Sri Bikash Mukherjee vs Addwitiya Co-Operative Housing ...
2022 Latest Caselaw 110 Cal

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                     IN THE HIGH COURT AT CALCUTTA

                     CIVIL REVISIONAL JURISDICTION

                            APPELLATE SIDE

   Present:-

   THE HON'BLE JUSTICE Kesang Doma Bhutia.



                           C.O. No. 2043 of 2021
                            Sri Bikash Mukherjee
                                    -VS-
         Addwitiya Co-operative Housing Society Limited & Anr.


For the Petitioner            : Mr. Dhiman Kumar Sengupta,
                               Ms. Sweta Saha,


For the Opposite Party
No & 2                       : Mr. Ashit Kr. Chakraborty,
                              Mr. Sunanda Mohan Ghosh,




Hearing concluded on          : 23.12.2021



Judgment on                   : 18.01.2022
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     Kesang Doma Bhutia, J:- Being aggrieved by the order of rejection

of an application under Order 41 Rule 27 Civil Procedure Code by West

Bengal Co-operative Tribunal in Appeal No. 11 of 2020 on 07.10.2021,

the petitioner has filed the present application under Article 227 of the

Constitution of India.


     The dispute amongst the parties revolves around a ground floor flat

no.2 of premises No. HB- 327, Sector-III, Salt Lake City, Kolkata-700106.

The property is a part of Addwitiya Co-operative Housing Society Limited.

The respondent no. 2 Utpal Kumar Dutta is a member allottee of

Addwitiya Co-operative Housing Society in respect of the flat in dispute.

Being the owner of the flat-in-question the respondent no.2 entered into

an agreement of sale of the disputed flat with the petitioner Sri Bikash

Mukherjee for Rs.11,50,000/- on 20.07.2002 and received a sum of

Rs.1,75,000/- as an advance. Then respondent no. 2 made necessary

prayer before the Co-operative Society for transfer of his membership and

transfer of his two shares in the name of petitioner. The membership has

been duly transferred in the name of petitioner but no shares as well the

flat has been transferred by the society as he has failed to pay the

balance consideration money to the respondent no.2 till date.

It is the case of the petitioner when the agreement of sale was

entered between him and the respondent no. 2, the flat in-question was

in incomplete condition. He had to complete the construction of the flat

and make it habitable by spending money from his pocket. Whatever

amount was due to the respondent no. 2 was adjusted towards the

completion of the incomplete construction of the flat.

Further, it is the case of the respondent no. 2 when the petitioner

could not make payment of the balance consideration money, then he

requested the Society not to transfer his two shares in the name of the

petitioner in 2010, but he has also returned the advance consideration

money amounting to Rs,1,75,000/-by cheque vide letter dated

21.07.2011.

When the dispute between the petitioner and respondent no.2

could not be settled then the matter was referred to an Arbitrator, who is

Deputy Registrar Co-operative Society of West Bengal for adjudication.

Learned Arbitrator in his award dated 12.07.2013 was pleased to set-

aside so called transfer of membership, share, right, title and interest

over the flat no. H-B 327/2 between the petitioner and respondent no. 2.

The defendant no. 2 was given liberty to start process of transfer de novo

with the plaintiff and to pay the plaintiff cost of flat no. HB 327/2 at the

market value to be determined by the Registrar of Assurance Kolkata or

Additional District Sub-registration Officer, Bidhannagar at the time of

execution of deed of re-allotment in favour of the defendant no 2 in

presence of defendant no. 1 as confirming party in terms of section 87 (1)

of West Bengal Co-operative Society Act, 1987 and now under Section 92

(1) of the West Bengal Co-operative Society Act, 2006 within 4 weeks

from the date, otherwise the flat will belongs to the plaintiff only.

Being aggrieved by such award the petitioner has preferred an

Appeal being No. 11 of 2020 before West Bengal Co-operative Tribunal.

In such appeal the petitioner/appellant has filed an application under

Order 41 Rule 27 of Civil Procedure Code, seeking leave to adduce

additional evidence to prove the flat-in-question was in incomplete

condition when sale agreement was executed in the year 2002. He had to

complete the construction and make the flat habitable and for which he

had incurred huge expenditure. That no money is payable to the

respondent and for which the respondent no.1 the Society is bound to

transfer the flat in his name. The petitioner to prove his above claim has

filed an application under order 41 Rule 27 CPC and wanted to produce

quotation given by one Rita Enterprise, ceiling fan voucher, one voucher

showing purchase of marble, electricity bills, payment of fees to the

Society and correspondence that had taken place between him and the

Society in respect of the disputed flat as additional evidence.

