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Discussion > Criminal Law > Procedure > Filing of private case   Unanswered Threads Post New Topic

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There are 7 Replies to this message


Partha Roy


Management Consultant
[ Scorecard : 104]
Posted On 02 June 2009 at 06:55 Report Abuse

I had filed a complaint case against a Builder and the Manager of a Nationalized Bank u/s.420/427/120B before the Chief Judicial Magistrate, Kolkata who directed the Police to treat our Petition of Complaint as an FIR and proceed against the accused parties u/s.156(3) Cr.P.C. However, after recording an FIR on 05.04.2008, the Police have not filed any Charge Sheet till date. Under the circumstances, can we file a private case against the accused parties in the District Court or the High Court on the same charges? Will filing of such a case adversely affect the ongoing proceedings of the case that has already been filed? To know more about the case, interested readers may search Google using tags like 'Union Bank of India, cheating' or 'Merlin Projects Ltd, cheating'. Thanks + Regards. Partha Roy



Online certification courses IP, IT and Investment Law


adv. rajeev ( rajoo )


practicing advocate
[ Scorecard : 35383]
Posted On 02 June 2009 at 15:05 Report Abuse

U have already filed a complaint, but police have not filed the chargesheet u need not to go for another complaint.  When police have not filed a charge sheet you hae fille a petition in the HIgh court seeking to issue directon to the concerned police to file a chargesheet within given time.



Total thanks : 1 times


B.B.R.Goud.


Faculty
[ Scorecard : 4353]
Posted On 02 June 2009 at 16:42 Report Abuse

you can file a writ of mandamus under Art 226 in high court, for in action or improper action of police.



Total thanks : 1 times


MERLIN PROJECTS LTD.


real estate
[ Scorecard : 24]
Posted On 24 October 2009 at 18:53 Report Abuse

Originally posted by :Partha Roy
" I had filed a complaint case against a Builder and the Manager of a Nationalized Bank u/s.420/427/120B before the Chief Judicial Magistrate, Kolkata who directed the Police to treat our Petition of Complaint as an FIR and proceed against the accused parties u/s.156(3) Cr.P.C. However, after recording an FIR on 05.04.2008, the Police have not filed any Charge Sheet till date. Under the circumstances, can we file a private case against the accused parties in the District Court or the High Court on the same charges? Will filing of such a case adversely affect the ongoing proceedings of the case that has already been filed? To know more about the case, interested readers may search Google using tags like 'Union Bank of India, cheating' or 'Merlin Projects Ltd, cheating'. Thanks + Regards. Partha Roy "


 

WITHOUT PREJUDICE
 
Dear All,
 
We have learnt that one Mr. Partha Roy has been sending letters and e-mails to you with certain allegations.
 
The matter is subjudice and Mr. Partha Roy is sending distorted information suppressing a number of facts and his defaults.
 
We would like to emphatically state and place on record, that the said allegations are ill motivated, ill conceived, fabricated and totally unwarranted with motive of illegal gains.
 
We would like to inform the readers some past records about Mr. Partha Roy & his son Pandav Roy.
 
A.    Mr. partha roy is Defaulter in 12 cases involving different banks/financial institutes. 
B.     his son, Pandav Roy (joint agreement holder) is defaulter in 5 cases involving different banks/financial institutes.
C.    The defaults by both father and son are against home loan, credit card bills, car loans, education loan and personal loans as per reports by Credit Information Bureau (India) Ltd. (CIBIL), a company promoted by and serving to banks and financial institutes, such as icici, hdfc, sbi and other banks etc. 
Report from Credit Information Bureau (India) Ltd. in the name of Mr. Partha Roy and Pandav Roy showing their default is attached herewith.
 
     D.   mr. partha roy was also accused in Cheating case being no. 82/2004 at Kalighat Police Station, kolkata. 
 
 
To briefly sum up, Mr. Partha Roy & his son Pandav Roy paid us a token amount against their commitment, towards the initial payment and arranged with Union Bank of India, to finance the balance payment, of the purchase consideration.
 
As per records, Merlin Group never had any transaction with Union Bank of India, Sarat Bose Road branch, apart from the home loan matter of Mr. Partha Roy and Pandav Roy. 
 
Further, it was Mr. Partha Roy / Mr. Pandav Roy who wanted the home loan from Union Bank of India because his wife had an account in the same branch. 
 
Mr. Partha Roy / Mr. Pandav Roy thereafter gave another cheque of Rs. 1,93,750/- favouring Merlin Projects Ltd. towards approximately 15% of the total consideration. This cheque of Rs. 1,93,750/- was dishonoured twice upon presentation (copy attached).
 
One Tripartite Agreement was entered into between the accused, Merlin Projects Ltd and Union Bank of India, Rash Behari Branch for the purpose of availing of home loan by accused from Union Bank of India.
 
