Complainant by filing this complaint has submitted that op no.1is the Developer and op no.2 is the owner of the land named as Mahavir Apartment which is being constructed by the op no.1 and accordingly both the ops invited an application from the intended buyers for purchasing flat, garage, shop etc. and hearing the same, complainant who was in dire need of his own accommodation approached the op no.1 to sell out a self contained flat in his favour and the said complex is at DE-15, Deshbandhu Nagar Baguihati, P.S. – Rajarhat, Kolkata – 700059 and after talking with the ops, complainant agreed to purchase the flat being No. 2B on the 2nd floor in Mahavir Apartment measuring more or less 1041.93 sq. ft. inclusive of 15 percent super built up area and total consideration as fixed at Rs. 10,41,930/- at the rate of Rs. 1,000/- per sq. ft.
Accordingly as per terms and conditions of the agreement, the agreement was executed in between the parties and complainant made full payment of Rs. 10,41,930/- part by part and the same was duly acknowledged by the op nos. 1 & 2 and it was settled that as and when full and final payment would be made by the complainant, the op no.1 will take back all the receipts and provisional agreement and all the parties to the proceeding shall have to enter into further agreement acknowledging the entire payment and right title interest and possession of the B Schedule Flat and keeping trust upon the op no.1 and on good faith when entire payment was made by the complainant, complainant handed over all the documents including the agreement for sale and the money receipts to the op no.1 and in view of the terms the op nos. 1 & 2 entered into an agreement on 07.02.2006 afresh and by such agreement, payment of Rs. 10,41,930/- was acknowledged and it was specifically declared by the op nos. 1 & 2 that op no.2 does not and will not claim any right title and interest in the agreement between the op nos. 1 & 2 and op no.1 in the said flat No. 2B on the 2nd floor of the multistoried building as will evident from clause no.4 of the agreement dated 07.02.2006.
By virtue of the terms and conditions as contained in the agreement dated 07.02.2006, possession of the flat was delivered in favour of the complainant and since the year 2006, this complainant has been possessing and enjoying the said flat with his other family members by exercising all his legal rights and complainant as flat owner and complainant being the owner of the flat No. 2B has been paying monthly maintenance cost either to the op no.1 and 3 or to the authority of the said Mahavir Apartment and this complainant craves leave to refer all the relevant documents in support of his contention while the instant case will be taken up for hearing.
Sometime the op no.3 Vivek Brothers Pvt. Ltd. also collected the maintenance cost from all the flat owners including this complainant and as such it is crystal clear that the complainant is in exclusive possession and enjoyment in respect of the flat in question and the agreement dated 07.02.2006 will speak itself that peaceful khas vacant possession of the below schedule flat was delivered in favour of the complainant and it was settled that the ops shall be liable to execute all necessary deeds and documents and to do all such acts, deeds and things which would be necessary for effective possession and enjoyment of the below schedule flat by the complainant and for protecting the right title and interest of the complainant in respect of the said flat.
Since the date of delivery of the possession of the flat in favour of the complainant by the op nos. 1 & 2, complainant as an innocent and simple minded person has been requesting the ops to execute and register the proper deed of conveyance in favour of the complainant in respect of below schedule flat and at that material point of time it was told by the op nos. 1 & 2 that after due completion of the entire building in all respect and also after obtaining completion certificate from the competent authority, all the flats of Mahavir Apartment will be registered in favour of intending purchasers including the complainant at a time and this simple minded complainant had no reason to doubt the ops considering the past activities of the ops and as such this complainant was waiting for ultimate decision of the ops with regard to execution and registration of the flat in question.
Though complainant was rest assured by the op nos. 1 & 2 in the matter of registration of the deed of sale in respect of the said flat but complainant used to knock the doors of the op nos. 1 & 2 for giving the information that day to day the registration cost of the flat is being enhanced and on each and every occasion the op nos. 1 & 2 assured the complainant that within a very short spell of time, they will perform their part and would be able to complete the Mahavir Apartment in all respect.
