Order-12.

Date-26/04/2017.

        Shri Kamal De, President.

This is an application u/s.12 of the C.P. Act, 1986.

            The case of the complainant, in short, is that complainant no.1 Smt. Namita Roy is the widow of Late Partha Sakha Roy and complainant no.2 Sri Saurish Roy is the son of Late Partha Sakha Roy, both of them are sole legal heirs of Late Partha Sakha Roy in respect of floor space flat and parking space as stated in the petition of complaint.  Shri Partha Sakha Roy during his lifetime has entered into two agreements viz.,(1) one on 23-09-2003 and another on 17-06-2005.  In the first agreement dated 23-09-2003 Partha Sakha Roy since deceased had agreed to purchase super built-up floor space containing 600 sq. ft more or less on the 5^th floor on the south east portion of the building which includes proportionate share of common space and was identified as room No.R/5/1 in the 5^th floor together with undivided proportionate interest in the land of the said property as described in the 2^nd schedule.  In the 2^nd agreement dated 17-06-2005 Partha Sakha Roy since deceased had also agreed to purchase two car parking space for parking of two Maruti 800 cc cars in common with other purchasers of car parking space in the said basement on payment of extra price.  Partha Sakha Roy during his lifetime had made full payment of consideration money of both floor space/office room and car parking space.  He paid Rs.8,40,000/- as consideration for the office floor and Rs.2 lakh for car parking space on 20-06-2005.  Partha Sakha Roy intended to purchase room no.R/5/1 on 5^th floor and two parking spaces in connection with running his business which was his only livelihood.  He passed away on 16-10-2014 leaving his wife and minor son Sri Saurish Roy, Smt. Namita Roy, widow of Partha Sakha Roy has been running the business for livelihood of the family.  OP is a company incorporated under the Companies Act.  OPs delivered the possession of office room No.R/5/1 on 19-07-2005 and also delivered the parking space on 07-11-2005.  The complainants have deposited property tax and also had taken electric connection etc.  Partha Sakha Roy during his lifetime requested the OP verbally to arrange to get the Deed of Conveyance registered but the OPs did not pay heed to the request.  A long period had elapsed and the property in question remained unregistered.  Partha Sakha Roy died on 16-10-2014 after suffering from a critical disease for a prolonged period.  After the demise of the husband, complainant no.1 tried to contact with the OPs through one of her relatives at the beginning of 2015 but no fruitful result yielded though the complainant had been continuing negotiation since early part of 2015.  Complainants have prayed for execution and registration of the Deed of Conveyance.  Hence, this case.

