Complainant by filing this complaint has submitted that one Bina PaniMazumdar (since deceased) daughter of Late ManindraMazumdar was the elder sister of the complainants.  That the said Bina PaniMazumdar was the tenant under the op no.1 in respect of 574 sq. ft. more or less excluding bath room, privy and garden/open space at and being premise no. 50D, Pottery Road, P.S.-Entally, Kolkata – 700015 at a monthly rental of Rs. 300/- only payable according to English Calendar month and said Bina PaniMazumdar along with her brother namely Sri Robin Mazumdar, the complainant no.1 had been residing at the said premises from last 35 years.  That the op no.1entered into an agreement for development with the op no.2 in the year 2003 and op no.1 had also given a power to the op no.2 on 18.06.2003 for develop the said property i.e. 50D, Pottery Road, P.S.-Entally, Kolkata – 700015 as per said agreement the developer/op no.2 had constructed a multistoried building over the said premises.

          After execution of the said development agreement both the ops were trying to evict the said Bina PaniMazumdar from her tenanted premises, who was an old aged lady and at that point of time she was residing at the said premises with her brother namely Robin Mazumdar who is also an old aged person.  That day after day the harassment upon the said Bina PaniMazumdar and her brother Sri Robin Mazumdar became intolerable and op nos. 1 & 2 along with their men and agent several times gave threat to Bina PaniMazumdar with dire consequences.

          After such activities with the help of some local people who were the well-wishers of Bina PaniMazumdar and her family, the developer and the land lord i.e. the op nos. 1 & 2 had entered into an agreement with the said Bina PaniMazumdar (since deceased) on 15.08.2007.  That as per said agreement the ops were agreed to sale out a self-contained flat measuring about 300 sq. ft. (covered area) on the ground floor at premises no. 50D, Pottery Road, P.S.-Entally, Kolkata – 700015 to the said Bina PaniMazumdar at a total consideration amount of Rs. 60,000/- only and the said Bina PaniMazumdar agreed to relinquish her tenanted portion i.e. 574 sq. ft. along with the open space/garden and the bath and privy to the ops and as per terms and conditions the said agreement said Bina PaniMazumdar paid a sum of Rs. 50,000/- in favour of the op no.2 the developer through 3 cheques vide nos. 232805 dated 15.08.2007 of Rs, 20,000/-, 232807 dated 11.10.2007 of Rs. 20,000/- and 232808 dated 05.11.2007 of Rs. 10,000/-.

          In the said agreement of sale it is clearly stated that the op no.2 the developer was handed over the said flat to Bina PaniMazumdar, since deceased within a stipulated period of two months from the date of execution of the said Agreement for Sale.  Though op handed over the possession of the said flat to Bina PaniMazumdar but did not execute the Deed of Conveyance in favour of Bina PaniMazumdar (since deceased) or her legal heirs till date.  The op handed over the suit flat without finished its complete work and without maintaining the specification which was mentioned in the said Agreement dated 15.08.2007 and already plaster work of the suit flat has been damaged.

          After expiry of the stipulated period for executing the Deed of Conveyance, the said Bina PaniMazumdar along with her brother visited and met with the op nos. 1 & 2 with a request to execute the Deed of Conveyance by taking the balance amount of Rs. 10,000/- but the ops on all occasion refused their request.  Ultimately the said Bina PaniMazumdar died on 21.09.2013 as spinster leaving behind her three brothers and one sister as her legal heirs who are the complainants.  After the death of Bina PaniMazumdar her three brothers and one sister the present complainants requested the ops several times for execution of the Deed of Conveyance in their favour after receiving the balance consideration amount, but all are in vain and ops did not execute the Deed of Conveyance.

          Finding no other alternative complainants sent letter to the ops through their Ld. Advocate on 16.11.2013 asking the ops for execute the Deed of Conveyance but inspite of receipt of the letter the ops did not take any steps for execution of the Deed of Conveyance.  Thereafter on 27.11.2013 some muscle men came to the suit property and threatened to the complainant no.1 who lived at the suit property with dire consequences and also asked the complainant to leave the suit property and they also asked the complainant not to inform the police authority about this matter and complainant no.1 is an old aged person and resides alone in the schedule property so he could not lodge any written complaint or any G.D. entry before the local police station due to fear.

