Order-19.
Date-14/05/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that OP1 is a partnership firm of which OP2 and 3 are the partners having the name of the partnership firm M/s. New Maa Tara Construction whereas OP4 is the landlady/owner of the land in question on which the development took place and the apartment is constructed.
Fact remains OP1 to 3 entered into an agreement for development on 19-11-2001 with the OP4 the owner/landlady of the land situated at 51K/2, Pottery Road, (West), P.S. Entally, Kolkata – 700 015 where the construction is completed and as per terms of the development agreement dated 19-11-2001, the land owner executed an unregistered power of attorney on 06-09-2002 and developer constructed the present residential flat including building as per sanctioned plan of KMC. Complainant agreed to purchase a flat being flat measuring 370 sq. ft. super-built up area on the ground floor back portion of the said building out of developer’s allocation and subsequently the complainant entered into an agreement for Sale dated 19-12-2007 with the OPs on payment of advance booking and thereafter, complainant paid the entire consideration amount of sale time to time to the developer and the developer received the said consideration money against the money receipts and on receipt of the total consideration money developer handed over the possession of the said flat being flat measuring 370 sq. ft. super-built up area on the ground floor back portion of the building in favour of the complainant by issuing a possession letter dated 12-12-2008 in favour of the complainant in respect of the flat and at that time OP assured verbally the registration of the sale deed in favour of the complainant along with the other buyers of the said apartment.
After handing over all the flats to the intending buyers and also to the land owner’s allocation to OP4, in spite of repeated requests to the developer for registration of the flat in his name, from the year 2008, time and again the developer assured verbally the complainant that they shall have to register the sale deed and arrange for registration of the Sale Deed in respect of the said flat in the name of the complainant. Complainant also made several representations to the landlady for the registration of the said flat in favour of him but she also denied to register the said Deed of Sale on the ground The Power of Attorney dated 06-09-2002 is not registered in favour of the developer.
On 1st September, 2014 when the complainant made request for the registration of the flat after the approval of the deed at his cost and expenses the developer assured that within 10 days it shall be matured but after that developer remained silent. In the above circumstances complainant went to landlady for registration but she refused to register the sale deed on the ground that she had already executed the general power of attorney long days ago and she denied to execute/register anything further more.
Due to continuous commitment and failure to register the sale deed finally in favour of the complainant, complainant has been harassed and for which for redressal of his grievance complainant appeared before this Forum.
Fact remains notices were duly served upon all the OPs by speed post but OPs1 to 3 have appeared and filed written statement but OP4 landlady did not appear to contest.
In the written statement of OPs1 to 3 they have stated that the present complaint is time barred on the ground the agreement was signed on 19-12-2007 but complaint has been lodged on 27-11-2014 and further submitted that entire sale consideration was not paid when OPs are entitled to get unpaid amount from the complainant and complainant did not pay it though OPs delivered khas possession in spite of non-payment of full amount on good faith with expectation that the complainant shall have to pay the said amount after taking the possession.
It is further alleged that complainant could not arrange fund for meeting the expenses of stamp value and registration charges for execution of the sale deed for which he was sitting idle and did not communicate with the developer for registration of the sale deed and complainant never met the developer requesting for execution or registration of sale deed and OPs did not know about the intention of the landlady and her expression etc. Further it is submitted that flat in question was delivered to the complainant long back but the complainant was sitting idle and did not communicate to the OPs for registration and ultimately issued legal notice through his Advocate on 22-09-2014 so the entire complaint is barred by limitation and there was no negligence on the part of the OP for registration of the sale deed in favour of the complainant and fact remains step would be taken for completion and execution of the Sale Deed and to bear the cost of such registration execution had the complainant been eagerness in registration of the sale deed the developer would have done the same.
It is specifically mentioned that developer is or are not unwilling or reluctant to come to execution of the sale deed for registration, although the bottle neck or stumbling block has been created by the land owner who is OP4 and the developer is not responsible and cannot be liable for any act of negligence on the part of the complainant or the landlady OP4 and for which the present complaint should be dismissed.
Decision with Reasons
On proper assessment of the complaint and the written version of the OPs1 to 3 and also considering the argument as advanced by the Ld. Lawyers of parties and further considering the documents and admission of the OPs 1 to 3 it is undisputed fact that there was an agreement in between the parties for selling the flat in dispute and truth is that as per agreement dated 19-12-2007 in between the parties OP shall have to handover the possession on receipt of the entire consideration and fact remains in this case total consideration amount of the flat was fixed Rs.3,70,000/- and it is undisputed fact that it is the duty of the OPs to execute the sale deed within 6 months from the date of getting the possession of the flat and from the possession letter dated 12-12-2008 it is clear that flat in question being flat measuring 370 sq. ft. super-built up area on the ground floor(back portion), Premises No.51K/2, Pottery Road, P.S. Entally, Kolkata – 15 was delivered in favour of the complainant and by that letter it was also agreed that total pending work of four storeyed building such as roof work shall be done by the OP. So, considering the admitted position that possession had been delivered on 12-12-2008. It is clear that invariably complainant was satisfied about the entire payment of consideration. Thereafter, possession was delivered. Another factor is that in the said possession there was no such mention noted by the OPs that there was any specific balance amount to be paid by the complainant. Most interesting factor is that at the time of argument and also from the complainant’s own document it is clear that OP4 is the landowner of the said premises she has got her allocation but ultimately she did not execute any registered Power of Attorney for execution and registration of the sale deed by the developer and, in fact, in this case on behalf of the OPs 1 to 3 the Ld. Lawyer also submitted that entire problem was created by the landowner for not executing any registered Power of Attorney in favour of OPs 1 to 3 for which they are unable to execute the sale deed.