But anyhow after waiting for several days, months and years, no fruitful result is achieved by the complainant from the said ops and such sort of acts and activities of the ops are no doubt negligent and deficient in manner but only for some ill motive that had not been done. So, ultimately complainant through his Ld. Lawyer Mr. Sanjit Kr. Das had to serve legal notice upon the op no.1 to get the registration deed done immediately and copies of the said letter dated 03.10.2012 were sent to Inspector General of Registration and Shrawan Kr. Kabra and all of them received the said letter. Although the legal notice was received by them but the same was not replied by them. On the contrary they denied to receive the monthly maintenance cost from this complainant to give a good lesson to the complainant and this complainant had no other choice but to send an account payee cheque of Rs. 5,180/- for the maintenance cost of October, November, December, 2012 and January and February 2013 and this complainant was fortunate enough that the same was received by the opno.1 and then this complainant got confidence and so the op no.1 further approached by the complainant on 28.03.2013 for execution and registration of and register the deed of sale in favour of the complainant and at that time, the complainant was intimated by the op no.1 that op no.1 was thinking over that issue and for such uttering, the complainant was hopeful to some extent.
But on 12.06.2013 ops refused to execute the deed of sale in favour of the complainant and considering the negative attitude of the ops and also for deficient and negligent manner of service and also for increased rate of amount for execution and registration of the deed this complaint is filed praying for registration of the document i.e. the deed of sale and compensation etc.
On the other hand op nos. 1 & 3 by filing written statement submitted that complainant entered into an agreement to sale with op no.2 and there is no privity of contract by and between the complainant and the op no.1 as the complainant entered into an agreement for sale with the op no.2 and op no.3 is appointed by the flat owners of the building to look after and maintenance of the building and he is no way connected with this instant complaint case.
Moreover the complaint is barred by laws of limitation because complainant entered into an agreement dated 07.02.2006 with op no.2 and took physical possession of the flat in question on or about 07.02.2006, therefore, cause of action arose in the year 2006. But the case the filed for long eight years. Further ops submitted that complainant does not have any locus standi to file the complaint case since the complainant is an unauthorized occupant in respect of the flat in question. Op nos. 1 & 3 submitted that the instant case filed by the complainant is false and frivolous and for which this complaint should be dismissed.
Further it is submitted that op nos. 1 & 3 never offered for selling the said flat to the complainant and there is no valid contract in between the complainant and op nos. 1 & 3. Moreover complainant never made any payment of Rs. 10,41,930/- part by part to the op no.1 and same was never was acknowledged by the op no.1 as alleged and it is also denied that op no.1 took all money receipts and provisional agreement executed in between the op no.2 and the op no.1 and further denied that on 07.02.2006 fresh agreement for sale was executed by and between the complainant and the op nos.1& 2.
Further it is submitted that there was no admission of op nos. 1 & 3 that the sale was executed in favour of the complainant. Fact remains that there is no relationship of the consumer and service provider in between the complainant and op nos. 1 & 3 and all other allegations are denied by the ops.
It is specifically mentioned that op no.1 received account payee cheque of Rs. 5,180/- as the maintenance cost of October-2012 to February – 2013. But on 28.03.2013 op never expressed that they shall have to execute the deed of salealso after receiving the balance amount and so there is no question of mental pain and agony and sufferings sustained by the complainant caused by the op nos. 1 & 3. So, Op nos. 1 & 3 have prayed for dismissal of this case.
