JUDGEMENT

          Complainant by filing this complaint has submitted that complainant wanted to purchase one self contained flat measuring about 676 sq. ft. on the 3^rd Floor, South-East portion with super built up area along with proportionate share of land underneath with all common facilities and amenities at premises No. 54/1R, Sura East Road, P.S.- Beleghata, Kolkata – 700010 at a consideration of Rs.5 lakhs only and the op nos.1to 5 being the vendors and op no.6 being the developer/confirming party and constituted attorney of the vendors entered into an agreement for sale with the complainant on 18.10.2003.

          As per terms of the agreement for sale dated 18.10.2003 ops agreed to complete the said building through a developer within 18 months from the date of signing this agreement and the complainant paid Rs.2 lakhs only to op no.6 by way of cash but the amount was actually paid on 07.02.2003  and subsequently the complainant paid Rs.1 lac on 18.04.2003 by way of cheque dated 18.04.2003 drawn on SBI and another Rs.25,000/- on 19.11.2003 by cash and further amount of Rs.25,000/- on 18.02.2003 and Rs.50,000/- by way of cheque being No.038833 on 17.07.2004 drawn on SBI and amount of Rs. 1 lac on 01.07.2005 by cash, as total consideration, according to the complainant paid the amount to the op no.6 and acknowledged by op nos. 1 to 5.

          As per terms of the agreement the ops were unable to perform and discharge their duties and as per the agreement for sale they failed and neglected to complete the entire sale transaction within stipulated period.  But anyhow the ops failed to handover the possession within a time limit but at last due to some turmoil with the complainant the ops handed over the possession of the said schedule flat.  But they have not executed the deed of conveyance in favour of the complainant in respect of the aforesaid flat within a stipulated period.

          So, the complainant requested the ops again and again to complete the deed of sale by registering the same and by executing it.  But the ops did not take any step and also did not pay any heed to that op nos. 1 to 5 on various pretext submitted that if all the works had not been completed then they would not execute the deed of conveyance in favour of the complainant.  But the ops in conspiracy with each other created such circumstances so that they may not execute the deed of sale in favour of the complainant.  Though, the fact is that registration cost is being increased day to day and for which complainant is suffering financial loss. Thereafter final demand letter was sent by the Regd. Post with A/D on 04.01.2013.  Op received it but did not execute the sale deed for which complainant is compelled to appear before this Consumer Forum for redressal.

          Fact remains notices were issued upon the ops but they did not claim it for which it was returned and it was treated as good services because they did not receive it by not claiming it.

          But ultimately, op no.6 Pradip Sapui by filing written statement submitted that op no.6 is quite helpless to execute such deed in spite of his best effort to the complainant as per terms of the agreement for sale dated 18.10.2003 because the owners/vendors i.e. op nos. 1 to 5 cancelled the power of attorney and now op nos. 1 to 5 are fully responsible for not executing the deed of sale but due to their latches practically it could not be executed but op no.6 had admitted that he received the consideration from the complainant and op nos. 1 to 5 could not do the same and in the circumstances the matter may be decided by the Forum what he is willing to do as per order of the Forum.

          Another op no.4 Sukumar Malakar by filing this written version has submitted that he is intending to complete the sale transaction to fulfill his contractual obligation but practically the entire aberration of process is created by op nos. 1, 2, 3 & 5 as they are not willing to execute the deed, but he is ready to execute the deed as per order of the Forum.

          Accordingly the case was heard finally after relying upon evidences and accepting the documents finally by the parties and on completion of the argument and after hearing the Ld. Lawyers for the complainant we are entering into the merit of this case for final decision.

                                         Decision with reasons

          On proper consideration of the entire complaint including the written version of op nos. 4 & 6 the developer and one of the land owner’s we have gathered that it is admitted by the one of the land owner and the developer op nos. 4 & 6 that agreement for sale was executed by all the ops in respect self contained one flat after receiving the entire amount by the op no.6 on behalf of the op nos. 1 to 5 and op nos. 1 to 5 acknowledged the same which is the admitted by the op nos. 4 & 6 who appeared and submitted such version.  But the present situation is created by op nos. 1, 2 3 & 5 which is proved beyond any manner of doubt because one of the land owner op no.4 admitted that fact that they have cancelled the power of attorney for which op nos. 4 & 6 are not able to execute the deed in absence of op nos. 1, 2, 3 & 5.  But op nos. 4 & 6 are willing to execute it as per order of the Forum and it is accepted fact that possession of flat has been delivered by the op no.6 and complainant is possessing the same peacefully.  So as per agreement dated 18.10.2003 ops are bound to execute and register the final deed of sale and op nos.4 & 6 are willing to do the same but they are unable to do it as power of attorney was executed by the op nos. 1 to 5.  So, in the circumstances, we have gathered that practically there was no fault on the part of the developer/op no.6 as he is willing to execute the deed and register of the said deed for sale in favour of the complainant.  But he has not power to execute the same for cancellation of the power of attorney by op nos. 1 to 3 & 5 and in the above situation we are convinced to hold that all the ops should be directed to execute the same jointly and if they fail to execute and register the same for non cooperation of the op nos. 1, 2, 3 & 5 in that case the said deed may be executed by this Forum on their behalf in favour of the complainant for proper implementation of the agreement to sale.  Accordingly we are of view that for the latches of op nos. 1, 2, 3 & 5 sale deed could not be executed by op nos.4 & 6 and in the above situation complainant is entitled to get an executed and registered sale deed in respect of the flat from the op nos. 1, 2, 3 & 5 for their non cooperation and negative attitude.

          In the result, the complaint succeeds accordingly.

          Hence, it is

                                                   ORDERED

          That the complaint be and the same is allowed on contest against op nos. 4 & 6 but without any cost but same is allowed exparte against op nos. 1, 2, 3 & 5 with cost of Rs.10,000/-.

          All the ops are directed to execute and register final deed of sale in respect of the flat as described in the schedule of the agreement to sale dated 18.10.2003 and as per actual possession of the flat of the complainant within one month from the date of this order failing which the complainant shall have to file an application before this Forum for execution and registration of the said final deed of sale through this Forum on behalf of the ops and in that case the entire cost shall be paid by the complainant for execution and registration and for that reason op nos. 1, 2, 3 & 5 shall have to pay a sum of Rs.50,000/- to the complainant for causing harassment, mental pain and agony and at the same time op nos. 1, 2, 3 & 5 shall have to pay a sum of Rs.25,000/- as service charge for non executing the said deed of sale and register the same before the Registering Authority and that service charge shall be paid and deposited to the State Consumer Welfare Fund within 15 days from the date of execution of the deed by this Forum.

          Op nos. 1, 2, 3 & 5 are directed to comply the order if they fail to comply the order in that case for non compliance of this order and for default to comply the order for each day’s delay op nos. 1, 2, 3 & 5 shall have to pay penal interest @ Rs.300/- per day till full satisfaction of the entire decree and even penal action shall be taken against them under the provision of C.P. Act 1986.