JUDGEMENT

         Complainant by filing this complaint has alleged that the complainant entered into Tripartite Agreement for sale dated 30.12.2002 along with op’s for purchasing a flat measuring about 700 sq. ft. on the 2^nd floor of premises No.118/H, Narkeldanga North Road, Kolkata – 11, at a total consideration of Rs. 7 lakhs and as per agreement for sale the complainant initially paid Rs.2.5 lakhs on 30.12.2002 out of Rs.7 lakhs and thereafter balance consideration of Rs.4.5 lakhs was paid in different dates totaling Rs.7 lakhs in full vide pay order favouring M/s. Neha Construction.

          Since after making the said full consideration money the complainant requested the ops to collect the C.C. and after full and final construction of the building as well as to make the sale deed Registration in favour of the complainant and on the false pretext of making preparation and registration of the sale deed, the op no.2 took an amount of Rs.45,000/- on 12.08.2008 for purchasing the requisite stamp paper. But surprisingly thereafter a copy of a sale deed was sent through an unknown person inscribing the name of the Advocate Amar Kr. Halder on the back of stamp paper dated 21.08.2008.

          After that complainant repeatedly requested the ops to make the deed registration in favour of the complainant but they did not pay any heed and in the above circumstances, complainant was compelled to send demand notice.  But even then op did not arrange for preparing execution on registration of the sale deed and ultimately complainant was forced to appear before this Forum for redressal.

          Op no.3 by filing written statement submitted that he was not a party in the agreement for sale dated 30.12.2002 and he is not at all aware of the said agreement as such op no.3 is neither a necessary party nor a proper party of this case and op no.3 also alleged that he never took any money from the complainant and complainant shall not be able to prove that op no.3 received any money on proper receipt and as because he was not a party in the said agreement. So the present complaint is not maintainable against the op no.3.

                                          Decision with reasons

          On over all evaluation of the entire materials on record including the fact as disclosed by the complainant and defence as taken by the op no.3 and also relying upon the argument of Ld. Lawyers of both the parties, it is found that agreement for sale dated 30.12.2002 was executed in between the M/s. Neha Construction represented by its proprietor Mrs Manju Sinha and the present complainant Premangshu Chakraborty and in the said deed name of Birendra Kishore Ghosh was shown as a party owner of the suit premises and the said deed is found executed by Manju Sinha as proprietor of M/s Neha Construction and Premangshu Chakraborty.  But on proper consideration of the said deed, it is found that it was not executed by the owner of the land and it was never executed by M/s Neha Construction on behalf of the Birendra Kishore Ghosh, the owner of the property.  So, apparently, it is proved that the owner of the property Birendra Kishore Ghosh never entered into an agreement for sale with the complainant.  But it was a simple deed for agreement for sale dated 30.12.2002 in between the M/s Neha Construction and the complainant.  In view of the above premises, the present complaint against Birendra Kishore Ghosh the land owner of the premises is not tenable.

          However, it is proved that on the basis of the agreement to sale Manju Sinha the Prop of M/s Neha Construction intended to sell the property and he paid amount to the op no.1 Manju Sinha, the proprietor of M/s Neha Construction and fact remains that Manju Sinha received the entire amount from the complainant and possession was also delivered in favour of the complainant.  But thereafter, deed was not registered.

          No doubt the copy of final deed of sale is submitted by the complainant to show that it was sent by the op.  Fact remains that no such document is produced to prove that deed was prepared by the M/s Neha Construction and it was sent for verification to the complainant.

          Another factor is that husband of Manju Sinha is also made a party who is Rabindranath Sinha but anyhow Rabindranath Sinha is not a party to the agreement to sale and in view of the above premises we find that complainant can implement the agreement to sale deed on 30.12.2002 against M/s Neha Construction only but not against op nos. 2 & 3 and in fact there is or was no relationship in between the complainant and op nos. 2 & 3 in respect of that agreement to sale and in the above circumstances the complainant may get relief against op no.1 only but not against op nos. 2 & 3.

          Moreover in the complaint, complainant has suppressed the vital fact and at the same time it is proved that complainant may get relief against op no.1 only and no doubt op no.1 did not execute the sale deed and invariably op no.1 may be directed to execute the sale deed as the case succeeds against op no.1 not against op nos. 2 & 3.  In the result the complainant is entitled to get a deed of sale executed by op no.1 and invariably same must be registered by the registering authority by the op no.1 only as per agreement to sale.

          In the result, the complaint succeeds in part.

Hence, it is

                                                      ORDERED

          That the complaint be and the same is allowed on contest against op no.1 only with cost of Rs.10,000/- and same is dismissed against op no. 3 on contest and exparte against op no.2 but without cost in those cases.  Op no.1 is hereby directed to execute and register the sale deed in favour of the complainant after execution of the same as per agreement within one month from the date of this order failing which the complainant shall have his/her liberty to file application praying for execution of the sale deed through this Forum as per agreement to sale and in that case op no.1 shall have to pay Rs.40,000/- as service charge which shall be paid to the State Consumer Welfare Fund, but registration cost etc shall be paid by the complainant, if op no.1 fails to comply the order.

          Further for non-compliance of the Forum’s order, op no.1 shall have to pay a punitive damages to the extent of Rs.40,000/- to the complainant for causing harassment and for not executing the sale deed even after giving possession and receiving the entire consideration of Rs.7 lakhs.  But same shall be paid within one month from the date of expiry of execution of the sale deed if it is not made by the op no.1 for violating the Forum’s order and continuous disobeyance of the Forum’s order by the op no.1, op no.1 shall have to pay a penal interest @ Rs.200/- per day till full satisfaction of the decree and said amount if it is collected, same shall be deposited to State Consumer Welfare Fund and even for violation of the Forum’s order op no.1 shall be prosecuted u/s 27 of C.P. Act 1986.