DATE OF FILING : 30-8-2013.
DATE OF S/R : 30-09-2013.
DATE OF FINAL ORDER : 01-09-2014.
Sri Susanta Ghosh,
son of late Kanailal Ghosh,
residing at 73/3/1/1, Dasarath Ghosh Lane, Salkia,
P.S. Golabari, District – Howrah,
PIN – 711106.-------------------------------------------------------------------- COMPLAINANT.
- Versus -
1. Sri Mahabir Singh,
son of late Harihar Singh,
residing at 77/9, Beneras Road, Salkia, P.S. Bantra,
District – Howrah,
PIN - 711106.
2. Sri Raghubir Singh,
son of late Harihar Singh,
residing at 77/9, Benaras Road, Salkia, P.S. Bantra,
District – Howrah,
PIN – 711106.
3. Sri Ramesh Kumar Dubey,
son of Sri Gupteswar Dubey,
residing at 22, Haradutta Chamaria Road,
P.S. Golabari, District – Howrah,
PIN – 711106. -----------------------------------------------------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 wherein the complainant has prayed for direction upon the o.ps. to complete the construction work measuring 150 sq. ft. carpet area as per the agreement and to execute the deed of sale in respect of the schedule mentioned shop room and to pay Rs. 1 lakh as compensation. The complainant who was a tenant under the o.ps. no. 1 & 2 entered into an agreement on 09-06-2011 for sale of a shop room at a consideration of Rs. 1,05,000/- out of which he paid Rs. 5,000/- as advance. As the o.ps. did not ultimately complete the construction and did not pay heed to the requests of the complainant the instant complaint has been filed.
2. The o.p. no. 1 in his written version contended interalia that the construction could not be completed for the pendency of a civil suit. So the case is not maintainable.
3. The o.p. no. 2 in his written version contended interalia that the he was never a party to the agreement; that a civil suit is pending between himself and Mahabir Singh his full brother.
4. The o.p. no. 3 also filed written version and contended interalia that this Forum has no jurisdiction to try the case in view of the pendency of the civil suit.
5. Upon pleadings of both parties two points arose for determination :
i) 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 :
6. Both the points are taken up together for consideration. Admittedly the T.S. No.
131 of 2013 is pending between the o.p. Mahabir Singh and his full brother Raghubir Singh. The property is not partitioned by metes and bounds. Ld. 2nd Civil Judge ( Sr. Division ), Howrah, has passed an order of status quo with respect to the suit property. It is, therefore, clear that the o.p. no. 1 of the instant case has no absolute right to enter into an agreement with complainant for sale of the shop room not completed yet.
7. The o.p. Mahabir Singh received Rs. 5000/- from the complainant as advance for
sale of the shop room. Though he disputes his signatures in the deed of agreement, we have no hesitation in our mind that he is the author of the signatures recorded in each page of the agreement as the signature of the o.p. in written version is identical to those recorded in the deed of agreement. So he has no escape from the rigours of law and bound to refund the same to the complainant. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 302 of 2013 ( HDF 302 of 2013 ) be and the same is allowed in part with cost as against the o.p. no. 1 Mahabir Singh and dismissed without costs as against the rest.
The O.P. no. 1 be directed to refund the sum of Rs. 5,000/- taken as advance to the complainant within 30 days from the date of this order.
The o.p. no. 1 do further pay a sum of Rs. 30,000/- to the complainant as compensation for causing mental pain and unnecessary harassment and Rs. 5,000/- as litigation costs. .
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.
DICTATED & CORRECTED
BY ME.
( T.K. Bhattacharya )
President, C.D.R.F.,Howrah.