Op no.2 by filing written statement submitted that he entered into an agreement with op nos. 1 & 3 for the purchase of a flat in question and had paid to the op nos. 1 & 3 entire consideration money in respect of the same. But neither the said agreement has been registered nor any deed of conveyance has been executed by op nos. 1 & 3 in favour of the op no.2 in respect of the flat and he was never handed over the physical possession of the said flat by the op nos. 1 & 3 and during that condition of the said agreement amongst the op nos. 1 & 3 and op no.2, complainant being the purchaser has approached op nos. 1 & 3 being the developer of the said building upon the approach of op nos. 1 & 3 op no.2 executed an agreement for assignment on 07.02.2006 with the complainant whereby complainant had all his right title interest in respect of the said flat in question in favour of the complainant. It is specifically mentioned that as per the terms and conditions of the said agreement in between the op nos. 1 & 3 and op no.2 as per clause-3 of the terms of the said agreement assignment dated 07.02.2006 it has been categorically executed with consent of the op nos. 1 & 3 and op no.2 is always ready to execute and register the sake deed.
Decision with reasons
On in depth study of the complaint and written versions of op nos. 1 & 3 jointly and op no.2 and also considering the materials as produced by the complainant and further considering the admission of the op nos. 1 & 3, it is found that agreement was executed amongst the op nos. 1, 3 & 2 and as per said agreement Vivek Brothers Pvt. Ltd. appointed for construction and erection of the new building for completion of the construction of the said building and admittedly contractor completed the construction of five storied building containing flats in each floor according to the sanctioned plan of the municipality and as per such agreement, contractor was empowered to receive the entire consideration amount from the intending purchasers out of the sale or purchaser of the said building in favour of the intending purchasers for and on behalf of the vendors that is Jainco Auto Motive Pvt. Ltd. and as per said agreement vendor shall have to pay Rs. 25/- per sq. ft. super built area of the building to the vendor for transfer of undivided portion and in the light of the said agreement for said premises vendors granted full power and authority to the first confirming party to act as contractor in terms of the Development Agreement for the development of the premises in accordance with the plans and as per said agreement Jainco Auto Motive Pvt. Ltd. is a contractor of the first confirming party and Shrawan Kumar Kabra is the second confirming party and fact remains that Jainco Auto Motive Pvt. Ltd. contractor constructed the new premises within the premises as per Municipal plan and vendors granted full power and authority to the first confirming party i.e. Jainco Automotive Pvt. Ltd. to act as the contractor in terms of the Development Agreement for the development of the premises and selling etc.
It is also a fact that as per written version of the op nos. 1 & 3 that there was an agreement to sale in between the op nos. 1& 3 and op no.2 for sale of the present flat and there was an agreement amongst the op nos. 1, 2 & 3 regarding the said terms. So, it is clear that Agreement to Sale was made amongst the op nos. 1&3 and op no.2 for selling ot the present disputed flat to op no.2 and that has been admitted by the op nos 1 & 3 and it is specifically mentioned and it is admitted by the op nos. 1 & 3 that present Agreement for Sale was executed by op no.2 on 07.02.2006 and possession of the flat was taken by the complainant from op no.2 on 07.02.2006. But anyhow op nos. 1 & 3 have not produced the copy of the agreement executed by op nos. 1, 2 & 3 regarding the sale of the flat in favour of the op no.2.
But truth is that there was an agreement for sale in between the op no.2 and op nos. 1 & 3 and on the basis of the agreement to sale, op no. 2 sold away of the flat after receipt of the entire amount and op no.2 executed the sale agreement on 07.02.2006. Similarly Vinod Kr. Kabra who was a party of agreement dated 24.07.2007 was the party in the agreement amongst op nos, 1, 2 & 3 and Vinod Kr. Karba has duly signed on behalf of op nos. 1 & 3 and it is proved that agreement to sale in between the op nos. 1, 2 & 3 was there and that is admitted and as per clause of the said agreement the present op no.2 as per approach of the present complaint sold the said flat after receiving the entire amount and on receipt of the said amount from the op no.2 by op nos. 1 & 3, the said agreement amongst op nos. 1, 2 & 3 was taken by the op nos. 1 & 3 and op no.2 executed this agreement and in the said agreement Vinod Kr. Karba also signed. So, it is clear that Vinod Kr. Karba on behalf of op nos. 1 & 3 signed in the said agreement as witnesses and op no.2 also signed including the present purchaser.
