Order-22.
Date-17/07/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that OPs are partners of Dada Bhai Construction and running their business throughout different parts of the Sinthee Locality and they are carrying business for selling flats in making new construction and as because complainant has a need to purchase a flat and getting such information by the advertisement of OP complainant booked a flat on 1st floor at the Western side having a super built-up area 850 sq. ft. more or less at premises no.2B, Kedar Nath Das Lane, Kolkata – 700 030 in consideration of Rs.19,29,500/- complainant made payment time to time as per the agreement dated 10-06-2010 and as per the agreement dated 10-06-2010 OP assured to handover the said flat to the complainant on or before December, 2011 but unfortunately with a repeated persuasion the OPs have given the possession letter and handed over the said flat to the complainant on 26-12-2013 and from the date of possession the complainant repeatedly request the OPs for the completion of the registration of the said flat but the OPs have willfully and deliberately neglect his request as well as the OPs do not commit any date of registration and finding no other alternative complainant ultimately sent a legal notice through is Advocate asking him for executing and registering the final deed of sale but OP even after receipt of the said letter did nothing though agreement for sale was signed by and between the parties on 10-06-2010. So, cause of action arose from the date of possession and possession was delivered on 26-12-2013 but for negligent and deficient manner of service complainant has filed this complaint praying for redressal.
On the other hand OP by filing written statement submitted that as per plan the developer complete the construction of the said project as per development agreement dated 26-03-2010 the developer handed over the allocation of the landlords. That during the construction of the building Smt. Usha Rani Das, w/o. Lane Netai Chandra Das and Ashit Das, s/o. Netai Chandra das was died and after execution of the Development Agreement all the landlords signed and executed a power of attorney in favour of the OP construction company but after demise of said Usha Rani Das and Ashit Das the said power of attorney was dissolved in accordance with land and the rest of the land owners did not sign and execute a power of attorney in favour of the developer OP and due to such OP failed to execute any sale deed or anything. So, allegation as made by the complainant is false and fabricated because complainant is well aware of the fact.
In fact, for the negligent act on the part of the landlord OP could not perform or complete the said building as per development agreement and the OP developer also stated that complainant himself was not also performed as per act of agreement of sale signed between the parties on 10-06-2010. Further it is submitted that complainant shall have to pay balance amount of Rs.4,71,000/- on the date of registration or delivery of possession whichever is earlier out of total consideration amount of Rs.19,29,500/-. Moreover, it is submitted that the present complaint is not maintainable in view of the fact that the total consideration of the flat is Rs.23,35,500/- and further complainant prayed for some compensation for which the present complaint should be dismissed.
Further it is submitted that OPs are willing to register the id flat in favour of the complainant but due to dissolve of the power of attorney other landowners OPs are not in a position to register it and it is not a fault of the OP developer. But other OPs have not appeared in this case even after receipt of the notice and has not also taken any step to defend the complaint.
Decision with Reasons
After completion of the hearing of the argument made by the Ld. Lawyers of both the parties and also after considering the entire complaint and materials it is found that possession in respect of the property (flat) was delivered to the complainant by the OPs on 26-12-2013 and as per said possession letter it is clear that complainant shall have to pay full and final disbursement at the time of registration but truth is that it is the bounden duty on the part of the OP to execute sale deed but today it is found that landowners have already executed power of attorney in favour of the present OPs developers and lawyer for the OP submitted that they shall execute final deed by executing and registering the same and in fact until the power of attorney had been executed by the owners the present OPs the developer was unable to execute any sale deed. Fact remains only dispute is in respect of execution and registration of the deed and when OPs have admitted that they shall have to execute the same when the power attorney has been executed by the landowners on 14-07-2015 then invariably OP developer has got such power to execute and register the sale deed and OP and his lawyer have also submitted that they are willing to execute the sale deed then matter can be disposed of accordingly on admission of the OPs developer etc.
Accordingly, we are passing final order directing the OPs to execute and register the sale deed in respect of the flat in question as per agreement but if any dues are there to be paid by the complainant, complainant shall have to pay the dues to the developer or promoter at the time of registration of the deed and accordingly parties shall act and to proceed and thus this complaint is disposed of by this Forum in this case.
Hence,
Ordered
That the case be and the same is allowed on contest against the contesting OPs with a cost of Rs.5,000/- and same is allowed ex parte against other OPs with a cost of Rs.5,000/-.
OPs are jointly directed to execute and register the sale deed as per agreement dated 26-12-2013 in favour of the complainant and complainant shall have to pay balance amount if any till unpaid to the developer cum promoter at the time of execution and registration of the sale deed positively and this order must be complied with by the parties within 45 days from the date of this order but even after that OP shall not execute and register the sale deed, complainant shall have to file application praying for execution and implementation of the order and for getting execution and registration sale deed through this Forum and in that case complainant shall have to bear all costs of registration of the deeds and also service charge of the authorized person who shall have to present the document before the registering authority on behalf of the Forum and in that case OP shall have to pay further penal damages to the extent of Rs.50,000/- and if it is collected it shall be deposited to this Forum by the OPs.
Even if it is found that OPs are reluctant to comply this order in that case penal action shall be started for which they shall be prosecuted u/s.27 of the C.P. Act.
