Complainantby filing this complaint hasalleged that complainant entered into an agreement duly executed on 22.03.2007 with the op to purchase a flat measuring about 400 Sq. Ft. which is more fully and particularly described in the schedule property for residential purposes.

          The complainant also entered into an agreement on 05.07.2007 with op specifically stated therein that landlord/op/developer shall transfer 300 Sq. Ft. at free of cost at schedule property in premises No.97/3A, SurenSarkar Road, P.S.-Beliaghata, Kolkata – 700010 for surrender of Tenancy by the complainant and 100 Sq. Ft. shall be transferred against consideration.  Complainant thereby entitled to a flat measuring about 800 Sq. Ft. super built up area at the Schedule Property.

          That the complainant paid till date a sum of Rs.2,70,000/- out of total agreed amount of Rs.3,75,000/- only in respect of said flat.  In this regard op issued one Note on Non-Judicial Stamp Paper valued of Rs.10/- duly executed on 21.08.2007 which will speak about the transaction and substantially op delivered the possession of the said flat on 27.09.2001 and has also issued possession letter in favour of complainant in respect of Schedule Property/Flat and since then complainant are in possession of the said Schedule Property.  Complainant on various occasion requested the op to accept the remaining balance amount of Rs.1,05,000/- out of total agreed consideration money in respect of Schedule Property and to execute and register the Deed of Conveyance but the op is always reluctant rather neglected the same in favour of the complainant.

          Complainant on 03.08.2009 physically visited at op’s house and requested to execute the Deed of Conveyance in favour of complainant but the op rendered various excuses and finally op fixed a date for registration of the said flat on 1^st week of January 2010 and accordingly the complainant made necessary arrangement of money for the same but this time op again showed poor health’s condition of his own and made out emotional story for visiting Vellore for medical treatment and op did not execute the registration of sale deed on the part of the complainant and due to such illegal act of op, complainant suffered physically, financially stringency because registration of sale deed shall be turned down by the op and finding no other alternative complainant sent a letter through his Ld. Advocate on 10.05.2012 with a request to register the sale deed in respect of the Schedule Property/Flat after accepting residual amount within 15 days on and from date of necessary of aforesaid letter.

          Having no other alternative, complainant was compelled to file this complaint for redressal for negligent and deficient of manner in service and also for unprecedented activities of the op complainant prayed for directing the op to execute the same deed.

          On the contrary op by filing written statement submitted that the said agreement dated 22.03.2007 and 05.07.2007 are not maintainable in the eye of law and same are illegal and actually complainant was a tenant and as per agreement complainant as tenant shall have to get a flat of 190 Sq. Ft. of any floor of newly constructed building on the basis of gift as a compensatory measure of leaving one room to enable the op to construct the building and an agreement to that effect was entered into by and between the complainant and op. But subsequently when it was detected that the flat was very small and complainant demanded a bigger flat of more or less 800 Sq. Ft. on condition that he will pay the market value of the flat after adjustment value of 190 Sq. Ft. without costing charge to be gifted him as per agreement dated 22.04.2004, until the said flat is not registered in his favour on payment of consideration for 610 Sq. Ft. out of 800 Sq. Ft. more or less.  The complainant shall have to pay Rs.5,000/- per month as rent for excess area occupied and enjoyed by him in excess of 190 Sq. Ft.  Accordingly complainant was given possession of a bigger flat of 800 sq. ft. on 27.09.2007.  But he did not pay monthly rental of Rs.5,000/- from the date of possession of the bigger flat on 27.09.2007 but he also could not pay any consideration money for excess area of 610 sq. ft. than 190 sq. ft. without costing charge.  Further opgot money as recorded therein and those amount would adjustable the previous dues of rental amount of Rs.5,000/- with effect from the date of possession of the said bigger flat i.e. more than 800 sq. ft. dated 27.09.2007.

          Further submitted that the complaint filed under the Consumer Protection Act 1986 is not maintainable as it is violation of provisions of Registration Act, 1908 and also C.P. Act 1986.  Op further submitted that there was a contract that the surrendering of tenancy by the complainant of a room for 100 sq. ft. shall be transferred against consideration treated as costing charge against the said area of 190 sq. ft. flat and previous dues of monthly rental of Rs.5,000/- from the date of possession has not been paid.