However inadvertently, the fact of dishonour of the cheque for the sum of Rs. 1,93,750/- escaped the notice of us and so the provisions of the Tripartite Agreement was laid down without mentioning the fact of dishonour of the cheque of Rs. 1,93,750/- .
Mr. Partha Roy was required to repay Union Bank of India, Rash Behari Branch, a sum of Rs. 13,020/- w.e.f  April 2004 by way of several equal monthly installments (EMI’s). After  repayment of the first 5 or 6 EMI’s, i.e. from October 2004 (Intimation letter dated 2nd March 2005 from Bank attached), Mr. Partha Roy & his son Pandav Roy started defaulting in making repayment of the EMIs to Union Bank of India. The Union Bank of India after waiting for nearly two years, during which they repeatedly requested, reminded and insisted upon the Mr. Partha Roy & his son Pandav Roy to repay their dues to the Bank through EMIs, got the Row House sold to M/s. Murarka Advisory & Holdings Pvt. Ltd by invoking the provisions of the SARFAESI Act. 
Mr. Partha Roy has alleged that we have not registered the Sale deed in favour of his son / himself. But the registration of the Row House No- B-15 at Merlin Greens Complex could not be executed in favour of Mr. Partha Roy for the following reasons:
 
a.      The sum of Rs. 1,93,750/- which was due from Mr. Partha Roy remained and still remains unpaid.
 
b.      Mr. Partha Roy and his son never came up with the stamp papers or the amount required to be paid towards stamp duty or any pay order favouring the Registrar of Assurances for the purpose of registration of the Deed of Conveyance.
 
c.       Several letters from time to time were addressed by the Bank to Mr.  Partha Roy and Mr. Pandav Roy, with a copy being marked to Merlin Projects Ltd. reminding that they were turning out to be a progressive defaulter. Upon coming to know that Mr. Partha Roy is not making the repayment to the Bank, Merlin Projects Ltd. grew apprehensive, because in the event of Mr. Partha Roy’s failure to repay the Bank, Merlin Projects Ltd being the guarantor, was required to replenish the Bank. While harbouring such a sense of fear, it was not possible for Merlin projects Ltd to transfer the property to Mr. Partha Roy, notwithstanding the sum of Rs. 1,93,750/- which was already due.  A number of letters were also sent by Merlin Projects Ltd to Mr. Partha Roy in this regard.
 
The bank vide their notice ref. NRO:KOL:CRLD:940A:07 dated 24.04.07 (copy attached) addressed to Mr. Partha Roy, with a copy to us, informed him, of their decision for enforcement of Security Interest Action Notice, in respect of the said premises and demanded that all outstanding, inclusive of interest, be paid by them failing which, the Bank would invoke Section 13(2) of the Securitization and Re-construction of Financial Assets and Enforcement of Security Interest Act 2002
 
As per information available to us, Mr. Partha Roy paid a very small amount only covering few EMIs towards repayment against a loan of approx Rs.14,00,000/-.  Against this default, bank foreclosed his loan account under SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT SECURITY INTEREST ACT, 2002 (SARFAESI) in Mid 2007.  
 
Mr. Partha Roy approached Kolkata High Court and requested for Stay in proceedings under SARFAESI Act initiated by the bank but the High Court ordered the Union Bank to take its own course (order of High Court enclosed) . 
 
Union Bank of India, took possession of Row House No- B – 15 on 24.08.07 under SARRFAESI Act by the Authorised Officer of the Bank. The Minutes dated 24.08.07 (copy attached) of taking possession, of the Row House and secured assets of Mr. Partha Roy and Mr. Pandav Roy, would clearly go to show that the borrowers Mr. Partha Roy and Mr. Pandav Roy, had voluntarily delivered physical possession of the Row House and secured assets which were taken in possession in his presence by delivering a copy of the possession notice as per Rule 8(1). As per the Minutes, the house was found to be vacant and only some unused utensils and clothes were found lying inside the premises, inventory of the same was made as per Rule 4(2). The Minutes were drawn in presence of witnesses and was duly signed by Mr. Partha Roy.
 
The said Inventory was prepared on 24.08.07 at 3.30 P.M. in presence of Mr. U. K. Sinha & Mr. Srikant Das. The Inventory was also signed by Mr. Partha Roy. In the said Inventory it was clearly stated that only the following articles were found.
1)                  Aluminium Trolley
2)                  One plastic chair
3)                  3 cartoons containing utensils etc.
4)                  One leather bag with old clothes
5)                  Kitchen utensils
6)                  Five ceiling fans
7)                  Light fittings
 
The estimated value stood at Rs. 5,000/-. It was further stated in the inventory that all the movable items were kept in the house which was taken possession in presence of Mr. Partha Roy. It was further laid down in the inventory that according to Mr. Roy, “the items are used and household one without any value”.
In the light of the Minutes and the Inventory that was prepared on 24.08.07, it is clear that the property was re-possessed by Bank and Merlin Projects Ltd was not involved in such recovery process by Bank, as such, all allegations and claims made by Mr. Partha Roy against Merlin Projects Ltd. are totally absurd and frivolous and without any legal force.
The Order passed by State Consumer Disputes Redressal Commission in favour of Mr. Partha Roy and his son is stayed by National Consumer Disputes Redressal Commission on the grounds:
 
(1)    Mr. Partha Roy has cunningly not made Union Bank of India a party in the aforesaid case
 
     (2)   Mr. Partha Roy has intentionally suppressed many facts of the case including his defaults of payment which was to be made to the bank as EMI and to us against the Earnest Money (Rs. 1,93,750/- and the most important fact that the Union Bank invoked SARFAESI Act due to default.
 
Mr. Partha Roy should update his website with the aforesaid facts and stop misleading people.
 
 
 
 
After the re-possession of the Row House by bank, Mr. Partha Roy started creating red herrings by way of raising baseless disputes, in the matter and thereafter, sending various letters, complaints and e-mails to different forums.
 
With regard to the complaint before the Learned Chief Judicial Magistrate, this is nothing but an exercise to harass us.  The Learned Chief Judicial Magistrate has directed the Police Authority to investigate into the matter.  There is no Order to proceed against us as claimed by Mr. Partha Roy.   Truth will prevail.
 
