SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
Briefly put, the facts materials to the case are that OP-2 being the owner of Premises No 38, Dent Mission Road, Kolkata - 700 002 had appointed OP-1 to construct a multi storied building with an intention to sell out flats to the purchasers. Complainant entered into an Agreement for Sale dated 25.03.2011 with the OP-1 for purchase of a flat measuring about 786 Sq. ft. super built up area on the 1st floor of the proposed building along with undivided proportionate share of land at a total consideration of Rs.11,00,400/-. Out of total consideration complainant had already paid Rs.11,00,000/- the OP-1 against money receipts and he handed over the possession of the flat to the complainant on 15.05.2013.
Further case of the complainant is that several occasions she requested the OP-1 to execute and register Deed of Conveyance, of the subject flat but he refused to execute Deed of Conveyance. Finding no other alternative, the complainant issued legal notice dated 28.09.2015 to the OP-1 through her Advocate. Notice was unattached. The OPs deliberately adopting unfair trade practice and also deprive the complainant from her lawful right and claims in terms of the Agreement for Sale dated 25.03.2011. Hence, the complaint.
The OP-1 has contested the case by filing Written Version wherein challenge the maintainability of the case. The specific case of the answering OP is that in terms of Agreement for Sale dated 25.03.2011 complainant agreed to pay Rs.50,000/- towards cost of transformer. Generator, fire fighting equipments and Rs.19,650/- being proportionate share of taxes, outgoing and common expenses. Complainant promised to pay all dues within a short span on getting possession of the subject flat. The erstwhile landlord S.K. Sajahan died and on humanitarian ground the answering OP being the legal heir of S.K. Sajahan handed over possession of the subject flat to the complainant against possession certificate dated 15.05.2013. In spite of occupying the subject flat complainant did not clear the outstanding dues of Rs.70,050/-. Complainant cannot take undue advantage of her own wrong and get the conveyance executed and registered in her favour without fulfilling her part of obligations under the Agreement for Sale dated 25.03.2011. The answering OP is ready and willing to execute the Deed of Conveyance in favour of the complainant provided the complainant fulfills her part of obligation. There is no unfair trade practice on the part of the answering OP. Accordingly, the answering OP has prayed for dismissal of the complaint
In spite of service of notice of OP-2 did not turn up to contest the case. As such, the case has proceeded ex parte against OP-2.
Decision with Reasons
Both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. Complainant has filed Brief Notes of Agreement.
It remains undisputed that the OP-1 had entered into an Agreement dated 22.01.2008 with the erstwhile landlord S.K. Sajahan for developing premises No. 38, Dent Mission Road, Kolkata – 700 023 according to Sanction Plan of the KMC and also, permitted the OP-1 to sell and / or to dispose of constructed area to the intending purchasers. Pursuant to the said Agreement dated 22.01.2008 complainant had entered in to an Agreement for Sale dated 25.03.2011 with the OP- 1 for purchase of a flat measuring about 786 Sq. ft. super built up area on the 1st floor of the proposed building (Flat Type-G) at a total consideration of Rs.11,00,400/- It is not in dispute that the complainant had paid Rs.11,00,000/- on diverse dates and a balance amount of Rs.400/- is due and payable by the complainant in favour of the OP-1 / developer. It is true that physical possession of the subject flat had been given to the complainant on 15.05.2013 but execution and registration of the Deed of Conveyance is still pending on payment of balance amount of Rs.400/-.
Coming to the question of non-payment of Rs.50,000/- towards cost of transformer, generator, generator meter, fire fighting equipments, installation of sub-meter and Rs. 19,650/- as proportionate share of Tax out going and common expenses from the date of ready of the flat for occupation till the date of handed over of possession keep in deposit, it is being argued on behalf of the OP-1 that without payment of the aforesaid amount the question of execution and registration of Deed of Conveyance does not arise. As such, the liability of delay in registration of the flat cannot be solely attributed upon the OPs. On bare perusal of the Agreement for Sale dated 25.03.2011. We find there is a clause (Clause No.3) regarding payment of Rs.50,000/- and Rs.19,650/- by the complainant to the Vendor / OP-1 towards cost of transformer, generator, generator meter, fire fighting equipments, installation of sub-meter and proportionate share of all taxes outgoing and common expenses. Complainant failed to produce any single scrap of paper to show that she has fulfilled clause-3 of the Agreement for Sale dated 25.03.2011. This argument is tenable as the situation has been created by the complainant herself for nonpayment of Rs.50,000/- and Rs.19,650/- respectively in terms of the Agreement for Sale. It is settled law that parties are bound by the agreement and nothing can be added or detracted from agreement. The agreement include clause regarding payment of Rs.50,000/- and Rs.19,650/- towards cost of transformer, generator, generator meter, fire fighting equipments, installation of sub-meter and proportionate share of all taxes outgoing and common expenses.
So far as the question of final measurement of the subject plot and in case of increase in area of the subject flat the amount payable by the purchaser / complainant to the Vendor / OP-1 will stand increased at the rate of Rs.1,400/- per Sq. ft. for extra Sq. ft. above super built up area of 786 Sq. ft. It is pointed out that OP-1 did not file any application for measurement of the subject flat by appointing surveyor. As such, OP-1 is not entitled to claim any extra amount at the rate of Rs.1,400/- per Sq. ft. in case of increase of extra Sq. ft. of 786 Sq. ft.
In the result, the case succeeds in part.
Hence,
Ordered
That the complaint case be and the same is allowed on contest in part against the OP-1 and ex parte against OP-2. No cost is imposed upon any of the parties.
Complainant is directed to pay Rs.400/- as balance consideration plus Rs.50,000/- plus Rs.19,650/- totaling Rs.70,050/- in terms of clause-3 of the Agreement for Sale dated 25.03.2011 to the OP-1 within 45 days from the date of this order and the OPs are directed to execute and register Deed of Conveyance in favour of the complainant within one month from the date of receiving of Rs.70,050/-. We make it clear that the cost of such registration shall be borne by the complainant, in default, the complainant is at liberty to take recourse of the machinery of the Forum for execution and registration of the Deed of Conveyance.
