Delhi

North East

CC/223/2016

Sh. HARI OM - Complainant(s)

Versus

SH. SANJAY SHARMA - Opp.Party(s)

22 Apr 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 223/16

 

In the matter of:

	Sh. Hariom S/o Sh. Dayaram R/o D-215, Gali No. 4 Harizan Basti, Mandoli Ext. Delhi-110093	Complainant
	Versus
1         2                   3	Sh. Sanjay Sharma S/o S.K. Sharma R/o 16-A / 1-B, Jwala Nagar Shahdara, Delhi-110032   Sh. Rakesh Kumar Bhola R/o- 8/87, Chotta Bazar Shahdara, Delhi-110032 Also at:- 8/88-89, Gali Jain Mandir Chotta Bazar, Shadhara Delhi-110032 8/93, Chotta Bazar, Shahdara Delhi-110032   Smt. Chandra kanta W/o Sh. Rakesh Kumar Bhola R/o- 8/87, Chotta Bazar Shahdara, Delhi-110032 Also at:- 8/88-89, Gali Jain Mandir Chotta Bazar, Shadhara Delhi-110032 8/93, Chotta Bazar, Shahdara Delhi-110032	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:                  DATE OF DECISION :

27.08.2016 22.04.2019 22.04.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts of the case as per complainant are that the OPs are running business of sale purchase of flats and plots for which the complainant had approached OP1 for buying a flat and OP1 had shown a flat no. 52 / 7A / 6B situated at Pal Gali, Jwala Nagar, Shahdara, Delhi 110032 (flat) to the complainant posing himself as the owner thereof and valued the same at Rs. 13,50,000/-. Relying on the representation of OP1, complainant entered into agreement to sell & purchase with OP1 dated 27.04.2013 on payment of  Rs. 2,00,000/- in cash as advance sum against the total sale consideration of the said flat. Subsequently, complainant made part payments towards the sale consideration in several tranches to OP1 June 2013 onwards amounting to Rs. 13,35,000/- and the said funds were arranged by the complainant being a poor man through private financier due to his financial incapacity. After making almost the entire payment to the OP, the OP had assured the complainant of executing the sale deed in his favour in April 2016 but did nothing in this regard. The complainant visited OP office and was surprised to know from OP1 that he is an agent of OP2 & OP3 who are actual owners of the flat. On hearing this, the complainant alongwith OP1 visited the office OP2 where he was assured by OP2 of getting registry done in next two days. The complainant accordingly purchased the stamp papers which were signed by OP2 & OP3 and both OPs assured complainant that they would reach the Sub-Registrar IV-B office located at Vivek Vihar Delhi on 11.04.2016 but none of the OPs reached the said office on the given date where the complainant waited for them alongwith his wife and did not answer calls of the complainant. The complainant issued a legal notice dated 01.06.2016 through his counsel to all the OPs to get the registry executed which the OPs despite service neither responded to nor acted upon. Lastly, the complainant was constrained to file the present complaint alleging illegal, unwarranted acts of the OPs causing him extreme mental agony and prayed for issuance of direction against the OPs to get the Sale Deed / Registry of the said flat executed in his favour alongwith payment of compensation of Rs. 50,000/- towards harassment, mental pain and agony and Rs. 25,000/- towards litigation expenses.
2. The complainant had attached copy of Agreement to Sell and Purchase dated 27.04.2013 entered into between complainant and OP1 alongwith accompanying non judicial e-stamp paper at the back of which is recorded all payments made / outstanding with entries starting from sale consideration amount of Rs. 13, 50,000/- till last payment made of Rs. 1,95,000/- with Rs. 15,000/- outstanding, copy of sale deed dated 31.08.2012 with respect to the said flat executed in favour of OP3 against sale consideration of  Rs. 12,95,000/- duly registered with Sub-Registrar VIII on 03.10.2012 and copy of application by complainant to Sub-Registrar IV-B Delhi for inspection of Peshi Register of book no. 1 with respect to the said flat on payment of fees of Rs. 100/- vide cash receipt / slip no. 3803 and copy of legal notice dated 01.06.2016 by counsel of complainant to OPs with original postal receipt attached therewith.
3. Notice was issued to the OPs on 15.11.2016. OP2 & OP3 entered appearance and filed written statement on 18.01.2017 in which they took the defence that the complainant is not a consumer as he had purchased the aforesaid flat for business purpose and had already purchased several other flats. OPs further resisted the complaint on grounds of not having signed the Agreement to Sell and not received any sale consideration from the complainant and are not even aware of the identity of the complainant since he had never contacted OP2 & OP3 and prayed for dismissal of the complaint. OP1 did not appear despite service effected on 22.11.2016 and was therefore proceeded against ex-parte vide order dated 28.02.2017.
4. Complainant filed rejoinder and evidence by way of affidavit reiterating his grievance against the OPs and denying the defence taken by OP2 & OP3 in their written statement and reaffirmed the averments made in the complaint.
5. Evidence by way of affidavit was filed by OP2 & OP3 reiterating defence taken in the written statement of not having signed Agreement to Sell and not having received sale consideration of the said flat.
6. Written arguments were filed by the complainant in reemphasis / reinforcement of his grievance against the OPs of not having executed the sale deed despite in receipt of almost the entire sale consideration amount of the flat in question.