          Further it is submitted that remaining balance amount in respect of 400 sq. ft. is not Rs.1,05,000/-.  But complainant never approached or never paid the said amount the price of the building material in the year 2012 had already been increased and when the alleged sale agreements were entered into as per that agreement but complainant did not pay the said amount but possession was delivered.  So, complainant is not entitled to get any relief but the complainant is liable to pay Rs.5,000/- per month for rent in respect of excess area of 610 sq. ft. with effect from 27.09.2007.  So, the entire allegation of complainant is false and case should be dismissed because only for the purpose grabbing more than area of the flat, the case was filed.

          Practically this written version was filed by Dilip Bhattacharya/op and as per complaint this op is developer-cum-owner of the Schedule-A Property.

Decision with reasons

          In the complaint complainant has practically brought two stories, one- in respect of an agreement duly executed on 22.03.2007 with the op to purchase a flat measuring about 400 sq. ft. which is more fully and particularly described in the Schedule of the complainant.  Further complainant has claimed another 400 sq. ft. as tenant because at the time of construction of the building the owner-cum-developer agreed to give 400 sq. ft. area free of cost by Deed of Gift and as per that contract the complainant vacated the case premises for construction of the new building and thereafter complainant got possession of the flat having an area of 800 sq. ft.  So, from the complaint, it is clear that complainant has failed to show any paper that balance 400 sq. ft. area had been transferred by a Deed of Gift by op.

          Ld. Lawyer for the complainant at the time of argument submitted that op executed a document in favour of the complainant on 21.08.2007 and by showing that document complainant has tried to say that document simply proves that op agreed to transfer 800 sq. ft.  But against this submission Ld. Lawyer for the op submitted that Dilip Bhattacharya/op received Rs.70,000/- by a cheque bearing No.187319 dated 21.08.2007 and in support of that he granted a receipt and the portion of that receipt of Rs.70,000/- by cheque No.187319 dated 21.08.2007 and the signature of Dilip Bhattacharya with date 21.08.2007 on the Revenue Stamp are the hand writing of the op and remaining portion was prepared by the complainant that cannot be taken as granted as agreement in view of the fact the agreement was in respect of only 400 sq. ft. and in respect of which the agreement of sale dated 22.03.2007 was executed and complainant has relied upon that document and also this Forum cannot consider any agreement without consideration and fact remains regarding transfer of 190 sq. ft. to the tenant complainant by the landlord op cannot be invoked in this case as per provision of C.P. Act 1986 because tenant has no right to claim as consumer in respect of any property of the landlord when he or she is tenant and so, in respect of 190 sq. ft. or further 100 sq. ft. or 300 sq. ft. cannotbe taken up and complainant is not entitled to get any relief from this Forum because that dispute is in between the tenant and landlord i.e. in between the complainant/tenant and landlord/op.

          Moreover after considering the alleged agreement dated 21.07.2007 we have gathered that Dilip Bhattacharya only received Rs.70,000/- by cheaque and granted receipt and substantially it was fixed with a stamp paper that though it was in the name of Dilip Bhattacharya but said stamp paper page is not signed by Dilip Bhattacharya.  So, we cannot rely upon such document and op has challenged that document rather there is ground to believe that was prepared purportedly by the complainant for the purpose of getting more area.  But fact remains that complainant can pray for relief in respect of 400 sq. ft. of flat for which an agreement dated 22.03.2007 was executed which has been admitted by the op.  But in respect of balance 400 sq. ft., practically there is no agreement and practically such a matter cannot be considered by the Forum inviewof the fact that no Court/Forum can direct the landlord (developer) to execute the Deed of Giftin favour of his or her tenant.