          Finding no other alternative and considering the deficiency of service and negligent manner of service and also the manner of unfair trade practice and for non execution of the Deed of Conveyance, complainants jointly filed this complaint for redressal.

          On the other hand op no.1 by filing written statement submitted that she is the landlady and she has no connection with the op no.2/developer.  So, there is no point of making op no.1 as party in this case, she only gave the power to op no.2 to develop and sell, so the money was taken by op no.2 for making deed of conveyance.  So the liability lies on op no.2 not on op no.1 and op no.1 never received any such amount which was received by op no.2.  But it is admitted by the op no.1 that op no.2 received Rs. 50,000/- and it is the liability of the op no.2 to execute the Deed of Conveyance but all other allegations against the op no.1 are false and fabricated and op no.1 never deputed the muscle men and also never threated the complainant not to inform the police was totally false and fabricated.

          Further op no.1 has stated that she never saw the complainants, they are outsiders and the original tenancy bill was issued in the name of Bina PaniMazumdar not the complainant Robin Mazumdar and others and on the death of the tenant Bina PaniMazumdar the complainants came to the said tenanted premises and claimed their tenancy right as the legal heirs of the deceasedBina PaniMazumdar the original tenant and Bina PaniMazumdar was not paying rent to op no.1 since 1990, the rent of Rs. 300/- is deposited since 1990 till date to the Rent Controller office.  The flat was sold by the op no.2 not by op no.1 and the money was received by cheque by op no.2 to make the Deed of Conveyance.  So, op no.1 is no way connected with the matter.  So the complaint should be dismissed against op no.1.

          On the other hand by filing written version op no.2 has stated that the present complaint is not maintainable and the entire allegation is false and fabricated and it is stated that op no.2 was appointed as promoter and or developer in respect of constructing the building and the op no.2 had/has no power and or authority to execute the Deed of Conveyance to the said Bina PaniMazumdar and he has also stated that the entire allegation as made by the complainants is false and fabricated and complainants have suppressed all materials before this Ld. Forum on that ground the complaint should be dismissed with cost.

          It is further submitted that at any point of time Bina PaniMazumdar never came to the op and requested for receiving the balance amount for Deed of Conveyance but Bina PaniMazumdar was tenant she was given possession after construction of the building by the owner/landlady.  So, the present complaint should be dismissed.

Decision with reasons

          On in depth study of the complaint along with written version and also argument as advanced by the Ld. Lawyers of both the parties, it is found that about agreement of booking of flat dated 15.08.2007, it is no doubt a fact that agreement was made amongst the op no.2 and Bina PaniMazumdar.  But in the said agreement there is no signature of landlady Jamuna Rani Saha.  But it was executed by M.H. Sagar, the developer op no.2 and from the said agreement, it is also proved that M.H. Sagar op no.2, the developer no doubt received 3 cheques as mentioned in the complaint and it was encashed which is proved from the bank statement produced by the complainant and from the bank statement as produced by the complainant as material evidence, it is clear that agreement was in between the developer and Bina PaniMazumdar.  But it is admitted by the ops that Bina PaniMazumdar was the tenant in respect of the said holding and after reconstructing of the said building Bina PaniMazumdar was placed in a room as tenant.  But she had not been paying any rent to the Jamuna Rani Saha op no.1 and peculiar factor is that in respect of the said premises till now complainants are paying rent to Jamuna Rani Saha op no.1, to Rent Controller office.  So, it is fact that Bina PaniMazumdar on her death the present legal heirs of Bina PaniMazumdar are tenant under Jamuna Rani Saha op no.1. 