Considering that fact it is clear that as per agreement OPs1 to 3 are liable to execute sale deed in respect of present flat when possession has been delivered on 12-12-2008 then it is clear OPs1 to 3 have their no right to execute any sale deed as they do not possess a registered power of attorney executed by OP4 but that was not disclosed at any point of time by the OP to the complainant but OP always gave assurance that it shall be matured and the deed shall be executed but after considering material and the admission of the OP’s Ld. Lawyer that OPs1 to 3 have failed to execute sale deed for want of registered power of attorney to be executed by the OP4 and OPs1 to 3 have admitted that bottle neck or stumbling block has been created by the OP4 for want of registered power of attorney or general power of attorney for executing the sale deed in respect of flats which was purchased from the OPs 1 to 3 by the purchasers. So, it is clear that OPs1 to 3 did not execute or register the sale deed for want of registration of general power of attorney which would be executed by the OP4 and admitted fact is that OP4 did not execute the same in favour of the OPs1 to 3 as yet. It is further gathered at this stage OP4 is claiming more money from the developer or the other flat owners for executing the power of attorney. Now, it is proved that sale deed it is not executed due to the non-execution of registered power of attorney to OPs1 to 3 by the OP4 but it is not disclosed to the complainant or other flat owners but most interesting factor is that possession has been delivered by issuing possession letter thereafter all the flat owners recorded their name as owner in respect of the present flat and at the same time electric connection and other records are prepared in the name of the complainant and KMC also issued property tax, assessment collection receipt in favour of the complainant so, considering that fact it is clear that complainant is in exclusive possession of the flat after purchasing on the basis of the agreement and there is no denial about delivery of possession, there is no denial about registration of the name of the complainant in the KMC is also not denied but truth is that till execution of the sale deed by the OPs1 to 4 the cause of action shall continued even after possession has been delivered in the year 2008 that is 12-12-2008. It is settled principle of law that there shall be no limitation if deed is not executed by the developer and the landowner and in this case it is proved that there is a standing conflict in between the developer and the landowner for which landowner did not execute any registered power of attorney for executing sale deed in favour of the flat owners by the OPs1 to 3, then it is clear OPs1 to 3 practically have been harassing the complainant and other flat owners in so many manners on the ground that they failed to get registered general power of attorney from OP4 for execution of the sale deed in favour of the complainant and other flat owners and that is a fault on the part of the OPs for which complainant must not be harassed but the matter ought to have been brought to the notice of the complainant and other flat owners by the OPs 1 to 3 by sending letters but they were silent but truth is that for such feud many flat owners have filed similar type of complaints.
Practically in the present case OPs Ld. Lawyer submitted that there are some amount due from the complainant and complainant did not pay it to the OPs 1 to 3 did not execute the sale deed. But interesting factor is that in the written statement OPs did not produce any paper to show that there was any balance due to be paid by the complainant. On the other hand, in the possession letter there is no such note that possession was delivered but there are certain amount unpaid by the complainant so, considering that fact and also the fact of delivering the possession long back on 12-12-2008 and thereafter, OPs1 to 3 are silent about any dues to be paid by the complainant, we are convinced and also relying upon the possession letter we are confirmed that there is no dues to be paid by the complainant at the same time OPs has failed to prove that there is any dues. But it is proved that due to a conflict in between OP4 and OPs1 to 3, OP4 did not execute any registered power of attorney in favour of OPs1 to 3 for which they did not register the sale deed and for which the complainant is being harassed and no doubt the OPs are bound to execute the sale deed but the present situation is such OP4 is claiming more money from the developer through the flat owners who have purchased the flats from the allocation of the developer and for which OPs1 to 3 are not willing to mediate the matter with the OP4 and for that reason complainant has been suffering for not getting any registration of sale deed and in such situation invariably a good legal procedure should be followed. So, that complainant may not suffer more but to get the registered sale deed and in fact for that purpose complainant has filed this complaint when it is no doubt maintainable in the eye of law and it is not barred by limitation.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against OPs1 to 3 with a cost of Rs.1,000/- and same is allowed ex parte against OP4 with a cost of Rs.5,000/-.
OPs1 to 4 are jointly hereby directed to execute and register the sale deed in respect of flat in question in favour of the complainant as per agreement that dated 19-12-2007 within one month from the date of this order failing which complainant shall have to file application before this Forum for registration of the sale deed executed in favour of the complainant on behalf of the OPs through Forum but all cost of registration and execution of the sale deed shall be borne by the complainant and complainant shall have to pay service charges for appointing officers on behalf of the Forum for execution and registration of the sale deed.
If OP4 does not execute the sale deed in favour of the complainant along with the OPs1 to 3 in that case OP4 shall have to pay penal damages at the rateRs.5,000/- per month till final execution of the sale deed in this case by this Forum and that amount shall be deposited to this Forum and if OP4 does not pay it the penal action shall be started against OP4.
But at the time of execution of the sale deed by this Forum the complainant shall have to satisfy by producing money receipt or receipt in respect of the payment of entire consideration of Rs.3,70,000/- and if at that time it is found that there is any unpaid amount it shall be deposited first to this Forum then the deed shall be executed by this Forum.
