FINAL ORDER/JUDGMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
In brief, the case of the complainants, as given in the complaint filed by them before the commission is as follows:-
OP Santanu Das is a Developer and he is the owner of a plot of land measuring an area of 02 cottahs 02 chittaks 10 sq. ft. little more or less situated within Mouza Kasba, JL No. 13, Touzi No. 145 under Khatian No. 695, Dag No. 3220 being KMC Premises No. 58A, Jagoder Gardens, Kolkata-700078. Complainants and OP executed a Memorandum of Understanding dated 11.11.2009 whereby the OP agreed to sell and the complainants agreed to purchase a self content flat measuring an area of 500 sq. ft. on the ground floor of the proposed building at 58A, Jogendra Garden, Kolkata-7000078 at a consideration of Rs. 1,00,000/-. It was further agreed that at the time of execution and registration of sale deed the complainants shall pay the full or balance consideration amount to the OP. The OP agreed to handover the subject flat to the complainants within 18 months from the date of sanctioned building plan. Complainants also paid earnest money of Rs. 5,000/- to the OP during of execution of Memorandum of Understanding. An Agreement for Sale dated 15.02.2016 was also registered and executed between the parties in respect of the subject flat. It has been mentioned in the said agreement that parties shall withdraw civil case being Title Suit No. 1422 of 2011 pending in the court of Ld. 5th Civil Judge (Sr. Judge), Alipore and Kasba PS case No. 118 dated 22.03.2011 U/ss 448/379/427/380 read with section 34 of IPC pending in the court of Ld. ACJM Sadar Alipore. It was further agreed between the parties that the complainants shall withdraw the said police case without any further claim or claims and legal expenses of withdrawal of pending Civil and Criminal cases will be borne by the OP. Complainants have paid Rs. 50,000/- vide cheque No. 403834 dated 15.02.2016 drawn on SBI Southern Avenue Branch to the OP as part consideration amount. It is the obligation of the OP to complete the construction of the proposed building within 18 months from the date of execution and registration of the agreement for sale and if any reason the OP fails to deliver vacant peaceful possession of the subject flat within the stipulated period in that event the OP shall compensate by paying a sum of Rs. 10,000/- per month till the date of delivery of possession of the flat. The OP failed to construct the proposed building within the stipulated period mentioned in Clause No. 3 of the said agreement. Ultimately, the OP delivered possession of the subject flat in complete condition and the complainants had incurred Rs. 50,000/- to habitable the subject flat. OP issued possession letter to the complainant on 07.08.2018. OP has also violated clause 11 of the registered agreement for sale dated 15.02.2016 and till date did not execute and register Deed of Conveyance in favour of the complainants despite several request though the complainants are ready and willing to pay the balance sale price at the time of execution and registration of the sale deed. Claiming deficiency in service and unfair trade practice of the OP, complainants filed the instant consumer complaint before the commission.
Complaint is resisted by the OP by filing WV. The specific case of the OP is that one Maniklata Gure alias Guria was the original owner of the property fully mentioned in schedule A of the Agreement for Sale dated 15.02.2016 who sold the A schedule property to the OP by a registered instrument dated 30.12.2009. in terms of the MOU dated 11.11.2009 the OP filed an application prayer before the Ld. Civil Judge (Sr. Div.) 5th court, Alipore for dismissal of the title suit being TS No. 1422/2011 for non-prosecution and the said title suit was dismissed being withdrawn. The complainants did not comply the terms and conditions of the agreement for sale and violated Clause No. 9 being not withdrawing of Kasba PS case No. 118/2011 pending before the Ld. ACJM, Alipore. Subject flat has already been handed over to the complainants. The complainants did not handover the physical possession of vacant land to the OP within the prescribed time, rather they have handed over the possession of the vacant land almost lapse of one year for which the OP did not raise construction of building over the said plot of land. The claim of the complainants are malafide and the complainants violated the terms and conditions of the agreement for sale the OP had applied for query of the registration of the subject flat and got it from the Register of Assurance, Kolkata on 12.02.2019 and thereafter several request were made to the complainants over whatsapp as well as messages but the complainants did not revert back any intimation for which execution and registration of the flat was not done. Complainants are solely responsible for such delay in execution and registration of the sale deed. After getting possession of the subject flat the complainants illegally constructed a Varanada covering the open space of the building and affixed a gate on the KMC Road violating the building sanctioned plan. Suppressing the material facts the complainants have filed the instant consumer complaint with a view to harass the OP. Thus the OP has prayed for dismissal of the complaint with cost. Complainants and OP lead their evidences, supported by affidavit. They have also relied the documents annexed with the complaint petition as well as WV. Complainants have furnished their written arguments.
We have heard the arguments and have perused the relevant record.
The fact that OP is the absolute owner of a piece of land measuring about 02 cottahs 02 chittaks 10 sq. ft. with a kachha structure situated at KMC Premises No. 58/1 Jogendra Garden, Kolkata-700078. OP purchased the said land from Maniklata Gure @ Guraia by a registered deed of conveyance. The intention of the OP was to construct a multi storied building over the said plot of land and the complainant occupied the said plot of land illegally. It is true that the OP filed a suit being Title Suit No. 1422/2011 in the court of Ld. 5th Civil Judge (Sr. Division) Alipore against the complainants and the complainants also filed a criminal case being Kasba PS Case No. 118/2011 against the OP & Ors. Ultimately, a MOU dated 11.11.2009 was executed between the parties. On perusal of the photocopy of MOU dated 11.11.2009, it appears to us that OP has offered to sell a flat measuring about 500 sq. ft. super build up area on the ground floor of the proposed building to the complainants at a total consideration of Rs. 1,00,000/- and the complainant will vacate their occupied portion of Premises No. 58/1, Jogendra Garden, Kolkata-700078 to the OP within 60 days from the date of execution of the MOU. Thereafter an Agreement for Sale dated 15.02.2016 was executed between the parties. In accordance with said agreement, the OP agreed to sell and the complainants agreed to purchase a self content flat measuring about 500 sq. ft. on the ground floor of North East side of the proposed building at a total consideration of Rs. 1,00,000/- and possession of the said flat will be delivered within 18 months from the date of vacating possession of the premises. It is further stipulated in the said agreement that if the OP fails to deliver possession of the subject flat within the stipulated period of 18 months in that event the OP shall compensate the complainants a sum of Rs. 10,000/- per month till handover possession of the flat.
