JUDGEMENT

          Complainant by filing this complaint has submitted that op nos. 1 to 3 are landowners and op nos. 4a & 4b are the partners of the op no.4, a partnership firm and ops entered into a registered agreement for sale with the complainant on 14.12.2011 to sell one self contained residential flat being flat No.B on the ground floor, measuring more or less 170 sq. ft. carpet area its super built-up area 187 sq. ft. at premises No.11, Siddheswar Chandra Lane, P.S.-Muchipara, Kolkata-700012 at a valuation of Rs.3,74,000/-.

          Fact remains op nos. 1 to 3 being joint owners of the property with an intention to develop their said property by erecting a new building thereon after demolishing the existing building and entered into a Development Agreement/Contract with the developer, op no.4 being represented by its partners the op nos. 4a & 4b on 18.08.2010.

          Fact remains prior to demolition of the said building for development, complainant was tenant in respect of ground floor of the said premises since the time of predecessor-in-interest of the complainant and the said building for development, and complainant was tenant in respect of ground floor of the said premises since the period of predecessor-in-interest of the complainant and the said accommodation was used by the complainant as residential purpose.

          In terms of the aforesaid Development Agreement the op nos. 1 to 3 obtained a sanctioned building plan of two storied building from the Kolkata Municipal Corporation (KMC) vide sanctioned Plan No. 2011050015 dated 09.08.2011 and ops made a proposal to the complainant including other existing tenants of the said premises instead of their tenancy right to purchase their respective tenanted portion in the proposed two storied building to be constructed as per the sanctioned building plan sanctioned by the KMC.

          Complainant in stead of his tenancy right accepted the proposal of the ops to purchase a self contained residential flat measuring more or less 170 sq. ft., Flat No.B on the ground floor and accordingly complainant already paid Rs.1,65,000/- out of total amount of Rs.3,74,000/-.  As per amendment the balance amount shall be paid at the time of registration deed of conveyance and handed over possession of the said flat by the ops as mentioned in clause 3 of the said registered Agreement for Sale dated 14.12.2011.  As per Agreement the possession would be delivered within 30.12.2012, but subsequently the op nos. 1 to 3 by their letter dated 28.12.2012 made a request to the complainant to extend the time for delivery of possession of the said flat till the middle of September 2013 even though the time was extended till the said date i.e. till middle of September 2013.  But the ops intentionally and deliberately did not complete and handed over the said flat till today in favour of the complainant.

          Fact remains ops did not perfom by deliverying the said possession of the said flat and after accepting the balance amount of Rs.2,09,000/-.  On the other for wrongful gain op nos. 1 to 3 in collusion with the other ops issued a vague and purported letter dated 19.12.2013 to the complainant which has been firmly denied by the complainant and practically for their such sort of negligent and deficient manner of service and for adopting unfair trade practice, complainant has suffered much and in the above situation complainant sent a letter to the ops dated 10.12.2013 for delivery of possession and registration of the aforesaid flat in favour of the complainant, but ops did not agree and did not render their service as per said agreement to sale dated 14.12.2011.

          In the above complainant has prayed for directing the ops to deliver cash possession after getting balance amount of Rs.2,09,000/- and to execute the Deed in favour of the complainant and also for compensation and harassment etc.

          On the other hand op by filing written statement submitted that the present complaint is not maintainable, it is barred by limitation.  But only malign prestige and dignity and reputation of the ops, the case is filed.  But it is admitted that the complainant was previously tenant in the said premises and they vacated the said premises after its demolition and truth is that the sanctioned plan was passed by Kolkata Municipal Corporation (KMC).  Therefore op nos. 1 to 3 approached for re-sanctioned of building which is till pending for sanctioned because construction cost of the portion of the tenant in the said building have become high and it is further submitted by the ops/Developer and partners that the due to high prices of materials and labour charges the escalation price has been amended by the ops and duly informed to the complainant and it is further submitted that as per Agreement to Sale dated 14.12.2011 it was agreed in terms of payment of consideration money but due to high prices of building materials and labor charges the same cannot be entertained by the ops and it was duly highlighted to the complainant verbally for payment of balance amount but complainant did not comply the same and did not pay a single coin till date.

          Further it is submitted that as per agreement for sale the ops were unable to deliver possession due to re-sanction and/or modification of the sanctioned building plan and it is pending for sanction in the KMC authority and as such the ops prayed for time to deliver the same to the complainant and it is clearly stated by the ops that it is not the deficiency of service by the ops but circumstances compelled them to deliver the possession lately.  Moreover the balance payment of the amount as per Agreement for Sale and thereafter escalation price of the said flat did not comply by the complainant till date though utmost request and reminders were sent to the complainant and only to harass the ops for wrongful gain.  So, ops already sent letter to the complainant on 01.12.2013 stating the above facts and the complainant’s illegal demand.  But complainant has his ill motive and filed this complaint for getting some more benefit.

          Lastly it is stated that as soon as the re-sanctioned plan or modified plan would be received ops shall have to comply the same and deliver kash possession and shall have to execute the Deed of Conveyance in favour of the complainant subject to payment of balance consideration money and so they have prayed for dismissal of this case.

