The fact of the case as revealed from the petition of complaint as well as from the evidence is that Kingshuk Chatterjee, Debosmita Chatterjee, Anup Agarwala, Mazharul Islam Khan become the owner of the property as mentioned in the schedule of the petition of complaint. The devolution of property in favour of those persons has been mentioned in the petition of complaint as such this Forum is not discussing the devolution of property in favour of the aforesaid owners as because this is not a suit for declaration of title. The fact of the case is that the owners of the ‘A’ schedule property viz. Kingshuk Chatterjee, Debosmita Chatterjee, Anup Agarwala, Mazharul Islam Khan and Arun Agarwala jointly formed a partnership farm in the name and style of “Damboli Construction” for carrying out business of promotion, development and construction of multistoried building for commercial gain with its place of business at 113/31 Bangal Tuli Lane, Hyderpur, P.S. E.B. By executing a deed of partnership executed on the 10th of July, 2012 among the partners and the said partnership came into force on and from 15/04/2012. The said partnership farm was created for development, promotion and construction of multistoried commercial, residential building for commercial gain such as sale of flats, garage etc. The complainant was desired of purchasing a flat of the said multistoried building known by name “Dhupchhaya Apartment” and the said partners were agreed to sale one flat on the 5th Floor being Flat No. 5 D measure a covered area more or less 967 sq. ft. @ Rs. 2,400/- only per sq. ft. along with a garage at the south east corner of the ground floor being Garage No.1 from that side and the consideration amount comes to Rs. 23,16,000/-. The complainant paid Rs. 5,00,000/- (Rupees Five Lakhs Only) vide cheque on 21/08/2014 in favour of this farm and authorized signatories on behalf of the farm issued receipt to that effect. There after the complainant paid Rs.6,00,000/- (Rupees Six Lakhs Only) on 15/09/2014. The complainant total amount paid was Rs. 11,00,000/- (Rupees Eleven Lakhs Only). A deed of agreement for sale in respect of the flat was executed between the parties. In agreement it has been mentioned that the remaining amount will be paid by the complainant in favour of the farm at the time of handing over the flat. In the agreement it has been mentioned that it will be constructed within three months from the date of agreement for sale and will be handed over within December, 2016. Otherwise the owners will pay 2 % interest per month against the advanced amount paid by the complainant. In spite of taking advance and executing the deed of agreement for sale as O.P.s did not give the registration in respect of the flat and the O.P.s did not register the sale deed in favour of the complainant. This is why he has come to this Forum with a prayer for giving a direction upon the O.Ps. to register the flat in favour of the complainant after releasing the remaining amount along with other prayers.
The petition has been contested by O.P. Nos. 1, 5 and 6 by filing written version denying all the material allegations as leveled against the O.Ps. The definite defense case is that the flat in question has not been completed in due time due to scorching heat in summer and due to heavy rain at the time of monsoon. The O.Ps are ready to deliver the flat in favour of the complainant in question and also to register the flat in favour of the complainant after realization of the next consideration amount. There was no deficiency in service on the part of this O.P. and they prayed for that. The Ld.Forum may be pleased to pass necessary order for registration of the flat after realization of the remaining amount. Separately O.P. Nos. 2 and 3 filed the written version stating the same fact as mentioned by the other O.Ps stated above and the case of the O.P. nos. 2 and 3 is that these O.Ps are ready to deliver the flat to the complainant on payment of rest amount and there is no deficiency of service. O.P. No. 4 also filed separate written version denying the fact that this O.P. did not put any signature in the sale agreement nor the complainant Avishek Roy himself approached for booking of the flat at any time. The case of the O.P. No.4 is that Arun Roy father of the complainant is also an active promoter of Damboli Construction has expressed his desire to buy flat by paying an amount of Rs. 5,00,000/- (Rupees Five Lakhs Only) as consideration amount for booking of the flat on condition to make sale agreement in favour of his son Avishek Roy by paying further amount at an earliest. The further case of the O.P. No.4 is that there was no deficiency in service as the complainant has failed to supply the pre-requisite.
In order to prove the case the complainant himself was examined as P.W.-1 and accordingly examined and during the trial the complainant has proved and marked the documents as Ext.-1 to Ext.7(a) as per the exhibited list. On the other hand today on behalf of O.P. Nos. 1,2,3,5 and 6 Arun Kr. Agarwala was examined as O.P.W-1 and cross-examined. On the other hand O.P. No. 4 was examined himself as O.P.W-2 and cross-examined.
Now the point for determination.
::DECISION WITH REASONS:
Whether the complainant is entitled to get any relief as prayed for?
On perusal of the cross-examination of the O.Ps it is found that the O.P. Nos. 1,2,3,5 and 6 have no objection if any order is passed in favour of the complainant. On the other hand the O.P. No.4 has stated in his cross-examination that he has no objection to pass any order in favour of the complainant if the rest amount is paid and the O.Ps are agreeable to execute the deed of registration for sale of flat in favour of the complainant as and when the O.Ps are agreeable to execute the sale deed in favour of the complainant after releasing the rest amount and the complainant also prayed for an order in the same fashion to the effect that the Ld.Forum may pass an order in favour of the complainant for execution of the sale deed. As the O.P.s have admitted the same fact so there is no bar to pass an order in favour of the complainant.
C.F. paid is correct.
Hence, ordered that
the case be and the same is allowed on contest without any cost.
The complainant gets an order in his favour against the O.Ps for execution of the sale deed in favour of the complainant and the complainant is directed to pay the rest amount to the O.Ps. The O.Ps are directed to receive the same amount and to execute the sale deed in favour of the complainant in respect of the flat as mentioned in the petition of complaint.
It is to be mentioned that the complainant will pay the rest amount within one month from the date of order and the O.Ps after receiving the amount will execute the sale deed within one month from the date of receiving the rest amount failing which the complainant will have the liberty to execute the deed of sale through process of law and the O.Ps will have to pay the interest as per agreement for delay of execution of sale deed and same to be registered in favour of the complainant after the lapse of time as mentioned above.
Let a copy of this order be given to the parties free of cost on proper application.