          So, we are convinced that in respect of balance 400 sq. ft. area complainant is not entitled to get any relief because it is wish of the landlord whether he will donate it or not.  It is his desire but Forum cannot direct or to force to donate it and execute it as Gift.  But only in respect of transaction related to any flat, invariably Forum has its power to consider as it comes under the purview of housing construction and also the term consideration.  So, we are convinced to hold that complainant is not entitled to get any relief in respect of balance 400 sq. ft. but considering the Deed of Agreement dated 22.03.2007 we have gathered that complainant entered into any agreement in respect of 400 sq. ft. area of flat and total amount was fixed at Rs.3,10,000/-.  But actually complainant has paid for Rs.1,00,000/- on 22.03.2007 vide Cheque No.187315 drawn on Allahabad Bank,Beliaghata Branch, Kolkata and Rs.70,000/- bearing cheque No.187319 Allahabad Bank, Beliaghata Branch, Kolkata on 21.07.2007.  So, out of Rs.3,75,000/- complainant paid Rs.1,70,000/- which is proved from the document.  But regarding payment of another Rs.1,00,000/- we have gone through all the documents and we are confirmed that more than Rs.1,70,000/- was not paid by the complainant to the op as per terms and conditions of the agreement dated 22.03.2007.  But most interesting factor is that complainant has tried to prove by preparing the document dated 21.08.2007 that op also received another Rs.1,00,000/- but practically there is no such receipt and in support of receipt another Rs.1,00,000/- received by the op and the document dated 21.08.2007 is purported document accepted in white paper the detailed receipt of Rs.70,000/- by cheaue No.187319 dated 21.08.2007 and signature of Dilip Bhattacharya dated 21.08.2007 is the hand writing of the op and other part is prepared because first page is not signed.  So, on the basis of that document complainant cannot claim that complainant paid Rs.2,75,000/- out of so called Rs.3,75,000/-.  But actually for the flat of 400 sq. ft. agreement was executed on 22.08.2007 and as per agreement complainant was agreed to pay balance amount i.e. Rs.2,10,000/- on the date of delivery of the possession of the flat.  But admitted position is that complainant got possession of the flat from the op in respect of a bigger flat of 800 sq. ft. with effect from 27.09.2007 but full balance amount was not paid.

          Fact remains that complainant did not pay balance amount of Rs.1,40,000/- on the date of possession.  Most interesting factor is that complainant got possession of excess area 800 sq. ft. with effect from 28.07.2007 and as per complaint, complainant for the first time on 10.05.2012 sent a Registered Letter requesting op for registration of the Deed but in between 27.09.2007 (date of taking possession of bigger flat of 800 sq. ft.) and till sending demand notice dated 10.05.2012 complainant did not take any step and most interesting factor is that the complainant has not complied the terms and conditions of the agreement because it is specific term that complainant shall have to pay the balance amount i.e. Rs.1,40,000/- on the date of delivery of possession but op delivered possession to the complainant in respect of a bigger area flat but that amount was not paid.  So, it is clear that complainant has violated the terms and conditions of the mandatory conditions of the agreement dated 22.03.2007 and practically when complainant did not pay the same till 10.05.2012 since 27.09.2007 to 10.05.2012 complainant did not pay the said amount that means within 5 years from 27.09.2012 to 10.05.2012 complainant was silent.  Then it is clear that complainant did not discharge his or her part performance and he or she was idle for which op had nothing to do and it is settled principle of law that if the buyer violates the terms and conditions of the policy and does not pay the balance amount on the date of delivery of possession as per terms and conditions of the agreement in that case the buyer must have to appear before the Forum for relief within 2 years from the date of taking possession because complainant has failed to prove that he attempted to pay on the date of taking possession on 27.09.2007 and before 10.05.2012.  Mere communication made on 10.05.2012 does not give the complainant any relief to treat it as a continuity of the cause of action.  But practically cause of action arose on 27.09.2007.  But complainant did not appear before this Forum by 27.09.2009 for registering the Deed and in fact the alleged purported paper dated 21.08.2007 also proves that purported document also was prepared for some other reasons and then it was submitted before this Forum to show that as because complainant was not getting the 400 sq. ft. from the op.  So, he or she was sitting idle that cannot be considered as false.  On the contrary the entire story in support of 400 sq. ft. area of flat is completely false and fabricated and in respect of 800 sq. ft.  Complainant is a tenant under the op and invariably complainant shall have to pay rent when the document of declaration of the op in favour of the complainant dated 18.01.2004 as produced by the op simply proves that complainant was entitled to 190 sq. ft. for surrendering his 100 sq. ft. tenanted portion and in the said letter it is specifically mentioned that complainant if wants to purchase any bigger area of flat in casefor that bigger area complainant shall have to pay market price and if complainant fails to pay the amount in that case complainant shall have to pay Rs.5,000/- as rent for the remaining area out of the 800 sq. ft. for which agreement was executed on 22.03.2007.

          In the light of the above observation we are convinced to hold that complainant appeared before this Forum by adopting a jugglery theorization and prayed for relief for separate type of cause of actions one for agreement dated 22.03.2007 in respect of 400 sq. ft. against which fix consideration was Rs.3,10,000/-.  But actually complainant paid Rs.1,70,000/- , so balance amount of Rs.1,40,000/- has not been paid since taking possession bigger flat since 27.09.2007.  So, invariably in respect of other part complainant is liable to pay rent as he or she is tenant and that tenant has also declared if in favour of the op and on the basis of which complainant vacated the old building.  So, in respect of the balance 400 sq. ft. complainant is not entitled to get any relief but as because he is tenant under the present op in respect of that area.

