The present complainant by filing this complaint has submitted that op purchased the entire premises no. 7E/1H, Surah Cross Lane,

2^nd Floor, P.S. Beliaghata, Kolkata – 700010 K.M.C. Ward No.33, vide registered deed of conveyance recorded in the year 2004, and thereafter they also got a duly sanctioned building plan from Kolkata Minicipal Corporation for construction of a G+3 Storied building at the premises.

Thereafter the complainant vide an agreement for sale of a flat executed on the 15.12.2007 executed in between the complainant and the op and agreed to sale a habitable and complete in all conditions the residential flat of the 2^nd floor, back side, measuring more or less 580 sq. ft. super built up area consisting of two bed rooms, one dining space, one verandah, one kitchen, one toilet, along with all easement and quasi easement rights attached thereto at the said premises and as per agreement, the complainant paid a sum of Rs. 6 lakhs and possession of the said flat though in incomplete conditions has been given to the complainant by the op on 15.12.2007 and at that time they promised to finish entire incomplete work of the said flat within one/two months but it has not as yet been completed and the building is not in habitable condition.

          For this reason many times complainants requested the ops to complete the work of the flat as well as the building in all respects and then to accept the balance amount of Rs.10,000/- and then to execute and register the deed of conveyance by the op, but ops did not pay any heed only truth intention of selling the said flat at a higher market price or consideration to other persons by evicting the complainants.  Considering that fact, the complainant lodged a complaint at Beliaghata P.S. stating the conditions of the flat.

          Thereafter op through his Ld. Lawyer inter alia unilaterally and arbitrarily cancelled the agreement for sale dated 15.12.2007 asking the complainants to vacate the said flat and to get refund of Rs.6 lakhs only what was paid by the complainants to the ops.  Thereafter the complainants through their Ld. Lawyer Mr. Pintu Das sent a reply dated 16.01.2012 stating the facts and circumstances and after that complainants also sent a letter to the op along with said letter of the complainants, sent xerox copy of the Deed of Conveyance for proper registration of the said flat and approval of the ops and also sent an account payee cheque of Rs.10,000/- only to the op being cheque No.638282 dated 12.03.2012 payable at Indian Overseases Bank, Phulbagan Branch, Kolkata in the names of the ops as balance consideration price of the said flat, but the same was returned back by the ops.

          Thereafter ops through their Ld. Lawyer sent a letter dated 26.03.2012 but they did not pay any heed though entire amount consideration was paid and possession is with the complainant but the ops with malintention and to sale the flat at higher rate illegally cancelled the said agreement and tried to evict the complainant in such a manner only for the purpose of refunding the entire amount and to sale the same at market highest rate for their benefit and practically they have adopted unfair trade practice for this complaint was filed for redressal.

          On the other hand ops received the summons of this case and appeared in this case and submitted their written versions stating that the Title Suit No. 79/2012 against the complainants in respect of self same issues before the Ld. Civil Judge (Jr. Div.) at Sealdah was filed and it is subjudice and when the same dispute between the present parties are in seisin before the Civil Court for proper adjudication, this proceeding before this Ld. Forum cannot be proceeded in accordance with the law and further denied all allegations of the complaint and further submitted that ops constructed a pucca dwelling house upon the land of the said premises  and complainants expressed them as bona fide purchasers of the flat and of the said premises and convinced the ops to sell a residential flat to them.  Accordingly the complainants paid Rs.6 lakhs to the ops by way of installments in the year 2008 against one flat on the 2^nd floor back side at the said premises and no doubt the complainants got possession of the said flat  and ops received the amount Rs.6 lakhs by signing agreement of said flat and balance amount of Rs.2 lakhs on different dates etc and agreement for sale of flat dated 15.12.2007 is in the custody of the complainants and ops requested the complainants to pay balance amount of Rs.10,000/- to complete the flat and to get registered Deed of Conveyance in respect of the said flat but the complainants deferred the matter on various false pretexts one after another and in spite of ops several requests the complainants turned a deaf ear and did not pay the balance amount and did not prepare themselves for registration of the deed and from the date of execution of the impugned Agreement for Sale dated 15.12.2007 and in the mean time more than three years had already expired and for which this complaint is also barred by limitation and ultimately ops were compelled to cancel the said agreement to sale by notice dated 02.01.2012 under Regd. Post with A/D so at this stage complainants are not entitled to get any relief as prayed for. 

