Kalidas Mukherjee, President
1. This appeal is directed against the judgment and order passed by Learned District Forum, Chinsurah, Hooghly in case no.CC 25 of 2011 allowing the complaint with cost of Rs.5,000/- and directing the OPs to execute and register the sale deed in respect of the flat in question in favour of the Petitioners as per terms and conditions of the agreement, to pay compensation of Rs.5,000/- and litigation cost of Rs.5,000/- to the Complainant within one month from the date of order, in default interest @ 9% p.a. will accrue on the said amount till realisation.
The case of the Complainants/Respondents, in short, is that OP No.3 is the sole proprietor of the partnership firm, namely, M/s Narayan Construction. OP Nos.1 and 2 are the owners who executed a power of attorney in favour of Narayan Kangsabanik to construct the building. The OP No.3 constructed the multistoried building. Late Sukhendra Nath Dey, the predecessor-in-interest of the Complainants, during his life time entered into an agreement on 30/05/06 with the OPs for purchase of the flat no.210 as mentioned in the petition of complaint. The total price was Rs.4,80,000/-. At the time of execution of the agreement on 30/05/06 Rs.2 lakh was paid by Sukhendra Nath Dey by cheque no.024733 dated 30/05/06 drawn on Allahabad Bank, Hindmotor Branch in favour of M/s Narayan Construction and thereafter on 05/06/06 paid further sum of Rs.1 lakh by Cheque no.024734 drawn on Allahabad Bank in favour of the developer. On 18/06/06 a further sum of Rs.60,000/- was paid by cheque no.024735 in favour of the developer. On 27/06/06 he paid further sum of Rs.40,000/- by cheque no.024736. Sukhendra Nath Dey during his life time paid total sum of Rs.4 lakh. Unfortunately, he died intestate on 04/11/09 leaving behind his wife Smt. Ishani Dey, the Complainant No.1 and two daughters, namely, Ms. Ishita Dey and Ms. Ipshita Dey, the Complainant Nos.2 and 3 respectively. The Complainants are the legal heirs of Late Sukhendra Nath Dey. After the demise of Sukhendra Nath Dey the Complainants being the legal heirs are entitled to get the deed of conveyance registered and they requested OP No.3 to that effect. But the OP No.3 refused to register the deed. For the said reasons, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant has submitted that the Complainants claimed to be the legal heirs of Late Sukhendra Nath Dey. It is submitted that in the alleged agreement there was no signature of the purchaser and the witnesses. It is submitted that the alleged agreement was dated 30/05/06 and the complaint was filed in the year 2011. It is submitted that Late Sukhendra Nath Dey had money lending business without having any licence. It is contended that the alleged agreement is void and the complaint was barred by limitation.
The Learned Counsel for the Respondent has submitted that the agreement in original was produced by the Complainant before the Learned District Forum wherefrom it would appear that there were signatures of purchaser and the witnesses. It is contended that the purchaser signed in the agreement. It is submitted that the developer received Rs.4 lakh by signing the receipts and the possession has been delivered. It is submitted that there is no evidence to show that Late Sukhendra Nath Dey had money lending business. It is submitted that the OP Nos.1 and 2 were agreeable to execute and register the deed of conveyance.
We have heard the submission made by both sides and examined the papers on record. It is the contention of the Learned Counsel for the Appellant that there is neither the signature of the purchaser nor the signature of the witness in the agreement and, as such, the agreement is not enforceable and, therefore, void. On this point the Learned Counsel for the Respondent specifically submitted that the purchaser signed in the agreement and it was notarized. The Learned Counsel for the Respondent further submitted that the agreement in original was submitted before the Learned District Forum and it may be verified by calling for the LCR. In Paragraph-9 of the W.V. it has been averred that Sukhendra Nath Dey was the supplier of iron rod and during his life time he used to run his business at Uttarpara and also used to invest money in promoting project as a financier to gain money. But he had no licence for running money lending business. It has further been averred that Sukhendra Nath Dey used to supply iron rod to the OP No.3 for the purpose of construction of multistoried building since 2002 and used to invest money in the project of OP No.3 to gain money.
On perusal of the LCR we find that the agreement in original was produced before the Learned District Forum and it is clear therefrom that Sukhendra Nath Dey signed the agreement as the purchaser. There was also the signature of the witness. The developer also signed the same. Not only that the developer granted receipts on different dates on receiving the consideration money of Rs.4 lakh. The developer received the consideration money pursuant to the agreement for sale with the purchaser Sukhendra Nath Dey. Taking a false plea about the absence of signatures in the agreement shows serious deficiency in service and the Complainants are entitled to get costs on this ground.
It appears from the agreement that the owners engaged the developer M/s Narayan Construction represented by its sole proprietor Narayan Kangsabanik as their constituted attorney and the general power of attorney was also executed. The agreement shows that the consideration money was fixed at Rs.4,80,000/-. From the receipts filed and from the impugned judgment it appears that the sum of Rs.4 lakh was paid and Rs.80,000/- was the balance amount for the consideration money. We are unable to accept the contention of the Learned Counsel for the Appellant. There is no ground to say that the agreement is not enforceable being void. The agreement is valid and enforceable. The contention of the Appellant that Sukhendra Nath Dey had money lending business is not acceptable. There was deficiency in service on the part of the OP No.3 and the Learned District Forum was justified in allowing the complaint. But it appears that the Learned District Forum although observed that there was balance consideration money of Rs.80,000/-, did not pass any direction directing the Complainants to pay the balance amount of consideration money. We, therefore, modify the impugned judgment as hereunder.
The appeal is allowed in part with cost of Rs.25,000/- to be paid by the Appellant to the Respondents/Complainants. The OP Nos.1 to 3 of the complaint are directed to execute and register the sale deed in favour of the Respondents/Complainants in respect of the subject flat as mentioned in the agreement within one month from the date of payment of the balance amount of the consideration money of Rs.80,000/- if not already paid by the Complainants/Respondents to the Appellant/OP No.3. The Appellant/OP No.3 is directed to pay compensation of Rs.5,000/- to the Respondents/Complainants. The amount of cost and compensation be paid to the Respondents/Complainants within 45 days failing which interest @ 9% p.a. will accrue on the said amount from the date of default till realisation. The appeal stands modified to the extent stated above. The LCR be sent to the Learned District Forum immediately.