Order-19.
Date-21/04/2015.
Complainants Smt. Subhra Roy, Sri Souvik Roy & Smt. Suranjana Roy by filing this complaint has submitted that op no.1 is the owner and the op no.2 is the Developer of premises No. 41/A/1, Sitalatala Lane, Ward No. 30, P.S.- Narikeldnaga, Kolkata – 700011 and as per agreement in between and amongst the ops, ops decided to construct multi-storied building as per sanctioned plan by Kolkata Municipal Corporation (KMC) after demolishing the existing structures for the purpose of residing and selling some floors of the said residential building to prospective buyers at the said premises.
Fact remains that complainants were the tenant under the op no.1 in the existing structures and they expressed their desire to the ops to purchase a self-contained flat measuring about 350 Sq. Ft. carpet area on the Ground Floor of the said multi-storied building at the consolidated rate of Rs. 1,00,000/- in which they agreed and the ops as owner and developers entered into a Purchase Agreement dated 12.02.2010 with the complainants and ops erected a four storied building at that premises and in terms of the said Agreement, ops agreed to provide a self-contained flat on the ground floor on the North-Eastern side, comprising an area of more or less 350 Sq. Ft. carpet area consisting of two rooms, one kitchen, one dining and one toilet at the consolidated rate of Rs. 1,00,000/- to the complainants and complainants agreed to purchase it with all other allied facilities and amenities annexed thereto.
Consequently as per the said Agreement dated 12.02.2010 entered into by and between the ops and the complainants as per such terms mentioned therein, the ops received the total consideration amount of Rs. 1,00,000/- only from the complainants time to time after which ops delivered peaceful physical possession of the same to them and after obtaining possession of the said flat on the Ground Floor, complainants installed electric meter from CESC and by paying monthly bills enjoying the said flat. But ops did not execute the Sale Deed as yet even after repeated requests made by the complainants. Finding no other alternatives, complainants sent letter on 14.05.2014 by Speed Post with A/D calling upon the ops to execute and register the Sale Deed in their favour within 15 days and that letter was received by the op.
Thereafter op no.1 through their Ld. Advocate sent a reply dated 30.05.2014 admitting the fault on their part and the said letter has also been countered by the complainants through their Ld. Advocate vide letter dated 16.06.2014. But even then ops have not executed the Sale Deed and further for negligent and deficient manner of services of the ops, complainant has filed this complaint for redressal and for passing such necessary order to direct the op to execute the Sale Deed and for compensation.
On the other hand op no.1 by filing written statement submitted that the complaint is not maintainable against the op no.1 and there is no deficiency of service. Fact remains that op no.1 never received any money for such Agreement and all the allegations made by the complainants against op no.1 are false and fabricated and no amount was paid by the complainant either to the op no.1. But on the ground full possession was given to the complainants and complainants was agreed to pay the amount to the developer, but developer did not receive it and in fact complainant is not a consumer under the op no.1 and there is no relationship in between the complainants and op no.1 as buyers and sellers and for which the present complaint should be dismissed.
On the other hand op no.2 the Developer by filing written statement submitted that he agreed to transfer a self-contained flat measuring about 350 Sq. Ft. to the complainants at a minimum cost of Rs. 1,00,000/- only and pay the shifting charge including rent for his temporary accommodation during construction work at the rate Rs. 2,000/- only per month and handed over the self-contained flat at the said premises as per Agreement dated 12.02.2010. The complainants have not yet paid the entire amount of Rs. 1,00,000/- and including interest as well and he never sent any draft copy of the Sale Deed for approval or registration and in fact after taking possession as they were previously tenant, they are unwilling to comply the same after payment of said amount and in fact op no.2 has always ready to execute and register the deed of conveyance at the cost of the complainant and complainant is unwilling for which the present complaint should be dismissed with cost.
Decision with reasons
On proper consideration of the complaint and written version and after considering the materials on record it is found that Agreement to Sale was executed on 12.02.2010 in between the complainants and ops and in fact as per the said Agreement complainants are bound to pay a sum of Rs. 1,00,000/- as consideration no doubt a very pretty amount.
In fact there is no paper to show that complainants paid any amount to the op as consideration as per terms of Agreement dated 12.02.2010. But it is fact that op after construction of the said building, handed over possession in respect of that portion in favour of the complainant, complainants have been enjoying the same and also took electric connection but have not paid the consideration amount as yet.
Truth is that complainants were tenant under the op no.1 and after demolition of the existing old structure, complainants were shifted to some other place, entire rent was paid by the op no.2 which is undisputed. But anyhow complainants did not want to get enter into the flat without any consideration and approval and registration of the Sale Deed. But op is willing to execute if it is possible. But fact remains that possession was delivered in the year 2010 but since 2010 complainants are sitting idle without paying sum of Rs. 1,00,000/-,
So, considering all the above fact and circumstances, we are convinced to hold that when ops are willing to execute the Sale Deed, in that case, complainants shall have to clear the entire amount of Rs. 1,00,000/- as consideration. But truth is that in the complaint, complainants have proved the fact that they paid any amount out of that total consideration of Rs. 1,00,000/- and now only to grab the entire property by creating pressure upon the ops to get the Sale Deed through this Forum. It is no doubt unfortunate because such a complaint should be dismissed in view of the fact and complainants have failed to pay the entire amount since 2010 and this complaint was filed on 26.09.2014 after lapse of one year and nine months from the possession of the flat/property but without any payment of the consideration. It is proved beyond any manner of doubt that complainants have miserably failed to pay the entire amount of consideration amount of Rs. 1,00,000/- and considering the fact we are allowing the complaint but without any cost directing the ops to execute the Sale Deed in favour of the complainants at the cost of the complainants after receipt of Rs. 1,00,000/- including the interest over the same that is Rs. 10,000/- per year till its full payment by the complainants and complainants shall have to take such immediate step for depositing Rs. 1,00,000/- before this Forum as consideration including interest and it must be made within one month from the date of this order failing which the entire Agreement shall be treated as finally cancelled and in that case, complainants’ status shall be the trespasser under the ops and penal charges for possession shall be assessed by the Forum in this regard etc.
Accordingly the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest but without any cost against the ops.
Ops shall have to execute the Sale Deed within one month from the date of this order and complainants are directed to deposit Rs. 1,25,000/- to this Forum as consideration amount including interest and if it is paid within one month from the date of this order, in that case, complainants shall have to send that copy of Sale Deed to the ops for approval and after approval, complainants shall have to prepare original Deed of Sale etc. at their own cost and they shall have to take such arrangement and report the ops by fixing the date in the Registration Office for execution of the same.
If complainants fail to comply the order and fail to deposit Rs. 1,25,000/- within one month from the date of this order, in that case the entire Agreement shall be treated as cancelled or time barred in view of the fact that op has not complied the order of this Forum, in that case, ops may take such step. But complainants shall be treated trespassers or op may claim penal charges for such possession of the complainants which shall be assessed by this Forum in this regard and take all such steps by the ops against the complainants. Accordingly as per conditions, this judgement is passed and parties are directed to comply the same without any fault within the stipulated time.