          Further ops have submitted that the complainants are in occupation of the said flat on permissive possession under them and after expiry of the month of January 2012 they were asked to vacate and handover the possession of the flat but they were not ready to handover the vacant possession of the said flat and ops intimated that refund of the said amount is barred by limitation. 

          Further ops submitted the present case is not maintainable for which it should be dismissed.

                                        Decision with reasons

          On proper assessment and evaluation of the complaint and the written versions including in the agreement are advanced by the Ld. Lawyers of both the parties, it is found that the noted below matter are admitted by both the parties and same is as follows-

1)   That Agreement to Sale in between the parties was no doubt executed by the ops for sale of the present flat at a mutually settled total consideration of Rs.6,10,000/- and Agreement to Sale was admittedly executed in favour of the complainants on 15.12.2007 and it is admitted that ops received Rs. 6 lakhs already and balance amount is Rs.10,000/- which shall be paid by the complainants. And it is also undisputed fact that possession had already been delivered in favour of the complainants and complainants had been occupying the same and it is also admitted that all the flats have not been properly completed.  The ops failed to complete it for non-payment of Rs.10,000/- as alleged.

Considering that admitted fact, we are very much convinced that the present ops did not execute the sale deed for some reasons best known to them after receiving balance Rs.10,000/.  Though the complainant sent one cheque of Rs.10,000/- along with a draft of copy of deed by registered letter to the ops and ops without any valid reason refused it to receive and returned it and that matter has not been denied by the ops.  Negligent and deficient manner of service on the part of the ops is proved beyond any manner of doubt and it is also proved that ops expressed their desire not to pay any amount and trying to evict complainants and on 26.03.2012 present ops sent a letter to the complainants for vacating the premises and by that letter he also returned back the cheque along with draft copy of the draft deed.

          So, it is clear after delivering possession and after receiving Rs. 6 lakhs out of total consideration Rs.6,10,000/- the ops have no right to deny or to cancel the agreement.  But it has been done with an intention to sell the flat at highest market rate because in the Beliaghata area nowadays one flat cannot be purchased without paying Rs.40 lakhs.  Then question is how these ops got their right unilaterally to cancel the said agreement.  When there were no latches on the part of the complainants.  Complainants sent cheque and draft of the deed and same are refused by the ops.

          The above intention of the ops has confirmed that they have their no desire to discharge their obligation as per agreement and they have no desire to execute the sale deed but only desire to vacate the intended purchasers who are in possession, who has paid about total consideration Rs. 6 lakhs out of Rs. 6,10,000/-.  So, such an act on the part of the ops is no doubt an unfair trade practice and it has become a practice of the Promoters, Developers jointly with Landlords.  Not to execute any Sale Deed in respect of the flat which has been already sold when at that time of market rate was no doubt low.  In this case same incident happened.  So, no doubt as per provision of C.P. Act 1986 and in view of the definition of service of C.P. Act 1986 the present complainant is entitled to get relief in respect of execution of the deed by the ops and also such relief so that ops may complete the said flats as per agreement. 

          But question is that Ld. Lawyer for the ops did not try to express any sort of agony for non completion of the flats and or for non execution of that flat in favour of the complainants.  But their arguments through their Ld. Lawyers are when Title Suit Case No. 79/2012 is pending in between the parties, the present suit cannot be proceeded.