          But fact remains that Bina PaniMazumdar died on 21.09.2013 and burning ghat certificate is also filed and it is also proved from the said agreement that total consideration was fixed at Rs. 60,000/- and in the agreement it is specifically mentioned that Bina PaniMazumdar and his brother Robin Mazumdar shall get possession after completion of the said building and it is also mentioned in the said agreement that tenancy area will be vacated by the tenant subject to delivering the possession of her new flat in new building and developer and landlady also agreed to sale the same as per that agreement and it is specifically mentioned that Deed of Conveyance will be executed by the developer and owner.  But truth is that in the said agreement there is no signature or LTI of Jamuna Rani Saha op no.1.  So, it is an agreement in between the Bina PaniMazumdar and developer M.H. Sagar and truth is that possession has already been delivered to Bina Pani Mazumdar.  But at the time of advancement of argument it is submitted that the said agreement was executed long back in the year 2007 in the month of August.  Thereafter in the first part of 2008 possession was delivered and Bina PaniMazumdar took possession of the flat and had been enjoying and Robin Mazumdar also resides there.  But any point of time balance amount was not paid and no such eagerness for execution of the Deed was shown by them for which op no.2 failed to execute and register the Sale Deed and complainants also did not prepare any sale deed and did not make any verification by op no.2.  So, fault was on the part of the complainants but not on the part of the op and after taking possession in the first part 2008 complainant was sitting idle.  So, there is no cause of action and it is time barred.

          But after thorough consideration of the fact, it is clear that when possession was delivered, continued till cause of action shall be execution of the Deed of Sale and its registration by the op and for which as per law the present complaint is not barred by limitation and it is maintainable in the eye of law.  Anyhow after proper consideration of the Agreement to Sale dated 15.08.2007 and also considering the receipt of Rs. 50,000/- already by the developer on proper receipt and encashment we are convinced to hold that there is no other alternative on the part of the op but to execute the Deed of Sale and register the sale deed.  But truth is that complainant failed to pay Rs. 10,000/- even after taking possession of the flat in the first part of August 2008 and that is no doubt their fault on their part.   At the same time op failed to show that they also reported the complainant that they asked the complainant or Bina PaniMazumdar(since deceased) for execution and registration of the Sale Deed and to pay the sum of Rs. 10,000/- but no such document is produced by the op.

          So, we find that there is joint liability on the part of the parties of this case.  But anyhow it is admitted by the Ld. Lawyer for the op no.2 that op no.2 is always willing to execute and register the Deed of Sale.  But complainant are not paying any interest and are not preparing any such deed for execution and registration.  So it is the liability of the complainant.  Considering the entire fact and circumstances, we are convinced to hold that it is the legal duty of the complainant to pay Rs. 10,000/- along with composite interest of Rs. 5,000/- i.e. total Rs. 15,000/- to op no.2 on receipt of the same op no.2 shall have to execute and register the Sale Deed in favour of the complainant and it must be executed by both ops and if op no.2 is authorised by any registrar power of attorney in that case op no.2 shall have to execute the same.

          But legalreceipt must be given to the complainant on payment of Rs. 15,000/- by the complainant to op no.2.  Accordingly considering the whole aspect and materials we are convinced to hold that the complaint should be allowed by directing the ops to execute the Sale Deed and to register the same in favour of the complainants on receipt of Rs. 15,000/- from the complainants by the op no.2.

          Accordingly the complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest against the op no.2 with a cost of Rs. 2,000/- and same is allowed on contest against the op no.1 but without any cost.

          Ops are directed to execute the Sale Deed at the cost of the complainants within two months from the date of this order and in the meantime within one month complainant shall have to pay Rs. 15,000/- to op no.2 and op no.2 on receipt of the same shall execute the Sale Deed and register the same at the cost of complainant.

          In any case if ops fail to execute and register the Sale Deed even after tendering of Rs. 15,000/- by the complainant in that case complainants may file an execution case before this Forum for execution and registration of the Sale Deed.  But invariably within one month, complainant shall have to deposit the said amount before this Forum from the date of refusal of execution and registration of the Sale Deed by the ops.

          If op no.2 fails to execute and register the Sale Deed in that case op no.2 shall have to pay penalty of Rs. 30,000/- which shall be deposited to this Forum at once.

          Ops are directed to comply this order very strictly failing which legal proceeding shall be started against ops u/s 27 of C.P. Act 1986 and this Forum shall take such step for execution and registration of the Sale Deed at the cost of the complainant and if the Deed is required to be executed through this Forum in that case complainant shall have to bear all service charges and charges of the officers of this Forum who shall have to execute and register the Deed before the Registering Authority.