Fact remains that op no.2 realised the entire amount and truth is that since 07.02.2006, present complainant has been possessing the said flat and in respect of which there was a written agreement to sale amongst op nos. 1, 2 & 3 which has been admitted by op nos. 1 & 3. Then it is clear that on the basis of the said agreement to sale amongst op nos. 1, 2 & 3, op no.2 sold away the property to the present complainant and admitted fact is that op no.2 has confirmed that after paying the entire amount to the op nos. 1 & 3 in respect of the said agreement amongst op nos. 1 & 3, op no.2 executed this agreement to sale after paying the entire balance amount of the op nos. 1& 3. Op no.2 also confirmed that the entire matter in regarding sale of the flat by the op no.2 in respect of the present flat was executed by him and other ops and op no.2 has no objection for execution and registration of the sale deed in favour of the complainant. Op no.2 also confirmed that if in any purpose, any signature of the op no.2 is required, he is willing to give. At the same time op no.2 has confirmed that complainant has been paying all usual maintenance charges to op nos. 1 & 3 continuously and op nos. 1 & 3 are collecting all maintenance charges from the purchasers who already got possession and op no.2 has also confirmed that the possession of the complainant is not forceful but possession was delivered to the complainant after execution of the agreement to sale by the op no.2 and confirmed by Vinod Kr. Karba who was representing the op nos. 1 & 3.
So, considering the receipt of op nos. 1 & 3 that Jainco Project India Ltd. received the maintenance charges and other charges month by month from Rajesh Tiwari the complainant and has confirmed himself as flat owners and it was received by Vivek Brothers. But nowhere in the op nos. 1 & 3 have stated that complainant has been possessing the flat at this stage without any right or he has been possessing the said flat forcibly and always the fees were accepted by the op nos. 1 & 3 for the flat No. 2B from July-2006 and even till 2012.
Subsequently complainant sent a letter through his lawyer on 03.10.2012 requesting him to execute the sale deed and that was received by the ops. Further sent a letter on 08.03.2011 but ops did not respond. But the moot question in this case is that ops’ Ld. Lawyer submitted that allegation of the complainant is completely false because the agreement for sale of the case flat measuring 1024 sq. ft. flat No. 2B, 2nd Floor, Mahavir Apartment, DE-15, Deshbandhu Nagar, Kolkata – 700059 was entered into by and between op nos. 1 & 3 and one Shrawan Kr. Karba, S/o GirdhariLalKarba on payment of Rs. 4 lakhs to the op nos. 1 & 3 pursuant to the said agreement and op nos. 1 & 3 also handed overShrawan Kr. Karba for possession of the said flat. So whatever the position, it is clear that flat and its possession to Shrawan Kr. Karba as per agreement. But that agreement is in the custody of the op nos. 1 & 3 they have not produced the same. Whereas that Shrawan Kr. Karba has submitted in writing that the entire amount has been paid to the op nos, 1 & 3 original agreement ground has been taken by op nos. 1 & 3 for their consent to sale and a fresh agreement was made by the op no.2 in favour of the complainant and in that agreement confirming party was Vinod Kr. Karba the authority of op nos. 1 & 3.
Peculiar factor is that op nos. 1 & 3 have not denied the fact as stated by the op no. 2 in their written version. So, admitted position is that op nos. 1 & 3 admittedly entered into an agreement for sale in respect of flat in question with the op no.2 after getting Rs. 4 lakhs and possession was delivered. But op nos. 1 & 3 have not given any satisfactory explanation why that agreement is not produced by them this Forum by them which is invariably in the custody of the op nos. 1 & 3.