          Fact remains that this complaint was filed on 16.05.2012 for relief as per C.P. Act 1986.  It appears from the copy of the plaint of Title Suit No. 79/2012, that complainants have prayed for a declaration that the Agreement for Sale of a flat dated 15.12.2007 is valid document and same is not valid in the eye of Law and barred by limitation and same is pending also for a declaration that defendant has no legal right to occupy the said flats and a decree for eviction.  But anyhow ops have failed to produce any injunction order in respect of the flat against the complainant, so that he cannot proceed with any further proceeding before any Court of Law.  At the same time it is pertinent to say that as per provision of Section-3 of the C.P. Act 1986, the present Forum has legal authority to give relief in respect of the deficiency of service to the present complainant what the Civil Court cannot grant.  Another factor is that from the said complaint, it is found that in that Suit complaint op has admitted the payment of Rs. 6 lakhs, delivery of possession in favour of the complainant and execution of agreement for sale dated 16.12.2007.  Moreover, from the agreement to sale dated 15.12.2007 it is found there is a specific Clause – 4 at Page – 4 in the Agreement Deed where it is clearly written that the purchasers may file suit against the vendors under the due process of law for execution of the deed after full payment to the vendors for registration of the flat through Court.  Then as per agreement this complainant has rightly filed this complaint.  When ops own letter have admitted that they refused to execute the deed and they also refuse to receive balance amount of Rs.10,000/- then as per agreement as per Clause- 4 at Page – 4 complainant is entitled to file this complaint and another factor is that there is no such clause in the agreement to sale dated 15.12.2007 that ops have their right to unilaterally cancel the sale deed.  When that clause is absent then invariably this Forum has right to decide the consumer dispute and as per agreement it is clear ops have their no defence regarding cancellation of the agreement and they have also no right to cancel.  But peculiar factor is that present all these matters in the plaint of the Title Suit No. 79/2012 is absent though they filed it before the Civil Court and Civil Court can pass injunction order what this Forum can pass as interim order.  But regarding declaration we find that entire complaint was filed before Civil Court at Sealdah only on the ground that if any other case is filed at Civil Court it shall be continued for 10 to 20 years.  But apparently the plaint which was filed before the Civil Court is found filed for the purpose of defending this case but we are not entering into the merit of that case.  But fact remains this Forum has right to pass such order and to grant such relief as per agreement when the ops have their no legal right to cancel the agreement and there is no such power also given by that agreement to sale dated 15.12.2007.  On the contrary there is a specific clause that if it is not executed after receipt of the entire amount in that case complainant shall have his right  to file a case before any legal authority for execution of the deed.

          Considering all the above facts and circumstances, we are convinced to hold that due to pendency of a suit before the Civil Suit, this complaint is not barred under provision of law as laid down in Section – 3 of the C.P. Act 1986.  Rather the total agreement dated 15.12.2007 upon which both the parties relied is considered it and this can safely be said that this Forum has legal power to decide this dispute finally.  Accordingly we are concluding this chapter by deciding the entire consumer dispute as per terms conditions of the agreement to sale dated 15.12.2007 and fact remains both the parties are controlled by this agreement and right to file case by the complainant is or was given by the agreement.  Truth is that these ops have adopted unfair trade practice and for which they are not executing the final deed of sale and they have not completed the incomplete flat.  But rather they have expressed their desire to evict the present purchasers with good money paid to the ops at adopting another unfair path by filing such vexatious complaint before Civil Court.  In the light of the above observation we are inclined to hold that complainant shall get relief against the ops and ops are directed to complete the flat and execute the deed of sale in favou r of the complainant after accepted Rs.10,000/-

          Accordingly, the complaint succeeds.

          Hence, it is

                                                        ORDERED

          That the complaint be and the same is allowed on contest against the ops with a cost of Rs.10,000/- each.

          Ops are directed to execute the sale deed in favour of the complainants within 45 days from the date of this order after accepting Rs.10,000/- from the complainants failing which for non compliance of this part of order ops shall have to pay a sum of Rs.25,000/- each to the complainants as compensation and if deed is not executed within the time in that case complainants shall have his liability to file such application before this Forum for execution of final deed in respect of agreement for sale dated 15.12.2007 through this Forum.

          Complainants are entitled to Rs.40,000/- as compensation from the ops for causing mental pain and agony and also harassment for loss of years and creating such disturbances in enjoying the flat by the bona fide purchasers the present complainants.

          For adopting unfair trade practices by both the ops, each op shall have to pay Rs.25,000/- as punitive damages which shall be paid to the State Consumer Welfare Fund within 45 days from the date of this order and this penalty order is passed to check up the habit and intention of such promoters to deceive the bona fide purchasers with value and for creating disturbances in enjoying such flat by the purchasers. 

          Ops are directed to comply the order very strictly within the stipulated period failing which for each months delay each op shall have to pay Rs.10,000/- per month till full satisfaction of this decree.

          This portion of order is passed relying upon the judgement passed by National Commission in RP-43485 of 2012 passed by Hon’ble Justice J.M. Malick and Hon’ble Dr. S.M. Kantikar on 19.05.2013 against the order dated 24.07.2012 in Appeal No.317/11 of the State Commission W.B.

          Even for noncompliance of the Forum’s order the penal action may be started against them for which they shall be prosecuted as per provision u/s 27 of C.P. Act 1986.