Date of Hearing : 01.04.2016
Date of judgment : 13.04.2016
Judgment
The instant appeal is directed against the judgment and order dated 13.01.2015 passed by Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short ‘ District Forum) in Complaint case being No. 232/2013 allowing the same on contest in part against the Opposite party, directing the Complainant to pay the balance consideration money within one month from the date of the order with interest @ 9% p.a. from the date of filing of the Complaint till the date of registration, directing the O.P. to execute and register the deed of conveyance in favour of the Complainant in respect of Flat No. 4D measuring 1045 sq. ft. as mentioned in the B schedule of the Complaint in favour of the Complainant after receiving the balance consideration amount along with interest failing which the Complainant is at liberty to get the deed of conveyance registered through the Forum after depositing the afore said amount to the Forum mentioning that if the O.P. fails to comply the afore said direction with in the time limit the O.P. shall have to pay sum of Rs 100/- per day from the date of the order till realisation thereof as punitive damages which would be deposited by the O.P. in the State Consumer Welfare Fund.
Being aggrieved by that order the Opposite Party Developer has preferred the instant appeal on the grounds, inter alia, that the Ld. District Forum erred in arriving at a conclusion not considering the facts that the alleged agreement for stle is not valid one and, secondly, the flat in question has already been sold out to a third party.
The case of the Complainant in short is that she entered into agreement on 9.12.2008 with the Opposite Party / developer in respect of a Flat being No. 4D on the second story of a proposed multi-storeyed building to be constructed on a piece of land having an area one Bigha 9 Cottahs 6 sq. ft. more or less situated at Mouza Gopalpur, J.L. No 02, Touzi No 125 – B/1, R.S. No 140, C.S Dag No 3886, 3700, R.S Dag No 2903, 2717, L.R. Khatian No 2518, 1731, 5836, 5837, 4405, R.S. Khatian No 1689, 2927, Bidhan Nagar, Salt Lake, P.S Airport, District North 24 Parganas, within local limits of Rajarhat Gopalpur Municipality at a consideration of Rs 11,50,000/- . The Complainant has stated that though she had paid the entire amount of consideration on the date of execution of agreement for sale to the Opposite Party but the Opposite Party in spite of receiving the same neither deliver possession of the said flat nor did execute and register the deed of conveyance in favour of her Complainant. The Complainant has further stated that she requested the Opposite Party on several occasions to that effect but all went in vain. Hence, having no other alternative, the Complainant has filed the Complaint before the Ld. District Forum praying for direction upon the Opposite Party to execute and register the deed of conveyance in respect of B schedule property, to pay compensation of Rs 25,000/- , to pay another amount of Rs 25,000/- towards punitive damages and to pay the cost of litigation.
The Opposite Party appeared and contested the case by filing written version stating inter alia that no agreement has been executed by and between the Parties. It is further contended since the alleged agreement was a tripartite agreement the vendor did not put any signature therein the same should be cancelled ab initio. It is further contended the Complainant had paid Rs 50,000/- only on the occasion of Bhoomi Puja and on that date when the agreement was executed the building plan has not been sanctioned till date and, moreover, the said flat was within the allocation of the land owner and the same was delivered to the land owners and subsequently the said flat has been sold to a third party. It is also contended in the W.V. that the agreement for sale was neither registered one nor adequately stamped. Accordingly, the Opposite Party prays for dismissal of the petition of Complaint with cost.
In course of hearing of the appeal Ld. Advocate for the Appellant has submitted that no agreement for sale was executed by and between the parties. Ld. Advocate has further submitted that the Complainant (Respondent herein) somehow managed to put some figures in a blank format of agreement and by virtue of the same she wants to be owner of a flat. Ld. Advocate for the Appellant has further submitted that the flat in question has already been sold to a third party and therefore it is not possible to get the same registered in favour of the Complainant.
Since the Respondent did not turn up in spite of receiving the notice this Commission after due consideration decided to hear the case ex parte.
Having heard submission made by the parties and on perusal of the material of record it appears that the Complainant files the case alleging deficiency on the part of the Opposite Party for violating the terms of the contract executed by and between them in respect of transferring property as mentioned under schedule ‘B’ of the petition of Complaint and prayed specific relief.
The main contention of the Appellant is that no valid agreement has been executed by the parties since all the parties to the agreement i.e. vendor, developer and purchaser had not put their signatures under the alleged agreement, the developer did not put his signature in every page of the said agreement the seal which appears in every page of the agreement has never been used by him and, lastly, the said agreement is not properly stamped.
It appears form the copy of the agreement for sale dated 09.12.2008 that the Appellant / Developer put his signature on behalf of the vendors and, that apart he also put his signature as developer and the Complainant put her signature as purchaser. Therefore, the allegation regarding not obtaining the signature of vendor in the said agreement has not been substantiated. The Appellant also stated that he never used the round seal as appeared in every pages of the said agreement containing signature of him. It means the seal and signature within the impression of the seal put by some other person. The Appellant, however, did not challenged the genuineness of the said signatures since he did not pray for examination of the same by any handwriting expert. Thus this allegation has not been substantiated. Further the Appellant has raised the issue of inadequate value of stamp of the said agreement. In his written version filed before the Ld. District Forum the Appellant / O.P. has stated that the Complainant had paid Rs 50,000/- only out of the total amount of consideration of the flat. It is, therefore, evident that the Appellant has entered into and acted on the said agreement and, therefore, he cannot resile therefrom on the plea of inadequate valued stamp of the said agreement. Initially, the Ld. Advocate for the Appellant tried to impress that no agreement has been executed by and between the parties and in support of such contention he furnished a draft agreement with cross mark on every page of the same. But as he was advancing his argument he admitted that an agreement was executed by and between the parties but submitted that the same was not valid one.
It appears from the record that the Respondent /Complainant, however could not prove by adducing cogent evidence that she had paid Rs 11,50,000/- to the developer. The developer admitted to have received Rs 50,000/- towards consideration and on the basis of this admission it is held that the Complainant paid only Rs 50,000/- towards consideration of the said flat.
In para 13 of the W.V. the developer admitted that the flat in question had been sold to a 3rd party. It is evident from the documents on record that the agreement dated 09.12.2008 is still in force and the Appellant / Developer could not furnish any documents before us where from it would be evident that the agreement has been revoked / cancelled by the parties. The O.P. developer further stated that the flat in question is within the owners allocation and he has nothing to do with it as he has delivered the owners allocation to the owners. It is evident from the agreement dated 09.12.2008 that the developer by putting his signature in the agreement for sale agreed to sell the said flat to that Complainant and knowing fully well that the flat in question was within the owners allocation portion executed the same it and for his mischievous activities the Complainant cannot suffer. Since it is admitted that the flat in question has already been registered in favour of a third party and the Consumer Redressal Agencies have no declaratory power to declare the registration of the deed as void, in such view of the matter, we are inclined to modify the impugned order regarding the direction upon the O.P.’s to execute and register the deed of conveyance in favour of the Complainant / Respondent.
Hence,
Ordered,
That the instant appeal is disposed of ex parte without costs modifying the impugned order to the following extent –
The Appellant / Developer is directed to refund Rs 50,000/- to the Respondent / Complainant within one month from this date. The Appellant / developer is also directed to pay Rs 3,00,000/- to the Complainant for adopting unfair trade practice within the aforesaid period, failing which the entire amount shall carry interest @ 10% p.a. for the default period till full realisation thereof.
