Date of filing: 08/04/2022                                        

Date of Judgment: 06/11/2023

Mr. Sudip Niyogi, Hon’ble President.

                                                                BRIEF FACTS

Complainant had entered into an agreement for sale on 04/12/2019 with OP Nos. 1 to 3 who are the developers / confirming party and the OP No. 4 – Vendor for purchasing one self-contained residential flat measuring about 750 sq. ft. under Ashuti – II Gram Panchayat within Thakurpukur P.S., Kolkata – 700 061, Dist. South 24 Parganas at a consideration of Rs. 18,00,000/-. The said developers OP Nos. 1 to 3 had entered into a development agreement with OP No. 4 for developing the property at the said premises. Complainant advanced Rs10,20,000/- towards the said consideration. The complainant requested the developers to deliver the flat and execute and register the deed on receiving the balance consideration. He even issued a notice on 20/11/2021 and 03/03/2022 to the developer. But they did not do anything. So complainant, by filing the petition of complaint before this commission, prayed for delivery of the possession of the schedule flat, execution and registration of the deed of conveyance in respect thereof and completion certificate, compensation and cost of litigation. Opposite parties did not enter appearance and file any written version. So the case was heard exparte against them.

So the point of consideration is whether the complainant is entitled to relief(s) in this case?

                                                                  FINDINGS

Complainant filed his affidavit and also the documents, including the agreement for sale, development agreement money receipts etc. From his documents it is found OP Nos. 1, 2 & 3 who are the developers, had entered into a development agreement with OP No. 4 to raise a building at the premises as mentioned in the petition of complaint and the agreement for sale dated 04/12/2019 reveals that the  complainant wanted to purchase the scheduled flat at a consideration of Rs.18,00,000/-. In the Memo of Consideration attached with the agreement for sale it is shown that complainant paid Rs.1,50,000/- by issuing a cheque dated 04/12/2019 towards consideration and subsequently he paid Rs.1,50,000/- and Rs.7,20,000/- by issuing separate cheques, for which money receipts were issued by the developer. Subsequently, he paid Rs.8,70,000/- by way of a Demand Draft in favour of the OP 1 on 06/11/2020.  So the complainant is found to have paid Rs.10,20,000/- towards consideration to the OP developers. Complainants is also found to have issued a letter through his advocate to the OPs requesting to complete the scheduled flat and handover the possession thereof on receiving the balance consideration. But that was not complied with. It is written that the said agreement that the same would be valid for one year six month from the date of signing of the agreement and after the expiry of the said period the agreement would be treated as null and void (Para 6). Para 7 of the agreement for sale says that if the purchaser fails to register the said flat within scheduled time on his part the developer would be at liberty to cancel the said agreement and refund the advanced amount to the purchasers within one month from the date of cancellation. Following the said agreement for sale, the agreement would be valid up to 03/06/2020. 

But it is found that even after that date, the OPs received the amount of consideration from the petitioner.  Therefore, the said clause, para 7 of the agreement is found to have been ignored/waived by both the parties. 

In the written argument filed on behalf of the complainant, it is stated that the construction of the said building was already completed and that being so, the instant complaint should be allowed with a direction upon the OPs to deliver possession of the scheduled flat and also to execute and register a deed of conveyance in respect thereof in favour of the complainant on payment of the balance amount of consideration of Rs.7,80,000/-.  Apart from this, OP 1, 2 and 3 are liable to pay compensation of Rs.30,000/- and Rs.5,000/- as cost of litigation to the complainant.

Accordingly it is

                                                   ORDERED

That the instant case is allowed exparte against the opposite party.

OPS are directed to execute and register the deed of conveyance in respect of the scheduled flat in favour of the complainant on receipt of the balance consideration from him in accordance with the agreement for sale dated 04/12/2019.   The cost of execution and registration of the deed shall be borne by the complainant.

OPs are also directed to handover the physical possession of the said flat in habitable condition to the complainant.

OP Nos. 1 to 3 are also to supply the copy of the completion certificate or a copy thereof to the complainant in respect of the scheduled flat, pay compensation of Rs.30,000/- and also pay Rs. 5,000/- towards the cost of litigation to the complainant.

OPs are directed to comply with this order within 60 days from the date of this order, failing which, the complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

President