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

          Complainant by filing this complaint has submitted that complainant and his wife namely Aloka Chaudhuri entered into an agreement with the OPs on 27-09-2004 whereby they agreed to purchase and the OPs as vendor agreed to sell one flat containing a super built-up area of 970 sq. ft. being no.5D on the 5^th floor together with undivided proportionate share in the land and common areas and facilities of the multi-storey building named Shubham Plaza at Premises No. 83/1, Dr. Suresh Chandra Banerjee Road, P.S. – Beliaghata, Kolkata – 700 010 and on 27-05-2004 complainant’s wife agreed to purchase and the same at a final consideration of Rs.9,70,000/- and the complainant for purchasing of the said flat paid entire amount of Rs.9,70,000/- by acknowledging of the same by issuing receipt by Advocate namely Pankaj Saraf and Company which was duly acknowledge by issuing receipt on 27-09-2004 and on 12-07-2005 for preparation of the agreement for sale and deed of conveyance.  Thereafter OP handed over the possession of the 5D on the 5^th floor together with undivided proportionate share and other facilities to the complainant and the said agreement of sale of dated 27-09-2004 and it was agreed that from the date of taking possession within 12months from the final sale deed shall be executed and complainant keeping in mind the stipulated period as done in item no.part 3 of the said agreement for sale dated 27-09-2004 paid the advocates fees to the vendor’s advocate namely Pankaj Shroff & Company, Advocates and after taking possession of the said flat from the OPs repeatedly requested them to provide him with a draft of the Deed of Conveyance for his approval and also to inform him in advance about the date of execution and registration of the deed of conveyance.

          But in the meantime wife of the complainant namely Aloka Chaudhuri died on 17-02-2008 leaving behind complainant and only daughter, being the complainant no.1 and 2 as legal heirs and successors and on 03-09-2013 the complainant 1 sent a letter to one of the Directors of Merlin Builders Pvt. Ltd. through registered post with A/D to execute and register in respect of the case flat.  But no fruitful result has yet been achieved so again on 10-10-2012 but OPs deliberately avoiding the process of registration of the deed of conveyance in favour of the complainants even after receipt of the full consideration of the said flat and also the advocate’s fees of the OP, even after receipt of the fees and consideration did not act and in the above circumstances for adopting unfair trade practice and negligent and deficiency on the part of the OPs the complaint was filed for redressal.

          On the contrary OP by filing written version submitted that about receipt of money etc. there is no denial but fact remains on 25-04-2005 possession was delivered and complainant was silent till 02-09-2012 and no explanation for such delay in filing this complaint is mentioned.  Fact remains OP on several times asked the complainant for payment of the court fees etc. and registration but complainant did not pay any heed and moreover OP2 did not sign in the deed of agreement to sale and denied all over allegation and further submitted that as per agreement it must be decided by the Civil Court or by any arbitrator but complainant has not adopted it and moreover OP has submitted that the complainant is willing to comply the provision of Section 50(C) of Income Tax of 1961 in that case complainant shall have to pay taxes on the basis of the capital gain as per present market value according to Stamp Duty authorities in that case the OP shall execute the deed of conveyance in favour of the complainant 1.

Decision with Reasons

On hearing the Ld. Lawyers of both the parties and also considering the written version and particularly the market value assessment slab Annexure B dated 26-09-2013 it is found that present market value of the said property is fixed Rs.66,03,088/- and over that amount stamp duty is payable and at the same time fact remains the possession of the flat was delivered to the complainant by the OP long back on 25-04-2005.  Truth is that OP has admitted by his written version that OP shall execute the deed of conveyance in favour of the complainants but complainant must have to pay all charges and taxes as would be fixed.

          After proper assessment of the argument as advanced by the Ld. Lawyer of the OP and also considering the complaint it is clear that complainant admittedly got possession of the flat long back on 25-04-2009 but complainant has failed to show that after that he took any initiative for execution of the sale deed and he was sitting idle at the same time OP did not send any letter of the complainant asking any final deed but the OP Company reported the complainant the transferor (seller) would be liable to pay capital gain tax on the defence of sales consideration paid b y the complainant and value to be assessed by the Stamp Duty Authority at the time of registration.  So, it is decided by the complainant to pay all these taxes and no doubt as per Registration Act and read with Income Tax Act complainant shall have to pay the taxes for execution and registration of the deed and truth is that OP received Rs.9,70,000/- as consideration as per agreement but as because complainant did not take any initiative faith the valuation of the property at market value is Rs.60,03,088 and for which stamp duty is payable at present Rs.4,20,236/- but it was the stamp duty as market value as on 26-09-2013 but in the meantime 2014 has already appeared and further change shall be made in view of the Government notification but we are sure OP are willing to execute the same and to register the same and invariably complainant has no fund for which he is sitting idle.  So, taking this matter into consideration we are convinced to hold that no doubt complainant shall have to pay all the taxes, stamp duty and other fees for registration and execution of the deed and OP shall have to execute it what he has admitted that he is willing to execute so in the circumstances we are convinced that there is no other alternative but to pass the final order directing the OP to execute and register the sale deed no doubt at the cost of the complainant and in this regard OP has tried to convince that OP1 had fault but fault of the OP is not at all found.  What we have gathered at the relevant time at the time of taking possession 25-04-2005 complainant was not vigilant and he did not express his desire to execute it and this is the normal behaviour of the purchasers because many purchasers failed to bear the cost of the registration and other charges after taking delivery of the possession.  So, in view of the above situation we are allowing this complaint against the OP but the complainant shall bear all costs.

Hence,

Ordered

That the case be and the same is allowed on contest against the OPs with a cost of Rs.5,000/- (Rupees Five thousand only).

          OPs are directed to execute and register the sale deed in the name of the present complainant as and when same shall be prepared and presented by the complainant as per OPs consent and in this regard all the taxes, cost, stamp duty and other fees as required for execution and registration shall be paid by the complainant and if complainant discharge his liability as per spirit of this order in that case OP shall have to act it within one month from the date of presentation of the present deed in respect of execution and registration of the deed in question in respect of the present flat possessed by the complainant but in this regard if it is found OPs are unwilling in that case same shall be executed through this Forum at the cost of the complainant and in that case the OP shall have to pay a punitive damages of Rs.50,000/- to this Forum.

          No compensation is awarded in view of the fact some fault of the complainant in this regard is proved.

          Accordingly, parties are directed to follow the spirit of this order and taking such steps for final registration of the deed of sale in respect of the flat in favour of the complainant in default for either of the parties failure penal action may be taken against either of the parties for their fault by this Forum for which either of the parties shall be responsible.