1) In brief consumer disputes is as under –

    Opposite Party No.1, the Municipal Corporation of Bhrihan Mumbai formulated a scheme known as “10 % Reservation Scheme” under the Urban Land (seeking and regulation) Act, 1976. Opposite Party No.2 being Chief Executive Officer of Opposite Party No.1 in having all the powers to implement and execute above said scheme. Pursuant to the aforesaid policy and the directions given by the Hon’ble Bombay High Court, Opposite Party by their letter dated 29/10/2002 allotted to the Complainant a flat on ownership basis bearing Flat No.A/702 admeasuring 448.75 sq.ft. (built up) in the building known as Shiv Darshan in the Malpani Layout at Kandivali Village, Borivali (W), Mumbai – 92.

2) In compliance with the aforesaid order the Complainant paid on 11/11/2002 Rs.1,39,112.50 paisa to the Opposite Party No.1 being a total price of the said flat. Alongwith complaint, the Complainant has produced copy of the challan dated 11/11/2002 in respect of payment of aforesaid amount to Opposite Party No.1.

3) On 28/11/2002, the concerned Officer of the Opposite Party No.1 handed-over possession of aforesaid flat to the Complainant. The Complainant has produced photo copy of possession receipt of the flat.

5) On 19/10/2005 the Complainant collected from the office of State Department of Opposite Party No.1 the “un-executed draft copy of the proposed agreement to sale”. Thereafter the Complainant paid stamp duty of Rs.750/- in the Bank. The Complainant has produced photo copy of the challan dated 26/12/2005 issued by the said Janata Sahakari Bank Ltd., Dadar, Mumbai. Thereafter by letter dated 27/12/2005 the Complainant requested the concerned Officer of the Opposite Parties for fixing up an appointment for registration of the document of Agreement to Sale. However, no action was taken by the said officer despite remainders dated 09/08/2006 and 12/09/2006.

6) It is submitted that the Complainant paid Rs.8,000/- to Shiv Darshan Satyanagar Cooperative Housing Society, being entrance fee for a membership but for reasons of non-execution and non-registration of the documents of Agreement to Sale in respect of the said flat no membership could be granted to him. By letter dated 26/10/2006 he informed aforesaid facts to Opposite Party No.2. As Shiv Darshan Satyanagar Cooperative Housing Society has not admitted the Complainant as a member of the said society the Complainant is suffering recurring heavy financial loss and mental agony. The Complainant served legal notice dated 26/10/2006 on the Opposite Parties. The Opposite Parties failed to comply with the said notice and also final notice dated 07/12/2006.

7) It is the case of the Complainant that the Opposite Parties have already received full amount of consideration of the aforesaid flat allotted to him and as such, they are legally duty bound to prepare and execute a proper document of Agreement to Sale and cause to register so as to transfer a clear legal title in the aforesaid Flat No.A/702 to the Complainant. It is alleged that Opposite Parties with malafide intentions are avoiding to comply the said legal requirements and it amounts to deficiency in service on the part of Opposite Parties.

8) It is submitted that as per provisions of the Bombay Stamp Act, 1958 the aforesaid payment of Stamp Duty of Rs.750/- made on 26/12/2005 is now stands ‘lapsed’ as period of six months is over. Now fresh payment of Stamp Duty is necessary. The above-said loss is caused due to negligence on the part of the Opposite Parties and therefore, Opposite Parties are responsible for the same. In such circumstances, the Complainant cannot be burdened with excess amount.

9) As the Opposite Parties have not complied with their legal obligation, the Complainant has filed this complaint. The Complainant has requested to direct Opposite Parties to take immediate steps for registration of proper documents of Agreement to Sale and duly execute the same. The Complainant has further requested to direct to the Opposite Parties to pay the required amount of Stamp Duty and excess fees for the said flat. The Complainant has prayed for compensation of Rs.50,000/- and cost of this proceeding from the Opposite Parties.

