Complainant by filing this complaint has submitted that op no.1 is the developer carrying on his business in developing and promoting buildings on the several lands of his own capacity and all the ops are residing at the addresses mentioned in the cause title above and the op no.1 entered into an agreement to develop the said land with the op no.2 and 3 and also executed power of attorney to that effect. For the reason after the development of the said land, the complainant booked a flat with the developer op no.1 and discharged his liabilities in all respects and op nos. 2 & 3 entered into an Development Agreement dated 12.03.2008 with the developer op no.1 for the purpose of developing and constructing a new building on the said land consisting of several residential flats, spaces, garages, etc. in the same area and the said op nos. 2 & 3 also executed a power of attorney dated 23.11.2005 in favour of Mr. Ashimava Ghosh op no.1 for the purpose of carrying on the said construction and related jobs and as per KMC sanctioned Building Plan being No. B-25 dated 20.12.2007.
Complainant as interested purchaser to purchase one residential unit in the first floor of the East-back side having super built up area of 857 sq. ft. lying and situated at the premises No. 20A, Shyampukur Lane, Kolkata – 700004, P.S.- Shyampukur at a consideration of Rs. 18,85,400/- and for the purpose complainant entered into an agreement for Sale dated 25.03.2008 with the ops and for that purpose complainant paid a sum of Rs. 17,50,000/- for consideration money of the said flat to the op no.1 on different dates and balance amount would be paid at the time of registration of the flat and on receiving of such consideration money, op no.1 duly handed over the vacant and peaceful possession of the said flat in favour of the complainant.
Thereafter complainant applied for obtaining separate electric connection in respect of his flat and got such connection with meter in his name in respect of the said flat from the Electricity Authority. At the same time complainant has paid Corporation Tax in respect of the premisesNo. 20A, Shyampukur Lane, Kolkata – 700004, P.S.- Shyampukur under the Assesse No. 110104100363 of Rs. 5,392/- was paid by the complainant vide Receipt No. 6023671.
Even after that complainant requested op on several occasions and lastly on 12.12.2013 for executing the final Sale Deed and for his registration but they refused to accept the balance amount and executed the same for registration and with intentionally and unnecessarily harassing the complainant, the ops did not act accordingly as per agreement and discharged their liability to execute and register the Sale Deed. But truth is that already op no.1 on behalf of the other ops received Rs. 17,50,000/- out of total consideration amount of Rs. 18,85,400/- and under the above circumstances complainant has been harassed by the ops and he has been suffering mental pain and agony though complainant has discharged his liability and duties including responsibility as per agreement but ops have not performed their performance for which the present complaint is vested for redressal.
Fact remains that notices were duly served upon the ops which is evident from the internet report and fact remains that op no.3MeherunishaChowdhuary appeared by filing written statement and op no.1 also filed written statement whereas op no.2 has not filed any written statement on his behalf.
Op no.1 filed written statement submitted that op no.1 already handed over the possession and even after non-payment of the entire amount on 03.01.2011 and since then complainant had been possessing and occupying the said flat but has not yet paid the balance amount of consideration. But as per Development Agreement owners are under obligation to execute the registered power of attorney in favour of the developer to execute necessary deed of registration to the intending purchaser under the allocation of the developer but the owners deliberately refused and failed and neglected to execute registered power of attorney in favour of the developer as such the owner being the op nos. 2 & 3 are solely liable to execute the registered deed of conveyance in favour of the complainant but the said op nos. 2 & 3 by exercise of the colorable power deliberately refused to do so.
Moreover it is submitted during construction some deviation has been made in respect of the flats of the intending purchaser at their request including the complainant and specifically the complainant by letter dated 05.06.2009 agreed and accepted that he would bear the cost of deviation as well as necessary charges of the KMC for regularization of such deviation.
Thereafter as per rules of the Kolkata Municipal Corporation the revised plan of the said premises in respect of deviation of the original plan was duly submitted and in the same is pending for redressal and in fact revised plan could not be submitted for not signing of the same by the op nos. 2 & 3. Further it is submitted that complainant has not yet paid the balance amount but has been enjoying the flat and it is against the terms and conditions of the policy. So, there was laches on the part of the complainant and if op no.1 would get the said amount in that case all the ops may execute the said Sale Deed but that scope is not here and there for non-payment of the balance amount. So, complainant has failed to prove by any way the negligence and deficiency on the part of the op and in fact due to non-cooperation of the op nos. 2 & 3 the registered Deed of Conveyance could not be executed as much as the balance amount has not been paid by the complainant. But as per agreement balance amount ought to have been paid before possession of the said flat but that has not been complied by the complainant.
