Order No.                 .

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

          Complainant by filing this complaint has submitted that Vijay Prakash Verma and Sanjay Kumar Verma as Developer cum Promoter constructed multi-storeyed building on their purchased land situated and lying at premises no.13, Raja Shew Bux Bagla Lane, P.S. Tala(new) – Chitpur (old), Kolkata – 700 003, within the jurisdiction of the Kolkata Municipal Corporation, Ward No.5 by obtaining sanctioned plan from the authority bearing No.5 (B-1) dated 21-04-2005 for raising a partly ground + 3 and partly 3 storeyed building over the said plot of land, as per sanctioned building plan consisting of several flats with other amenities and after demolishing the old structure thereon and they intended to sale the said flats and complainant as intended buyer express his desire to purchase a flat on the 1^st floor front side in the said building consisting of two bed rooms, one kitchen-cum-dining and one bath cum privy total measuring about 612 sq. ft. super built up area as described in the schedule in the Agreement for Sale dated 27-08-2008.

          At the time of execution of agreement for sale complainant paid a sum of Rs.4,00,000/- as part payment towards the total consideration money of Rs.9,98,000/- (Rupees Nine Lakh Ninety eight thousand only) and it was agreed that balance amount would be paid at the time of taking possession and registration but unfortunately Vijay Prakash Verma died intestate leaving behind him OP Nos.2 to 4 and that OPs stepped into the shoes of the said deceased Vijay Prakash Verma.  After prolonged negotiation the OPs delivered the possession of the flat on 15-05-2010 by virtue of a possession letter dated 15-05-2010 and same was issued by the OPs1 and 2 after receiving a sum of Rs.3,98,000/- and said Rs.3,98,000/- was paid by cheques of different bank having amount of Rs.1,00,000/-, Rs.99,000/- and Rs.1,99,000/- and balance amount is still unpaid that is Rs.2 lakhs because OPs are not willing to execute deed of sale even after delivery of the possession of the flat on 15-05-2010.  Then complainant repeatedly requested the OPs to execute the sale deed after receiving the balance amount of Rs.2 lakhs but OPs are very reluctant to execute the same for which the complainant is compelled to file this complaint for redressal on the ground complainant is always ready to pay the same but OPs are not cooperative with the complainant.

          On the other hand, the OP1 Sanjoy Kumara Verma by filing written statement has submitted that OP1 and other OPs are ready to discharge  then and contractual obligation but complaint but failed to pay full balance till 15-05-2010 in terms of the agreement sale dated 27-08-2008 and it was also stated by the OPs that complainant shall have to pay Rs.2 lakhs within three months from the date of getting certificate of natural guardian of the minor and it is further submitted that before filing complaint he did not meet or did not take any step and to pay that balance amount till the month of February, 2013 when a letter along with a draft deed of sale was sent to the OP with a prayer for execution and on receipt of the said letter OP1 sent a written reply on 02-03-2013 denying all material allegations of the complainant and further submitted that practically all the allegations of the complainant are false and only to cover his laches and inaction such an act was done by the complainant and in fact, complainant failed to pay balance amount and now he has collected it after lapse of thrice years and now, he is ready and it indicates that entire complaint is false and only for the purpose of harassing the OP the present complaint is filed so same should be dismissed with cost.

          Further it is submitted that some pages of the agreement are interpolated and that has been submitted before this Forum.

