Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
(3) Anil Kumar Singh
Member
Date of Order : 31.08.2018
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite parties to accept the balance amount i.e. Rs. 5.5 Lacs to execute the sale deed with regard to the said flat and to pay 24% interest per annum on the amount for the delay in delivery of possession.
- To direct the opposite parties to execute the sale deed and for delivery of the possession of the said flat bearing no. 204 on 2nd floor in “Sakshi Enclave”.
- To direct the opposite parties pay Rs. 2,00,000/- as compensation.
- To direct the opposite parties to pay Rs. 75,000/- as litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that opposite party no. 1 and 2 entered in an agreement with opposite party no. 3 and 4 to construct a building namely “Sakshi Enclave” on plot no. 153 D, Patliputra Colony, Patna vide development agreement contained in annexure – 1. Thereafter father of the complainant became ready to purchase a flat bearing no. 204 on 2nd floor in the proposed “Sakshi Enclave” as will appear from annexure – 2 and 2/1. Opposite parties got a plan of the aforesaid building sanctioned by PRDA vide annexure – 3 series. In order to purchase the flat agreement for sale was executed vide annexure – 4 between Prabhat Kumar Singh as well as father of the complainant. After the death of the father of the complainant a registered agreement for sale has been executed on 17.10.2008 between opposite party no. 1 and the complainant as will appear from annexure – 5.
The complainant has further asserted that as per agreement for sale vide annexure – 4 and 5 the said building was to be constructed within 2½ years and opposite party had to deliver the possession of the said flat within three years including grace period of six months i.e. November 2008. For allotment of the said flat having area measuring 1050 Sq. Ft. in the said proposed building, the opposite party no. 1 and 2 became ready to sale the aforesaid flat at the cost of Rs. 952.38 per Sq. Ft. which was to be paid at different time of construction accruing total amount of Rs. 10,00,000/- and initially opposite parties no. 1 and 2 demanded Rs. 1,00,000/- for the purpose of booking the aforesaid flat which was paid. The father of the complainant had paid total amount of Rs. 4.50 Lacs at different time of construction as will appear from receipt contained in annexure – 7 series. As stated above, after death of her father after paying the aforesaid amount to opposite parties a registered agreement for sale was executed by opposite party no. 1 and 2 in favour of the complainant as will appear from annexure – 5 referred above. After taking the aforesaid amount, the opposite parties neither demanded any further installment nor requested for the extension of time for completing the aforesaid building. Thereafter husband of the complainant visited several times to opposite parties but opposite parties never noticed such visits and despite repeated request by the complainant opposite parties are not coming forwarded to deliver the possession of the flat as per terms and condition of agreement for sale and are delaying the process of execution of the sale deed.
The complainant has further asserted that opposite parties orally communicated to the complainant that in the consultation with land owners POA holder with whom they entered into development agreement they have decided to resale the property at an escalated price to refund the amount of the complainant without procuring no objection from the complainant. When despite repeated request the grievance of the complainant was not fulfilled, then complainant has given legal notice to opposite parties for redressal of her grievance.
On behalf of opposite party no. 1 and 2 vakalatname has been filed on 14.07.2011 but no any written statement has been filed despite providing ample opportunity for the same by this forum.
On behalf of opposite parties no. 3 and 4 a written statement has been filed stating therein that there is no contract between managing Partner i.e. opposite party no. 1 and 2 and opposite party no. 3 and 4 to invest their money for construction on the building etc.
It is also stated that partnership deed was prepared but after one year i.e. December 2007 the opposite party no. 1 and 2 removed opposite party no. 3 and 4 from the partnership of the firm and purchaser of flat were informed about this development in December 2007. It is also stated that opposite party no. 3 and 4 have not received the aforesaid amount from the complainant rather the aforesaid amount has been received by opposite party no. 1 and 2.
In Par a- 8 of written statement following fact have been asserted, “it is submitted that now the building is ready and your honour may deem to fit to execute the claim of the complainant as opposite party no. 3 and 4 have no objection.” Hence, opposite party no. 3 and 4 have prayed to exempt them from any liability.
The opposite party no. 3 and 4 has also filed an Additional written statement stating therein that complainant has no cause of action has arisen against them. It is also stated that “Adarsh Nirman” is a firm under the Indian Partnership Act and Mr. Prabhat Kumar Singh is Managing Director and as per annexure – 1 of this Additional written statement it is crystal clear that opposite party no. 3 and 4 are not member of partnership firm.
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From perusal of complaint petition as well as annexure – 5 it is crystal clear that there is agreement for sale only between the opposite party no. 1 and 2 and the complainant’s father/complainant. There is no any registered document such as Absolute Sale Deed.
It further transpires that complainant father has only paid 4.50 Lacs towards advance money of price of the flat in question and thereafter opposite party no. 1 and 2 had not demanded any amount.
So far opposite party no. 3 and 4 are concerned they have clearly stated that opposite party no. 1 and 2 have austed them from partnership firm and for this they have annexed annexure – 1 in their additional written statement. There is no assertion of the complainant that any amount have been paid to opposite party no. 3 and 4 rather from receipt of annexure – 7 series of complaint petition it is crystal clear that money has been received by opposite party no. 1 and 2 who is managing director of the firm. Opposite party no. 1 and 2 are appears to be same entities.
As there is no Absolute Sale and the complainant has not deposited entire amount as per agreement for sale hence we are not in a position to direct the opposite party no. 1 and 2 to hand over the possession of flat in question after executing the sale deed. However, the complainant is at liberty to get the agreement for sale executed through court of competent jurisdiction.
After carefully considering the entire aspect of complaint petition as well as written statement etc. we think it proper that it would be in interest of justice to direct the opposite party no. 1 and 2 to refund the amount deposited by the complainant with penal interest and compensation as the conduct of opposite party no. 1 and 2 has resulted in grave deficiency.
Hence, we direct opposite party no. 1 and 2 to return Rs. 4.50 Lacs (Rs. Four Lac Fifty Thousand only ) with 12% interest from the date of receiving the said amount to the complainant within the period of two months from the date of receipt of this order or certified copy of this order failing which opposite party no. 1 and 2 will pay 18% on the above said amount of Rs. 4.50 Lacs (Rs. Four Lac Fifty Thousand only ) till its final payment.
Opposite party no. 1 and 2 are further directed to pay Rs. 2,00,000/- ( Rs. Two Lacs only ) to the complainant by way of compensation and litigation costs within the period of two months.
Accordingly, this complaint stands allowed to the extent referred above.
Member Member(F) President