As a matter of fact, the motive of Mr. Roy is to harass us and squeeze money from us as per subsequent letters sent to us (Copy attached).
 
The e-mails sent and website created by Mr. Partha Roy are full of wrong information created as per the convenience of Mr. Partha Roy.  However, the attachments will throw light on the actual story.
 
 
For and on behalf of
 
Merlin Projects Ltd.
 
 
 
List of Attachments can be seen at link. http://sites.google.com/site/proysdocsandfacts/home/asd
1.      CIBIL Report in the name of Partha Roy
2.      CIBIL Report in the name of Pandav Roy
3.      Information from bank about bouncing of cheque
4.      Letter from the bank informing default by Mr. Roy.
5.      Order of High Court
6.      Order passed in proceedings of SARFESI Act
7.      Minutes signed between the bank and Mr. Partha Roy recording the repossession by bank.
8.      Letter sent to us by Mr. Partha Roy requesting us to give him another bungalow.



Sankar Sinha


Partner
[ Scorecard : 26]
Posted On 06 November 2009 at 09:14 Report Abuse

Originally posted by :rajeev s vadrali
"
The arguments offered by Merlin Projects Ltd appear to be unacceptable because of following reasons.



1.Union Bank of India disbursed the loan without the property being mortgaged to the Bank which is not permissible and would appear to indicate collusion between the Builder and the concerned Bank Official.



2.Merlin Projects Ltd admits to having received both the Earnest Money and the balance consideration in full as mentioned in the Final Order passed by the Consumer Court.



3.Therefore, Merlin Projects Ltd should have transferred the property to the buyer and mortgaged it to the Bank and the Bank Manager by not taking any action to securitize the Bank's asset even several years after disbursement appears to indicate that he was acting in collusion with the Builder.



5.The applicability of the SARFAESI Act was not admitted by the Calcutta High Court as the property is not a securitized asset of the Bank.



6. Although the Borrower had given possession of the property to the Bank, as per directions of the Calcutta High Court the Bank's further action in regard to the property had to abide by the result of the writ filed by the Borrower and any premature action taken by the Bank would be deemed as contempt of court. 



7.Moreover, it is a grey area as to why the Builder/Seller should execute the Sale Deed for a Bank repossessed property? The Bank is empowered to do so directly under SARFAESI Act.



8. It appears that the the other points mentioned about CIBIL Reports etc are not relevant to the cases filed by the Borrower. 



9.It is also quite unusual that the Banks who are owed money by the complainant have not started any legal action against them, Possibly, the complainants have already arrived at some settlement arrangement and till the arrangements are complete, the Banks will continue putting up the complainants' names in the CIBIL Report. 



In view of the above facts, it is highly possible that Merlin Projects Ltd and Union Bank of India will be charged with having acted in criminal conspiracy with each other to cheat the complainants.



In my opinion, the complainants have little to lose except the time and cost involved in fighting the cases whereas the longer this matter prolongs, more fingers will be raised against the Builder and the Bank and their reputation will be adversely affected.
 


MERLIN PROJECTS LTD.


real estate
[ Scorecard : 24]
Posted On 02 July 2011 at 15:46 Report Abuse

Dear Readers,

Shri Partha Roy and his family members have from time to time launched frivolous civil and criminal prosecution against Merlin Projects Ltd. (MPL) , its Managing Director Shri Sushil Mohta, Project Manager, Sri Vikash Mimani and others with the sole objective of harassing and humiliating them and compelling them to bow down to the unfounded and illegal claims of Shri Partha Roy and his family members without appreciating that the said row-house was not re-possessed by MPL but was re-possessed by UBI for default in repayment of the EMI against his housing loan and acting in terms of the provisions of the SARFAESI Act, due to default in payment of EMIs against the home loan taken by the Roy family..

Further to our posting of actual facts in the matter of false and unsubstantiated allegations labeled by Partha Roy and his advocate Nilmani Dutta in different web and blog sites, few updates on the same is given below.....
In police case filed by Mr. Partho Roy, the police have found nothing wrongful done by Merlin Projects Ltd.(MPL) and its officials and the report states as follows:
“During investigation a huge number of documents were seized from different corners, many persons were examined and their statements were recorded. The accd no.4 Supriya Sengupta got anticipatory bail from the Ld. Sessions Court, Alipore and presently he is in C.B. till 12.2.2010. From the documents seized and persons examined no criminal conspiracy between Merlin Projects Ltd and the branch manager Supriya Sengupta could be established. From the investigation, it appears that this is nothing but a breach of agreement among the complainant, Merlin Projects Ltd and the Union Bank of India, which occurred due to some dispute regarding the payment/non-payment of the earnest money worth of Rs.1,93,750/- to Merlin Projects Ltd by the complainant and the non-payment of registration cost by the complainant to Merlin Projects Ltd. Also presently a case is sub-judice under the Learned National Consumer Disputes Redressal Court in the same matter. Under such circumstances, this case may be disposed of as civil in nature……”

Pursuant to such notice, Shri Partha Roy appeared before the Learned Magistrate and filed a Narazi petition under section 173(8) of the Code of Criminal Procedure, inter alia, praying for causing a further investigation in the said criminal case being Bhowanipore Police Station Case No. 90 of 2008 dated 5th April, 2008 and also prayed for rejecting the aforesaid final report. However, upon hearing the parties, the Learned Magistrate by order dated 19th June, 2010 rejected the Narazi petition filed by Shri Partha Roy and accepted the aforesaid final report submitted by the Investigating Agency and discharged the accused persons namely Shri Sushil Mohta and Shri Vikash Mimani of MPL and one Supriyo Sengupta, Manager of UBI.