Decision with Reasons

After hearing the Ld. Lawyer of the complainant and also considering the complaint and written version and also after consulting the agreement to sale as produced by the complainant and photocopy of the same agreement to sale as produced by the OP it is found that there is some changes of pages and it is apparent from the physical appearance of pages from 2-14 but admitted fact is that complainant paid Rs.7,98,000/- out of total Rs.9,98,000/-.  OP has admitted that fact and it is also admitted position that as per agreement complainant was liable to pay the total payment as on the date of delivery of the possession or on the date of final registration of the deed whichever is earlier.  But in this case it is admitted position that the possession was delivered by the OPs to the complainant on 15-05-2010 on which date complainant failed to give balance Rs.2 lakhs and thereafter complainant was silent for execution and registration of the deed of sale and complainant has failed to show that there was any fault of OPs for non-execution and registration of the Sale Deed.  Fact remains after 15-05-2010 and till 07-12-2013 complainant never take any step for handing over balance Rs.2 lakhs for registration but considering the agreement it is clear that complainant has not discharged his liability to pay the entire amount on 15-05-2010.  So, there was laches on the part of the complainant and at the same time from the conduct of the complainant it is clear complainant had his no sufficient fund so he waited to collect Rs.2 lakhs after 15-05-2010 and till 07-02-2013. Not only that by that letter dated 07-02-2013 complainant did not send the balance amount of Rs.2 lakhs as consideration. So, it is clear that complainant was at fault and he did not discharge his duties finally even after receipt of the possession positively on 15-05-2010.  So, it is clear for three years since 15-05-2010 and till today the said amount of Rs.2 lakhs has been enjoyed by the complainant though the possession is already taken by the complainant and entire deficiency is found on the part of the complainant who failed to give the balance of Rs.2 lakhs in between the period 15-05-2010 till today that means for last four years the said balance amount of Rs.2 lakhs is enjoyed by the complainant and his fixed interest of 8% over the said amount from 15-05-2010 till the date of deposit of the same to this Forum as balance consideration.  Because OPs have stated that they are ready to execute the sale deed but complainant did not turn up and considering the defence of the OP and also the complainants own letter dated 07-02-2013 we are confirmed that complainants sent a copy of Deed of Sale along with a letter but did not send the cheque amount of Rs.2 lakhs with interest of 8% since 15-05-2010 moreover in the said letter sent by the complainant there is no whisper that complainant is sending a cheque.  So, it is clear that the letter dated 07-02-2013 was sent only for the purpose of saving his limitation in filing this case.  Because as per observation of the Hon’ble Supreme Court and National Commission after taking possession within two years a flat owner shall have to appear before this Forum for redressal for execution and registration of the fee.  It is not executed by the OP but in this case the flat owner is found at fault on his part about payment and other matter as per agreement.

          So, considering the entire facts and circumstances, we are convinced to hold that sale deed was not executed by the OP only for the laches of the complainant because complainant did not handover the balance amount of Rs.2 lakhs and even on the sending the letter dated 07-02-2013 but complainant did not send a cheque so, in any circumstances the laches and deficiency on the part of the OP are not found but considering the entire facts and circumstances we find that OPs are ready to execute the deed of sale etc.  Complainant shall prepare it and before that clear entire amount with 8% interest and which is within the hand of the complainant but complainant did not adopt such procedure but only to avoid limitation and avoid payment of interest over the said amount, this complaint is filed and no doubt deed has not been executed and registered and that is the fault of the complainant.  But considering the entire facts and circumstances and the admission of the OP we are convinced to hold that complainant is entitled to get a deed executed and registered by the OPs when OPs are ready to execute it.  OP is directed to execute it but before that complainant shall have to deposit entire amount of Rs.2 lakhs and also Rs.50,000/- as interest for the last three years and shall have to deposit a total Rs.2,50,000/- to this Forum in the head of President, D.C.D.R.F., Kolkata Unit-II within one month from the date of this order failing which the entire complaint shall stand dismissed and if it is paid then the complainant shall have to get final deed to be executed by the OPs and registered by them at the cost of the complainant. 

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest against the OP1 and same is allowed ex parte against other OPs but without any cost only on the ground complainant adopted an unholy path to get the deed registered by the OPs.  Complainant is directed to deposit Rs.2,50,000/- (Rs.2,00,000/- as principal consideration + Rs.50,000/- as interest since 15-05-2010) to this Forum within one month from the date of this order positively if this part of order is complied by the complainant in that case OPs are directed to execute and register the final deed of sale as per agreement copy which is filed by the OP in the present case in respect of the deed of agreement to sale dated 27-08-2008 and it complainant fails to deposit that amount within the said period to this Forum in that case the complainant shall stand dismissed.

          But if complainant complies this order in that case if it is found that OP is reluctant to execute sale deed finally in that case the complainant shall have liberty to execute this order by this Forum for getting the deed executed and register by this Forum at the cost of the complainant and in that case the complainant shall have to pay service charge for execution and registration of this Forum as per further order.

          Parties are directed to comply the order as per spirit of this order failing which the penal proceeding shall be started if any reluctant attitude of either of the parties is found

          Parties to comply the order very strictly.

Dictated & Corrected

      by me