10) Opposite Party Nos.1 & 2 have filed their common written statement and thereby resisted claim of the Complainant contending interalia that this Consumer Forum has no territorial jurisdiction to entertain and try this complaint, as said building known as Shiv Darshan is situated at village Kandivali, Borivali (West). As per Opposite Parties present complaint is misconceived, bad in law and hence, liable to be dismissed with cost. The complaint is filed with malafide intention to pressurise Officers of the Opposite Party to pay Stamp Duty and registration charges.

11) The Opposite Parties have admitted contents of para no.2 in which it is stated that Opposite Parties vide their letter dated 29/10/2002 have allotted to the Complainant a flat of ownership basis bearing no.A/702 in the building known as Shiv Darshan in the Malpani layout, C.T.S. No.2A to 2H of Village: Kandivali, Borivali (West), Mumbai – 92. It is contended that Asstt. Commissioner (Estate) of the Opposite Parties vide letter dated 29/10/02 asked to Complainant to comply with the conditions within 15 days from the receipt of the letter so as to enable the Officer of Opposite Party to hand over the possession of the flat. It was also informed in the said letter that charges for execution of Agreement with the Developer will have to be borne by the Complainant and accordingly the Complainant has fulfilled the required condition and therefore, possession of the said flat on payment of cost of construction @ 310 per sq.ft. built up was given to the Complainant by allotment letter dated 28/11/2002. It is submitted by the Opposite Parties that in pursuance to the letter of request by the Complainant, the Opposite Parties requested to the Complainant to enter into an Agreement to Sale and Registration of the same. However, inspite of the request, the Complainant refused and neglected to enter into execution and registration of the said Agreement to Sale and therefore, there is no negligence or deficiency in service on the part of Opposite Parties. It is contention of the Opposite Parties that the flat which is allotted to the Complainant under the 10 % scheme is situated in a building which is constructed by the Developer/Builder and certain flats are kept vacant under the said scheme. It is submitted by the Opposite Parties that the present Complainant did not call upon the Developer/Builder and said Developer/Builder are not joined as Opposite Party therefore, on this ground the complaint is liable to be dismissed. As per Opposite Parties the Complainant has not returned the copies of tri partite Agreement to the concerned department of the Opposite Party by making necessary compliance, such as, Stamping his own signature and has obtained signature of the Developer/Builder till today therefore, Opposite Parties could not take further steps for registration of tri partite agreement.

12) It is contention of the Opposite Parties that the draft of Agreement to Sale was submitted to the Complainant with a direction to execute the same with the builder. The Opposite Parties being competent authority has allotted and handed over physical possession of the flat under the said scheme to the Complainant on 28/11/2002. The Complainant instead of finalizing the draft for Agreement to Sale with Developer/Builder paid Stamp Duty. The Opposite Parties have denied rest of the allegation made in the complaint. It is submitted that the Complainant has to comply with required terms and conditions alongwith the execution of Agreement to Sale in respect of the said flat with the developer. Inspite of complying aforesaid terms and conditions the Complainant has filed this complaint in this Forum without joining the Developer/Builder as a party to the complaint. There is no deficiency in service on the part of Opposite Parties therefore, present complaint is liable to be dismissed with cost. 
 

13) The Complainant and Opposite Parties have filed their respective written arguments. Heard oral submissions of the Complainant and Ld.Advocate, Mr.N.S.Vaidya for Opposite Parties. Following points arises for our consideration and our findings thereon are as under – 