In the order dated 19th June, 2010, the Learned Chief Judicial Magistrate. Alipore, South 24 Parganas inter alia observed as follows:-
“I do not find anything to disagree with the view of the I.O. The property in question was sold under law following provisions of SARFAESI Act and there is absolutely no ground to presume that the accd. persons had committed offences under sections 420/427/120B of the Indian Penal Code.”
Such order dated 19th June, 2010 passed by the Learned Chief Judicial Magistrate. Alip--ore, South 24 Parganas was assailed by Shri Partha Roy before the Hon'ble High Court at Calcutta in C.R.R. No.2929 of 2010. By a judgment and order dated 24.3.2011 His Lordship the Hon'ble Mr. Justice Ashim Kumar Banerjee dismissed the said revisional application filed by Shri Partha Roy and inter alia observed that the final report submitted by the Investigating Agency was very rightly accepted by the Learned Magistrate. A copy of the judgment and order dated 24.3.2011 passed by the Hon'ble High Court in C.R.R. No.2929 of 2010 is enclosed herewith.

Shri Partha Roy with the aid of others commenced a vilification campaign by circulating false, frivolous and defamatory imputations and emails against MPL, its employees and Shri Sushil Mohta and publishing blogs against them in the internet.

Being aggrieved by the incessant, repeated harassive and vexatious actions of Shri Partha Roy and their family members and being further aggrieved by the publication of various defamatory and scurrilous imputations against MPL and its highly placed officials including Shri Sushil Mohta, MPL filed a suit for defamation before the Hon’ble High Court at Calcutta and the same was numbered as C. S. No. 170 of 2010. The said suit for defamation was moved before His Lordship the Hon’ble Mr. Justice Sanjib Banerjee and by order dated 29th June, 2010 His Lordship was pleased to observe that Shri Partha Roy and his family members have embarked on a scheme of publishing defamatory material concerning MPL without any just cause. Accordingly, His Lordship allowed the prayer of MPL in terms of prayer (a) of the interlocutory application filed in said suit which is set out as follows and the order dated 29th June, 2010 is enclosed herewith .
“Injunction restraining the respondents and each one of them, their servants, agents and/or assigns by whatever name be called from making, writing, publishing, printing or circulating any further or other insinuations or aspersions of similar or like nature as those contained in annexures “A” to “G” to the petition, in any manner whatsoever.”

Due to flagrant violation of the order dated 29th June, 2010 of the Hon'ble High Court, Contempt Rules were issued against Shri Partha Roy on 10.9.2010 in C.C. No.137 of 2010.

MPL and Shri Sushil Mohta were once again constrained to file a suit for defamation before the Hon'ble High Court at Calcutta inter alia against Shri Nilmani Dutta the Learned lawyer, of the said Shri Partha Roy, and the same was numbered as T No.42 of 2010. By order dated 21.10.2010 an interim order was granted by the Hon'ble Court.

Another Contempt Rule dated 6.1.2011 was issued by the Hon'ble High Court against Shri Nilmani Dutta the Learned lawyer, of the said Shri Partha Roy, in C.C. No.163 of 2010.

In the said suit for defamation being C. S. No. 170 of 2010 initiated by MPL against the said Shri Partha Roy, by order dated 11.3.2011 the Hon'ble High Court observed that a case of defamation has been made out and granted an injunction restraining the said Shri Partha Roy and any of his servants/agents/ assigns from causing any further publication of the blogs complained or repeating the allegations in the blogs in any manner whatsoever and also directed the said Shri Partha Roy to immediately remove the blogs.


Being further aggrieved by the vilification campaign as aforesaid, Shri Sushil Mohta filed a petition of complaint before the Learned Chief Judicial Magistrate, Alipore, South 24 Parganas under sections 500/34 of the Indian Penal Code numbered as Complaint Case No.5552 of 2010 against Shri Partha Roy and others and process has been issued in the same upon the accused persons therein. Shri Partha Roy has been enlarged on bail upon appearance before the Learned Magistrate and the next date is fixed in August, 2011 for recording of plea.

Furthermore, Shri Sushil Mohta lodged a written complaint against Shri Partha Roy and others and pursuant thereto, a criminal case was registered for investigation at Jadavpur Police Station Case under sections 66A/77B of the Information Technology Act, 2000 (as amended upto date) read with section 34 of the Indian Penal Code.

Another case of forgery and extortion was started against the said Shri Partha Roy at Bhowanipore Police Station at the behest of MPL. The prayer for bail of Shri Partha Roy was refused by the Learned Courts below and subsequently was granted by the Hon'ble High Court at Calcutta. Upon conclusion of investigation, the Investigating Agency has submitted a Charge Sheet against the said Shri Partha Roy.
Notwithstanding such orders of injunction and the Contempt Rules passed / issued by the Hon'ble High Court at Calcutta, the process of making false, frivolous and malicious publications all over the internet, blogs and S.M.S.s against MPL and Shri Sushil Mohta continues, and an absolutely irresponsible, false, malicious propaganda continues to trouble and malign MPL and its officials at the behest of the said Shri Partha Roy and their family members and others.
The blogs created by Partha Roy against Merlin Projects Ltd. and its officials is glaring example of false, frivolous and per se defamatory publications repeatedly being published and circulated in collusion and in conspiracy with others through the internet and the allegations made therein are bereft of a single grain of truth.
The brief background of facts and subject matter, along with documentary evidence can be viewed in following link http://sites.google.com/site/proysdocsandfacts/home/

for and on behalf of
Merlin Projects Ltd.



