Sri Lal Saheb Verma,

Son of Hare Ram Verma,

7, Raj Ballav Saha 2^nd Bye Lane,

 P.S. & District – Howrah,

PIN – 711 101. ------------------------------------------------------------------ COMPLAINANT.

-          Versus   -

1.      Sri Sukhdeo Lal Burnwal,

son of late Jitulal Brnwal.

2.      Smt Sushma Burnwal,

wife of Sri Awadesh Kumar Burnwal,

both of 25/1, Mahendra Nath  Roy Lane,

P.S. and District – Howrah – 1 and

also both of 7, Raj Ballav Saha 2^nd Bye Lane,

P.S. and District – Howrah,

PIN – 711101.------------------------------------------------------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 register the sale deed in terms of the agreement dated 13-07-2012 with respect to the schedule flat and to pay damages to the tune of Rs. 3 lacs for mental agony and harassment and cost of the proceedings as the complainant paid Rs. 12,10,000/- to the O.Ps. being the major part of the consideration money and the O.Ps. encashed the same delivered  khas possession of the concerned flat but did not execute and register the sale deed in violation of the terms of the agreement.  

2.                  The o.ps. in their  written version contended interalia that as the complainant

expressed his unwillingness to purchase the suit flat, the entire amount received by the O.Ps   were refunded on 17-09-2012 ; that the O.P. no. 1 transferred the suit flat to his daughter by virtue of the deed of gift;  that the agreement for sale dated 13-07-2012 has been determined for the expiry of the period of agreement as settled between the parties. So the complaint should be dismissed.

3.         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      :

4.      Both the points are  taken up together for consideration. In fact the instant case is

a clash by itself where the O.Ps. only to avoid the sale have taken recourse to subterfuge i.e., the deed of gift executed in favour of daughter of O.P. no. 1. The O.P. refused major part of the consideration money and subsequently they stepped aside in executing the deed of sale in favour of the complainant. Curiously enough the complainant is in possession of the suit flat since August,2012 which is reflected from the electric bill, gas connection and telephone connection etc. standing in the name of the complainant showing the address of the suit flat being no. 7, Raj Ballav Saha  2^nd Bye Lane, Howrah.

5.      Therefore, undisputedly the deed of gift dated 05-10-2012 executed in favour of

the daughter of the O.P. no. 1 appears to be sham transaction only to hoodwink the complainant and to destabilize the physical possession of the complainant in the suit flat since August,2012. We are rather astonished to fathom the deed conspiracy hatched by the O.Ps. to deprive the complainant and to frustrate the spirit of the agreement dated 13-07-2010. Furthermore, the property in question is a joint property of the O.P. nos. 1 & 2 and naturally the O.P. no. 1 had no unfettered right to execute the deed of gift in favour of his daughter.      

6.      With respect to the plea of refund of the major portion of the consideration money

to the complainant we are of the view that even if the earnest money was refunded, it did not mean that the contract was repudiated. The contract dated 13-07-2010 continued to subsist and the complainant was always ready and willing to perform his part on the contract ( vide 2012(5) CHN (SC) 56). That apart we do not find from the materials on record that the complainant had given up his claim under agreement or that he was not ready and willing to perform his part of the contract. This is a fit case where this Forum is competent enough to grant relief for execution and registration of the conveyance vide 2005(1) CLJ (Cal) page 496.

7.      The complainant is in full possession of the flat in question. Naturally delivery of

possession to any 3^rd party does not arise. Sunita Debi, a donee has never been in possession of the suit flat in question. Ld. Civil Court granted interim injunction against the O.Ps. restraining them to deliver the suit property to any 3^rd party.

      In the result, we are 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. 168  of 2012 ( HDF 168  of 2012 )  be  and the same is allowed on contest with  costs  against  the O.Ps. 

      The O.Ps. be directed to register the sale deed in terms of the sale agreement dated 13-07-2012 after receiving the consideration money from the complainant within one month  from the date of this order.

      The complainant be directed to pay the  consideration money within 15 days from the date of this order to the O.Ps.

      The complainant is further  entitled to damages to the tune of Rs. 1 lac from the O.Ps. for mental agony and prolonged harassment and a  litigation cost of Rs. 5,000/- from the O.Ps.

      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.