Bikash Mukherjee vs Addwitiya Co-Operative Housing Society Limited & Anr.

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.