Point No.1 & 2 :- Following facts are admitted facts -  

That the Opposite Party No.1 - the Municipal Corporation of Bhrihan Mumbai formulated a scheme known as “10 % Reservation Scheme” under the Urban Land (seeking and regulation) Act, 1976. Pursuant to the aforesaid scheme and directions given by the Hon’ble Bombay High Court, the Opposite Party vide their letter dated 29/10/2002 allotted the flat to the Complainant on ownership basis bearing Flat No.A/702 admeasuring 448.75 sq.ft. (built up) in the building known as Shiv Darshan in the Malpani Layout on C.T.S.No.2A to 2H of at Kandivali Village, Borivali (W), Mumbai – 92 and by the said letter Opposite Parties asked the Complainant to comply with the required terms and conditions stated in the allotment said letter. In compliance with the aforesaid order the Complainant paid on 11/11/2002 for Rs.1,39,112.50 paisa to the Opposite Party No.1 being a total price of the said flat vide challan no.8405 dated 11/11/2002. The Complainant has produced original allotment letter dated 29/10/2002 and photo copy of the receipt dated 11/11/2002 of depositing an amount of Rs.1,39,112.50 paisa with the Asstt. Commissioner (Estate) of the Opposite Party. It is also admitted fact that Opposite Party on 28/11/2002 handed-over actual possession of the aforesaid flat bearing no.A/702 to the Complainant. Copy of receipt of hand-over possession is produced by the Complainant at Exhibit-“C” is annexed to the complaint.  

It is the case of the Complainant after taking possession of the aforesaid flat by letters dated 28/03/2003, 13/01/2004 & 23/11/2004 he requested the Opposite Parties for taking necessary steps for preparation and registration of the Deed of Agreement to Sale of the said flat. According to the Complainant, inspite of repeated requests the Opposite Parties did not comply with the request of the Complainant so on 13/12/2004 he issued legal notice to the Opposite Party No.2 and thereby called upon Opposite Party No.2 to comply with the requirement and to execute the Deed of Conveyance. By letter dated 19/10/2005 the Complainant again requested concerned Officer of the Opposite Party No.1 to prepare a document for Agreement to Sale of said flat and for arranging appointment of Sub-Registrar for registration of said document. It is submitted that on 19/10/2005 the Complainant collected “un-executed draft copy of the proposed Agreement to Sale” from the office of State Department of Opposite Party No.1 and thereafter the Complainant paid Stamp Duty of Rs.750/- in the Bank. The Complainant has produced on record the photo copy of the challan dated 26/12/2005 issued by the Janata Sahakari Bank Ltd., Dadar, Mumbai. Opposite Party have also admitted the facts that the Complainant has paid Stamp Duty of Rs.750/- as stated in the complaint. According to the Complainant, inspite of his repeated demands, the Opposite Parties have not taken any steps for execution of Agreement to Sale of the said flat in favour of the Complainant. Shiv Darshan Cooperative Housing Society Ltd. in which the said flat is situated is not accepting the Complainant as a member of the Society as Opposite Party have not executing register Agreement for Sale of the said flat in his favour and therefore, he has filed this complaint.  

          In the written statement para no.10 it is averred by the Opposite Parties that in pursuant to the letter of request by the Complainant the Opposite Parties replied the same and thereby requested to the Complainant to come forward to enter into an Agreement to Sale and Registration. However, inspite of request, the Complainant himself refused and neglected to enter into Registration of the said Agreement to Sale of the said flat. The Opposite Parties have not produced on record copies of so called letters sent to the Complainant. Absolutely there is no evidence to support contention that the Complainant himself refused and neglected to enter into registered Agreement to Sale of said flat. On the contrary the Complainant has produced on record copies of number of letters sent to the Opposite Parties requesting to execute Agreement to Sale and register the said document. Therefore, we not find substance in the aforesaid contentions raised by the Opposite Parties. Second contention raised by the Opposite Party i.e. the building in which flat in-question is allotted to the Complainant under 10 % scheme is constructed by Developer/Builder and in view of the same execution of Agreement to Sale is to be executed by Developer/Builder and the Opposite Parties. It is contended that the Complainant did not call upon and made the Developer as Opposite Party therefore, complaint is liable to be dismissed. It is further submitted that the Complainant has not submitted copies of tri partite agreement to Opposite Party No.1 nor he has taken necessary steps, such as, Stamping, signing the said agreement and obtaining signature of the Developer/Builder on the said agreement.  

        The Opposite Parties have not disclosed name of the builder who constructed the said building. There is no documentary evidence to support contention of the Opposite Parties that Opposite Parties had called upon Complainant to execute Tri Partite Agreement and to obtain signature of the Developer. 