Partha Roy


CEO
[ Scorecard : 80]
Posted On 19 September 2013 at 08:44 Report Abuse

Please remove the above post

Regards

Partha Roy



Partha Roy


CEO
[ Scorecard : 80]
Posted On 10 July 2014 at 19:01 Report Abuse

Copy of Order passed by NCDRC is pasted below/attached. 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO.128 of 2009

(From the order dated 24.02.2009 in Complaint No. 07/0/2007 of the West Bengal State  Consumer Disputes Redressal Commission.)

 

1. Merlin Projects Ltd.,

Merlin House,

79, Sambhunath Pandit Street,

P.S. Bhowanipore,

Kolkata – 700 020.

 

2. Mr. Vikas Mimani,

Manager, Merlin Projects Ltd.,

79, Sambhunath Pandit Street,

P.S. Bhowanipore,

Kolkata – 700 020.

                                                                       …..Appellants

Vs.

1. Mr. Pandav Roy,

T-C/3, 2nd floor, Golf Green Phase-I,

Uday Shankar Sarani, Near T.V. Station,

P.O. Golf Green, Kolkata – 700095.

West Bengal.

 

2. Mr. Partha Roy,

T-C/3, 2nd floor, Golf Green Phase-I,

Uday Shankar Sarani, Near T.V. Station,

P.O. Golf Green, Kolkata – 700095.

West Bengal.

 

                                                                      …..Respondents

 

 

BEFORE: -

HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT

HON’BLE MRS. VINEETA RAI, MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

 

 

For the Appellants:      Mr. Nakul Dewan, Advocate with

Mr. Abhijeet Sinha, Mr. Shiv  Ramakrishnan, & Ms. Azal Khan,  Advocates.        

 

For Respondents:       Mr. Prasanta Banerjee, Advocate with

                                     Mr. Partha Roy, R-2 in person.

                                                 

O R D E R

(Pronounced on 23rd day of May, 2014)

 

D.K. JAIN, J. PRESIDENT


           
 This First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), has been preferred by the Colonizer, a Company incorporated under the Companies Act, 1956 and their Manager, questioning the correctness and legality of order, dated 24.02.2009, passed by the State Consumer Disputes Redressal Commission, West Bengal (for short “the State Commission”) in SC Case No. 07/0/2007.  By the impugned order the State Commission has directed the Appellants, who were arrayed in the Complaint as Opposite Parties No. 1 and 2 respectively, to execute and register the Deed of Conveyance in respect of the subject flat in favour of the Complainants upon payment of the costs of registration as agreed to between the parties.  The State Commission has also awarded a compensation of `50,000/- to the Complainants as also `5000/- towards costs.

2.      Briefly stated, the material facts giving rise to the present Appeal are that on being approached by the Respondents / Complainants, the Appellants allotted to them Row House No. B-15, Merlin Gardens, South 24 Parganas, Kolkata by way of an Agreement of Allotment on 01.05.2003. The total sale consideration for the said house was settled at `14,25,000/-.  The Respondents paid a sum of `50,000/- as earnest money by cheque dated 01.05.2003.  A supplementary agreement was executed on the same day incorporating certain new clauses, not relevant for the present case.  The Respondents applied for housing loan of`15,00,000/- from Union Bank of India and on sanction thereof, on 21.01.2004, a Tripartite Agreement was executed between the Appellant Company, the Bank and the Respondents.  The Complainants paid a further sum of `1,93,750/- towards the balance earnest money to the Appellant Company. The receipt of`2,43,750/-, by the Appellant Company from the Respondents, was acknowledged in the said Tripartite Agreement. Out of the sanctioned loan of `15,00,000/-, the Bank released to the Appellant Company a sum of `13,81,250/-, by pay order dated 25.02.2004 leaving a balance of `1,18,750/- for the purpose of registration of Deed of Conveyance in favour of the Respondents.   Thus, the Appellant Company received a total sum of `16,25,000/- towards full consideration of `14,25,000/- for the said property and an additional sum of `2,00,000/- as contribution to the Corpus Fund for facilities as defined in Article I of Agreement dated 01.05.2003.   

3.      The Respondents were put in possession of the suit property on 20.04.2004 and were provided with water, electricity and other allied facilities. It seems that on certain issues, relations between the Respondents and Appellant No.1 turned sour and exchange of unpleasant letters ensued. Ultimately, vide letter dated 23.10.2006, Appellant No. 2 informed the Respondents that since they had failed to fulfil their financial obligation, in as much as the cheque in the sum of`1,93,750/- issued by them on 22.09.2003 had been dishonoured twice and they had also defaulted in payment of instalments to the Bank, Agreement dated 01.05.2003 had been cancelled  and they were being treated as trespassers. They were informed that the security and management staff had been instructed to desist from rendering any of the common services and/or facilities including disconnection of generator service. The Respondents were asked to immediately vacate the said premises and handover the same to them.

4.      The Respondents responded to the said letter on the same day, inter-alia stating that the amount of `1,93,750 had already been paid and accounted for and having accepted payment for Life Time Maintenance Charges – Corpus Fund (in terms of the Supplementary Agreement), they were contractually obliged to provide all essential services. The Appellants were requested to leave the issue of payments to the Bank, to be dealt by them directly with the Bank. It was alleged that the Appellant Company was avoiding execution of Conveyance Deed with a view to sell the same at a higher price. 