Practically that hidden document is in treasurer of the op nos. 1 & 3 and their defence shall be proved a false defence for which the said document is not produced by the op nos. 1 & 3. At the same time on hearing the argument it is found that if that agreement is produced by the op nos. 1 & 3 in that case it would be found that in that agreement there is a clause that intended purchaser has his right to sell the property and invariably as per contract op no.2 sold away the same in presence of the Vinod Kr. Karba the authority of op nos. 1 & 3 which is also evident from the document for agreement amongst Vinod Kr. Karba, Shrawan Kr. Karba, Jainco Project India Ltd. and other etc. in the year 2007. But now the op nos. 1 & 3 has tried to convince that possession was forcibly taken by the complainant. But it is proved that false because possession was delivered to op no.2 by op nos. 1 & 3 as the agreement for sale is admitted by op nos. 1 & 3 and delivery of possession to op no.2. So, the complainant’s possession is not forceful but as per present op no.2’s admission, he delivered possession.
Fact remains that op no.2 paid the entire amount of the agreement to sale to the vendor the op nos. 1 & 3 and after receipt of the entire amount from the op no.2 in the present agreement Vinod Kr. Signed on behalf of the ops. But it is already proved from the document of the ops the copy of agreement which is filed by the complainant. Vinod Kr. is authorized at present of Vivek Brothers and also Jainco Project India Ltd. that is op nos. 1 & 3 but other matter shall be visible if that agreement which has been taken away by op nos. 1 & 3 from the op no.2 at the time of present sale to the complainant by op no.2. But op nos. 1 & 3 knows fully well that if that document is produced by the op nos. 1 & 3, their defenceshall be proved as false for which no document has been submitted by the op to prove that agreement was cancelled. At the same time from 2006 to 2012 op nos. 1 & 3 received all maintenance charges from the complainant by issuing receipt accepting his possession as legal possession as flat owners but not as tenant and as purchasers. But fact is that op nos. 1 & 3 have tried to say in their evidence not in written version that agreement for sale in favour of Shrawan Kr. Karba was rescinded verbally in July 2007 but no such document is produced by the op nos. 1 & 3. Op no.2 also has not admitted that agreement to sale amongst op nos. 1 & 3 originally in favour of no.2 was cancelled or rescinded. So, it is clear that it is false evidence regarding mutual resending of the agreement to sale amongst op nos. 1 & 3 but for sake of the argument, if it is accepted that it was resinded invariably there must be such signatures of the op no.2 on the back of the sale agreement to said which had been executed by op nos. 1 & 3 but that document is also not produced.
Considering all the above fact and circumstances, we are convinced to hold that agreement to sale was admittedly executed by op nos. 1 & 3 in favour of Shrawan Kr. Karba op no.2 and during continuation of the said agreement to sale as per clause of the agreement, op no.2 sold to the case flat to complainant and handed over the possession with consent of op nos. 1 & 3 and their representative Vinod Kr who singed as witnesses that means confirming parties may be there was no seal but that is not very vital in this regard.
Another truthful fact is that op nos. 1 & 3 has confirmed that they are aware of the present agreement to sale and Vinod Kr. acted as confirming party in the deed of sale of agreement of the complainant and op nos. 1 & 3 have been collecting since July 2006 all sorts of charges, maintenance charges of the flat of the complainant. But no step has been taken by the op nos. 1 & 3 against the complainant at any point of time since July 2006 till today butop no. 2 issued all receipts since 2006 and till 2012 by the op nos. 1 & 3 in favour of the complainant which simply prove that complainant is not in adverse possession of the said flat on the basis of the present agreement to sale confirmed by Vinod Kr. Karba the authority of op nos. 1 & 3. At the same time it is a fact that op no.2 is the owner of the land over which Mahavir Apartment is constructed and op nos. 1 & 3 have acted on behalf of op no.2.so, op no.2 has his legal right to sell some area of flat as owner to complainant but that factor has not been challenged by the op nos. 1 & 3. So, considering that fact we are convinced that op no.2 had his or has or had his right to transfer this flat in favour of the complainant beyond any manner of doubt legally. Moreover it is most interesting factor is that in the written statement there is no whisper about forcible possession of the flat by the complainant. But only in the evidence it is stated that it is forcibly occupied by the complainant. Then it is clear that when written version was submitted, there was no defence of the op that possession of the complainant was forcible. But when complainant submitted his evidence in chief and other matter, then in the evidence they stated that complainant is in forcible possession of the flat then question is how op nos. 1 & 3 can claim that complainant’s possession is forceful by op when admitted that op no.2 is the landowner of the said flat and he has his some share and right and fact remains that op no.2 sold away the said flat as owner and also as per agreement to sale. Admittedly first agreement to sale was executed by op nos. 1 & 3 in favour of op no.2 but that agreement is no doubt in the custody of the op nos. 1 & 3 and that is also not produced.