7. OP2 & OP3 stopped appearing after filing their evidence in August 2017 and despite several opportunities granted, neither appeared nor filed written arguments and were therefore proceeded against ex-parte vide order dated 16.07.2018.
8. During the course of oral arguments, the complainant submitted that he is in possession of the said flat and has been staying therein with his family since 2015 and since then has been continuously pressing upon the OPs to execute the sale deed for which he had purchased stamp papers worth Rs. 30,400/- but to no avail. The complainant filed copies of the stamp papers during addressing arguments and has shown the original stamp papers alongwith conveyance deed executed between OP3 and Ms Neelam D/o complainant for a total sale consideration of Rs. 7,60,000/- with stamp paper certificate issue date as 06.05.2014. The complainant has also filed copy of water bill issued by Delhi Jal Board and Electricity Bill issued by BSES in the name of Ms. Neelam on the address of the said flat to prove his residential status.
9. We have heard the arguments forwarded by the counsel for the complainant and have thoroughly perused the documents evidence placed on record by all parties and given our thoughtful consideration to the same.
10. The Agreement to Sell was entered into between complainant and OP1 with respect to the said flat but the sale deed dated 31.08.2012 shows the ownership of the said flat in the name of OP3, wife of OP2. This contradiction / discrepancy in the documents in itself speaks volume of misrepresentation and unfair trade practice on the part of the OPs who are evidently in connivance with each other and OP2 & OP3 are trying to find a convenient escape route by taking lame defence of not executing Agreement to Sell with complainant and not receiving sale consideration amount whereas vide the sale deed / conveyance deed placed on record by the complainant and duly signed by OP3, wife of OP2 clearly acknowledges OP3 having received the entire / total sale consideration of Rs. 7,60,000/- from the complainant towards the price of the said flat on which price as per market value / circle rate, stamp duty of Rs. 30,400/- has been calculated and levied therefore the defence taken by OP2 & OP3 of non receipt of sale consideration or no privity of contract with complainant falls flat and stands falsified in terms of cost component of Rs 13,35,000/- received & Rs. 7,60,000/- declared as sale deed. It has been however categorically admitted by the complainant that possession of flat was delivered to him in 2015. That being the position, the only bone of contention between the parties remains with regard to execution and registration of deed of conveyance in favour of complainant. In view of the defence of the OPs having been rendered baseless and uncorroborated / falsified, there is no justification on the part of the OPs to refuse or cause delay in executing and registering the deed of conveyance despite having admittedly received the entire sale consideration and granted possession to complainant.
11. The Hon'ble National Commission in V.L. Bhardwaj Vs Dr. Ram Prasad Saradha 2004 (1) CPJ 46 (NC) and Shesharao Udaybhanji Ajmire Vs Prabakar Manohar Rao Deshpande 2003 (1) CPR 333  (NC) held that non execution of sale deed despite payment of entire sale consideration was deficiency of service and upheld decision of Lower Fora dismissing the Revision Petition. Hon'ble National Commission in Shikhar Sahkari Avas Samiti Vs Praveen Singh 2003 (III) CPJ 91 (NC) and Allahabad Vikas Pradhikaran Vs Lakshmi Kant Shukla 2002 (II) CPJ 16 (NC) held deficiency in service in case of failure to execute sale deed after delivering possession and directed OP to get the sale deed registered and awarded compensation on the deposited sum. Calcutta SCDRC in Rita Roy
    (Smt) Vs Shyamali Chug 1998 (2) CPR 371 (CAL) directed OP to execute the relevant deed and awarded compensation to complainant for deficiency of service in case where OP builder failed to take step for registration of sale deed for flat despite stamp papers purchase by complainant.
12. Keeping in view the afore discussed case laws and ratio laid down therein, we hold all OPs guilty of deficiency of service and unfair trade practice in having failed to execute the sale deed despite receiving and acknowledging the entire sale consideration of the flat for which the stamp papers expenses were also made to be borne by the complainant. Notwithstanding, the complainant has been admittedly put in possession in the flat in question since 2015 consequent to the agreement to sell entered into and sale consideration having been paid and received. Therefore we direct all the OPs to execute and register the conveyance / sale deed of the said flat in favour of the complainant within 30 days from the date of receipt of copy of this order. In so far as prayer for payment of compensation and litigation expenses is concerned, the complainant having been put in possession of the said flat as per his own admission, the same does not warranty any compensation for harassment or agony as no damage has been caused with regard to his interest. However, for initiating legal proceedings by way of the present complaint due to failure on the part of the OPs to execute and register sale deed, the complainant deserves benefit of litigation cost. We therefore direct all OPs jointly and severally to pay a sum of Rs. 5,000/- towards litigation cost to the complainant. Let the order be complied by all the OPs within the 30 days from the date of receipt of copy of this order.
13.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on 22.04.2019

(N.K. Sharma)      President

(Sonica Mehrotra)  Member