5.      However, all the basic facilities having been withdrawn, the Respondents shifted from the house on 23.10.2006.  Having failed to get the Conveyance Deed executed in their favour, on 01.03.2007, they filed Complaint under Section 17 of the Act in the State Commission, inter-alia, praying for directions to the Appellants to deliver possession of the suit property; restore essential services and execute and register Conveyance Deed, etc.  A compensation of`14,00,000/- was also demanded from the Appellants.  It appears that during the pendency of the Complaint, the Bank initiated proceedings against the Respondents under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFAESI Act”). The Respondents amended the Complaint praying for, in the alternative, a compensation of a sum of `19,44,000/- as computed  therein.    

6.      The Complaint was resisted by the Appellants on several grounds.  It was pleaded that the Complaint was bad for non-joinder of necessary party in as much as the Bank, which was one of the parties to the Tripartite agreement dated 21.01.2004, had not been impleaded.  Justifying their action in cancelling the said agreement it was stated that the Respondents were also under obligation to pay `10,00,000/- and `3,00,000/- plus `2,00,000/- by 20.05.2003 and 30.05.2003 respectively, besides they were liable to pay a further sum of `75,000/- at the time of taking possession of the suit property, which amounts were not paid despite demand.  It was also alleged that cheque in the sum of `1,93,750/- issued by the Respondents as earnest money was dishonoured twice and the said amount was never paid. The receipt of a sum of `13,81,250/- directly from the Bank was however, not denied.  It was asserted that since the Respondents were not willing to pay the amount against the dishonoured cheque for `1,93,750/-, Agreement dated 01.05.2003 was cancelled.

7.      On consideration of the pleadings and evidence adduced by the parties by way of Affidavits, the State Commission has held that since the Tripartite Agreement, dated 21.01.2004 itself records payment of `2,43,750/- by the Respondents and  payment of a sum of `13,84,250/- by the Bank to them was not disputed, no  portion of the total consideration of `14,25,000/- for the flat remained unpaid.  Rejecting the stand of the Appellants that the amounts mentioned in para 6 supra, were due from the Respondents, the State Commission has come to the conclusion that the Schedule of payment, in para 2.1 of Agreement of Allotment dated 01.05.2003, stood modified on payment of `13,81,250/- by the Bank and the Respondents were entitled to the relief of possession, execution and registration of Conveyance Deed, as also compensation for illegal withholding of the flat. Accordingly, the State Commission has directed the Appellants to execute and register the Deed of Conveyance in the respect of the aforesaid flat in favour of the Respondents within 60 days from the date of the order, upon payment of cost of registration, as agreed to by the parties, along with compensation of `50,000/- and `5,000/- as costs.  In the event of default, the Respondents have been allowed to get the Deed registered through the State Commission and recover the said amounts along with interest @ 9% p.a. for the period of default. Hence, the present appeal. 

8.      Mr. Nakul Dewan, Ld. Counsel appearing for the Appellants, in his oral submissions, questioned the legality of the impugned order mainly on three grounds, viz. (i) the bank being party to the Tripartite agreement dated 21.01.2004, having a charge on the said property, it was a necessary party and, therefore, the complaint should have been dismissed on the ground of non-joinder of necessary parties; (ii) Being defaulters themselves for not paying a sum of `1,93,750/- against the dishonoured cheque, the Respondents were estopped from accusing the Appellants  of deficiency in service for not executing Conveyance Deed in their favour and (iii) Since the possession of the flat had already been delivered to the bank in proceedings under SARFAESI Act, the same had been auctioned, the auction purchaser was put in possession after execution of Conveyance Deed in their favour, the impugned directions are incapable of being implemented. 

9.      Per contra, Mr. Prasanta Banerjee, Ld. Counsel for the Respondents and Respondent No. 2, who appeared in person, submitted that the Appellants having received full amount of consideration for the flat, in terms of Tripartite agreement dated 21.01.2004, they could not demand any amount over and above the consideration mentioned in the said agreement. It was argued that it was  only on confirmation of receipt of earnest money of `2,43,750/-  from the Respondents, as noted in the Tripartite agreement dated 21.01.2004, that the  Appellant company had collected from the Bank the balance sale consideration of `13,81,250/-, otherwise the Bank would not have released the balance amount.  It was strenuously urged that had the Appellants executed the Conveyance Deed in respect of the subject property on time, having already paid 18 EMIs (`2,32,654 in addition to `2,43,750/- as earnest money), the Respondents would not have stopped paying further EMIs, inviting unwarranted harassment, besides being deprived of the property.  It was argued that the Appellants were not concerned with the issue of recovery of balance of loan amount by the Bank from the Respondents, yet they delivered the possession of the flat to the Bank unilaterally and even executed Conveyance Deed in favour of a third party (the Auction Purchaser), during the pendency of the complaint before the State Commission. It was contended that although entire proceedings under the SARFAESI Act were illegal, as admittedly no equitable mortgage by deposit of title deeds of the flat was created in favour of the Bank, still the Respondents have settled their account with the Bank.

10.    Having bestowed our anxious consideration to the material on record, we are of the opinion that there is no substance in the contentions urged on behalf of the Appellants and the Appeal is devoid of any merit. 

