DATE OF FILING : 05-07-2012.
DATE OF S/R : 17-08-2012.
DATE OF FINAL ORDER : 13-03-2013.
Shri Rajendra Singh,
son of late Hiralal Singh,
13, Kings Road,
Howrah – 711101.--------------------------------------------------------------- COMPLAINANT.
- Versus -
1. Sri Subrata Banerjee,
son of late Dilip Banerjee of
12, Kings Road, P.S. Golabari,
District – Howrah,
PIN – 711101.
2. Sri Rajendra Sharma,
son of Sri Keshav Deo Sharma,
of 23/1, Dobson Road, P.S. Golabari,
District – Howrah,
PIN – 711101.---------------------------------------------------------OPPOSITE PARTY.
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 make over possession of the flat measuring 800 sq. ft. on the 1st floor at no. 12, Kings Road, Howrah, and to cause execution and registration of the sale deed and to pay compensation to the tune of Rs. 1,00,000/- for mental pain, agony and harassment etc. as the O.P. no. 2 in spite of the agreement and receipt of a total amount of Rs. 2,98,524/- out of the total consideration money of R. 3,04,800/-.
2. In spite of receipt of the notice the O.P. no. 2 Rajendra Sharma, promoter and
developer who entered into an agreement with the complainant for sale of the flat did not appear; nor did he file any written version. So the complaint was heard ex parte against the O.P. no. 2.
3. The O.P. no. 1, land owner filed written version contending interalia that if any
amount was paid for purchase of the flat in question, that was paid to the O.P. no. 2 and he cannot be held responsible for the violation of agreement as the O.P. no. 2 was at liberty to sell any flat from his 67% share of the property.
4. 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 :
5. Both the points are taken up together for consideration. On scrutiny of the
enclosures it appears that originally there was a promotion agreement with respect to the premises no. 12, Kings Road, Howrah, in between the O.P. nos. 1 & 2. By virtue of that agreement, the O.P. no. 2 retained 67% of the constructed area. This O.P. no. 2 further entered into an agreement with the complainant for sale of the flat in dispute. It further appears that the O.P. no. 2 received Rs. 2,98,524/- on different dates and the O.P. no. 2 issued receipt thereof.
6. Therefore, we are of the view that the O.P. no. 2 cannot have any respite from
the rigours of law though he deliberately avoided the proceedings in spite of receipt of the notice. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 72 of 2012 ( HDF 72 of 2012 ) be and the same is allowed ex parte with costs as against the O.P. no. 2 and dismissed on contest against O.P. no. 1 without costs.
The O.P. no. 2 be directed to deliver khas possession of the flat measuring 800 sq. ft. on the 1st floor at 12, Kings Road, Howrah – 711101 after receiving the balance amount of Rs. 6,276/- ( Rs. 3,04,800 – Rs. 2,98,524) within 30 days from the date of this order.
The o.p. no. 2 do further pay Rs. 1,00,000/- as compensation to the complainant for causing mental pain and agony and prolonged harassment.
The complainant is entitled to a litigation costs of Rs. 5,000/-.
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.
