Shri B. Mukhopadhyay, President.   

This is an application u/s.12 of the C.P. Act, 1986.

            Complainant by filing this complaint has submitted that complainant is a businessman and for the purpose of business complainant and his wife were very much interested and agreed to purchase one shoproom of 70 sq.ft. more or less super-built area at South side East facing corner plot of Municipal holding being premises No.6, Doctor Bye Lane, P.S. Taltola, Kolkata – 700 014 within ward No.53, Kolkata Municipal Corporation from the OP Developer and accordingly an agreement to sale was executed on 20^th July, 2010 and as per agreement to sale dated 20-07-2010 it was agreed that final consideration amount of the said room was fixed Rs.3,70,000/- out of which OP already received Rs.2,20,000/- and, thereafter, OP acknowledged and admitted the agreement to sale deed 20-07-2010 and receipt of the said amount of Rs.2,20,000/- and after receiving of the said amount by the OP on several occasions requested the OP for execution of the deed of sale but they avoided and ultimately they did not execute it and under compelling circumstances complainant was compelled to file this compliant praying for directing the OPs to execute the sale deed and registration of the same.

            On the other hand OP4 by filing written version submitted that he is always ready to make possession and to register the same.

            On the other hand, OP4 by filing written version submitted that he is always ready to deliver possession and register the deed also on payment of balance amount and OP4 always ready to give possession by the complainant subject to payment of balance amount whereas the OP4 has further submitted that, in fact, complainant did not pay the balance amount of Rs.1,50,000/- since the date of execution of the agreement to sale and for which OP is not liable to pay any compensation rather OP is entitled to get interest amount till the date of non-payment of that account.

            On the other hand, OP1 to 3 by filing a separate written version submitted that OPs 1 to 3 are bound by the order of the Citi Civil Court under Misc. Case No.1375 of 2010 in respect of the said shoproom and OP4 also cannot execute such deed of sale but admitted that ground floor and second floor are the exclusively portion of the OP4 so OP4 is liable for executing the sale deed and OPs 1 to 3 are no way related with the said present dispute as made by the complainant and, in fact, there is a connivance in between the complainant and OP4 and, in fact, complainant has filed this case against OPs 1 to 3 at the instruction of the OP4 and in the circumstances, the case should be dismissed against OPs1 to 3.

Decision with Reasons

After entering into the entire dispute of the case and particularly, the contention of the Ld. Lawyers of the OPs and the complainant it is found that undisputed fact is that a Misc. Case being No.1375 of 2010 was disposed of on compromises amongst the OPs in respect of their development agreement before the Ld. Judge 12^th Bench, City Civil Court and as per said compromise developer OP4 has got allotment of the entire ground floor and second floor and balance part of the construction of the present disputed building is allotted to OPs1 to 3 exclusively.  So, it is clear that OP4 developer is entitled to dispose of ground floor and entire second floor and admitted fact is that OP4 executed an agreement to sale in favour of the complainant on 20-07-2010 and as per said agreement up to this stage complainant has not paid balance amount of Rs.1,50,000/- and practically for complainant’s non-payment of the said amount the deed has not been executed and possession has not been delivered in respect of the disputed shoproom about 78 sq.ft. super-built area but OP4 is willing to execute it and owners are also ready to execute the same if the matter in dispute in between complainant and OP4 is settled.  In this regard we have heard the OP4 who is present before this Forum and he submitted that on payment of balance sum with interest he is ready to execute the same.  If other OPs1 to 3 help him to execute and register the sale deed and to that effect the order may be passed and OP4 is willing to implement that order.

            Considering the entire argument of the complainant and the OP including the OPs version we are confirmed that the complainant is entitled to get Register Deed of Sale including possession of the disputed shoproom as per agreement to sale dated 20-07-2010 subject to payment of Rs.1,50,000/- with composite interest of Rs.25,000/- within one month from the date of this order and on and from the date of deposit of the said amount to this Forum the OP shall execute and register the sale deed in favour of the complainant within one month from the date of this order.  Accordingly, this complaint succeeds with such condition.

Hence,

Ordered

That the complaint be and the same is allowed with condition but without any cost against the OPs.

            Complainant is directed to deposit Rs.1,75,000/- (Rupees One lakh Seventy-five thousand only) within one month from the date of this order before this Forum and from the date of deposit of the same by the complainant within one month the OPs shall have to execute the sale deed after execution of the same and invariably before that possession shall be delivered by handing over possession certificate which shall be signed by both the parties and same shall be submitted before this Forum but if this conditions are not completed by the OPs in that case complainant may pray for execution and registration of this Sale Deed through this Forum but invariably after deposit of the said amount by the complainant before this Forum.

            If it is found that complainant has failed to comply the order as per condition and as per spirit of this judgment in that case the OP shall have to refund the entire amount as received from the complainant and in that case the complainant shall be treated as stand dismissed.  And if complainant complies the order in that case the OP shall have to comply otherwise each OPs shall have to pay a punitive damages of Rs.10,000/- each which shall be deposited to the State Consumer Welfare Fund and if for any ground the Forum is compelled to execute the Deed of Sale in that case each OPs shall have to pay a service charge of Rs.2,500/- each which shall be paid to State Consumer Welfare Fund for this Forum. 

            Parties are directed to comply the order very strictly otherwise all sorts of penal measure shall be taken against them for which they shall be liable.