11.    There is no dispute that the total agreed consideration for the subject flat was `14,25,000/-, which was payable in installments as mentioned in Article II of the Agreement of Allotment dated 01.05.2003.  Stamp duty and registration charges were also to be borne by the Respondents. By a supplementary agreement of even date, the Respondents had agreed to pay an additional sum of `2,00,000/- to the Appellants for providing infra-structural maintenance, etc. facilities.  The Appellants were to receive from the Respondents a total sum of `16,25,000/-. Thus, the short controversy is whether the Appellants were justified in refusing to execute Conveyance Deed in favour of the Respondents and forcing them to shift from the flat, on the allegation that the Respondents had failed to pay the agreed consideration for the flat and had defaulted in discharging their debt towards the Bank.

12.    In order to adjudicate upon the issue, it would be necessary to refer to a few documents on record.  As noted above, after the booking of the flat and the Bank agreeing to finance the same on 21.01.2004, a Tripartite Agreement was entered into between the Respondents, the Appellant Company and the Bank. The material recitals in the agreement read as under:

“Whereas the Builder agreed to sell a Row House to the Borrowers under an Agreement of Sale dated May 01, 2003, entered into between the builder and the Borrowers, which contains the terms and conditions for sale of the Row house in favour of the Borrowers and in furtherance thereof has already paid the Builder a sum of `2,43,750/- as and by way of earnest money. The balance of sale consideration is payable by the borrower based on stages of construction, which are detailed in the said agreements.

Whereas the Bank on the written application and request of the Borrowers has already sanctioned a loan of `15,00,000/- to the Borrower (vide Sanction dated 22.01.2004) and has agreed to disburse/release the loan soon after the Borrowers creates an equitable mortgage by deposit of title deeds relating the Row House to be purchased by them from the Builder.

Whereas the Borrowers requested the Bank for release/ disbursement of installments directly to the Builder and the Bank has agreed to release the loan amount provided the Builder agrees to stand as guarantor for the payment effected to them.”

13.    Clause (3) of the terms of covenants stipulated that the Appellant Company shall deliver possession of the flat to the Respondents only after obtaining No Objection Certificate to that effect from the Bank and further, the Appellant shall create equitable mortgage in favour of the Bank by deposit of title deeds of the flat, agreed to be sold vide Agreement of Allotment dated 01.05.2003.

14.    In furtherance of the Tripartite agreement, the Bank sent to the Appellant Company a pay order in the sum of `13,81,250/- with a covering letter dated 25.02.2004, which reads as follows:-

 

“Re: P.O. no. 003142 for `13,81,250/- dated 25.02.2004 fvg. yourself in respect of Housing loan of S/Shri Pandav Roy and Partha Roy.

          Enclosed please find the captioned pay order issued towards your payment in respect of purchase of Row House No.315 in the complex The Terrace Marlin Green, Kriparampur 24 Parganas (s) pertaining to S/Sri Pandav Roy and Partha Roy.

Kindly acknowledge receipt and formally hand over the property to the purchaser. We take this opportunity to thank you for entering into a Tripartite Agreement with our Bank alongwith the Borrower. It has really marked the beginning of new relationship which (illegible) will grow more and more in near future.”

15.    It is manifest from the afore-extracted recitals of the Agreement that the Tripartite Agreement dated 21.01.2004, did not contemplate possession first and payment later.  While noting sanction of bank loan of `15,00,000/-, it records that a sum of `2,43,750/- has already been paid to the Appellants /Builder.  Later, the Bank released a sum of `13,81,250/- on 25.02.2004 and possession of the flat was handed over to the Respondents on 20.04.2004. The afore-extracted covering letter dated 25.02.2004 also lends support to the stand of the Respondents that possession of the flat was delivered to them on the asking of the Bank.  This clearly shows that possession was given after receipt of the agreed consideration in full. The explanation of Mr. Shiv Kishan Mohata, deposing on behalf of the Appellants, that at the time of signing the Tripartite Agreement, the matter of non-payment of `1,93,750/- “was taken lightly, on the basis of assurances and the gentlemanly behavior of the Complainants as a result of which the documents were not preserved and same is presently not available with Merlin Projects Ltd.” carries no conviction at all. It does not sound well even as a prudent business proposition. No colonizer such as the Appellant Company, would quietly wait for two and a half years for payment of a hitherto unpaid sale consideration.  We are convinced that the claim of `1,93,750 raised by the Appellants in 2006, in lieu of a cheque dishonoured in the year 2003 was a ruse to avoid execution of Conveyance Deed in favour of the Respondents and sell the subject flat at a higher price.  Furthermore, no evidence is brought on record to show that any demand was raised on the Respondents, or a request was sent to the Bank, in this behalf between the period when Tripartite Agreement dated 21.01.2004 was entered into and the delivery of possession of the flat three months later, on 20.04.2004 for directing the Respondents to pay any outstanding amount. In fact, the question of outstanding balance of a sum of`1,93,750/- was raised for the first time on 15.09.2006, i.e. two and a half years after delivery of possession. This completely destroys the credibility of the claim that failure to register the Conveyance Deed stems from incomplete payment of consideration.   

16.    In view of the above, we are in complete agreement with the State Commission that there was no evidence to show that any part of the consideration had remained unpaid and therefore, Appellants’ failure to execute the Conveyance Deed in favour of the Respondents was a clear deficiency in service on their part.  

