complainant assailed that opposite parties No.1 to 3 handed over the possession to the complainants in respect of the said flat on 27.11.2006 and to counter the same we are not finding any cogent and appreciable evidence on the part of the opposite parties. Therefore, we can also say without any hesitation the flat in question now in absolute possession of the complainants.
It is pertinent to mention that during course of trial on behalf of opposite party No.4 on 23.11.2016 one petition was filed on the point of maintainability of this case and this Forum by its order dated 20.2.2017 observed that the said petition be decided at the time of hearing of argument. Now, it is the duty of this Forum to decide that petition. It is alleged by the opposite party No.4 in that petition that complainants were the licensee under the mother of opposite party for a certain period and after development of the said plot his mother gave possession to the complainants as a licensee in the ground floor in the year 2006 for a certain period and neither the mother of him nor opposite party himself nor opposite parties agreed to sale the flat in question in favour of the complainant at any point of time. It is further alleged by opposite party No.4 neither Janaki Devi, since deceased nor opposite party himself took any money from the complaints at any point of time. It is also alleged by opposite party No.4 that with a view to gain something by illegal means the complainants in collaboration with proforma opposite party, Sudarshan Shaw made some forged documents with a view to grab the flat in question from the opposite party No.4. It is alleged by the opposite party No.4 that complainant submitted forged documents in respect of their payments and complainant was silent since 10.6.2009 upto 6.4.2015.
First of all it may be noted that mere allegation cannot stand as a proof. The allegation must be substantiated by cogent and positive oral and documentary evidence. But on that score opposite party No.4 has completely failed. Further it may be noted that the materials on record do not at all support the allegations of the opposite party No.4. Considering the total scenario and the attending facts and circumstances of this case this Forum is of the view that the contents of the petition dated 23.11.2016 of the opposite party No.4 appear to be sans any substance and as such the said petition should be answered in negative. Accordingly, this Forum is doing that.
Further it may be pointed out that proforma opposite party namely Sudarshan Shaw in his written version more or less has supported the complainants’ case.
It is quite obvious and mater on record that opposite party No.4 and proforma opposite party are the sons of Janaki Devi, since deceased. The total case of the opposite party No.4 is dramatically a picture of opposition of proforma opposite party, Sudarshan Shaw. It is not the business of this Forum to ascertain how much rivalry is going on in between two brothers i.e. opposite party No.4 and proforma opposite party, but this Forum is very much oblivion to the fact that may be there is much more rivalry in between two brothers i.e. opposite party No.4 and proforma opposite party, but this Forum will assess and appreciate the evidence in support of their respective case and on that score this Forum after considering the materials on record, is of the view that opposite party No.4 is trying to shield himself from his liability. Rather opposite party No.4 is trying to escape from his liability.
This Forum has also gone through meticulously the contents of BNA submitted on behalf of the opposite party No.4 including the contents of the BNA of the complainants. Regard being had upon the submissions advanced by the Ld. Counsel appearing for the respective parties and going through the materials on record and in view of the discussion made hereinabove this Forum is harboring its boat on the sea-shore of the complainants in respect of point No.3, 4 & 5.
Point No.6, 7 & 8
These three points are also taken up con-jointly for the sake of brevity of discussion as there interlinked with each other.
It will not be the place to mention that opposite party No.2 and 3 in their written version in fact, virtually rather admitted about the execution of the agreement for sale in question. It is only opposite party No.4 who always tried to high lights that he did not take any money whatsoever and he is not liable to the complaints in this case. But case of the opposite party No.4 has not at all reached to take appreciation from the end of this Forum because of his poor evidence. In the result, this Forum is of the view that opposite party Nos.1 to 4 are liable to execute and register the sale deed in favour of the complainants in respect of the flat in question and thus point No.6 is answered in favour of the complainants.
In view of the discussion made herein above point No.7 & 8 are also answered in favour of the complainants.
Thus, complainants are succeeds to prove their case.
Hence, it is,
Ordered
that the complainant case being No.84 /2016 be and the same is allowed on contest against the opposite parties No.2, 3 & 4 and exparte against opposite party No.1.
Opposite party Nos.1, 2, 3 & 4 are categorically directed to execute and register the sale deed of the flat in question as described in the schedule of the complaint within 45 days from this date of order hereof.
Opposite party Nos.1 to 4 to pay compensation of Rs.25,000/- and a sum of Rs.10,000/- towards harassment to the complainants within 45 days from this date of order, failing which the complainants are at liberty to execute the decree.
Let the copies of this order be supplied to the parties free of cost.
