Order-13.
Date-20/11/2015.
In this complaint Complainant Satyendranath Beraby filing this complaint has submitted that complainant entered into an Agreement for Sale with the op nos. 2 & 3 who represented on behalf of op no.1 also on 18.04.2011 for purchasing a flat and for that purpose a registered agreement for sale was executed in between the parties and the detail of the residential flat on the Southern side of the first floor measuring 550 sq. ft. covered area together undivided proportionate share or interest undivided land along with proportionate right all common areas and facilities of the proposed building duly constructed premises situated at Premises No.4, Pottery Road, P.S.-Entally, Kolkata-700015 and the covered area was fixed at Rs. 4,00,000/- (Approx) and out of that complainant already paid a sum of Rs. 2,20,000/- on proper receipt and op is entitled to get balance Rs. 1,80,000/- at the time of delivery of possession and issuance of completion certificate and further registered sale deed.
It is specifically mentioned that practically complainant was an old tenant under the owner in respect of the premises and at the time of development work ops proposed the complainant for vacating the said premises to complete the project and offered this proposal to sell the said flat at a consideration of Rs. 4,00,000/- and complainant accepted to enter into an agreement for purchase of the first floor flat with the ops.But in the meantime complainant was shifted to temporary accommodation by the ops and to that effect agreement was signed and that is noted in the agreement for sale dated 18.04.2011 and thereafter there was a further agreement for temporary accommodation for shifting the family members of the complainant which was signed by the complainant.
Despite having part payment of Rs. 2,20,000/- paid to the developer and subsequent agreement for sale which was duly registered the op has not completed flat and possession was not delivered as yet.Truth is that complainant has paid the assessed market value of Rs. 10,74,480/-, the stamp duty and the registration charges and others amounting to Rs. 64,495/- have been duly paid for registration of the agreement for sale.
Inspite of all necessary legal formalities have been complied with by the complainant, ops have adopted unfair trade practice to put the complainant in continuous problem.In fact developer is demanding further money beyond the scope of the agreement which is not permissible and complainant is unable to pay the same and for that ops are not giving him the complete flat and has been harassing continuously for which complainant has been suffering for ops negligent and deficient manner of service and for adopting unfair trade practice, complainant has filed this complaint praying for redressal.
Notices of the complaint were duly served by the ops and ops received it but ultimately they did not appear to contest this case.Thereafter the case is fixed for exparte hearing.
Decision with reasons
In fact complainant by filing this complaint has prayed for redressal as per Section 12 of C.P. Act 1986 by producing all documents that is registered agreement to sale dated 18.04.2011 and further agreement regarding shiftment of the complainant as tenant from the old premises upon which the entire building has been constructed by the op as per sanctioned plan.Further complainant has proved the general power of attorney executed by BhagyabalaDasi who is landowner and absolute owner in respect of the piece and parcel of the home stead land upon which construction has been made and which is situated at premises No.4, Pottery Road, Kolkata-700015 under P.S.-Entally.
But most interesting factor is that complainant has proved that he has paid Rs.2,20,000/- out of total amount of Rs. 4,00,000/- as per agreement to sale dated 18.04.2011.It is also found from the document agreement for temporary accommodation dated 18.05.2011 that the complainant was shifted as a tenant from the old building that is case premises and he was shifted to some other place by the developer and developer placed him in a rented house, but till to date ops have not handed over the possession of the flat against registered deed of sale dated 18.04.2011 which is registered one.
Moreover ops have their scope to contest this case to deny the allegation as made by the complainant.But ops did not turn up.But considering the registered deed of agreement to sale dated 18.04.2011 and also unchallenged testimony of the complainant, we are confirmed that ops are willing to sell to 3rd party but already there is a registered sale.So, they have not appeared before this Forum to contest this case and at the same time it is proved that ops have their bad intention to deceive the complainant for not delivering the said flat.Though complainant already paid Rs.2,20,000/- out of the total amount of Rs.4,00,000/-.
No doubt in the above circumstances, it is the obligation and responsibility on the part of the ops to execute the registered sale deed according to registered agreement to sale dated 18.04.2011 by receiving the balance amount of Rs. 1,80,000/- from the complainant and complainant is willing to pay.But considering the conduct of the ops, we find that they have already claimed huge amount that is excess to Rs. 4,00,000/-.Now the market value of the said flat has been increased so it is unfair practice of the developer and land owners to squeeze money from the confirmed purchasers and in the present case all the ops are legally bound to execute the register sale deed by handing over the possession of the complete flat and complainant has proved the negative attitude of the op and the intention of the ops not to handover the possession of the flat and to register the sale deed.
So, it is proved that ops have adopted unfair trade practice and at the same time they have not discharged their legal responsibility and liability to hand over the possession of the flat to the complainant and also register deed including completion certificate.
In the light of the above observation, we are convinced to hold that complainant is the sufferer and no doubt complainant is entitled to get a decree as prayed for and when ops have failed to discharge their liabilities as per registered contract that is agreement to sale dated 18.04.2011 and no doubt it is the liability of ops when it is the legal obligation of the ops to handover possession of the flat from the said premises and hand over the possession of the flat to the complainant by the ops.
In the result, the complaint succeeds.
Hence, it is
Ordered,
That the complaint be and the same is allowed exparte against ops.
Ops are jointly and severally directed to hand over the possession of the complete flat as per schedule of the agreement to sale dated 18.04.2011 to the complainant within 45 days from the date of this order and to execute the registered sale deed in respect of the said flat in favour of the complainant within one month.
For adopting unfair trade practice, ops jointly and particularly op nos. 2 & 3 shall have to pay a compensation of Rs. 1,00,000/- to the complainant for harassing the complainant and for causing mental pain and agony and also financial loss of the complainant.
Ops are hereby directed to comply the order within the stipulated period i.e. 45 days from the date of this order, failing which ops jointly and severally shall have to pay compensation of Rs. 12,00,000/- (Twelve Lakhs) for not delivering the possession for not registering the sale deed and for not handing over the completion certificate to the complainant within one month from the date of theabove 45 days, if ops pay compensation, in that case the entire sale deed shall be treated as canceled, but if ops fail to pay compensation, in that case first part of the order shall be continued.
Ops jointly and severally are hereby directed to comply the order within stipulated time as already ordered failing which for non-compliance of the Forum’s order and for further harassing the complainant and for adopting further deceitful manner of practice, op nos. 2 & 3 jointly and severally shall have to pay penal damages at the rate of Rs. 10,000/- per month till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.
Even if it is found that ops are reluctant to comply this Forum’s order, in that case ops shall be prosecuted u/s 25 read with Section 27 of C.P. Act 1986 for which further penalty and fine shall be imposed upon ops.
