For the Complainants - Mr. Satya Narayan Gupta, Advocate
For the OP-1 - Smt. Somashree Dey, Advocate
FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
The Complainants’ case, in short, is that OP-2 is the owner of a plot of land measuring about 02 cottahs with structure thereon being Premises No. 341, VIP Nagar, Kolkta-700100 who entered into a Development Agreement dated 04.11.2015 with the OP-1 for construction of a four storied building in the said premises. The OP-2 has also executed and registered a General Power of Attorney dated 04.11.2015 in favour of the OP-1. Complainants booked a flat on the 3rd floor (South East Side) of Premises No. 341, VIP Nagar, Kolkata-700100 measuring about 700 sq. ft. (super build up area) consisting of two rooms, one dining cum kitchen and one bath together with undivided proportionate share of land with the OP-1 pursuant to an Agreement for Sale dated 09.05.2016. The Sale price of the subject flat is Rs. 13,30,000/-. In terms of Agreement for Sale the complainants have already paid Rs. 9,00,000/- to the OP-1. Despite of repeated request, the OPs did not deliver possession of the subject flat, execute and register Deed of Conveyance upon receipt of balance sale price. Finding no other alternative, complainants issued legal notice to the OPs. Legal notice was unattended. The acts of the OPs are tantamount to unfair trade practice and deficiency in service. Hence, the complainants are before this Forum seeking possession, execution and registration of the Deed of Conveyance of the subject flat along with compensation and litigation cost.
The complaint has been resisted by the OP-1 by filing Written Version admitting execution of Agreement for Sale dated 09.05.2016 and also receiving Rs. 9,00,000/- as part sale price of the subject flat out of the total price of Rs. 13,30,000/-.The answering OP is ready and willing to handover possession of the subject flat including execution and registration of Deed of Conveyance in favour of the complainants upon receipt of balance sale price of Rs. 4,30,000/-.The complainants did not pay the balance sale price violating the terms and conditions of the Agreement for Sale. Hence, the answering OP has prayed for dismissal of the complaint.
Despite of service of notice OP-2 did not turn up to contest the case. As such, the case has proceeded ex parte against the OP-2.
Decision with Reasons
Complainants have tendered evidence through affidavit. In spite of giving opportunities the OP-1 did not file any E/chief. We have heard the Ld. Advocates for the parties and have also gone through the evidence as well as documents on record.
It is an admitted fact that OP-2 is the owner of a plot of land measuring about 02 cottahs being premises No. 341, VIP Nagar, Kolkata-700100 who entered into a Development Agreement dated 04.11.2015 with the OP-1 for construction of a four storied building in the said plot of land. It is also true that the OP-2 has also executed and registered a General Power of Attorney dated 04.11.2015 in favor of the OP-1. It remains undisputed that the complainants booked the subject flat with OP-1 and the sale price of the subject flat is Rs. 13,30,000/-. The parties executed an Agreement for Sale on 09.05.2016 incorporating their respective obligations. It is also true that the complainants have paid Rs. 9,00,000/- to the OP-1 as part payment.
The grievance of the complainants is that in spite of several request the OPs did not deliver possession of the subject flat, execute and register Deed of Conveyance upon receipt of balance sale price. Except legal notice dated 16.07.2018 no other document is forthcoming from the end of the complainants to establish that request and reminders were sent to the OPs in this regard. The OP-1 denied the grievance of the complainants on the ground that due to non payment of balance sale price. They did not handover possession of the subject flat to the complainants. They are ready and willing to execute and register Deed of Conveyance in respect of the subject flat upon receiving balance sale price. Complainants themselves deferred the payment of balance sale price. Hence, possession of the subject flat has not been given to the complainants. The situation has been created by the complainants as they failed to pay the balance sale price of the subject flat to the OP-1 as per schedule of payment fully mentioned in the Agreement for Sale dated 09.05.2016. Had the complainants been seriously interested to get possession and deed executed in their favour in that event they must remit the balance sale price of the flat to the OP-1. Consumer Forum are not meant to be a tool for indulging frivolous claim.
Based on the above discussion coupled with the pleadings of the parties evidence and documents on record, we are not inclined to allow any compensation to the complainants as the complainants themselves responsible for causing delay in the matter of getting possession, execution and registration of the Deed of Conveyance of the subject flat.
In the result, the case succeeds in part.
Hence,
Ordered
That the complaint case be and the same is allowed on merit against the OP-1 and also allowed ex parte against the OP-2. Parties do bear their own cost.
The OPs are directed to execute and register Deed of Conveyance of the subject flat in favour of the complainants after receiving balance sale price of Rs. 4,30,000/- (Rupees Four lacs Thirty thousand) only within Sixty (60) days from the date of this order. Complainants are directed to pay balance sale price of Rs. 4,30,000/- (Rupees Four lacs Thirty thousand) only to the OP-1 and thereafter the OP-1 is directed to handover possession of the subject flat to the complainants within the stipulated period. We make it clear that the cost of such registration shall be borne by the complainants. If the OPs transgress to comply the order in that event liberty be given to the complainants to take recourse of the machinery of this Forum for execution and registration of the Deed of Conveyance.
