Order No.                 .

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

          Verse of the complaint is that complainant was a tenant under the OP but purchased a property along with tenants by virtue of Registered Deed dated 11-08-1998 and intended to construct new multi-storied building by removing the tenants from the said building after entering into an agreement in between the complainant and the OP at that time to sell a flat of 600 sq. ft. of the super-built area from the proposed building situated at 13A/25, Ariff Road, Kolkata – 67 and that agreement was executed on 15-07-2008 subject to payment of Rs.1 lakh only as total consideration and accordingly as per agreement Rs.95,000/- was paid out of Rs.1 lakh and balance Rs.5,000/- shall be paid at the time of delivery of possessions of the proposed flat and the said agreement was duly registered being Deed No.11004 of the year 2010 before Additional Register of Assurance, Kolkata – 1.

          After construction possession was delivered.  OP also paid less consideration of Rs.5,000/- but even after that on repeated requests reminders made on 21-07-2012, 03-10-2012 OP refused to execute the final deed of Sale and for such sort of negligent and deficient manner of service and unfair trade practice complainant is being harassed and complainant appeared before this Forum for relief.

          On the contrary, the fiction of the OP is that the complainant was a tenant under Binapani Ghosh, the original tenant in respect of tenancy in question.  And subsequently the possession was handed over by the said Binapani Ghosh, the original tenant in favour of the complainant and complainant has been carrying business obtaining trade license and other necessary terms from the concerned authority and further submitted that as per agreement to sale being no.1104 of the year 2010 it would be found that the sale price is very low as such complainant is debarred from taking any advantage and as                           agreement cannot be valid even it is executed and thus prayed for dismissal of this case.

Decision with Reasons

On proper consideration of the proceedings particularly the complainant the written version we find that about execution of agreement for sale dated 15-07-2008 in between the parties of this case a Registered Deed of Sale being No.09242 – I 1104/10 was duly executed by the parties and as per agreement it is proved that OP received Rs.95,000/- out of Rs.1 lakh the agreed final consideration of the flat in question and it is a registered deed of agreement to sale and admitted position is that the possession is that the complainant and the complainant has paid a balance of Rs.5,000/- at the time of taking possession and most interesting factor is that along with the said agreement there is also the sketch map in respect of the description in define by boundaries etc. and admitted position is that complainant has running business from that shop-room.  So, it is clear that every portion and                    of the agreement admitted inexecuted b y the parties as already been matured after delivery of possession and after receipt of tenanted consideration of Rs.1 lakh by the OP but only OPs grievance is that at the time of agreement he was compelled to do that under certain complications because complainant was tenant in the said holding and OP purchased that building along with tenants was only for the purpose of construction of multi-storied building of the OP.  OP executed the same but whatever may be the reason for execution is not our subject matter to decide when address admitted by the OP that the agreement was executed and relating question as raised by the OP about violation and no doubt the violation is found very low but consideration is not the criteria for declaring a deed invalid but fact remains consideration is their remark because if OP intended to fact that on payment in that case OP shall have to loose huge money for their fixation and surrender of the property in favour of the OP at the time of final construction of multi-storied building and it is known to all and settled authorization that if any promoter or land owner wants to execute multi-storied building after removal of the tenants in that case tenant interest must not be hampered and in this case practically that theory was valid and OP willfully executed it after receiving Rs.95,000/- out of Rs.1 lakh so, we find that there is no illegality in respect of the agreement to sale deed dated 15-07-2008 executed by the OP and the complainant and fact remains that entire amount of Rs.1 lakh has been paid by the complainant to the OP and for which OP is bound to execute the sale deed and it is his liability and responsibility to do that and till execution the OP cannot be executed for any reason whatsoever.

          But anyhow, it is proved that the complainant running the said business from the said shop-room so he has not faced any loss.  But when after repeated requests made by the complainant OP has not executed the sale deed then it is no doubt the unfair trade practice and no doubt complainant has been harassed on the ground.  In the meantime registration cost has been increasing day by day and, in fact, the complainant is facing much difficulty than that of the OP and in view of the above fact considering the negligence and deficient manner of the OP the complainant is entitled to get relief as prayed for.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.5,000/- (Rupees Five thousand only) against the OP.  OP is directed to execute final deed of sale according to agreement to sale deed dated 15-07-2008 (registered deed of agreement of sale) in favour of the complainant in respect of the property as described in the scheduled of the agreement to sale within one month from the date of this order failing which OP shall have to pay Rs.3,000/-(Rupees three thousand only) per day for non-compliance of the Forum’s order till execution of the deed by any more adopted by this Forum in case of non compliance of the order by the OP.

          OP is directed to pay a sum of Rs.5,000/-(Rupees Five thousand only) as compensation to the complainant for harassing the complainant and for not executing the sale deed as yet.  OP is directed to comply the order very strictly within one month from the date of this order failing which OP shall have to pay punitive damages of Rs.100/- per day and even repudiated non-compliance of the order a proceeding u/s.27 of the C.P. Act, started against the OP for which further penalty of Rs.10,000/-(Rupees Ten thousand only) may be imposed.  On expiry of the stipulated period for one month if it is found reluctant to sale deed in that case complainant may be executed and registration of the sale deed by this Forum at his own cost and also by paying all service charges which shall be deputed by this Forum for execution purpose