Order-24.

Date-30/10/2015.

In this complaint Complainant Dr. Amar Nath Pratiharby filing this complaint has submitted that op no.3 is the developer of the plot of land on behalf of op nos. 1 & 2 who are land owners of the plot and op nos. 1, 2 & 3 jointly developed the property for the purpose of selling the same as flat to different intended purchasers and to that effect the Agreement was executed by and between the owner-vendors and that is op nos. 1 & 2 and their developer-joint venture partner, being the op no.3, to develop the said plot of land in a joint venture.

Complainant on good faith relying upon the bonafides of op nos. 1, 2 & 3 and also getting collective assurances from the ops, agreed to purchase one flat with marketable right, title and interest thereof and after observing all papers and documents booked one single flat on the 3^rd floor of the proposed building comprising of 909 sq. ft. (super built up area) more or less, comprising of 3 bed rooms, one kitchen-cum-dining room, 2 toilets and one small veranda in the said G+4 storied building together with undivided proportionate share of the plot of land measuring more or less 4 cottahs fully described in the Schedule of the said Agreement to Sale.

In fact the said Agreement to Sale was executed on 07.05.2008 by and between the op nos. 1, 2 & 3 and complainant for selling the said flat and complainant for that purpose prayed the entire consideration amount of Rs. 13,08,960/- to the op nos. 1 & 2 and obtained money receipts therefrom the op nos. 1 & 2.

Subsequently complainant was handed over possession of the said flat by the op no.3 on 29.12.2009 for and on behalf of the owner-vendor parties op nos. 1 & 2 and complainant is possessing and residing there since then.Thereafter complainant has duly mutated his name in the records of Kolkata Municipal Corporation in respect of the said flat as Allottee being Assessee No. 14-057-02-0521-3 and complainant is paying all relevant rates and taxes as Allottee in respect of thereof ever since.

But peculiar factor is that even after that complainant requested the ops for execution and registration of the Sale Deed but they had refused to do that and ultimately complainant sent Demand Notice throughtheir Ld. Advocates to the ops and they did not take any step to execute the Deed of Conveyance intentionally avoided and neglected to execute the same with ulterior motive.

In the above circumstances, for negligent and deficient manner of service and for adopting unfair trade practice by the ops, complainant has filed this complaint praying for directing the ops to execute the Sale Deed as per said Agreement to Sale and possession of the flat.

On the other hand op nos. 1 & 2 the landowners by filing written statement submitted that this complaint is not maintainable and also alleged that there is no privity of contract on behalf of the op nos. 1 & 2 and denied all allegations including ...... consideration or about execution of any Agreement in between the complainant and op nos. 1 & 2.At the same time op nos. 1 & 2 submitted that complainant is not a consumer under the op nos. 1 & 2 for which the present complaint is not maintainable and further submitted that complainant is a trespasser for which op nos. 1 & 2 reserved their right to recover damages at the rate of Rs. 25,000/- per month from the complainant till recovery of possession etc. and prayed for dismissal of this case.

On the contrary op no.3 by filing written statement submitted that he is duty bound to execute and cause registration of necessary Deed of Conveyance in favour of the intending purchaser to purchase the builder’s allocation or any part or portion thereof if op nos. 1 & 2 executes such register the Power of Attorney.It is specifically mentioned by the op no.3 that op nos. 1 & 2 intentionally did not execute any Power of Attorney on 01.08.2007 to execute or cause registration of Deed of Conveyance in respect of purchasers and in support of any portion of the allocation and op nos. 1 & 2 also refused to cause Power of Attorney in favour of the op no.3.Though op no.3 repeatedly requested that op nos. 1 & 2 to execute registrar Power of Attorney.

Ultimately an Arbitration Proceeding was initiated at Kolkata High Court and Arbitrator was appointed for resolution the such dispute amongst the ops that was disposed by Hon’ble Arbitrator on 26.08.2011 and Sri SagarNath Ghosh a retired District Judge as the Sole Arbitrator for adjudication of the disputes and differences passed such award in respect of the dispute of Development Agreement dated 28.06.2007 and that award was published on 12.03.2014, op nos. 1 & 2 are aware of that, thereafter execution proceedings are pending before 4^th Civil Judge (Senior Division) at Alipore and the said execution proceedings have been registered as Execution Case No. 2333of 2014 and Execution Case No. 2340 of 2014.

Thereafter op preferred an application u/s 34 of the Arbitration and Conciliation Act, 1996 and same have been registered as FMAT No. 395 of 2014 and FMAT No. 396 of 2014 and the same has been dismissed aby the Hon’ble High Court vide an order dated 08.07.2015 and in fact Agreement to Sale is there.But op no.3 had nothing to do unless and until the Power of Attorney was executed by op nos. 1 & 2.So, in the circumstances, the present complaint against op no.3 should be dismissed.

