Complainant by filing this complaint has submitted that he intended to purchase a self contained flat from the ops on paying the full consideration money of Rs.2 lakhs and op no.1 has acknowledged and received the said amount towards the full sale price of the flat as described in the schedule-B of the complaint and op no.1 for self and on behalf of the op nos. 2 & 3  received the full consideration amount of the said flat and also delivered them the possession of the said flat after executing a deed of agreement for sale on 30.01.2001.

          Thereafter ops did not execute the sale of deed, though complainant repeatedly requested the ops to execute the same and though complainant paid the entire consideration amount of the agreement to sale.  In the above situation, complainant for negligent and deficient manner of service filed this complaint praying for relief stating that on different dates from 24.11.2000 to 21.06.2001 complainant paid Rs.2 lakhs by installment and that was acknowledged by the op no.1 for self and on behalf of the other ops and in the circumstances, he prayed for directing the ops to execute the deed of sale.

          Against the above assertion of the complainant or allegation of the complainant, op by filing written statement submitted that he received Rs.2 lakhs on different dates by way of an account payee cheque as Developer for his allocated portion and trust upon the complainant, in the instant case, op delivered possession of the flat considering the version of the complainant that he will pay balance amount by installments along with the charges of extra work but till today the complainants did not comply the same and for which there was no question of executing the said deed of sale.  But as and when the balance amount would be paid invariably op shall have to execute the same.  But op has submitted that the entire complaint shall have to produce the deed of agreement for sale but that has not been filed and if it is not filed in that case there is no question of allowing this complaint.  At the same time op has denied to execute of the sale deed for that.

          Other ops did not appear to contest this case, so against them case is heard exparte.

                                                Decision with reasons

          In the present case after hearing the argument of the Ld. Lawyers of both the parties and also considering the complaint and written version of op no.1, it is found that it is the contention of the Ld. Lawyer for the op that in fact original agreement for sale is not produced by the complainant and for which the said document is not inserted in this case and then how the Ld. Forum can rely upon the agreement.  But in this regard Ld. Lawyer for the complainant submitted that it is admitted position that complainant is in possession of the said flat and it is also admitted fact that op no.1 received Rs.2 lakhs.  But anyhow from the possession letter it is found that possession was delivered on 20.06.2001 and thereafter from the version of the op, it is found that op has not executed the same as he is claiming further amount as balance amount was not paid.  But balance amount had already been paid on different dates within the period from 24.11.2000 to 21.06.2001by cheque and that was admittedly encashed by the op no.1.  Then how the op no.1 can deny execute the deed of agreement for sale.

          No doubt considering the document of the Ld. Lawyer of both the parties and also the copy of the agreement dated 30.01.2001, it is found that one agreement was alleged to have been executed.  But original agreement is not in record and complainant has not stated in his complaint what happened about original agreement.

          But in this regard, Ld. Lawyer for the complainant has submitted that the original agreement is in the custody of op but op has submitted that he is not custodian of any such agreement and no original agreement was actually executed by him.  But legal position is that the complainant must have to produce the agreement to sale because it is vital to hold agreement to sale, then original agreement must be produced by the complainant, otherwise relying upon the copy of agreement we may not accept it as evidence in support of the complainant’s case.  Though it is fact that complainant is in possession what is admitted by the op.  But when vital document that is agreement to sale is registering and is not produced, in that case under any circumstances no relief can be granted, may be complainant is in possession but for that reason complainant shall have to take such step before the Civil Court and further fact is that complainant has miserably failed to prove the original agreement to sale dated 30.01.2001 on the strength of which complainant has filed this complaint.

          In this case Ld. Lawyer for the complainant argued in such a fashion that the possession has been delivered and a sum of Rs.2 lakhs has been accepted by the op, then op shall have to explain for what reason he delivered the possession and received Rs.2 lakhs.  But it is to be mentioned in this regard that it is the mandatory provision of Consumer Protection Act 1986 that complainant who has brought the allegation against any Promoter or Developer, he must have to prove at first that there is a valid agreement in between him and Promoter and Developer and that valid agreement to sale must be submitted to prove it as document of agreement to sale otherwise it is impossible for the Forum to come to a conclusion and for which in the present case we have failed to enter into the merit of this case only on the ground that complainant has failed to produce the original agreement to sale dated 30.01.2001 and fact remains that op has denied the allegation of the complainant in respect of the execution of the agreement to sale. 

          But it is equally true that complainant has tried to convince that original agreement is in the custody of the op no.1 but such a defence of the complainant is nowhere in the complaint and such a defence cannot be believed in view of the fact as per law the agreement to sale shall be in the custody of the purchaser.  But in the present case, it is not in the custody of the purchaser and for which we are not in a position to decide the dispute for want of original document of agreement to sale.

