DATE OF FILING : 27-06-2012.
DATE OF S/R : 07-08-2012.
DATE OF FINAL ORDER : 17-10-2012.
Sri Deepak Gupta,
son of Sukhdev Prosad Gupta
of 77/1, G.T. Road ( S ),
P.S. & District –Howrah-------------------------------------------------- COMPLAINANT.
- Versus -
1. Sri Asim Mukherjee,
son of Narayan Chandra Mukherjee.
2. Sk. Munna,
son of Sk. Sirazuddin,
both of 17/1, Kutchil Sarkar Lane,
P.S. Bantra, District – Howrah,
PIN – 711101.
3. Sri Swapan Mukherjee,
son of late Hirendra Nath Mukherjee.
4. Sri Malay Mukherjee,
son of late Hirendra Nath Mukherjee,
both of 33/3, Kashinath Chatterjee Lane,
P.S. Shibpur, District – Howrah,
PIN – 711102. ---------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
as amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant, Deepak Gupta, has prayed for direction upon the O.Ps. for execution of the deed of sale in favour of the complainant with respect to the schedule property and compensation for Rs. 2,00,000/- together with litigation costs as the o.ps. in spite of receiving the earnest money to the tune of Rs. 3 lacs out of the total agreed amount of Rs. 14,15,862/- did not execute the sale deed.
2. The o.p. nos. 1 & 2 filed a written version and challenged the maintainability of the complaint and contended interalia that the complainant did not approach the o.ps. within four months from the date of agreement dated 31-05-2011 as per the deed; that the subsequent agreement dated 17-11-2011 is a concocted one ; that the time is the essence of contract. So the complaint should be dismissed.
3. Upon pleadings of both parties three points arose for determination :
i) Whether the suit is maintainable ?
ii) Is there any deficiency in service on the part of the O.Ps. ?
ii) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
POINT No. 1.
4. The agreement dated 31-05-2011 was executed at the behest of the o.p.
nos. 1 & 2. So the o.ps. cannot agitate over the question of impounding. In view of Section 3 of the Consumer Protection Act, 1986 the other provisions of law cannot stand as bar in filing this complaint. Hence the point no. 1 is disposed of.
POINT NOS. 2 & 3
5. Both the points are taken up together for consideration. Admittedly there was an agreement on 31-05-2011 for sale of the schedule property measuring 674.22 sq. ft. of flat no. B 002 ( 1st floor ) at 33/3/2, Kashinath Chatterjee Lane, P.S. Shibpur, Howrah, at a consideration of Rs. 14,15,862/-. Admittedly the complainant paid the earnest money to the tune of Rs. 3 lacs. As per the agreement four months time was granted to the complainant for paying up the outstanding dues. Subsequently as per the request of the complainant the o.ps. executed another agreement on 17-11-2011 extending further time of four months and paid a further sum of Rs. 53,965/-.
6. O.p. nos. 1 & 2 generated a cock and bull story alleging that the subsequent
agreement dated 17-11-2011 was never signed by the o.ps.; that the complainant obtained signatures of the o.ps. in pieces of blank papers and that no question of extension of further time for four months does arise.
7. It is really surprising how the o.ps. who deals in real estate business and
construct high rise building for sale can record signatures in blank paper at the request of the complainant. If the agreement in dispute is concocted, the complainant would have extended the time to more than four months, even to one or more years. If it was the creation of the complainant, he could have incorporated the payment in enhanced rate and the signature of Asim banerjee, o.p. no. 1 and Sk. Munna, o.p. no. 2 would not be found just below the typing portion of the 1st page and just below the typing of the other pages. A simple glance of the 1st page would reveal that it was recorded after typing was complete, otherwise all the signatures of the o.p. through pages could have been found in similar portion of the all the pages. In fact, this cock and bull story does not appear to be convincing to us. It is just a fragile plea on the part of the o.ps. to dislodge the complainant from his bonafide prayer. The o.p. nos. 1 & 2 cannot have any respite from the rigours of law as they themselves extended the time to the complainant for further time. We are, therefore, of the view that this is a fit case where the complainant shall be granted relief as prayed for. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 68 of 2012 ( HDF 68 of 2012 ) be and the same is allowed on contest with costs against the O.P. nos. 1 & 2 and dismissed ex parte against the rest without cost.
The O.P. nos. 1 & 2 be directed to execute and register the deed of sale with respect to the schedule property in favour of the complainant within 30 days from the date of this order after receiving the balance consideration money. The complainant shall pay the balance consideration money to the o.p. nos. 1 & 2 as condition precedent for causing execution and registration.
The complainant is entitled to a compensation to the tune of Rs. 50,000/- for mental pain and prolonged harassment and the litigation cost of Rs. 10,000/- from the o.p. nos. 1 & 2.
The o.ps. be directed to pay the total amount aggregating Rs. 60,000/- ( Rs. 50,000 + Rs. 10,000/- ) within one month from the date of this order failing the amount shall carry interest @ 12% per annum.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