Decision with reasons

On proper consideration of the complaint and written version and also considering the Agreement to Sale and further hearing the argument of both the parties, we find that it is undisputed fact that on 07.05.2008 the disputed Agreement for Sale was executed by and between the parties.It is also undisputed fact that as per Agreement, complainant paid Rs. 13,08,960/- and as per Agreement money receipts were received from the op nos. 1 & 2 and in this regard ops have not denied about execution of Agreement to Sale dated 07.05.2008 payment the entire consideration amount of Rs. 13,08,960/- and also about delivery possession of the flat to the complainant and in fact from 29.12.2009 complainant has been residing in the said flat under the Kolkata Municipal Corporation and his name has been allotted as assesse and his Assesse No.14-057-02-0521-3 and complainant has been paying taxes as allotees in respect of there.

But considering the entire materials, it is found that there was a dispute amongst the ops for which Arbitration Proceedings was started and that Arbitration proceedings has also been disposed of by the Arbitrator and award has already been published on 12.03.2014 and in fact complainant is not a party in the said proceedings.But it is proved that by that award the owners are debarred sale transfer alienate disposed of any portion of the allocation.

So, it is clear that the landowners have created a trouble for which the final Deed of Sale was not executed.But at this moment it is found that Swastika Kumar Gangulee and PravatiGangulee op nos. 1 & 2 preferred an appeal before Hon’ble High Court against the award of Arbitrator but that being FA No. 2590/2015.But the said appeal was dismissed as same is not maintainable and that order was passed on 08.07.2015 by the Hon’ble High Court by Hon’ble Justice Indira Banerjee, and SahidullahMunshi.So, it is clear that no doubt it is any how allocation but as per award op must have to act.

Moreover in this case op nos. 1 & 2 have tried to convince that 4^th floor is the owner’s allocation.But it is of the floor.So, invariably as per Agreement, it is found that 3^rd floor and it is builder’s allocation.So, op nos. 1 & 2 have nothing to do regarding builder’s allocation.But anyhow the entire matter could not be properly disposed amongst the ops but that has been disposed of.

Truth is that complainant has already taken the possession on payment of full consideration.So, at this stage there is no other alternative to execute the Sale Deed jointly in favour of the complainant what the complainant is entitled to get as per Agreement and invariably the Agreement to Sale was executed by the constituted Attorney of Swastika Kumar Gangulee and PravatiGangulee and fact remains that Swastika Kumar Gangulee and PravatiGangulee by relation husband and wife and they also executed the said Agreement to Sale along with op no.3.So, it is clear that the Agreement to Sale dated 07.05.2008 was executed by all the ops in favour of the complainant in respect of a flat on the 3^rd floor which properly described in the Schedule-B of the Agreement and for which all the ops are jointly liable for execution of the Sale Deed which is their obligation to do as per Agreement and when since after taking possession by the complainant on 29.12.2009, ops refused to execute such Sale Deed, in that case it is a continuous cause of action and till execution of the Sale Deed and this cause of action was continued and for which the present complaint is maintainable in the eye of law and at the same time the negligence and deficiency and unfair trade practice on the part of the ops is well proved for which complainant is entitled to get a decree for getting registered Deed of Sale in respect of the disputed flat from the ops beyond any manner of doubt and ops are legally bound to execute and register the same in favour of the complainant as per terms and conditions of the Agreement to Sale and as per law.

No doubt since 2009 complainant is being harassed and for negative attitude of the ops, complainant shall have to face huge financial loss and in the meantime registration cost has been increased at a higher rate what the complainant shall have to pay for registration.But higher rate of registration cost has to be paid by the complainant for the laches and negligence and deficiency of ops for which complainant is also entitled to get some compensation and also litigation cost for throwing the complainant before this Forum to proceed with the case to get such relief.But ops jointly can easily give such relief.Rather in place of that they have thrown the complainant before this Forum for litigation and for proceeding with the litigation.So, litigation cost must be paid by the ops.

In the result, this complaint succeeds.

Hence, it is

Ordered,

That the complaint be and the same is allowed on contest against the ops with cost of Rs. 10,000/- each.

Ops jointly are hereby directed to execute the Sale Deed in respect of the flat as described in the Schedule B of the Agreement to Sale on 07.05.2008 executed by the ops in favour of the complainant within 45 days from the date of this order, failing which complainant shall have his liberty to file an execution case for getting executed registration Deed for Sale to be executed on behalf of the op and for that purpose ops shall have to bear the cost of the registration and further shall have to pay service charges for appointment of official authority for presentation and execution of the Deed by this Forum.

Further for harassing the complainant in such a manner since 29.12.2009 and till date for getting a registered and executed Sale Deed by the ops and also for causing financial loss of the complainant for payment of huge amount of the registration at this stage, each op shall have to pay Rs. 20,000/- as compensation to the complainant.

For adopting such unfair trade practice on the part of the ops, ops shall have to pay punitive damages to the extent of Rs. 25,000/- which is imposed to check their sort of activities in future and it shall be paid to this Forum within 45 days from the date of this order.

Ops are directed to comply the order and to satisfy the decree within 45 days from the date of this order, failing which for non-compliance of the Forum’s order, ops shall have pay penal interest at the rate of Rs.200/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.

Even if it is found that ops are reluctant to comply this order, in that case ops shall be prosecuted u/s 25 read with 27 of C.P. Act 1986, for which further penalty and fine shall be imposed upon them.