Date of filing : 07.06.2018

Judgment : Dt.26.02.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Amarendra Kumar alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Nihar Ranjan Debnath, (2) Manjusri Debnath and (3) Nirmal Chandra Nath.

            Case of the Complainant, in short, is that an agreement for sale dt.10.2.2007 was entered into between the Complainant and the OP No.3 who is the developer, to purchase a self-contained flat measuring 1275 sq.ft. on the 2^nd floor at Premises No.191, Srirampur North, P.S.-Jadavpur, along with a car parking measuring 120 sq.ft. at a total consideration of Rs.10,80,000/-. But the flat was not delivered by the OP No.3 even after the lapse of the period as per agreement. Subsequently a tripartite agreement dt.5.7.2009 was entered into between the Complainant, OP No.3 and the owners being OP No.1 & 2. In the said agreement it was specifically agreed that the possession of the flat would be handed over within 45 days from the date of execution of the said agreement on payment of the balance consideration of Rs.4,00,000/- by the Complainant. But, in spite of that Complainant being always ready to pay the balance on some or other pretext the possession of the flat was not delivered, neither the deed was executed. However, OPs after a long persuasion gave the possession to the Complainant, but the deed has not been executed. So, the present complaint has been filed directing the OPs to register the deed of conveyance in favour of the Complainant as per agreement and to pay the extra charge of Rs.3,00,000/- for stamp duty and registration fees, to handover the completion certificate, to pay Rs.3,00,000/- as compensation for harassment and to pay litigation cost of Rs.10,000/-.

            Complainant has annexed with the complaint, copy of the agreement for sale dt.10.2.2007 and agreement for sale dt.5.7.2009, copy of notice dt.6.3.2017 sent by the Complainant.

            On perusal of the record, it appears that OP No.3 has contested the complaint by filing the written version denying and disputing the allegations contending specifically that an additional agreement was entered into with the OP No.3 dt.26.1.2007, whereby the price of the property was enhanced from R2.10,80,000/- to Rs.14,00,000/-. Complainant has not paid the balance amount. Complainant has taken the possession of the property forcibly and illegally and to this effect a G.D. was also lodged. So, the OP No.3 has prayed for dismissal of the case.

OP No.1 & 2 have also contested the case by filing written version denying and disputing the allegations. They have also contended that as per tripartite agreement dt.5.7.2009 Complainant assured to pay the balance consideration of Rs.4,00,000/-. But, he has not made the said payment. As the possession of the property by the Complainant is illegal, he is nothing but trespasser. So, OP No.1 & 2 have also prayed for dismissal of the case.

            During the course of evidence parties filed their respective affidavit-in-chief followed by filing of questionnaire and reply thereto. Ultimately, argument has been advanced and the written argument has also been filed on behalf of the parties.

            So, the following points require determination:

1. Whether there has been any deficiency in service on the part of the OPs?
2. Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Both the points are taken up together for a comprehensive discussion.

            It is claimed by the Complainant that an agreement was entered into between him and the OP No.3, the developer, on 10.2.2007 in respect of the flat as mentioned in the said agreement. He has paid Rs.6,80,000/- out of total consideration of Rs.10,80,000/-. However, neither possession was delivered nor the deed was executed. Thereafter a tripartite agreement was entered into between the Complainant, OP No.1 & 2 and the OP No.3. In support of his said claim, Complainant has filed the copy of the two agreements dt.10.2.2007 and 5.7.2009. On perusal of the written version filed by OP No.1 & 2 and also by OP No.3, it is apparent that the execution of two agreements have not been disputed and denied. Admittedly an amount of Rs.4,00,000/- is due to be paid by the Complainant out of the total consideration. He has paid Rs.6,80,000/-. On a careful perusal of the tripartite agreement dt.5.7.2009, which appears to have been entered into between the developer, the OP No.3, owners OP No.1 & 2 and the Complainant, it is specifically stated in clause 5 of the agreement that the purchaser, (the Complainant herein) shall pay Rs.4,00,000/- only to the vendor, the 1^st party, within 45 days from the date of the signing of the agreement and shall get registration of the said portion of the property at his cost and the sale deed shall be executed by the vendor after receiving Rs.4,00,000/-. From the said specific recital in the agreement it is apparent that Complainant was to pay the balance of Rs.4,00,000/- within the said period of 45 days to the vendor/1^st party in the said agreement and  accordingly the possession was to be delivered. In the agreement vendor, the 1^st party, are the owners. Owners have also signed in the agreement. So, the balance requires to be paid by the Complainant to the owners as per the said agreement dt.5.7.2009. OP No.3 has claimed in the written version that consideration price was enhanced from Rs.10,80,000/- to Rs.14,00,000/-, but the copy of the agreement which has been filed by him is dated 26.1.2007 which is before execution of tripartite agreement dt.5.7.2009. If the said agreement was executed between the Complainant and OP No.3 regarding the enhancement of the consideration price then there should have been some reflection about it, in the agreement entered into between the parties on 5.7.2009. But there is no mention about the enhancement. On the contrary, it is specifically stated that the consideration was Rs.10,80,000/- and the balance of Rs.4,00,000/- was to be paid by the Complainant. So, in such a situation, as admittedly, Complainant is in possession of the property i.e. flat and the car parking space, he is entitled to the execution and registration of the deed of sale on payment of the balance consideration price as agreed in the agreement dt.5.7.2009. However, so far as compensation is concerned, we find no justification to allow it as the Complainant also has not paid the balance of Rs.4,00,000/- which was required to be paid within 45 days.

            Hence

                          ordered

            CC/337/2018 is allowed on contest against OPs. OPs are directed to execute the sale deed in favour of the Complainant as per agreement dt.5.7.2009 within two months from the date of payment of balance consideration of Rs.4,00,000/- by the Complainant to OP No.1 & 2. OPs are further directed to pay litigation cost of Rs.10,000/- to the Complainant within the aforesaid period of two months.