Order-12.
Date-06/11/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that OP2 and 3 are the developers and proprietors of M/s. G.M. Enterprises of 1/2B, Ramchand Mukherjee Lane, P.S. Baranagar, Kolkata – 700 036 and Late Bindeswar Gupta, father of OPs2 and 3 was the sole proprietor of M/s. G.M. Enterprises of 1/2B, Ramchand Mukherjee Lane, P.S. Baranagar, Kolkata – 700 036 and died intestate on 28-11-2014 leaving behind his two sons who are the successors.
Complainant entered into an agreement for sale on 18-08-2008 with Sri Ashok Kumar Dutta (here OP1) and Sri Asok Kumar Dutta (the then Land Owners/Vendors), sons of Late Biddhu Bhusan Dutta and M/s. G.M. Enterprises represented by its sole proprietor Sri Bindeswar Prasad Gupta (since deceased), the then Developer/Contractor for purchasing a self contained flat on the 2nd floor, measuring about 972 sq. ft including super built up area, being flat No.2A in the building named ‘Vaishali Gharh’ together with proportionate undivided share and interest situated at premises no.23A, Shyama Charan Moitra Lane, P.S. Cossipore, Kolkata – 700 036 on the total consideration of Rs.11,66,400/- and he paid Rs.11,36,100/- out of the total consideration and the then Developer namely Bindeswar Prasad Gupta delivered the possession of the above said flat on 06-12-2010 but after several requests no Sale Deed was executed and registered on the part of the OPs. In the mean time one of the Co-owners namely Alok Kumar Dutta, who was the bachelor died on 19-08-2008 leaving behind his only brother & legal heir, Sri Ashok Kumar Dutta, the OP1 herein. According to Hindu Succession Act, 1056 Sri Ashok Kumar Dutta become the sole owner of the Land.
In the above circumstances, complainant served a notice dated 24-03-2015 upon the OPs through his Lawyer, though OP1 received the notice but the said notices returned from the OPs2 and 3 ‘not claimed’. Therefore, finding no alternative complainant compelled to file this complaint before this Forum praying for directing upon the OPs to execute and register the Sale Deed and compensation, cost etc.
On the other hand, OP1 by filing written statement submitted that OP1 and his brother Aloke Kumar Dutta, since deceased were the joint owners of Premises No.23A, Shyama Charan Moitra Lane, Kolkata – 700 036, P.S. Cossipore and OP2 entered into development agreement with the OP1 and his brother Aloke Kumar Dutta, since deceased on 05-03-2002 and OP2 has completed the promoted building but has not delivered the possession as per terms and condition in favour of the owner or intending purchaser.
OP1 has admitted that complainant took out the flat No.3F on the 3rd Floor of the building “Vaishali Gharh” for which he allegedly tendered Rs.1,36,000/- only to the OP2 but OP1 has no knowledge for tendering sales proceeds allegedly by the complainant to the OP2. Fact remains the possession of the flat has been delivered but deed of sale has not yet registered but OP1 always approached OP2 to execute and register the flat and hand over the deed of flat but OP remained silent.
Finding no other alternative and considering the negative attitude of the OP2 complainant lodged a complaint to local Cossipore Police Station on 10-07-2012. It is also submitted that OP1 already filed a Title Suit No.265 of 2012 for a decree for Mandatory Injunction or Permanent Injunction still lying pending for final decision before Ld. 2nd Civil Judge (Junior Division) at Sealdah against the OP2.
OP1 is very much willing and very much interested to Cause immediately to register that flat which is remaining in unregistered condition but OP1 is unable to make it execute until and unless the OP2 comes forward in writing on the ground of registration. So, the condition of the OP1 is helpless and undone for which negligent and deficient manner of service is done on the part of OP2 because OP2 is not at all willing to appear in person to produce the sale deed or to execute the same. In the above circumstances, the complaint should be dismissed against the OP1 but practically for the fault, negligence and deficiency on the part of the OP2 OP 1 is unable to execute the deed alone.
Notices were served upon the OPs2 and 3 but they have not filed any written version so the case heard ex parte against them.