So considering all the above fact and circumstances, we are convinced to hold that op nos. 1 & 3 only for the purpose of grabbing more money and to deceive the present complainant in so many manners appeared before this Forum and tried to convince that Shrawan Kr Karba has no right to transfer but it is completely false and fabricated. Shrawan Kr. Karba was the possessor of the said flat and he sold away after full payment of the amount as per agreement executed in between the op no.2 and op nos. 1 & 3. Practically for non-production of the said agreement to sale which is in the custody of op no.3 we have taken an negativepresumption against the op nos. 1 & 3 and for which we are convinced that this company has tried to deceive the complainant in so many manner and in fact complainant is the rightful possessor of the flat on the basis of the agreement to sale executed by op no.2 and Vinod Kr. Karba and this agreement is valid agreement and it is building upon the op nos. 1 & 3 also when admittedly agreement amongst op nos. 1 to 3 is admitted by the op nos. 1 & 3 and when op no.2 is also owner of the land in which construction is made by op nos. 1 & 2.
Further continuous possession of the complainant since 2006 till today and continuous receipt of maintenance and other charges as valid possessor continuous collection of all maintenance charges from the complainant as valid possession of the said flat, we are convinced that defence of the op nos. 1 & 3 that complainant is possessing the flat forcibly is false and fabricated and baseless and without any foundation and accordingly we are convinced to hold that complainant has been able to prove the allegation against the op nos. 1, 2 & 3 beyond any manner of doubt. But anyhow op no.2 is willing in executing the sale deed if it is required as owner and seller of the land and flat and so the present agreement to sale is valid one in all respect.
So, in the above circumstances, we are inclined to hold that the complainant is no doubt able to prove the negligence and deficient manner of service on the part of the ops for which the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against op nos. 1 & 3 and same is allowed on contest against op no.2 without any cost.
Ops are hereby directed to execute and register the sale deed in favour of the complainant in respect of the flat within one month from the date of this order at the cost of the complainant and complainant shall have to bear all costs for registration and etc. and if ops fail to comply the order and fail to execute a valid deed of sale after executing the deed within the stipulated time, in that case, op nos. 1 & 3 shall have to pay compensation of Rs. 25,000/- per month to the complainant for enhancement rate of registration cost etc. and till full compliance of the decree and execution and registration of the deed of sale.
For harassing the complainant in such a manner since 2006 and for adopting a deceitful manner of defence to dislodge the claim of the complainant, op nos.1 & 3 are directed to pay penal damages of Rs. 25,000/- which shall be deposited to this Forum.
Op nos. 1,2& 3 are directed to comply the order within the stipulated period failing which for non-compliance of the same penal interest at the rate Rs. 300/- per day shall be assessed till full satisfaction of the decree which shall be paid by the ops jointly and severally and it shall be deposited to this Forum if it is collected.
Even if it is found that ops are unwilling to execute the order in that case complainant may file an execution case before this Forum for execution and registration the sale deed for which complainant shall have to pay all costs including service charge for appointment of an authorized officer for executing and registering the deed with help of the complainant in respect of case flat.
Further if it is found that any part of the decree is not complied by the op nos. 1, 2 & 3 penal action shall be started against them for which penalty and fine shall be imposed against them.
