This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that OP is the

owner of some flats in premises no.64/53A, Khudiram Bose Sarani (Belgahia Road), P.s. Ultadanga, Kolkata – 37 and OP declared to sell out the scheduled flat at the final sell price of Rs.10 lakhs only what the complainant agreed to purchase the same.  Thereafter OP took Rs.6 lakhs as  part payment of total consideration from the complainants for sale of the flat measuring 600 sq. ft. on the ground floor (front portion) issuing money receipts with signature on them on 01-05-2012, 07-10-2012 and 12-08-2012 agreeing that he would sell the flat on the ground floor of the said premises to the complainant. 

          Thereafter, OP proposed to the complainant that he would register the flat of 600 sq. ft. on the first floor at northern side (right side) back portion instead of flat on the ground floor and OP told the complainant to pay Rs.6 lakhs more though they had already paid the OP Rs.6 lakhs and complainant on good faith agreed to pay further amount of Rs.6 lakhs and OP agreed to register the sale deed by receiving Rs.6,00,000/- more at the time of registration of the flat and as per instruction of the OP complainant prepared sale deed and exhaust all the legal and necessary formalities to complete the sale deed in their names in respect of the flat on the first floor.  Accordingly, complainant contacted with their Advocate and handed over all the documents and prepared the sale deed through their Advocate.  They collected query slip on 01-10-2013 for registration of the Sale Deed of the said flat in the office of the Additional Registrar of Assurance I, Kolkata.  They collected Bank drafts on 01-10-2013 for paying fees to government as per query dated 01-10-2013 and they made site plan of the said plan on 01-10-2013 for registration etc. and OP assured that registration of the flat would be made on 03-10-2013 and on that day he shall receive remaining Rs.6 lakhs.  But peculiar factor is that OP did not register the said flat to the complainants and when the complainants asked him to register the same, he denied to register.  Due to that cause the complainants made a complaint with the Officer-in-Charge, Ultadanga, P.S. Kolkata – 700 054 by speed post on 26-11-2013 and sent legal notice on 26-11-2013 to the OP for harassing the complainants and for not performing the registration of the sale deed of the said flat and also for causing negligence, deficiency, damage, loss, injury and mental pain and so in the above circumstances for negligence and deficient manner of service complainants filed this complaint for redressal.

          On the other hand, OP by filing written statement submitted all the allegations are false but truth is that OP received Rs.6 lakhs out of Rs.10 lakhs not for flat but only to sell of measuring 600 sq. ft. of the ground floor front portion of the said premises and complainants did not agree to execute any sale deed in respect of first floor flat but they cooked up different stories that OP agreed to sell similar area of flat on the first floor and further alleged that as per OP’s advice they prepared sale deed and OP demanded a further 6 lakhs but OP did not execute the sale deed but it is completely false because they only agreed to sell 600 sq. ft on the ground floor front portion but not a flat so the complainant cooked up false story so the allegation of the complainant is false and fabricated and they tried to create pressure to sell of first floor flat and to execute the sale deed but complainant has miserably filed to prove that there is/was any agreement in between the complainants and OP for flat on the first floor but there only mentioned that against payment of Rs.10 lakhs 600 sq. ft. on the ground floor of the front portion shall be transferred to the complainant but complainant is unwilling to get the same and for which complainant appeared before this Forum to get a valuable flat at first floor at a cost of Rs.12 lakhs and OP never agreed to that and, in fact, with the help of some powerful person threatened the OP to execute the sale deed but OP reported and informed the complainant to take refund of the said paid amount and ultimately O.P. for refunding the received amount finally issued a cheque of Rs.10 lakhs but that was not received by the complainant and so, entire complaint is false.  Admittedly OP always wants to refund Rs.6 lakhs and for which OP already sent a sum of Rs.10,000/- through Banker’s cheque 486997 dated 02-02-2013 drawn on Kotak Bank as part payment of Rs.6,00,000/- with an advice that the OP will ready to return the money part by part to the complainant and this fact will prove that OP had his all desire to refund the same to the complainant in respect of the ground floor 600 sq. ft area but not a flat as per advance payment slip so the present complaint is fictitious and complaint should be dismissed.

