27.09.2010.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Complainant through Mr. Tapan Kr. Mohanty, the Ld. Advocate and O.Ps through Mr. Rudradeb Bagchi, the Ld. Advocate are present. 

The Complainant has entered into an Agreement for purchase of a flat and one car parking space in the concerned building as mentioned in the schedule to the Agreement at a consideration of Rs.5,76,800/- from the Developer – SPA Projection India Limited and its partner namely Promit Maity and Sri Abhijit Gupta as also the land owners namely Sri Ananda Bhattacharya and Rajat Bhattacharya the O.Ps herein.

It is not in dispute that the entire consideration money has been paid by the Complainant to the Developer and thereafter possession of the questioned flat and car parking space as mentioned in the schedule to the aforesaid Agreement has been handed over to the Complainant on 30.12.1997.  There is also no dispute that the Complainant is all along in possession and occupation of the questioned flat and car parking space as aforesaid since thereafter.  After taking possession as above the Complainant requested the Developer to register the Sale Deed in her favour by a letter dated 30.07.1999 and subsequently thereafter orally.  In spite of such repeated requests the O.Ps herein have failed and neglected to discharge their legal obligation.  Accordingly the above complaint has been filed before this Commission.

The O.Ps have not contested the above complaint case by filing any Written Version nor by producing any Affidavit on evidence and/or any material evidence.

It appears from the records of this case that the O.Ps at the initial stage of the proceeding filed an application praying for dismissal of the complaint on the ground that the aforesaid Agreement between the Complainant and the O.Ps, which has been made the basis of the present complaint, contained provision in Clause 28 thereof for arbitration by a named Arbitrator for resolving any dispute in connection with the said Agreement for Sale.  In terms of the said arbitration clause a dispute was referred to the said named Arbitrator who passed an award on 04.01.2002 in such arbitration proceeding.  The said award was also put into execution by the O.Ps.  By an order dated 27.07.2009 the said application has been disposed of with the observation that from the finding of the said award it did not appear to the Commission that the flat in question, that was purchased by the Complainant, was in any way involved in the dispute covered by the said award.   According to the said award the dispute related to the area of land and with regard to the interpretation of common surface area which was adjudicated by holding that the Developer – M/s. SPA Projection is the absolute owner of the ground floor except the portion mentioned in Point No. 10 in the fourth schedule of the aforesaid Agreement.  The said order dated 27.07.2009 of the State Commission has not been challenged by any of the parties to this proceeding before any other forum.

Thereafter, the matter was taken up for final disposal when by an order dated 27.11.2009 it has been observed as under :

“The Ld. Advocate for the Petitioner insisted that without the original agreement assessment of deficit stamp duty and penalty was not possible and, therefore, these facts along indicate that original agreement was filed before this Commission.  In any event the matter was directed to be enquired by the Registrar of this Commission who submitted his report dated 27.04.2008.  The said report was also taken into consideration.  On perusal of the entire materials on record including the order sheets it appears to me that original agreement was produced before the Bench of this Commission but there is no material to show conclusively that the same was ever filed and whether the entire process continued with a Xerox copy of the agreement and assessment of deficit stamp duty and penalty were done on the basis of the said Xerox copy.  Law and practice both required the original document for the said purpose.

In the facts and circumstances as aforesaid as the original agreement is not available to the complainant nor with the records of this Commission, the O.P. was directed to produce their copy of the agreement as admittedly there were two original agreements one copy lying with each party.  But the O.P. through their Ld. Advocate also expressed their copy of the agreement is lying with their Lawyer and cannot be produced/filed.

I find that on this question the matter has been delayed for a long time and it seems that the assessment of stamp duty and penalty has been done.  The said Xerox copy available on record has not been disputed by the parties at any stage.  Therefore, treating the original agreement to have been lost the Xerox of the agreement may be treated as original agreement.  Accordingly all concerned are directed to proceed on the basis of the said Xerox copy of the agreement treating the same as original.  Registrar of this Commission is directed to get the formalities of payment of deficit stamp duty and penalty completed through the District Registrar, North 24 Parganas as early as possible”.

The said order has also remained unchallenged.

Furthermore, the Agreement dated 16.09.1996 that has been entered into by and between the parties as annexed to the complaint case has already been endorsed as treated as original document pursuant to the aforesaid order of this Commission whereupon a further endorsement has been made by the concerned Addl. District Magistrate by impounding the document and thereby determining the stamp duty for the said document which has already been paid by the Complainant by a Demand Draft dated 09.12.2009 as endorsed therein by the said Additional District Magistrate.

In these facts and circumstances there is no further scope to raise any other question in this complaint case at this stage so far as the Registration of the aforesaid Agreement dated 16.09.1996 is concerned.   The aforesaid Deed dated 16.09.1996 now requires to be registered as per law so as to constitute a valid Deed of Conveyance in favour of the Complainant by the O.Ps in respect of the flat and car parking space as mentioned in the Schedule to the said Deed. 

The above complaint case is accordingly disposed of with the direction that a responsible officer of the State Commission will take out from the record the aforesaid Agreement dated 16.09.1996 which has been certified as original and impounded as above and bring it to the appropriate Registration Office for its registration as per the Registration Laws.  The Complainant shall be present at the Registration Office with the said officer for such purpose and will bear all necessary costs and expenses including the cost of registration of the same in the concerned Registration Office.  The Complainant shall be entitled to receive back the said Deed upon completion of such registration.  The said Deed of Agreement dated 16.09.1996 upon Registration as above would be treated as the Registered Deed of Conveyance in respect of the flat and car parking space in question as mentioned in the schedule to the said Deed as between the parties to this complaint case.  The complaint is thus disposed of.