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Roy & Ghosh Construction Represented by its partner, Sri Subhra Roy & Another v/s Subhash Kumar Bhawal & Others

    First Appeal No. 695 of 2012

    Decided On, 05 January 2017

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER & THE HONOURABLE MR. JAGANNATH BAG MEMBER

    For the Appellants: Anirban Karmakar, Advocate. For the Respondents: Manas Basu, Joyanta Dey, Advocates.



Judgment Text

Debasis Bhattacharya, Member

By means of this appeal, Appellant/OP No. 5 has sought to put under scanner the Order dated 19-10-2011, passed by the Ld. Consumer Disputes Redressal Forum, North Parganas (for short, District Forum), in C. C. No. 283/2009, whereby the complaint case has been allowed in part.In a nutshell, case of the Complainant, is that, with a view to purchase one 800 sq. ft. flat, he entered into an agreement with the OP No. 5 on 17-11-2004. Total sale consideration of the said flat was fixed at Rs. 3,00,000/-, which he fully paid to the OP No. 5 on different dates. However, the OP No. 5 has not handed over the said flat to him. On the contrary, it is trying to sell it out to another party for making illegal gain. So, he filed the instant case before the Ld. District Forum for appropriate relief.

It appears, OP Nos. 1 to 4 did not contest the case. OP No. 5 although appeared, but did not file any WV. Only OP No. 6 contested the case by filing WV. By such WV, it is stated by this OP that against receipt of a sum of Rs. 35,00,000/- from him, the OP No. 5 relinquished all its right over development of the said property. It is claimed that he has no liability towards the Complainant because of the fact that he has not received any consideration money from the Complainant.

The core issue to be decided in this appeal is whether the impugned order suffers from any sort of infirmity, or not.

Decision with reasons

It is not in dispute that the by virtue of the Agreement for Sale dated 17-11-2004, executed in between the Appellant vis--vis Respondent No. 1, the Appellant promised to handover peaceful and vacant possession of the scheduled flat in favour of the Respondent No. 1. It is also not in dispute that the Respondent No. 1 has discharged his part of obligation under the said agreement, i.e., paid full consideration money to the Appellant.That being the undisputed position of this case, there cannot be any two opinions as to the fact that in case of any failure on the part of the Appellant to walk the talk in accordance with the said Agreement for Sale, it would be held solely responsible for such lapses.It is claimed by the Appellant that it executed a relinquishment agreement with the Respondent No. 6 on 08-01-2009, whereby it was exonerated of all liabilities by the latter. Be that as it may, it appears from the documents on record that in terms of the Agreement for Sale dated 17-11-2004, it was obligatory on the part of the Appellant to handover the scheduled flat to the Respondent No. 1 within 6 to 8 months of execution of said Agreement for Sale, whereas the purported relinquishment agreement was allegedly executed on 08-01-2009. Therefore, the Appellant owed due explanation as to why it did not handover the flat within the stipulated time frame to the Respondent No. 1. It appears, the Appellant has maintained a studded silence in this regard.Besides, let us not forget that the Agreement for Sale dated 17-11-2004 was executed in between the Respondent No. 1 and the Appellant. Insofar as the Respondent No. 1 was not a party to the so called relinquishment agreement dated 08-01-2009 executed in between the Appellant and the Respondent No. 6, the Respondent No. 1 cannot be taken for a ride by the Appellant by executing another agreement with a third party behind his back.

It is pertinent to mention here that although the Appellant sought relief citing the purported Relinquishment Agreement dated 08-01-2009, for the reasons best known to it, the Appellant has not filed any copy thereof. In any case, it appears from the materials on record in respect of another appeal being no. FA/491/2012, wherein the copy of purported Deed of Relinquishment has been filed, it appears that the said agreement was executed in between the Appellant and the Respondent No. 6 herein out of the premises that the scheduled property was free from all sorts encumbrances and attachments in any way and the Developers (Appellant herein) did not mortgage the schedule property before any financial institutions and there was no liability to any third party against the scheduled property. It also transpires from the copy of said agreement that the Appellant received a sum of Rs. 35,00,000/- for relinquishing all its legal rights over the property in question by virtue of its status as the Developer. There was no such stipulation in the said relinquishment agreement to the effect that by virtue of that agreement, the Respondent No. 6 would be liable to discharge any/all liability(ies) of the Appellant. It is a clear pointer of the fact that the Appellant herein suppressed material fact of receiving money from the Respondent No. 1 before the Respondent No. 6 herein. It goes to show that the Appellant has not approached this Commission with clean hands. It requires no emphasis that one, who attempts to pollute the stream of justice or touches the pure fountain of justice with tainted hands, is not entitled to any relief, rather such misdemeanor needs to be properly dealt with.

Simple fact is that the Respondent No. 1 has neither cancelled the Agreement for Sale dated 17-11-2004 nor freed the Appellant of any/all obligations under this agreement. Therefore, citing another agreement that the Appellant allegedly executed with the Respondent No. 6, Appellant cannot unilaterally back out of the Agreement for Sale dated 17-11-2004.

As for the award handed out by the Ld. District Forum, the direction to refund the entire consideration money of Rs. 3,00,000/- is perfectly in order in the given facts and circumstances of the case. However, insofar as the Respondent No. 1 himself restricted his claim for compensation to the tune of Rs. 1,00,000/- (Rs. 50,000/- + Rs. 50,000/-), in our considered opinion, the Ld. District Forum could have refrained from showing too much generosity, notwithstanding the act of the Appellant is highly condemnable. Further, there being no rationale to hold the Respondent No. 6 jointly li

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able to pay the cost imposed for a sum of Rs. 10,000/-, we deem it just and fair to hold the Appellant to foot the bill all alone. Hence, ORDERED That FA/695/2012 be and the same is allowed in part on contest against the Respondents with a cost of Rs. 20,000/-. The relevant portion of the impugned order is modified as under. 'OP No. 5 shall refund the entire consideration money of Rs. 3,00,000/- to the Complainant together with compensation and litigation cost for a sum of Rs. 1,00,000/- and Rs. 10,000/-, respectively'. The Appellant is accorded 30 days time to ensure strict compliance of the aforesaid order.
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