Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          As per complaint, it is the specific case of the complaint that he entered into an agreement for sale with the OPs for purchasing a flat about 612 sq. ft. on 07-06-2008 at a consideration of Rs.11,00,000/- and paid Rs.3,00,000/- as an advance payment towards the total consideration money of Rs.11,00,000/-.  Thereafter, the complainant paid Rs.7,00,000/- by two cheques no.98995 and 989950 dated 15-05-2010 respectively drawn on State Bank of India, R.G. Kar Medical Branch, Kolkata and thus deposited the total amount of Rs.10,00,000/- to the OPs out of total consideration money of Rs.11,00,000/- and got the possession of the flat on 15-05-2010 and the complainants requested the OPs to execute and register the Deed of Conveyance    in their favour after taking the balance due consideration money of Rs.1,00,000/- from them.  It is also stated by the complainants though the OPs assured them for such registration of the Deed in due course of time but took time since OP2 has applied for an order of guardianship of her two minor sons namely (1) Mehul Vijay Verma and (2) Gourav Vijay Verm a after demise of their father being the OP3 and 4 respectively but till date, they did not perform their obligation to register the deed of conveyance of the flat.  On several occasions the complainants requested the OPs to execute and register the deed of conveyance but they did not pay any heed.  Hence, this case.

          Fact remains that summons were sent by Regd. Post with A/D/Speed Post to the OPs and also paper publication was made in respect of the OPs 2,3 and 4 who did not appear before Ld. Forum or file any W.V. despite service of notices/paper publication.

          Hence, the case is heard ex parte against OPs 2,3 and 4.

          In its written version, the OP1 stated that this complaint is not maintainable in law as well as in the fact.  It is also stated that according to the terms of agreement for sale dated 07-06-2008, the complainants deposited of Rs.10,00,000/- out of total consideration money of Rs.11,00,000/- for the 612 sq. ft. flat and took possession on 15-05-2010 but did not pay the due balance consideration money of Rs.1,00,000/- for the reasons best known  to them.  In its submission the OP1 stated that they were all along ready to execute the register deed of conveyance of the flat for which possession have already been given to the complainants.  But the complainants did not act according to the terms of agreement and the due balance consideration money of Rs.1,00,000/- to them.  It is further stated by the OP1 that they had categorically mentioned in the possession letter dated 15-05-2010 that after the OP2 has applied to the competent Civil Court as guardian of the minor OP Nos.3 and 4, and after getting the order from the Ld. Court, the OP1 to execute and register the deed of conveyance in respect of the complainants flat on receiving the balance consideration money of Rs.1,00,000/- within 3(three) months from the date of such appointment.  Although the OP1 is ready and willing to execute the register the deed of conveyance in respect of the complainants flat on receiving the payment of the balance consideration money on the basis of agreement dated 07-06-2008.  So, the instant complaint is liable to be dismissed.

Decision with Reasons

Considering the materials on record it is proved that the complainants entered into an agreement with the OPs on 07-06-2008 for purchasing a flat as described in the schedule to the agreement at a consideration of Rs.11,00,000/-.  It appears from the record that the complainants paid a sum of Rs.10,00,000/- out of total consideration money of Rs.11,00,000/- and got the possession of the flat on 15-05-2010.  The main contention of the complainants is that as and when the OPs do perform their obligation to register the deed of conveyance of the flat, the balance due consideration amount of Rs.1 lakh will be paid by them.  Furthermore, it is stated by the complainants that they have already sent a Draft Deed of Sale to the OPs on 07-02-2013, in spite of that no initiation was taken on the part of OP3 to act/respond for such deed of conveyance of the flat.

          On the other side, the OPs have taken the plea that though they received the Draft Deed as sent by the complainants, but instead of having possession of the flat since 15-05-2010 the complainants did not pay the full consideration money of the flat i.e. the due balance of Rs.1,00,000/- to them.  In its submission the OP1 stated that they are always ready to register the deed of conveyance on receiving the due balance consideration money of Rs.1,00,000/- from the complainants.  But the complainants failed to act as per terms of the agreement dated 07-06-2008 and to pay full money. 

          Admittedly, complainants are in possession of the flat in question since 15-05-2010.  The grievance of the complainants is that the OP promoters are refrained from executing and registering the deed of conveyance in favour of them.  But the OPs have taken the ground that though possession of the flat have already been given to the complainants on 15-05-2010 in spite of non-payment of total consideration money, still the complainants have not paid the balance of Rs.1,00,000/- to them and asking for registration of the flat which is not legal as per the terms of the agreement dated 07-06-2008.

          In our view it is a lapse on the part of the OPs since they are bound themselves by an agreement dated 07-06-2008 and accordingly after handing over the possession of the flat in question on receipt of ten lakhs, it was their obligations to receive balance consideration money i.e. Rs.1,00,0000/- and to execute and register the Deed of Sale but that has not been done as yet.

          We find from the record that possession was delivered in the year 2010 i.e. on 15-05-2010 and now we are in the year 2014 i.e. 4 years have already passed and no initiation has been given by the OPs to clear of their due/balance consideration money which they are bound to pay as per the terms and conditions of the agreement dated 07-06-2008 for execution and registration of the deed.

          Taking into consideration all the pros and cons of this case, we are of the view that there is laches on the part of the OPs to receive balance consideration money of Rs.1,00,000/- from the complainants to register the deed of conveyance of the flat in favour of the complainants.

          Since, the OPs were silent over the matter even after delivering the possession on 15-05-2010 to the complainants but as per possession letter it is the obligation of the OPs to intimate to the complainant that they got order from the Court about guardianship and OPs also are willing to execute the Deed of Conveyance of the flat on receiving the balance money but that has not yet been done so negligence and deficiency on the part of the OPs are proved.  Considering the above, we are inclined to allow the complaint with cost.

Hence,

Ordered

That the case be and the same is allowed on contest against OP1 but ex parte against OPs 2,3 and 4 with litigation cost of Rs.10,000/-(Rupees Ten thousand only) to both the cases.

          For causing harassment and mental pain and agony and also financial loss for increase of Registration fees OPs jointly and severally shall pay a sum of Rs.50,000/-(Rupees Fifty thousand only) to the complainant within one month from the date of this order.

          OPs are directed to register the deed of conveyance of the flat of the complainants within 1(one) month from the date of this order failing which for non-compliance of the Forum’s order OPs shall have to pay punitive damages @Rs.500/- per day till full satisfaction of the decree an d if the punitive damages is collected that shall be deposited to this Forum and complainant shall have the liberty to get the deed of sale registered by this Forum.

          Even if the OPs neglect to comply this order, penal action/proceeding shall be initiated u/s.27 of the C.P. Act, 1986.

          Complainants to deposit Rs.1,00,000/-(Rupees One lakh only) before this Forum as balance consideration at once within twenty days as far as practicable.