After 2 years an Order in our favour was passed by the State Consumer Disputes Redressal Commission, Calcutta, West Bengal. Copy of the said Order is given below which may be of interest to readers of this forum.
State Consumer Disputes Redressal Commission
West Bengal
BHABANI BHABAN (GROUND FLOOR)
31 BELVEDERE ROAD, ALIPORE
KOLKATA – 700 027
S.C. CASE NO. 07/O
DATE OF FILING: 01.03.2007
DATE OF FINAL ORDER: 24.02.2009
COMPLAINANTS
1) Mr. Pandav Roy
S/o Mr. Partha Roy
2) Mr. Partha Roy
S/o Late Provat Samir Roy
Both of 31/2A, Sadananda Road
P.S. – Kalighat, Kolkata – 700 026
RESPONDENTS
1) Merlin Projects Ltd.
79, Sambhunath Pandit Street
P.S – Bhowanipore
Kolkata – 700 020
2) Mr. Vikas Mimani
Working for gain as Manager
Merlin Projects Ltd.
79, Sambhunath Pandit Street
P.S – Bhowanipore
Kolkata – 700 020
BEFORE: HON’BLE JUSTICE MR. A.CHAKRABARTI, PRESIDENT
MEMBER: MR. A.K. RAY
MEMBER: MRS. S MAJUMDER
FOR THE COMPLAINANTS: Mrs. Krishna Roy, Advocate
FOR THE RESPONDENTS /O. Ps: Mr. R.K. Choumal, Advocate (OP1)
: ORDER :
HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT
The Complaint was filed by the two complainants against the OP1 as also the OP2 an officer of the OP1 seeking relief of order restricting the O.Ps from occupying or selling, transferring and conveying the suit property
or to give possession thereof or any portion thereof to a third party, to restore essential services and to make the property habitable enabling the complainants to occupy and use the same, order of Cancellation of the Agreement of Allotment and Supplemental Agreement both dated 01.05.03, order directing OPs to execute and register the Deed of Conveyance in favour of the complainants and for compensation and cost,
Facts stated in brief are that the complainants approached the OPs for purchasing a Row House and an Agreement of Allotment was executed on 01.05.03 whereby the OPs were to sell the subject Row House to the complainants at a total consideration of Rs.14, 25, 000/-. The complainants paid Rs.50, 000/- as earnest money by cheque dated 01.05.03 incorporating certain clauses. The complainants’ payment of Rs.1 lac under the condition of the Supplementary Agreement to be contributed by the Developer was recorded in the Supplementary Agreement. The complainants obtained housing loan of Rs.15 lacs from Union Bank of India and on sanction thereof and on execution of the Tripartite Agreement on 21.01.04 complainants paid a sum of Rs. 1, 93, 750/- towards the balance earnest money to OP1 making total payment of earnest money by complainants to OP1 as Rs. 2, 43, 750/- which was acknowledged by the OP1 in page 2 of the Tripartite Agreement dated 21.01.04. The bank also released a sum of Rs13, 81, 250/- to the OPs by cheque dated 25/02/04 out of the sanctioned loan of Rs.15 lacs keeping a sum of Rs.1, 18, 250/- for the purpose of registration of Deed of Conveyance. Thus the Respondent No.1 received a total sum of Rs.16, 25, 000/- towards consideration of the said property of 14, 25, 000/- and contribution the Corpus Fund of Rs.2 lacs.
The complainants had been given possession of the suit property on 20.04.04. The Respondents provided the water supply, electricity, generator services, security services etc. and the complainants shifted to the said flat. The complainants requested the OPs to get the Deed of Conveyance registered and the OP2 by letter dated 23.10.06 replied the said letter.
After exchange of correspondence and when the essential services were withheld by the OPs, the OP2 by letter dated 23.10.06 informed complainants of some outstanding amount towards consideration. The Respondents cancelled the agreement dated 01.05.03 and declared to treat the complainants trespassers and when the complainants were not getting any relief from the Ops the present complaint was filed.
