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

            Complainant by filing this complaint has submitted that she entered into an agreement dated 16-12-2009 with the OP purchasing a self-contained flat measuring 110 sq. ft., one bed room, common bath and privy, ground floor at premises No.59, Rani Harsha Mukhi Road, P.S.Chitpur, Kolkata – 700 002 lying and situated within the jurisdiction of this Forum and in pursuance of the said agreement the complainant paid the total consideration of Rs.2 lakhs which was duly received by the OP and after construction of the flat, OP delivered possession dated 16-12-2009 but after that OP did not register the sale deed in favour of the complainant.  Complainant made several requests but OP did not pay any heed.  Therefore, finding no other alternative the complainant sent a demand letter on 04-04-2013 through his Advocate asking OP for the registration of the sale deed in respect of the room as specifically mentioned in the schedule of the complaint and said letter was received by the OP and A.D. Card was returned back.  But OP did not respond for which complainant has filed this complaint praying for redressal.

            On the other hand, OP by filing written statement submitted that the present complaint is not maintainable as per provision of Section 12A of WBBRP Act, 1993 but admitted that he received Rs.2 lakhs and executed agreement to sale for a shop not a flat.  So, the complainant’s entire claim regarding agreement to sale in respect of a flat is false and frivolous.  Further he has submitted that complainant entered into an agreement for sale with the OP with landowner of the said building and for purchasing one shoproom dated 06-12-2009 against total consideration of Rs.2 lakhs which had been paid and possession was delivered but thereafter complainant did not take any step for registration of the same.  further it is submitted that complainant after getting possession started residing in the said shoproom for home purpose against clear violation of sanction building plan and OP requested the complainant to use the said room as a shoproom but in respect of repeated requests, the complainant did not arrange for execution of Deed of Conveyance in respect of shoproom accordingly, the OP vide letter dated 09-04-2013 cancelled the agreement for sale dated 16-12-2009 and requested to take back the deposited amount including Rs.50,000/- as compensation and accordingly, complainant agreed to surrender the shoproom to the OP after receipt of Rs.2,50,000/- by executing one declaration and according to such understanding the OP issued one cheque bearing no.88670 dated 08-04-2013 in favour of the complainant and that has been encashed by the complainant but thereafter, complainant did not vacate the said shoproom.  Moreover, after getting possession of the said shoproom on 20-10-2010 has not been paying maintenance charges, electric charges and other charges and in this regard OP wrote a letter to the complainant on 06-08-2013 to the complainant with the demand of arrear outstanding amount of Rs.21,000/- and further requested for delivery of possession of the shoproom in favour of the OP but complainant did not pay any heed to that.

            Finding no other alternative OP filed one Title Suit bearing No.236 of 2013 before the 1^st Civil Judge, Junior Division, Sealdah for recovery of Khas possession and permanent injunction and the said suit is pending for disposal.  The OP also submits that as Civil SAuit against the complainant is pending the Forum has no right to decide the same and for which the complaint should be dismissed.