                                                   Decision with reasons

          On careful study of the complaint and written version and also considering the argument advanced by the Ld. Lawyers of both the parties and also considering the details of the terms and conditions of the registered Agreement for Sale dated 14.12.2011, it is clear that ops have admitted that they executed the Agreement for Sale dated 14.12.2011 and they have also admitted that they are willing to execute the Sale Deed by handing over the possession as and when balance amount of Rs.2,09,000/- would be paid.  But delay is caused due to non-supply of sanctioned revised plan.  But ops have admitted in their written version that they shall have to hand over possession and register the Sale Deed as soon as op obtained the re-sanctioned/modified plan and after completion of the entire construction, they shall have to handover it.

          So, it is found that the complainant’s allegations are not denied.  But ops tried to convince that previous sanctioned plan was modified and revised and same had been submitted to the KMC.  But till now they have not got the re-sanctioned plan for which the further construction work has not been completed.  So, delay has been caused and that has been reported to the complainant and it is within the knowledge of the complainant.

But anyhow there is no such further agreement in between the complainant and the ops to that effect.    

          Another factor is that there was a sanctioned plan and in respect of that construction has been made, then ops have their no other alternative but to handover the said ground floor flat in favour of the complainant after receiving the balance amount of Rs.2,09,000/-.  But the intentions of the ops are well proved from their own version that they are claiming more money in respect of the flat and above agreed amount of Rs.3,74,000/-.  Though admitted fact is that complainant paid Rs.1,65,000/- as per term prior to completion of the present flat and as per Agreement, complainant is able to pay balance amount to the op on the date of delivery of possession and execution of registration of the Deed.  But op further admitted that they are liable to execute because re-sanctioned plan has not yet been passed and for that fault invariably complainant must have to suffer.  At the time of hearing Ld. Lawyer for the op stated that the complainant’s flat is completed and he shall have to hand over it as soon as the balance amount will be paid and Deed shall be executed and it is also admitted that this complainant was the tenant in the said building and they did not claim any money.  But handed over the old building for construction without any interruption, then it is clear that the complainant was a good tenant and relief as per Complainant is not greedy person as tenant.  But he is entitled to get agreement for sale with the ops from their newly constructed building not as a tenant.  So, it is clear that the complainant is a bona fide intended purchaser of the flat in question as per registered Agreement for Sale dated 14.12.2011 and it is admitted by the ops and ops have admitted that they have failed to deliver the same within time as per Agreement.

          Fact remains complainant performed his part performance as per Agreement for Sale dated 14.12.2011 but ops were unable to complete it.  Thus deficiency and negligence are on the part of the ops and moreover in this case we have gathered from the written version that ops have their no intention to deliver it without getting more money because they are claiming present market price of the said flat.  Then it is clear that ops have adopted unfair trade practice and they are creating pressure to the intended purchasers to pay more amount even after existence of registered Agreement for Sale dated 14.12.2011 and such a conduct on the part of the op is no doubt unfair trade practice.  It has become a practice of the developer and promoter to create such pressure upon the intended purchasers with whom already they registered Agreement for Sale and by adopting such procedure they are trying to sell out flats other than intended purchasers (vide Agreement to Sale) to others at huge price.  But such sort of practice must be stopped.

          Considering all the above facts and circumstances including materials on record we are convinced to hold that complainant has been able to prove beyond any manner of doubt the negligent and deficient manner of service on the part of the op and also adopting unfair trade practice by the ops in this regard for not registering the Deed and delivering the possession after accepting the balance amount of Rs.2,09,000/- from the complainant and no doubt complainant has been suffering much because on his own will they handed over the tenanted portion to the ops without claiming any further right as tenant or taking any money.  Then invariably the present complainant is no doubt an honest complainant who has no greed in his mind and for which he delivered the possession and intended to purchase one flat on good payment and part payment as per Agreement to Sale dated 14.12.2011 but ops have adopted unfair trade practice and have not yet delivered possession with completion certificate and also not registered Deed of Sale.

          In the result, the complaint succeeds.

          Hence, it is

                                                              ORDERED

          That the complaint be and the same is allowed on contest against all the ops with a cost of Rs.10,000/-.

          All the ops jointly and severally shall have to hand over the cash possession of the schedule flat as described in the registered deed of agreement dated 14.12.2011 in favour of the complainant along with completion certificate within 45 days from the date of this order and to execute Sale Deed with 15 days from the date of delivery of possession in favour of the complainant failing which ops jointly and severally shall have to pay penal damages of Rs.25,000/- per month till full satisfaction of the decree and if any penal damage is collected it shall be deposited to this Forum by the ops jointly and severally.

          For adopting unfair trade practice by the ops jointly and severally they shall have to pay punitive damages of Rs.1,00,000/- for adopting unfair trade practice and this punitive damages is imposed for checking such sort of unfair and deceptive trade practices as adopted by the ops and same shall be deposited to this Forum by the ops jointly and severally.

          Ops jointly and severally are directed to comply the order very strictly failing which penal action shall be started u/s 27 of C.P. Act 1986 for which further penalty shall be imposed and even further action shall be taken against all the ops for implementation of the entire decree.  Complainant to deposit balance consideration of Rs.2,09,000/- in this Forum within 40 days from the date of this order as refundable amount.