17.    As regards the objection of the Appellants that the Complaint was bad for non-joinder of necessary party i.e. the Bank, in our opinion, this plea also deserves to be rejected.  Apart from the fact that clause (3) of the covenant (Tripartite Agreement) lends support to the stand of the Respondents that on 20.04.2004 they were put in possession of the flat on the direction of the Bank and as such there was no occasion for them to allege deficiency in service on the part of the Bank, it is not even the case of the Appellants that the Bank had initiated any proceedings against them as guarantor of the loan. It is also not their case that any obligation was cast upon them to recover the loan on behalf of the Bank. Therefore, the alleged default in repayment of the loan by the Respondents to the Bank, relied upon as one of the grounds for cancellation of the Agreement on 07.11.2006, was wholly unjustified. In their letter dated 23.10.2006 to the Appellants, the Respondents had requested them to let them sort out the issue of default in EMI payments directly with the Bank.  In the absence of any evidence that the Bank had sought the intervention of the Appellants for recovery of their dues, or that there was any threat of adverse action against them by the Bank, in our view, the Appellants not only deprived the Respondents of the pleasure of owning a flat for residence, they made an unholy attempt to justify their illegal action of cancelling the allotment on the ground that the Respondents were defaulters to the Bank on a technical ground, which cannot be accepted.  Instead of remedying the wrong done to the Respondents, the Appellants are still trying to brazen out the illegal act by putting forth technical contentions.

18.    At this juncture, it is also pertinent to note that during the pendency of this Appeal, an application (MA No.1090 of 2011) was filed by the Appellants, seeking leave to urge additional grounds, including the ground that the State Commission had failed to consider the question of impleadment of the Bank, though it was so urged.  The said application was dismissed vide order dated 29.05.2012.  The Special Leave Petition filed by the Appellants against the said order was dismissed as withdrawn.

19.    Accordingly, we affirm the finding recorded by the State

Commission that no balance amount was due to be paid by the Respondents when they were put in possession of the subject flat and therefore, the Appellants were not justified in refusing to execute Conveyance Deed in favour of the Respondents in terms of Agreement to Allotment dated 01.05.2003. 

20.    Having come to the above conclusion, the next question requiring consideration is as to what relief can be granted to the Respondents as during the pendency of the Complaint, the flat in question has been auctioned by the Bank in proceedings under the SARFAESI Act; possession has been delivered to the auction purchaser and even Conveyance Deed in their favour has been executed by the Appellants.  In this behalf, it is pertinent to note that on receipt of re-possession notice, dated 28.07.2007, from the Bank under the provisions of the SARFAESI Act, the Respondents had filed an application in the State Commission for amendment of the Complaint, inter-alia stating thus:

“Complainants  now pray that in view of all that is stated above and taking into consideration the changed situation the complainants may be granted alternative relief of `19,44,000/- (Rupees Nineteen Lakhs Forty Four Thousand only).”

          Under the stated circumstances, the Respondents prayed for the following alternative relief:

“Alternative a sum of `19,44,000/- (Rupees Nineteen Lakhs Forty Four Thousand only) as mentioned in paragraph No. 1 hereinabove may be awarded as Compensation to the complainants.”

21.    The application was opposed by the Appellants, inter-alia, on the plea that it was a ploy to mislead the State Commission by incorporating subsequent events and that enhancement of compensation was not permissible under the Act.  However, the specific plea regarding the booking price of similar projects in Merlin Gardens at `31,68,000/- in the year 2007, when the said application was filed, as against the booking price of `16,25,000/- in the year 2003, was not specifically denied by the Appellants.  In the absence of any other material in regard to the market value of the subject flat on the date (24.02.2009) when the impugned order, directing registration of Conveyance Deed and delivery of possession of the flat, was made, we feel that instead of remitting the matter back to the State Commission at this stage, for determination of compensation in lieu of the flat, the ends of justice would be sub-served if keeping in view the comparative Housing Price Index issued by the National Housing Board for the year 2007 and 2009 (100 : 162), the value of the flat, as in February 2009, is taken at `50,00,000/-.

22.    Resultantly, the appeal is allowed in part to the extent that in lieu of the flat in question, the Appellants shall pay to the Respondents a sum of `50,00,000/- with interest @ 9% p.a. from the expiry of sixty days (the time granted for compliance) of the date of the impugned order till the date of actual realization. Other directions regarding compensation etc. are maintained. We are convinced that the Appellants have engaged the Respondents in unwarranted litigation and, therefore, it is a fit case for imposition of exemplary costs on them.  Accordingly, we direct that the Appellants shall pay to the Respondents a sum of Rs.50,000/- as costs.  All the said amounts shall be paid to the Respondents within 30 days of the receipt of a copy of this order.  The appeal stands disposed of accordingly.  

         

23.    It will be open to the Appellants to withdraw the statutory amount of Rs.35,000/- deposited by them with this Commission at the time of filing of appeal along with interest accrued thereon.    

I.A. No. 8034 of 2013

24.    In view of order in the main appeal, no orders in this application seeking permission to bring on record documents/orders pertaining to Writ Petition No. 18936/07 (Sri Pandav Roy & Anr. Vs. Reserve Bank of India & Ors.) and CS (OS) No. 271/10 (Merlin Projects Ltd. & Anr. Vs. Nilmani Dutta & Anr.) are called for.  The application is disposed of accordingly.

 

………………….

                                                                                 (D.K. JAIN, J.)

                                                                         PRESIDENT

 

                                                                   ……………………          (VINEETA RAI)

                                                                                        MEMBER

 

                                                          ……………………          (VINAY KUMAR)

                                                                                        MEMBER

 

 

Ar/yd

 




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