         In the instance case, Opposite Parties vide their allotment letter dated 20/10/2002 have allotted Flat No.A/702 in a building known as Shiv Darshan, situated in C.T.S.No.2A to 2H of at Kandivali Village, Borivali (W), Mumbai – 92. By the said letter the Opposite Parties called upon the Complainant to pay cost of construction for Rs.1,39,112.50 paisa collected @ 310 per sq.ft. built up either in cash or in demand draft in favour of MCGT in the office of Asstt. Commissioner (Estate) of Opposite Party No.1. Opposite Party No.1 has accepted the entire price of the said flat under the said scheme from the Complainant and Asstt. Commissioner (Estate) of Opposite Party handed-over possession of the said flat to the Complainant on 28/11/2002. In the allotment letter as well as subsequent correspondence, the Opposite Party have not disclosed name of the Developer/Builder who constructed the building. On the contrary Opposite Party No.1 has accepted entire consideration of the flat and handed-over its possession to the Complainant. Developer was not a party to above said transactions. Therefore, Opposite Parties are under legal obligation to execute registered Agreement to Sale of flat in favour of the Complainant by taking necessary steps and to obtain consent of Developer, if required.  

In this case inspite of repeated request from the Complainant Opposite Party have failed and neglected to execute registered Agreement to Sale of flat in-question in favour of the Complainant and it amounts to deficiency on the part of Opposite Party. As discussed above, the Opposite Party are under legal obligation to execute register Agreement to Sale of said flat in favour of the Complainant and therefore, we answer point no.1 & 2 in the affirmative.
 

Point No.3 :- As mentioned above after taking possession of the flat in-question the Complainant has deposited an amount of Rs.750/- towards Stamp Duty in Janata Sahakari Bank Ltd., Pune. It is submitted on behalf of the Complainant that inspite of repeated requests, Opposite Party have not executed register Agreement to Sale of said flat for which he has deposited Rs.750/- + Rs.11/- i.e. Rs.761/- towards Stamp Duty on 26/12/2005. In view of provisions of Bombay Stamp Act, 1958 amount of Rs.750/- deposited by the Complainant on 26/12/2005 is lapsed as period of more than 6 months is over and therefore fresh payment of Stamp Duty is necessary. The Complainant has requested to direct Opposite Party to pay necessary Stamp Duty and Registration fees. Ld.Advocate for the Opposite Party has submitted that now a days Stamp Duty and Registration charges are increased and it is the responsibility of the Complainant to pay Stamp Duty as registration charges. As discussed above, actual possession of the flat was delivered to the Complainant on ownership basis on 28/11/2002. Thereafter from time to time the Complainant requested Opposite Parties to execute necessary Agreement to Sale and on 26/12/2005 he had deposited Stamp Duty, however, the Opposite Party have deliberately neglected to execute Agreement to Sale of said flat in favour of the Complainant. Considering aforesaid fact and the deficiency in service on the part of Opposite Parties we think it just to direct Opposite Parties to incur necessary charges of Stamp Duty and Registration fees of execution of Registration of Agreement to Sale of the said flat in favour of the Complainant. Hence, we answer point no.3 in the affirmative. 
 

Point No.4 :- The Complainant has prayed for compensation of Rs.50,000/- for mental agony and harassment and for other reliefs. Taking into consideration facts and circumstances of the case, and that opposite parties are directed to incur necessary charges of Stamp Duty and registration of Agreement to Sale of said flat. We think it just to direct Opposite Parties to pay Rs.10,000/- as compensation towards mental agony and harassment and Rs.1,000/- as cost of this proceeding. Hence, we answer point no.4 accordingly.
 

For the reasons discussed above, the complaint is partly allowed & we pass following order -
 

O R D E R
 

i.Complaint No.49/2007 is partly allowed.
 

   para no.2 of the complaint.  

iii.Opposite Party No.1 & 2 shall bear necessary charges of Stamp Duty and Registration fees of aforesaid document of Agreement to Sale of the said flat. 

    this proceeding to the Complainant. 

   order, Opposite Party No.1 & 2 shall be liable to pay penalty of Rs.100/- (Rs.One Hundred Only) per day to the Complainant for the delay.