          About the agreement of sale dated 22.03.2007 we have gathered that complainant did not discharge his liability even after taking possession of the bigger flat including 400 sq. ft. on 27.09.2007 and as per agreement complainant violated the terms and conditions of the policy for which complainant’s cause of action merely arose on 27.09.2007 and complainant oughtto have been filed it within 27.09.2009 but this complaint was filed long after that on 03.07.2012 i.e. long after 5 years.  So, invariably by sending a letter dated 10.05.2012 cause of action of the complainant cannot be continuous cause of action and in this regard we have gone through certain verdict of the National Commission wherefrom we have gathered that mere communication was not any way save the complainant’s right to claim his cause of action as continuous.

          Further fact is that practically this complainant with some fellows managed to procure a paper with the help of their agents or advisory prepared this document dated 21.08.2007 and tried to convince that in respect of 100 sq. ft. Rs.75,000/- was fixed.  But no such contract was there at the time of execution and document at the time of movement of the complainant from the old house.  So, it is clear that it is specifically proved and for which we are confirmed that complainant is till a tenant in respect of balance 400 sq. ft. and whether op shall have to donate it to the complainant or not, it is wish of the op and Forum or the any Court cannot direct any party to execute the deed of gift because principle of deed of gift as laid down in the TP Act Section 122 to 123 show otherwise.  Deed of Gift is own expression of a donor.  Donor cannot be forced to execute Deed of Gift so in respect of balance 400 sq. ft. area complainant is tenant under the op and op is entitled to get rent from the complainant if complainant is unable to purchase that portion on payment present market price of the said flat in that case she shall be tenant on payment of rent.  But in respect of the agreement of 400 sq. ft. dated 22.03.2007 we are giving some tenant view but fact remains that complainant had detained Rs.1,40,000/- since 27.09.2007 intentionally and for complainant latches deed in respect of 400 sq. ft. could not be executed and there was no latches on the part of the op and fact remains that complainant is now possessing 800 sq. ft. flat but complainant is entitled to 400 sq. ft. flat.  But as because Rs.1,40,000/- has been detained by the complainant for more than 5 years and till now he has not paid before this Forum.  Even afterlapse of 6 years so, the complainant at first shall have to pay Rs.1,40,000/- along with interest @ 12% p.a. over the same till the deposit of the same before this Forum and if complainant deposits the said amount within 45 days from the date of this order in that case op shall have to give the flat of 400 sq. ft. as per agreement dated 22.03.2007 and in that case invariably complainant shall have to vacate this flat because complainant is not entitled to get any flat of 800 sq. ft. as per agreement dated 22.03.2007.

          Accordingly complainant’s present complaint is going to be allowed in part.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest in part without any cost against the op.

          At first complainant is directed to deposit the balance consideration of Rs.1,40,000/- along with 12% p.a. interest with effect from 27.09.2007 and till the date of deposit of the same and that interest shall be assessed for the said period over the said amount and that interest amount shall also be deposited along with balance consideration amount of Rs.1,40,000/- within 45 days from the date of this order and if complainant fails to pay the same in that case the complainant present complaintshall stand dismissed and in future complainant shall not get any relief.

          If complainant deposits the said amount in that case op shall have to execute the sale deed in respect of 400 sq. ft. of flat as per agreement dated 22.03.2007 invariably handover the possession of such flat of 400 sq. ft. after getting delivery possession of present 800 sq. ft. bigger flat and at the time of delivery of possession 400 sq. ft. flat complainant shall have to deliver vacant possession to the op in respect of 800 sq. ft. and simultaneously op shall have to deliver 400 sq. ft. as per agreement and if complainant fails to deliver the kash possession of 800 sq. ft. flat of present possession by the complainant to the op in that case op has no liability to execute any deed or its delivery flat of 400 sq. ft. to the complainant.

          Complainant must follow the order of this Forum very strictly failing which for non-compliance of the order by the complainant, the complainant shall not get any relief and if complainant obeys the entire spirit of the order in that case op shall have to obey the order and if op does not obey the order in that case this Forum shall have to take such step on the basis of the application of the complainant and in that case necessary penalty shall be imposed against the op even penal proceeding shall be started.  But if op is willing to follow the spirit of the order, but complainant is unwilling in that case the fate would be same and that the suit should be treated dismissed on contest.