            OPs have contested the case in filing written version contending, inter alia, that the instant case is false, frivolous and not maintainable in the eye of law.  It is stated that Partha Sakha Roy since deceased, the husband of the complainant entered into two agreement for sale dated 23^rd September, 2003 and 17^th June, 2005 for purchase of one office room being No.R/5/1 on the 5^th floor, South West Portion of Premises No.113A, Acharya Jagadish Chandra Bose Road, Kolkata – 700 014, containing a super built up area of 600 sq. ft. more or less and two parking spaces being Nos.14 and15 in the basement of the said premises.  The said agreements were acted upon for all practical purposes and upon payment of entire consideration amount of Rs.10,40,000/- the said Partha Sakha Roy, since deceased was put in possession of the said office room under the agreement on 19-07-2005 and the car parking spaces on 07-11-2005.  It is also stated that according to Clause VIII of Article XII of the Agreement dated 23-09-2003 the Deed of Conveyance shall be executed within 3 months from the date of possession.  Since, 07-11-2005 the said Partha Sakha Roy did not turn up nor made any contact with the OPs for required registration for the office room and parking space.  It is also alleged that after 7^th November, 2005 neither Partha Sakha Roy nor any of his legal heirs expressed their willingness for registration of the above said properties.  It is also alleged that Namita Roy did not inform even regarding the demise of Partha Sakha Roy.  At the end of 2015 one relative of Partha Sakha Roy informed the OPs that the legal heir of said Partha Sakha Roy since deceased expressed their desire for registration of the properties.  Accordingly, the OPs had taken steps for preparation of Deed of Conveyance and for obtaining valuation of the property from the registration office, OPs had filed a Query Form.  From the said Query it shows that at present the valuation of the said property along with car parking space is Rs.1,07,00,663/- for which stamp duty and registration fees are estimated be Rs.7,49,069/- and Rs.1,17,714/- respectively.  The OPs informed the relative of the said  Partha Sakha Roy regarding the matter but no answer received from their end.  It is also stated that according to Section 43CA of Income Tax Act effective from 01-04-2014 where the consideration for transfer of assets (other than Capital Assets) being land or building or both, is less than the stamp duty value so adopted (or assessed or assessable) shall be deemed to be full value of the consideration for the purpose of computing income under Profits and Gain of business or profession.  It is also stated that the OPs shall have to pay Income Tax on the difference between Rs.1,07,00,663/- and Rs.10,40,000/- which will amount to approx Rs.27 lakhs for which the OPs are not at fault.  It is alleged that the situation has arisen out of the inaction on the part of Partha Sakha Roy since deceased including the complainants.  The OPs have also denied all the allegations against them.  it is also denied that Partha Sakha Roy during his lifetime requested the OPs verbally for registering the property or the OPs did not pay heed to his request.  It is also stated that no demand draft or cheque was received by the OPs from Shri Roy, since deceased for registration charges as mentioned in agreement dated 23-09-2003.  It is stated that neither Partha Sakha Roy nor his legal heirs took any initiative for registration of the aforesaid properties in terms of Clause VIII of Article XII of the Agreement dated 23-11-2003.  It is, however, stated that the OPs are ready to execute the registration in favour of the complainants if the complainants pay all the costs charges expenses on account of Stamp Duty for Registration of the Deed of Conveyance and other charges as mentioned in the Clause VIII of Article XII dated 23-11-2003 along with taxes, charges applicable as per the provision of Section 43CA of Income Tax Act, 1961, (as amended up date) which the OPs are required to pay u/s.43CA of Income Tax Act, 1961.

Point for Decision

1. Whether there is any deficiency in service on the part of the OP?
2. Whether the complainant is entitled to get the relief as prayed for?

Decision with Reasons

We have perused the documents on record including the photocopies of the agreement dated 23-09-2003 and 17-06-2005.  It appears that Partha Sarathi Roy since deceased, husband of complainant no.1 purchased space measuring 600 sq. ft. the super-built up more or less on the 5^th floor on the South East Portion of the building namely Moulali Plaza and Residence Welfare Association being Office Room No.R/5/1 situated at 113A, AJC Bose Road, Kolkata – 700 014 by an agreement dated 23-09-2013.  The possession was delivered by the OP to Shri Roy on 19-07-2005 since deceased.  By another agreement dated 17-06-2005 Shri Roy also purchased two car parking spaces in the said building for a consideration of Rs.2 lakhs and the OPs delivered the possession of the two car parking spaces to Shri Roy on 17-11-2005.  It appears that Shri Roy passed away on 16-10-2014 leaving behind as the legal heirs namely Smt. Namita Roy, wife i.e. complainant no.1 and Shri Saurish Roy, son i.e. complainant no.2.  In the agreement dated 23-09-2003 Clause (vii) of Article XII reads as follows .

“Any delay or indulgence by the Vendor in enforcing the terms of Agreement or any forbearance on giving of time to the Purchaser shall not be construed as a waiver on the part of the Vendor for any breach or non-compliance of any of the terms and conditions of this Agreement by the Purchaser nor shall the same in any manner prejudice the rights of the Vendor against the Purchaser on this regard”.

And

Clause (viii) of the said Article XII of the said Agreement dated 23-09-2003 provides that “At or before taking over the possession of the said unit the Purchaser shall deposit with the Vendor al the costs, charges and expenses on account of stamp duty for registration of the Deed of Sale and other charges.  After delivery of possession of the said flat on payment of all dues as provided hereinbefore, the Deed of Conveyance shall be executed within 3 months from the date of possession”.

The instant case has been filed after more than 12 years from the date of delivery of Permission of the Duration in question.  Time is the instant case appears to be essence of contract as per stipulation of Clause (viii) of the Article XII of the Agreement dated 23-09-2003.