          On the other hand op produced one copy of agreement dated 24.11.2000 and submitted that the original copy is lying with the complainant but complainant denied the signature appearing in the said agreement as his signature and also in the custody of his said original one and no doubt from that copy of agreement dated 24.11.2000 it is found that it was executed in between Bidyut Chakraborty and Indrajit Dutta and in the said copy of agreement to sale, it is found that for 198 Sq. Ft., Rs.3,25,000/- was fixed and as per that agreement after payment of Rs.1,75,000/- final conveyance deed would be prepared and in the said copy it is written that the said deed of sale shall be handed over to Smt Sandhya Dutta and Indrajit Dutta for registration.  But anyhow complainant has not produced the original and denied the existence of such document.  So, we have gathered that 2 xerox copies of agreement to sale, one dated 24.11.2000 and another dated 30.01.2001  are in before this Forum and in the above situation we find that complainant has failed to prove for what reason 2 copies of agreement to sale are before this Forum in respect of the present flat and after considering both the agreement to sale we have gathered that probably this complainant Indrajit Dutta was a man of the op no.1, who relied upon him and delivered possession and for some business purpose 2^nd agreement of sale was executed but ultimately when complainant found that it is not possible to pay another Rs.1,75,000/-.  He somehow or otherwise produced the 2^nd agreement to sale and in this regard it is pertinent to mention that in respect of a sale of one flat there must be one agreement to sale and in all cases agreement to sale which is executed earlier shall be considered as substance but in the subsequent agreement to sale the cancellation of the previous agreement to sale is not mentioned and in the present case we have gathered that complainant has not appeared before this Forum with clean hand and truth is that agreement to sale was executed on 24.11.2000 and total consideration was Rs.3,75,000/- and complainant paid Rs.2 lakhs only.

          But thereafter he failed to pay it since 2001 and no doubt the op no.1 is entitled to balance amount of Rs.1,75,000/- which has not been paid by the complainant even after received of the possession as on 20.06.2001.  Then we are convinced to hold that for the latches of the complainant, it could not be executed by the op and complainant has failed to prove for what reason he did not paid the balance amount of Rs.1,75,000/- and he was sitting idle since 20.06.2001.  Moreover it is found from the record that in the complaint, there is no such explanation why the complainant was sitting idle since 20.06.2001 and till the filling of this complainant on 29.09.2010 that means long after 8 years he filed this complaint and another fact is that complainant intentionally to avoid further payment of Rs.1,75,000/- and to deceive the Developer, he produced the 2^nd copy of agreement.  But he is well aware of the fact that first agreement was there which was dated 24.11.2000 and final payment was made on 24.11.2000.

          After applying judicial conscience and mind and also considering the two document the agreement to sale we are confirmed that complainant failed to pay balance amount of Rs.1,75,000/- out of Rs.3,75,000/- in respect of the present flat since 2001and total consideration of the flat was not Rs.2 lakhs.  But it was Rs.3,75,000/- and in the above situation we find that for the latches of the complainant, practically this deed of conveyance could not be executed by the ops and practically complainant’s cause of action to file this case arose in the year 2003.  But complainant was sitting idle and thereafter adopted unfair path and produced 2^nd agreement to sale.  But even then considering the entire materials we are confirmed that op no.1 the Developer is entitled to Rs.1,75,000/- since 2001 and in the meantime this amount must be paid by the complainant with 10% interest and invariably complainant shall have to pay at least Rs.3,00,000/- which is including interest at first within one month from the date of this order before this Forum and thereafter op shall have to execute the deed of sale within one month from the date of the deposit of the said amount by the complainant and if complainant fails to comply the same within one month from the date of this order, in that case complaint shall be treated as dismissed and in that case op no.2 shall have to pay Rs.2 lakhs to the complainant without interest subject to vacating the flat in favour of the op no.1 and accordingly this complaint decided finally.

          Hence, it is

                                                      ORDERED

          That the complaint be and the same is allowed on contest with such conditions as already mentioned in the body of the judgement but without any cost.

          Complainant is directed to deposit Rs.3,00,000/- within one month from the date of this order as balance consideration amount including interest before this Forum and after deposit of the same ops are directed to execute the sale deed in favour of the complainant and if complainant fails to pay the same, in that case, the present complaint shall stand dismiss when the op shall get such chance to get possession of the flat subject to payment of Rs.2,00,000/- which has been paid as advance by the complainant from the date of vacating the flat because in the mean time complainant has enjoyed the flat and for which complainant is liable to pay rent but that is exempted and only op shall have to pay Rs.2,00,000/- without any interest from the date of vacating the flat in favour of the op no.4.

          Parties to comply the order and if complainant complies this order, op shall execute the deed of sale, otherwise complainant shall pray for execution the same through this Forum invariably on deposit of the said amount in default complaint shall stand dismiss and alternative relief shall be enjoyed by the parties.