Moreover the receipt as produced by the complainant showing the payment of the Municipal Tax bill was of dated 17.11.2007 and that payment was made for the year 2005-06. But surprising matter is that at this time complainant individually entered into an agreement with the ops. So, it was practically done by the op somehow and copy of receipt was collected and submitted to show that he paid such taxes to that extent of Rs. 3,952/- is completely false. At the same time it would be proved from complainant’s own fact and assertion that actually complainant got possession in the month of January 2011 in respect of the said flat. Then after that question of payment of tax in respect of his flat can arise. But complainant has tried to prove that he paid taxes prior to possession of the flat. So, his such sort of act is completely frivolous and the document is produced only for the purpose for drawing his genuinity. But in fact it is completely false and hoax one. So, the complainant is bound to comply the clause 10 of the said agreement for the purpose of preparing and executing the necessary registered deed of conveyance and for which the complainant is not entitled to get any relief when he is at fault. So, question of negligence on the part of the ops does not arise.
On the other hand op no.3 by filing written statement submitted that the present petition is not maintainable against op nos. 2 &3 in view of the fact as per agreement, the owner’s allocation must be made at first on full satisfaction of the owners op nos. 2 & 3 but that clause has not been complied by the op no.1. So the present complaint is not maintainable and op no.1 has failed to hand over the flat to op no.3. The allegation of complainant prior to that took possession with connivance with the op no.1 for which the present complaint is not maintainable against op no.3 and practically op no.3 is falsely implicated only for the purpose of harassing her and for which the complaint should be dismissed.
Decision with reasons
In the present complaint practically complainant in his written complaint in the prayer portion has prayed for directing the op to execute the appropriate Deed of Conveyance in respect of the disputed flat in favour of the complainant at the cost of the complainant forthwith from the date of passing the order of this Ld. Court and damages.
Admitted position is that op no.1 is developer-cum-owner of the said premises and there are their owners i.e. op nos. 2 & 3. Truth is that complainant received possession peacefully in the month of January 2011 and he has been keeping possessing the admitted position. Fact remains owners of the said premises is op nos. 1, 2 & 3. But from the version of op no.3 it is found that op no.1 has not delivered the owners allocation of op no.3 as yet. But as per Development Agreement, it is the bounded duty on the part of the op no.1 to deliver the allocation portion of op no.3 and to handover the possession to op no.3 on full satisfaction of the op no.3. But op no.1 has not denied that fact and complainant also has not denied that fact. So, no doubt the terms and conditions of the Development Agreement has not been fulfilled by the op no.1 and for which op ni.3 has claimed such claim that she is not bound by the agreement in between the complainant and op no.1.
Further more it is found that in this case complainant is Debdas Ghosh and ops are Ashimava Ghosh, Chandra NathChowdhuary and MeherunishaChowdhuary. Further considering the Memorandum of Understanding (MoU) sell in between the complainant and op no.1 dated 12.03.2008 it is found that Agreement was actually executed by Ashimava Ghosh and Debdas Ghosh. But in the said agreement there is no signature of other two owners i.e. op nos. 2 & 3. Moreover from the said agreement it is clear that Ashimava Ghosh op no.1 signed as proprietor of Ashimava Ghosh and Co. But on behalf of other two land owners op nos. 2 & 3 i.e. Chandra NathChowdhuary and MenerunishaChowdhuary did not sign as power of attorney holder or otherwise.
So, invariably it is the liability of the op no.1 exclusively to perform his part performance to execute the Sale Deed and to register it at the cost of the complainant. Fact remains that op no.3 has tried to convince that as per Development Agreement amongst the ops, op no.3 has not got the possession and her allocation from op no.1 but for that reason op may file such case for such relief but in the present case under any circumstances op no.3 cannot give any relief.
