Date of Filing : 24/04/2021
Date of Judgement : 18/09/2023
Sri Sudip Niyogi, Hon’ble President
Brief Facts
One memorandum dt. 04/08/2014 was made between the complainant and the OPs, by which the complainant had agreed to buy one flat, being No. 2D on the 2nd floor of Block No. 5, Building No. A comprising an area of 280 sq.ft., more or less super built up in the complex named Amrita Alayam, Rangapani within Gossaipur Gram Panchayat, P.O. Ranidanga within P.S. Nakshalbari, Siliguri, District Darjeeling, as mentioned in the schedule to the said memorandum as well as the petition of complaint, at a consideration of Rs.6,05,000/-. Following the terms of the said memorandum, complainant paid the said consideration of Rs.6,05,000/- and also the amount of service tax to the tune of Rs.14,996/-, thus totaling Rs.6,19,996/- and the receipt in respect of the said payment was also issued by the OPs, who are the developers of the said complex. Despite payment as aforesaid, on 9/2/2017, the OPs deliberately and intentionally failed and neglected to execute and register the deed of conveyance in respect of the said flat in favour of the complainant. He requested the OPs repeatedly and also through a notice dt. 10/11/2020 by his Advocate for execution and registration of a deed of conveyance, OPs failed to perform their part despite receipt of the said notice. Therefore, the complainant, by filing this complaint, prayed for a direction upon the OPs to handover the possession of the scheduled flat and also for execution and registration of the deed of conveyance in their favour.
OPs contested the case by filing a written version and also adducing evidence. According to them, the complainant suppressed the terms and conditions of the memorandum dt. 4/8/2014 and alleged that he failed to pay the other charges including charges for installation of transformer etc. However, they are willing to execute and register the deed of conveyance, provided the complainant pay the remaining charges in accordance with the memorandum.
Both the parties adduce their evidence by affidavit, exchanged questionnaires and replies thereto. Written notes of argument were also filed.
Now the point for consideration is, whether the complainant is entitled to the relief as prayed for?
FINDINGS
We have gone through the entire materials on record including the documents filed in this case by the parties. It is admitted that, one memorandum dt. 4/8/2014 between the parties, containing various terms and conditions was executed. It is also admitted by the OPs that complainant paid Rs.6,05,000/- which is the consideration of the said flat. He also paid Rs.14,996/- towards service tax.
But, according to OPs, the complainant failed to make payment of the agreed incidental charges namely – maintenance charges, generator charges etc. However, the OPs, in their written version, evidence as also in their written argument have made it clear that they agreed to execute and register the sale deed in favour of the complainant in respect of the said flat provided, the complainant would make payment of all the incidental charges as per the memorandum executed between the parties. According to OPs, they also issued one notice dt. 9/2/2017 demanding the payment of all such charges, but it was not complied with.
Now, what we find on going through the materials on record, though alternative prayers are there in his petition of complaint, the complainant is found agreed to get the flat and while the OPs are also willing to hand over the said flat and execute the deed on payment of the charges in accordance with the memorandum with him, an order may be made directing the OPs to hand over the flat and also execute and register the deed of conveyance in favour of the complainant on payment of the charges in accordance with the memorandum of agreement. This apart, the complainant is also entitled to Rs.5,000/- towards cost of litigation.
Hence, it is
ORDERED
That the instant complaint is allowed on contest against OP 1 & 2.
OPs are directed to execute and register the deed of conveyance in favour of the complainant in respect of the scheduled flat and also hand over the possession thereof to the complainant on payment/receipt of the charges in accordance with the memorandum dt. 4/8/2014 from him. OPs are also directed to pay Rs.5,000/- for cost of litigation to the complainant.
OPs are directed to comply with this order within 45 days from the date of this order, failing which, the complainant shall be at liberty to proceed in accordance with law.
Dictated and corrected by me
President