The complaint was amended incorporating certain particulars.
After the written version was filed, the evidence on behalf of the complainants and the OPs were filed on affidavit in respect of which questionnaire and reply were filed.
After brief notes on arguments were filed by contesting parties, matter was heard.
Mrs. Krishna Roy, the Ld. Advocate for the complainants and Mr. R.K. Choumal, the LD. Advocate for the OP1 were heard.
Main contentions of the complainant are that they have paid the full consideration under the agreement and still then on a frivolous claim of further money, the OPs illegally not only created disturbance in possession of the complainants in the disputed flat, but also terminated the agreement and execution and registration of Deed of Conveyance have been withheld.
The Ld. Advocate for the complainant strongly relied on the recording in the agreement itself as regards payment of a sum of Rs.2, 43, 750/- by the complainants to the OPs as also admitted payment of a sum of Rs. 13, 81, 250/- by the Bank against loan granted to the complainants making up the total consideration and, therefore, the contention of the OPs that payment of full consideration was not made cannot stand consequent whereupon the OPs cannot oppose execution and registration of the Deed of Conveyance as also handing over of possession and providing facilities to the petitioners under any circumstance. From the evidence on records we find that admittedly the Deed dated 21.01.04 itself records payments of Rs. 2, 43, 750/- and parties have not disputed payment of the sum of Rs.13, 81, 250/- by the bank to the OPs directly against the home loan obtained by the petitioners. In page 2 of the agreement dated 21.01.04 it is recorded as follows:
“Whereas the builder agreed to sell a Row House to the Borrowers under an agreement of sale dated May 01 entered into between the Builder and the Borrowers, which contains the terms and conditions for sale of the Row House in favour of the Borrowers and in furtherance thereof has already paid the Builder a sum of Rs.2, 43, 750/- as and by way of earnest money ……..”. In the circumstances we do not find that there is any portion not paid by the complainants to the OPs out of the total consideration money of Rs.14, 25, 000/- for the said flat. Specific questions were put in the questionnaire both by the complainant and the OP to the witnesses of the other side and nowhere we can find material which even can raise doubt in respect of the payment of the sum mentioned above by the complainants to the OPs as recorded in the Tripartite Agreement dated 21.01.04.
With regard to the contention of the OPs that the complainants failed to pay Rs.10, 00, 000/- payable by 20.05.03, Rs.3, 00, 000/- payable by 30.05.03, Rs.2, 00, 000/- and Rs.75, 000/- at the time of giving possession, is also not tenable as the same stated in schedule in paragraph 2.1 of the agreement of Allotment dated 01.05.03 stood modified on payment of Rs.13, 81, 250/- by the Bank.
With regard to possession taken by the complainants earlier, there is no dispute though the nature of possession has been disputed by the OPs stating that the same was give temporarily for holding Pujas. But admittedly the complainants are not in possession of the flat presently.
It is also admitted that the Deed of Conveyance was not executed and registered by the OPs. As we are not accepting the grounds for withholding possession and registration of conveyance, we are of the opinion the complainants are entitled to the reliefs of possession and execution and registration of the Deed as also compensation as withholding the actual for no good reason makes the OPs liable to pay compensation.
With regard to the complainants’ contention as regards incomplete construction of the flat, as no material was available on record the same cannot be accepted.
In the above view of the matter the complainant is allowed and the OPs are directed to execute and register the Deed of Conveyance in respect of the said flat by the OPs in favour of the complainants upon payment of the cost of registration as agreed to by the parties. The OPs are also liable to pay Rs.50, 000/- as compensation to the complainants and Rs.5000/- towards cost. The OPs are liable to pay the above amounts to the complainants within 60 days from the date of the order in default whereof the complainant will be entitled to get the deed registered through this Commission and to recover the sum from the OPs in accordance with law along with interest @ 9 per cent per annum for the period of default.
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