Date of filing :20.6.2017
Judgment : Dt.11.4.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of the C.P.Act, 1986 by Amit Chatterjee and Kakali Chatterjee, alleging deficiency in service on the part of the opposite parties (referred OPs hereinafter) namely (1) Arup Mukherjee and (2) Tapan Kumar Dutta.
Facts in brief are that being desirous to have an accommodation, the Complainants entered into an Agreement for Sale on 6.2.2013 with the OPs (OP No.2 being represented by his constituted Attorney i.e. OP No.1) for purchasing entire first floor flat measuring about 720 sq.ft. super built up area of a proposed building to be constructed at premises No.8, Ramkrishna Upanibesh Block-A (Having postal address A-4 Ramkrishna Upanibesh), Kolkata-700 092, P.S.-Jadavpur at a consideration of Rs.19,00,000/- and accordingly paid Rs.16,00,000/- on different dates to OP No.1 but despite receiving the same the OPs failed and neglected to deliver possession of the said flat and to execute registration of the Deed of Conveyance in favour of the Complainants. The Complainants have further stated that on several occasions they requested the OPs to execute and register the Deed of Conveyance but the OP No.1 paid no heed to that request.
The Complainants have further stated that as per terms of the Agreement dt.6.2.2013 the OP No.1 was to deliver possession and execute registration of Deed of Conveyance in respect of the said flat on receipt of the balance amount of consideration but fact remains that the OP No.1 neither took any step for delivery of possession of the flat nor did execute registration of Deed although the Complainant requested the OPs to that effect on several occasions including service a demand notice dt.28.3.2017 through their Ld. Advocate but that too yielded no fruitful result.
Having no other alternative, the Complainants have filed this case praying for directions upon the OPs to execute and register the Deed of Conveyance and to handover possession, to pay Rs.50,000/- extra amount paid towards stamp duty, to pay Rs.20,000/- towards arrear Municipal Tax to handover completion certificate, to pay Rs.20,000/- towards compensation and other reliefs.
The Complainants have annexed photocopies of some documents including agreement for sale dt.6.2.2013, General Power of Attorney dt.20.4.2011, Advocate’s letter dt.28.3.2017, Advocate’s letter dt.6.4.2017 issued on behalf of the OP.
The OP No.2 contested the case by filing written version stated inter alia that there is embargo regarding transfer of title of the said property till 3.11.2018 since Govt. of West Bengal, R. R. Dept. pleased to donate a piece of land to the OP No.2 along with one Tapas Kumar Dutta and one Sushmita Dutta. The OP No.2 has further stated that by virtue of a Deed of partition dt.30.3.2011 he became absolute owner of the piece of land within which the property in question has been developed. The OP No.2 annexed copies of Indenture dt.3.11.2008, Deed of partition dt.30.3.2011.
In course of argument Ld. Advocate for the Complainant has reiterated the facts mentioned in the petition of complaint.
Ld. Advocate for the OP No.2 submitted that he was not aware about execution of Agreement for Sale between the Complainant and OP No.1. Since there is embargo on transfer of the property so, therefore, execution of registration of Deed of Conveyance not possible at all. Ld. Advocate for the OP No.2 further submitted that after expiry of embargo registration of Deed of Conveyance can be executed.
Decision with reasons
The Complainant claimed to have entered into an Agreement for Sale with the OPs on 6.2.2013. On perusal of documents on record it appears that the Complainants and the OP No.1 executed the said Agreement for Sale. It also appears from the copy of Power of Attorney executed by the OP No.2 land owner on 20.4.2011 in favour of the OP No.1 that being the constituted attorney the OP No.1 became empowered to execute Agreement for Sale on behalf of the OP No.2.
The OP No.2 landowner in para No.1 of his written version has stated that the “Donor shall have no right to alienate or transfer the land in any manner within a period of 10 years from the date of execution of Deed of Gift”. It also appears from the paragraph-4 in page No.2 of the Agreement for Sale dt.6.2.2013 that “an indenture of Gift made on 3rd day of November, 2008 between the Governor of the State of West Bengal for and on behalf of Refugee, Relief and Rehabilitation Department, Govt. of West Bengal, described therein as the Donor of the one part and Tapan Kumar Dutta, s/o Late Kalipada Dutta, Sri Tapas Kumar Dutta, S/o Late Kalipada Dutta and Smt. Susmita Dutta w/o Sri Asim Dutta collectively described therein as the Donees”. It also appears from the copy of Indenture dt.3.11.2018 executed by the Govt. of West Bengal, R.R. Department in favour of the above mentioned donee that “Donee shall have no right save as hereinafter provided to alienate or transfer in any way the land comprised in the schedule hereunder written in any manner whatsoever within a period of 10 years from the date of this present without obtaining prior written permission of the Donee”.
In course of hearing Ld. Advocate for the OP No.2 submitted that there is embargo in respect of transfer of the said property till 3.11.2018.
Under such state of affair, it is evident that the owner has no saleable title in respect of the property in dispute. In spite of the same the owner executed Power of Attorney in favour of the OP No.1 Developer empowering him to enter into Agreement for Sale with intending purchasers and to sell the flats in the proposed building to be developed by the OP No.1 (except 2nd floor) which is glaring example of unfair trade practice on the part of the OP No.2 land owner and his constituted attorney the OP No.1 Developer.
The Complainants have put much emphasis on Registration of Deed of Conveyance in favour of the Complainant since they have entered into an Agreement for Sale. Since there is embargo in respect of transfer of the property in question the said prayer cannot be granted as it will be non-executable.
Since the OPs adopted unfair trade practice they are to compensate the Complainant to the tune of Rs.4,00,000/-. We think this amount is not sufficient to compensate the Complainant at all, but, considering the pecuniary jurisdiction of this Forum, we award such meagre amount towards compensation.
Since both OPs are held liable for adopting unfair trade practice both of them are liable to pay the amount payable towards compensation jointly and severally.
It is evident from the memo of consideration that the Complainant had paid Rs.16,00,000/- to the OP No.1 towards consideration amount of the said flat and, therefore, the OP No.1 shall refund the entire amount to the Complainant.
It is evident that conduct of the OPs compelled the Complainant to file the instant case and, therefore, the OPs are liable to pay the cost of litigation.
However, the OP No.2, in course of hearing, expressed his willingness to execute registration of Deed of Conveyance in favour of the Complainant and, therefore, there may be an alternative remedy of this dispute if registration of Deed of Conveyance, is to be executed after expiry of embargo period.
Hence,
ordered
that CC/333/2017 is allowed on contest against OP No.2 and ex-parte against OP No.1 with cost.
The OP No.1 is directed to refund Rs.16,00,000/- to the Complainant within one month.
The OPs are directed to pay compensation to the tune of Rs.4,00,000/- and Rs.20,000/- as cost of litigation within aforesaid period jointly and severally, failing which the entire amount shall carry interest @ 8% p.a. for the default period till realization thereof.
Alternatively, the OPs are directed to execute registration of Deed of Conveyance and to deliver possession in favour of the Complainant of the said flat by 31.12.2018 after expiry of Embargo period on receiving the balance amount of consideration of Rs.3,00,000/- to be paid by the Complainant to the OP No.1.