Anyhow after proper evaluation of the entire material on record it is found that op no.1 the owner-cum-developer has admitted that he is willing to execute and register the Sale Deed. But he has no power of attorney on behalf of op nos. 2 & 3 and no doubt that is the ground for non-execution of the Sale Deed. But question is why the op did not report this matter or informed about that position of the op no.1 to the complainant beforehand? At the same time it is clear that present complainant has failed to pay balance amount of the total consideration, though admitted position is that complainant already paid Rs. 17,50,000/- and balance is Rs. 1,35,000/- and that has not been paid since January 2011 and there is no such document produced by the complainant that after January 2011 he sent such cheque in favour of the op no.1 with a request to execute the Sale Deed. But it is a mere whisper in all the papers that he wants to pay the same but as per agreement that amount should be paid on the date of taking possession i.e. in the month of January 2011.
No doubt they fail on the part of the op no.1 and the complainant conjointly. But fact remains that complainant has already not paid such amount for deviation of the plan and for refund of the flats and truth is that op no.1 has already as per choice complainant refused the present flat construction to that effect op no.1 has filed revised petition to the KMC but it has not yet been issued. So, till receipt of the said plan the Sale Deed cannot be executed that is another point. No doubt from the same complications for which the deed of sale cannot be executed by the op no.1. But truth is that op no.1 received Rs. 17,50,000/- already. But he has failed to handover the deed of sale after proper registration only on the ground that there is no power of attorney executed by op nos. 1 & 2 and it is allowed by the op no.3 that op no.3 is owner and as per Development Agreement and op no.3 has failed to get his allocated portion as yet which is no doubt a non-performance of the Development Agreement by the op no.1.
In view of the above fact and circumstances, we are convinced to hold that Sale Deed cannot be executed and registered by the op only on the ground that complainant did not pay the entire balance amount and also the other charges for registration of his flat by the op no.1 and also on the ground the revised plan has not yet been issued by the KMC. At the same time complainant has failed to prove that he expressed his desire for early execution and registration of the deed and he collected any such assessment slip from the registrar and considering all the above fact, this Forum has got chance to believe that several factors are there for non-execution of the registration of the deed for which only op cannot be the condemned.
But we are convinced that the complainant also be blamed equally and practically both the parties of this complaint have failed to perform their part performance properly and that is the cause for non-execution of the Sale Deed and registration of the same upon op. In the light of the above observation and also considering the written version, op no.1 the owner-cum-developer we are convinced that they are willing to execute the same as and when he shall receivethe dues from the complainant.
So, we find that there is sufficient ground to directing the complainant to pay balance amount to the op no.1 i.e. Rs. 1,35,000/- including additional charge of the flat for revision system of the said flat by the op no.1 as per choice of the complainant and invariably complainant shall have to comply the same at first then ops must have to execute and register the same and if it is found that there are complications amongst ops and they are not in a mood to execute it and then there is no power to execute the Sale Deed by the ops in that case Forum if complainant prays, will execute the same on behalf of all ops at the cost of the complainant.
In view of the above position we are allowing this complaint but without any cost.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest without any cost against the op nos. 1 & 3 and same is allowed exparte against op no.2 but without any cost.
Complainant is directed to clear all dues of the op no.1 i.e. balance amount and other charges of revision of the flat including other charges maintenance for possessing the flat since January 2011 to the complainant and same shall be paid to the complainant within one month from the date of this order. On payment of the same ops are directed to execute and register the Sale Deed in favour of the complainant within one month from the date of payment of the amount by the complainant to the op no.1 and if it is found even after payment of the balance amount including other charges by the complainant to the op no.1, ops are reluctant to execute in that case complainant shall have to file execution case before this Forum for execution and registration of the Sale Deed by this Forum or through this Forum and in all cases, the complainant shall have to bear all costs and if it is executed and registered by this Forum in that case complainant shall have to pay the service charges and other charges of the Officer who shall be depute by this Forum for the purpose for execution and registration of the Sale Deed on behalf of the ops in favour of the complainant.
Ops are directed to comply the order very strictly failing which on expiry of the stipulated period penal interest at the rate Rs. 300/- per day shall be assessed till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
But considering all the above fact we are not allowing any compensation in this case in favour of the complainant considering the very conduct of the complainant also.
Parties are directed to comply the order very strictly and ops 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 they shall have to pay further penalty and fine.