Decision with Reasons

After hearing the argument of the complainant and also the Ld. Lawyer for the OP and also considering the fact of pending a Title Suit No.236 of 2013 filed by the OP against the complainant before the 1^st Civil Judge, Junior Division, Sealdah it is found that in respect of that agreement sale in respect of one shoproom measuring 110 sq. ft. the Civil Suit is pending for declaration that agreement for sale dated 16-12-2009 has no legal force and it is barred by limitation and not binding upon OP and recovery of khas possession and but anyhow OP has failed to prove that Civil Suit was filed before that Civil Suit because the present complaint was filed on 17-07-2013 but whatever it may be it is undisputed fact rather admitted by the OP that he received two lakhs against agreement for sale on 16-12-20-09 in favour of the complainant but fact remains complainant has falsely stated that said agreement was for sale of flat but actually from the agreement it is found that it was not a sale of flat but for one shoproom on the fground floor having super built-up area of 110 sq. ft. together with right to ingress and egress together with right to use the common toilet on the ground floor with the other co-owners, excluding to use the ultimate roof and open car parking space and parking entrance gate, stair and lift and other common parts and spaces.  So it is clear that complainant has falsely stated that it is an agreement for sale in respect of the flat but truth is that it is an agreement for sale in respect of a one shoproom on the ground floor and it is equally true that the OP developed the said building and sold so many shoproom to intended purchaser by executing agreement to sale and during construction Op received amount and after completion of construction he has handed over possession on 20-10-2010 but truth is that after that no deed of sale has been executed.  But OP’s version is that complainant did not take any initiative to complete the sale deed but OP was always ready and in this regard we have gathered that there is no such paper to show that complainant wrote for preparation of the Deed and for execution and registration by the OP.  But anyhow from, the complaint it is clear that complainant has suppressed the truth, he has tried to get a flat against shoproom and may be, there are some conflict between OP and the complainant for which the execution of sale has not been completed.  Anyhow the complainant ultimately did not agree to get a registered sale deed and expressed her desire to get back the entire amount and for which OP paid Rs.50,000/- but anyhow about payment no such document is produced by the OP but from the letter dated 09-04-2013 it is clear that OP sent a letter to the complainant stating that the agreement has been cancelled as complainant did not act as per agreement but truth is that OP has no legal right to cancel the agreement in view of the fact that possession has been handed over on 20-10-2010 and prior to that entire amount of Rs.2,00,000/- was received by the OP then there is no other alternative but to execute and register the sale deed when at the time of development of the said building by the developer with the help of the OP entire amount was received by the OP from complainant and at that time the same ought to have been executed.  So, it is clear that on the part of the complainant there was no fault so, in letter (post by the OP) on 09-04-2013 cancelling the agreement is completely purported having its no legal validity in the eye of law and OP is no right to cancel the same when entire part of the agreement to sale completely had already been performed by the complainant, only final deed has not been executed but for that reason agreement may not be cancelled but it is the practice of the promoter and landowner only to sell the same at a higher rate to a third person by deceiving the present complainant after receiving full amount against such agreement.  In the light of the above observation we are convinced to hold that agreement to sale dated 16-12-2009 is a valid agreement to sale when complainant has performed her performance by paying entire amount of consideration of Rs.2 lakhs prior to getting possession on 20-10-2010.  So, complainant is entitled to get a registered sale deed being executed by the OP and OP is bound to do that.

            About payment of Rs.50,000/- already out of Rs.2 lakhs OP has not produced any such document but if such document would be found at any stage in that case complainant shall have to repay that amount of Rs.50,000/- to the OP and OP shall have to execute the sale deed at once in favour of the complainant taking all such steps because it is the duty of the OP to execute and register the sale deed but preparation cost and stamp cost shall be paid by the complainant.

            Moreover, after considering the entire fact we find that present complaint is not barred by limitation and it is otherwise maintainable.  So, in the above facts and circumstances complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.5,000/- against the OP.

            OP is hereby directed to execute and register the sale deed in favour of the complainant in respect of the shoproom as per agreement dated 16-12-2009 within one month from the date of this order and in this regard complainant shall have to bear all costs of registration purpose including purchasing of stamp duty etc and if OP fails to comply that order in that case complainant shall have to file an execution case before this Forum for execution and registration of the sale deed through this Forum by spending all costs and service charges for registration and execution of the said sale.

            If at any point of time it is found that OP already paid back of Rs.50,000/- out of Rs.2 lakhs in that case complainant shall have to pay the sum but it shall be decided when the execution proceeding shall be filed by the complainant. 

            OP is directed to comply the order very strictly failing which for non-compliance of the Forum’s order and for execution of the sale deed OP shall have to pay a sum of Rs.10,000/- as punitive damages per month till execution and final registration of the deed by this Forum and if that amount is collected it shall be deposited to this Forum.

            OP to comply the same without any fail and further delay failing which penal action shall be started against him u/s.27 of the C.P. Act.