According to the complainants, the OP did not handover physical possession of the subject flat to them within the stipulated period as mentioned in the agreement for sale despite receiving of Rs. 50,000/- as part consideration. Thus, the OP violated of the terms and conditions of agreement for sale. OP delivered possession of the flat to the complainants on 07.08.2018. In course of argument the Ld. Counsel for the OP submitted that the complainants violated Clause No. 9 of the MOU though the OP has already withdrew the suit being TS No. 1422/2011 pending before the court of Ld. 5th Civil Judge (Sr. Division) Alipore but the complainants did not withdraw the criminal case being Kasba PS Case No. 118/2011. On perusal of the photocopy of annexure E of the complaint petition, it appears to us that on completion of investigation I.O submitted charge sheet against OP Santanu Das and others implicated them U/ss. 448/379/447/380 read with section of 34 IPC. Section 380 of IPC is not compoundable U/s 320 of the Code of Criminal Procedure. Thus, the complainants have no power to withdraw the said criminal case against the OP and Ors whose names where are figured in this charge sheet until evidence is concluded by the Ld. ACJM, Alipore. Therefore, Clause No. 9 of the Agreement for Sale is not binding upon the complainants and it is purely depend upon the verdict of the Ld. ACJM Alipore. In view of the above, the OP cannot take shelter of Clause No. 9 of the Agreement for Sale. The reasons cited by the OP for delay of the project appear to be delaying tractics veiled as clause No. 9 of its contractual obligation. Thus, sections 51/52/55 of the Indian Contract Act is not applicable to the instant case.
It is true that the OP has already handed over physical possession of the subject flat to the complainants on 07.08.2018 by issuing possession letter and the complainants accepted such possession of the flat. In the said possession letter dated 07.08.2018 the OP under take that he will execute and register deed of conveyance of the subject flat in favour of the complainants within 07 days from the date of delivery of possession.
Even after receiving substantial amount, the OP failed to execute and register sale Deed of the flat within the promised time period. It is clear that the OP failed to fulfill its contractual obligation of executing the sale deed of the flat to the complainants within the time stipulated in the possession letter or even within a reasonable time thereafter.
Ld. Counsel appearing for the OP submitted that the complainants illegally constructed a varanada covering the open space of the building and affixed a gate on the KMC Road which caused obstruction to the entrance of the building. He further contended that the complainants breached the condition of the Agreement for Sale and delayed in execution and registration of the deed of conveyance. The complainants concealed the truth in order to get relief as prayed for and the OP is ready and willing to execute and registered sale deed in favour of the complainants.
Per contra, the Ld. Counsel appearing for the complainants submitted that there is no illegal construction in the subject flat and if any illegal construction is done, in that event Building Department of the KMC will take necessary action against such illegal construction. Thus, the OP is bound to execute and register deed of conveyance in favour of the complainants by accepting balance sale price of Rs. 50,000/- and also liable to handover completion certificate of the building to the complainants.
For the sake of argument, if it is presumed that the complainants have illegally constructed a Varanda covering the Open Space of the building and affixed a gate on the KMC Road, in that event the Building Department of KMC issue notice upon the complainants them and start a specific case under KMC Act against the complainants. This commission has no power to direct the complainants to demolish the unauthorized construction, if any. Moreso, the OP has failed to provide any evidence to prove that the complainants unauthorisedly constructed varanada covering the open space of the building and affixed a gate on the KMC Road by producing evidence of an Engineer or taking opportunity of submitting an application to the commission for appointment a Civil Engineer to prove the illegal construction of by the complainants.
Keeping in view the peculiar facts and circumstances of the case, we never direct the complainants to withdraw Kasba PS Case No. 118/2011 U/ss. 448/379/427/380 read with section 34 of IPC pending before the Ld. ACJM Alipore and Clause No. 9 of the Agreement for Sale is not binding upon the complainants in view of bar U/s 320 of Cr.P.C. OP fails to file any document to show that he was ready and willing to execute and register the deed of conveyance in favour of the complainants as alleged in para 25 of his WV. A person cannot be made to wait indefinitely for execution and registration of the flat allotted him/her. So, we hold that there is deficiency in service on the part of the OPs in the matter of delivery of possession of the flat and also execution and registration of deed of conveyance as per terms and conditions of the agreement.
In view the forgoing discussion, the complaint is partly allowed on contest with direction to the OP to execute and register Deed of Conveyance of the subject flat fully mentioned in the schedule-B of the Agreement for Sale in favour of the complainants within 45 days from the date of order i.e. 27.09.2022 subject to receiving balance sale price of Rs. 50,000/-.
OP is directed to bear stamp duty and registration cost of the Deed of Conveyance in terms of Clause No 7 of the Agreement for sale dated 15.02.2016. OP is further directed to pay Rs. 50,000/- as compensation and Rs. 5,000/- as litigation cost to the complainants within the specified period as mentioned above.
Complainants are at liberty to put the order in execution after expiry of aforesaid period, if the final order is not satisfied.
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