Decision with Reasons
On comparative study of the complaint and the written version filed by Asoke Kumar Dutta and further considering the documents it Is found that admitted position is that agreement to sale was executed in between the parties i.e. complainant and the OPs2 and 3 and in the agreement for sale there is no signature of the OP1 or the deceased landowner. Though in the agreement to sale names of Asoke Kumar Dutta and Aloke Kumar Dutta are there and probably OPs2 and 3 entered into an agreement to sale of a flat from his developer’s shares and no doubt the details of the flat is being No.3F, covering an area of 708 sq. ft. inclusive of super built up area and stair be the same a little or more or less in 3rd floor of G+3 storied building under the name and style of ‘Vaishali Gharh’ situated at 23A, Shyama Charan Moitra Lane, Kolkata – 700 036 and total value of the said flat was fixed Rs.7,61,100/-. Admitted position is that possession had already been delivered by the developer in favour of the complainant and that is admitted by the landowner but landowner OP1 has asserted that he has no fault because developers are not coming forward to execute the sale deed along with landowner for which it has not been executed but it is the complete fault and negligence on the part of the developer. At the same time it is admitted that as per complainant’s document out of total fixed price of the flat Rs.11,66,400/- complainant has produced document wherefrom it is found that complainant has tried to convince that he so far paid Rs.10,78,630/- out of Rs.11,66,400/- so, balance amount of Rs.49,900/- is still unpaid by the complainant but complainant has tried to convince that he is liable to pay only that amount but that is not correct. Truth is that possession had already been delivered by the developers and that is admitted by the landowner OP1 and the OP1 landowner has expressed his grievance against OP2 for not executing the sale deed. So, in the above circumstances, considering all the material fact and also not for contesting the case by the OPs2 and 3 we can rely upon the evidence of the complainant in support of his complaint so regarding payment the receipts support that complainant has not filed any document to show payment, complainant shall have to show all document in support of his payment as consideration at the time of execution of the deed of sale when execution of deed of sale on the part of the OPs is an obligation as per said agreement to sale dated 28-08-2006 and till execution and registration of the sale deed by the OPs cause of action shall continue and in the present case it is undisputed position that the sale deed in respect of the flat has not been executed by the OPs because this flat was sold by the OPs2 and 3 as developer from their developer’s allocation. So, it is the prime liability on the part of the OPs2 and 3 to execute the sale deed when possession had been delivered and when some payment has been received by them out of total consideration of Rs.11,66,400/- and similarly complainant shall have to deposit balance consideration including all documents in support of payment of Rs.10,78,630/-.
In the light of the above observation and findings we are convinced that for the laches and negligence on the part of the OPs2 and 3 complainant has been suffered and at the same time it is found that complainant has not produced document in support of paid up consideration but that has not been disclosed how much amount as consideration is still unpaid. Whatever it may be we have gathered that negligence and deficiency on the part of the OPs2 and 3 is well proved for non-execution and registration of the sale deed in respect of the flat which is prime legal obligation of the OPs2 and 3. So, complainant is entitled to get a decree as prayed for along with cost etc.
Thus complaint succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the OP1 but without any cost and allowed ex parte against OPs2 and 3 with a cost of Rs.10,000/-.
OPs are jointly shall have to execute and register the sale deed within 45 days from the date of this order in respect of the case flat in favour of the complainant positively at the cost of the complainant and before that complainant shall have to deposit along with original receipt by support of paid up amount balance consideration to this Forum within one month from the date of this order positively.
If complainant deposits the balance amount along with receipt of paid amount to this Forum within the stipulated period in that case OPs jointly shall have to execute and registered the sale deed within 45 days from the date of this order failing which complainant shall have his liberty to execute the order for getting executed and registered sale deed form the Forum on payment of service charge etc. to this Forum and in that case OPs2 and 3 shall have to pay punitive damages of Rs.50,000/- to this forum for adopting unfair trade practice and for deceiving the customer complainant and others in such a manner.
If within 45 days the deed of sale in respect of the flat is not executed by the OPs in that case OPs 2 and 3 shall have to pay penal interest at the rate ofRs.200/- per day till final execution and registration of the deed and if it shall be deposited to this Forum.
OPs are directed to comply the order subject to the compliance of the order by the complainant within the stipulated period failing which penal action shall be started against them as per provision of Section 25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.