Section 55 of the Contract Act is very much clear regarding the truism of law when the time is the essence of contract.  We find that the contract dated 23-09-2003 provides time as the essence of contract and there is no provision for extension of time for registration.

There is no documentary evidence forthcoming before us that Shri Roy, since deceased since taking possession persuaded or approached to the OP parties for registration purpose.  He did not also deposit any amount to be incurred for stamp cost, registration charges etc. on the part of the purchaser till death.  At the fag end of 2015, the complainants through a relation contacts the OPs for registration of the Deed of Conveyance in respect of properties in question.  Moreover, we find that the complainant was aware by early part of 2014 that the Deed of Conveyance of the said property in question is not registered.  From the Evidences on Record it appears that the complainant no.1 has stated that she came to know that the flat was not registered when Partha Sakha Roy has been seriously ill and suffering from blood cancer and the complainant no.2 came to know this fact when he became adult.  The complainant has also stated in cross, “Soon after the death of his mother Partha Sakha Roy became seriously ill.  His mother died on 25-12-2013”  so, from the Evidences on record it can be construed that the complainants came to know the property in question was not registered sometime in the early part of 2014.  We have no documentary evidences that the complainant approached the OPs even then or deposited the stamp duty and other charges for registration purpose.   So the question of deficiency in service on the part of the OPs does not arise.  In fact, the OP has not also stated about deficiency of service in the four corners of the petition of complaint.  Save and except the recital that the OPs die not arrange for registration of Deed of Conveyance in time, we have no documentary evidences on record that Partha Sakha Roy approached the OPs for Execution and Registration of the Deed of Conveyance in respect of the property in question.  The is also no document on record that Partha Sakha Roy since deceased paid any amount of registration cost or stamp duty for registration of the Deed of Conveyance.  It is argued from the side of the Ops that an amendment to the Income Tax Act 1961 was effected through insertion of Section 43CA on and from 01-04-2014.  According to Section 43CA of Income Tax Act, 1961 “where the consideration for Transfer of Assets (Other than Capital Assets) being land or building or both, is less than stamp duty value was adopted (or assessed or assessable) shall be deemed to be full value of the consideration for the purpose of computing Income under profits and gain of business or profession”.  We find that Shri Roy paid Rs.10,40,000/- as consideration money towards the said flat and car parking spaces on or before 07-11-2005.  We also find that the registration of the flat and the car parking spaces could not be carried by the vendor as Shri Roy did not deposit with the Vendor the cost of registration charges at the time of taking possession of the said properties on 19-07-2005 and 07-11-2005 as stipulated in the agreement on 23-09-2003.  So, we do not find any negligence or deficiency of service on the part of the OPs as such.  It is stated from the side of the OPs that when the complainants through their relatives contacting the OPs for registration of the Deed of Conveyance sometime in the fag end of 2015 the properties were valued by Stamp Duty Authorities as Rs.1,07,00,663/-.  But no Query Report, however, is filed before us from the side of the OPs.

            We apparently do not find any deficiency of service on the part of the OPs but OPs as we find have stated in the written version that OPs are ready to execute the registration in favour of the complainants subject to the fact that complainants shall pay all cost, charges, expenses on account of stamp duty for registration of the Deed of Conveyance and along with the charges applicable as per Provision of Section 43CA of Income Tax Act, 1961 as amended up to date which the OPs are required to pay u/s.43CA of Income Tax, 1961. 

Hence,

Ordered

That the instant case be and the same is allowed on contest against the OPs. 

            The OPs are jointly and severally directed to execute and register the Deed of Conveyance in respect of the properties in question before the Registering Authorities within 40 days from the date of this order subject to the fact that complainant will pay all costs, charges, expenses on account of stamp duty for registration of Deed of Conveyance and other charges as mentioned in Clause (viii) of Article XII of the Agreement dated 23-09-2003 and also subject to the condition that the complainant is to provide an undertaking for payment of Income Tax u/s.43CA of the Income Tax Act, 1961 as amended up to date if demand for the payment of said tax if raised upon the OPs by the Income Tax Department. 

In the facts and circumstances, we make no order as to cost or compensation etc.