However, the Appellate Court after hearing the parties was pleased

to reject the application under order 41 Rule 27 Civil Procedure Code on

the ground that it was not the case of the petitioner/plaintiff/appellant

that he had produced those documents before Arbitrator and it was the

Arbitrator who has failed to admit the same or that in spite of exercise of

due diligence such evidence was not within his knowledge or even after

excise of due diligence he could not produce the same. In fact the

petitioner has alleged that he had handed over those documents to his

lawyer and who failed to produce the same before the Arbitrator.

It was also held that on execution of agreement of sale between the

petitioner and respondent no.2 in the year 2002 and on the prayer of the

respondent no.2 the membership was transferred in the name of the

petitioner/plaintiff and petitioner/plaintiff is in possession of the

disputed flat, but mere possession does not confer title.

Further, learned Tribunal held those documents which the

petitioner wants to adduce as additional evidence are not required for

pronouncement of the judgement as the main dispute between the

parties is whether there is payment of full consideration money by the

petitioner/transferee member to the respondent no.2/promotee member.

Let see whether the impugned order suffers from illegality and

material irregularity and liable to be set aside.

It is undisputed facts that on execution of the agreement of sale of

disputed flat between the petitioner and respondent no. 2 way back in

2002 and on the prayer of the respondent no.2 the allottee/promoter

member of the respondent no.2 Society, the Society has transferred the

membership of the respondent no.2 in the name of the petitioner and

petitioner is in possession of the disputed flat since then by taking

electric connection and by making payment of maintenance charges.

The actual dispute between the petitioner and respondent no.2 is

whether there is payment of entire consideration money by the petitioner.

Learned Arbitrator in its award has clearly stated the petitioner has

failed to produce any documents to prove payment of balance

consideration money of Rs.9,75,000/- to the respondent no.2.

The Award is silent about the petitioner alleging before the

Arbitrator when the agreement was executed and possession was handed

over to him, the flat in question was in incomplete condition or that he

had to complete the construction of the flat-in-question by incurring

huge expenditure. He has merely alleged before the Arbitrator that he

had made some unauthorized construction. That as per enquiry report of

Bidhannagar Municipality regarding alleged unauthorized construction it

was found that there was illegal construction of a small wall between

kitchen and veranda.

Now, it appears by filing the petition under Order 41 Rule 27 CPC

the petitioner at the appellate stage wanted to set up a new case that

when he took possession of the disputed flat it was in incomplete

condition and he made it habitable after incurring huge expenditure and

payment of balance consideration money was adjusted with such

expenditure. It is settled law no new additional evidence can be allowed

at the appellate stage in order to enable one of the parties to remove

lacuna and fill up the gap.

However, for the sake of argument perused the documents of

alleged expenditure made by petitioner to complete the construction of

disputed flat and filed before the learned Appellate Tribunal. Those

documents appear to be quotation for house hold electrical goods,

voucher for purchase of ceiling fan and marble voucher issued by some

unknown entity. Therefore, those documents nowhere reflect the flat in

question was in incomplete condition when agreement was entered

between the parties and possession was handed over. Thereafter,

petitioner had to complete the construction.

The main dispute between the petitioner and respondent no. 2

appears to be none-payment of balance consideration money of

Rs.9,75,000/- by the petitioner to the respondent no.2 till date, even

after transfer of membership and delivery of possession after execution of

agreement of sale in the year 2002.

Therefore, this court does not find any merit in the application

under Article 227 of the Constitution of India to interfere with the finding

of learned Tribunal while rejecting the petition under Order 41 Rule 27

CPC. This court does not find any illegality or material irregularity in the

impugned order passed by the learned Tribunal, who has rightly held

that there is no necessity of those documents which the petitioner wants

to bring on record by way of additional evidence for determination or

adjudication of the actual dispute between the petitioner and respondent

no.2.

Accordingly, C.O. 2043 of 2021 is dismissed.

Interim order, if any, stands discharged.

There will be no order as to costs.

In view of the order made above affidavits are not invited.

Allegations made shall be deemed to be denied.

All parties shall act in terms of the copy of the order downloaded

from the official website of this Court.

Urgent Xerox certified photocopies of this judgment, if applied for

be given to the parties upon compliance of the requisite formalities.

(Kesang Doma Bhutia, J.)