Decision with Reasons

After indepth study of the complaint and the written version and also complainant’s own documents in respect of money receipt of Rs.6 lakhs out of Rs.10 lakhs vide Annexure A(14,15 and16) it is found that OP received Rs.2 lakhs on 01-05-2012, Rs.1 lakh on 07-10-2012 and lastly Rs.3 lakhs on 12-08-2012 and OP has admitted that he executed those receipts on receipt of the said amount i.e. total Rs.6 lakhs and agreed to execute the sale deed in respect of ground floor at front portion approximately for 600 sq. ft.  So, it is admitted position that there was no written agreement in between the complainant and the OP regarding sale of any flat either on the ground floor or in the first floor or in any other floor of the present disputed premises and complainant has failed to prove any such agreement to that effect.  Truth is that OP never stated anywhere in the said three receipts Exhibit A Series (Pages 124 to 16) that he expressed his desire to sell any flat only in the ground floor but said documents as produced by the complainant supports that OP intended to sell  600 Sq. Ft. on the ground floor in the front portion and it is known to all that if the building is G+4 in that case on the ground floor there is no scope to construct any flat and probably complainant realized that they purchase a 600 sq. ft. area on the ground floor in that case he shall not have to get any flat in the ground floor because sanctioned plan invariably is otherwise.  So, only to convert his desire to purchase a flat he somehow or otherwise prepared this proposed deed of sale stating about one flat of first floor having 600 sq. ft. but as because the complainant has failed to prove any such agreement in support of that complainant’s claim in respect of execution of sale deed and registration of sale deed by the OP in respect of first floor flat is not tenable in the eye of law and in this regard the very attempt of the complainant that he prepared deed, he collected valuation slip, he deposited the demand draft etc. cannot help anyway to prove that OP agreed to sell the first floor flat of 600 sq. ft. area from the present premises for which complainant cannot get in such relief in respect of his prayer for directing the OP to execute a sale deed in respect of first floor flat having 600 sq. ft. area.    

          It is an admitted position that OP received Rs.6 lakhs and expressed his desire to sale 600 sq. ft. area within the ground floor on the ground that OP is well aware about the sale of that area but in the ground floor there is no such flat and there is no such contract or agreement in between the complainants and the OP that OP intended to sell any flat in the ground floor area of 600 sq. ft.  So, in the circumstances the situation is very complicated.  At best we may direct the OP to execute the sale deed of 600 sq. ft. area of the front side on the ground floor of the said complex but not more than that but OP has admitted the he is willing to return the received amount but we are unable to understand for what reasons OP shall not have to execute the sale deed for 600 sq. ft. area on front side of ground floor when he admitted that he intended to sale that area when there is no word vacant 600 sq. ft. area of ground floor on payment of 10 lakhs but invariably it was the word flat is silent and those receipts were issued by the OP in such a plea that he has no intention to sell flat of ground floor but OP has tried to convince relying upon the agreement that in fact on the ground floor as per sanctioned plan no flat can be constructed.

          Taking entire matter into consideration and also the conduct of the OP it is clear that OP already received 6 lakhs out of 10 lakhs and invested it for the developing of the said project and no doubt by spending the money of the complainant in his own project he has enjoyed much profit but complainant has no doubt suffered a huge loss and that loss must be compensated by the OP by giving such compensation in respect of the amount and if said amount OP wants to repay in that case repayment must be made within fixed period as would be ordered by this Forum.  At the same time after proper study of the entire materials of the record and defence of the OP it is clear that OP is unwilling to execute the sale deed but in the meantime the market price is increased at high rate so it is clear that he wants to sell it to some other person at a high price for which he wants to refund received 6 lakhs showing his good intention but in our view such intention is bad and it is proved that OP is nothing but a cheater and practically taking the simplicity of the complainant and complainant’s need for a flat he somehow managed to receive 6 lakhs but very intention of the OP was in future he shall have to create trouble and shall not have to execute any sale deed as per said receipts and fact remains same instance has happened and for which complainant was compelled to file before this Forum for redressal of his grievance.

          In the light of the above observation and considering the negligent and deficient manner of service on the part of the OP and also his intention to deceive the complainant from getting a flat on the ground floor area as per receipt  and the O.P.  is not willing to register and execute the sale deed in respect of 600 sq. ft area within the said premises for which his act is no doubt a deceitful act on the part of the OP and no doubt OP has adopted unfair trade practice and in view of the fact complaint should be allowed and complainant grievance is required to be redressed in the light of the above findings.

          In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OP.

          OP is directed to execute and register the sale deed in respect of the ground floor of 600 sq. ft area on the front side as per receipt after receiving balance amount of Rs.4 lakhs from the complainant within one month by handing over sanctioned copy of plan of K.M.C. from the date of this order or alternatively if OP is unwilling to execute that then OP shall have to pay and refund of Rs.6 lakhs and also a compensation of Rs.4 lakhs to the complainant for harassing the complainant for adopting unfair trade practice and for deceiving the complainant to get such area in time and that amount shall be paid within one month from the date of this order and this order is passed as an alternative relief as given to the complainant if it is found that OP is unwilling to execute it.

          For adopting unfair trade practice and for deceiving the complainant in such a manner OP is hereby imposed punitive damages of Rs.50,000/- which is imposed for purpose of checking such sort of deceitful and unfair trade practice so that such sort of practice shall not be followed by any developer in future and the same shall be deposited to this Forum within one month.

          OP is directed to comply the order within stipulated period in default for each day’s delay OP shall have to pay penal interest @Rs.400 per day till full satisfaction of the decree and even for the satisfaction of the decree execution case may be started for which complainant may be imposed penalty and fine further.