M/S. ELAN vs JITENDRA NATH PRAMANIK & 2 ORS.

Mr. Partha Rakshit, OP No.1, sole proprietor of M/s. Elan, OP No.2, the developers entered into a development agreement with Mr. Prabir Ghosh and Mr. Samir Ghosh, owners of the land on 23-12-2015 for development of a piece of land. The OPs 3 & 4 also executed a general power of attorney empowering the developers OPs 1 & 2, the right to sell, transfer separate units/flats to the intending purchasers. On 08-03-2010 the complainant entered into an agreement with OPs 1 & 2 to purchase one self-contained flat measuring 725 sq. ft. for a price of Rs.7,10,000/-. The complainant paid a sum of Rs.1,40,000/- in favour of respondent No.2 by cash. Thereafter, on various dates he made payment to the opposite party No.2 and till the date of filing of the complaint he had paid Rs.6,10,000/- out of total consideration amount of Rs.7,10,000/-.

The complainant requested the developer to handover the flat but it did not evoke any response. On 24-03-2012 the complainant sent one notice through his advocate requesting the opposite party to execute the deed of conveyance and complete the registration work but it was not responded. Thereafter, the complaint was filed with the prayers:

(a) an order for directing all opposite parties jointly or severally to execute and register the deed of conveyance in respect of the flat of the petitioners more fully and specifically described in schedule below in favour of the petitioner failing which the deed of conveyance may be registered through court/forum and

(b) an order for directing the all opposite parties jointly and severally to deliver the peaceful and khass vacant physical possession of the flat of the petitioner more fully and specifically described in schedule below in favour of the petitioner and

(c) an order for directing that all opposite parties jointly or severally to bear/pay the enhanced cost of registration as to be determined by the learned forum; and

(d) an order for directing the opposite party No.2 jointly and severally to pay adequate compensation for harassment, mental agony and also for negligent act and conducting the deficiency in service and

(e) an order for directing the all opposite parties jointly or severally to take the completion certificate with regard to said multistoried including all flats as per sanctioned plan from the local municipality and to handover the same to the petitioner.

The defense set up by the respondents Nos.1 and 2 was that only a sum of Rs.1,04,000/- was paid. Again inspite of repeated requests and demands the petitioner did not pay the balance amount. The petitioner also issued notice for revocation of agreement for sale on 08-03-2010.

The District Forum allowed the complaint with direction to the opposite party to execute the sale deed in respect of the disputed flat and handover the possession in favour of the complainant on receipt of balance consideration money and interest thereon amounting to Rs.3,30,000/-.

Appeal was preferred by OPs Nos.1&2 before the State Commission but the same was dismissed.

I have heard the counsel for the petitioner at the time of admission of this case. He invited my attention towards the agreement. The counsel for the respondents vehemently argued that in the agreement it was stated that the installments be paid on time otherwise the said agreement would stand cancelled. Para 10 of the agreement reads as follows: "That if the outstanding dues of the developer are not paid mentioned as per the schedule ''D'' as per terms of payment as in time as demanded, proposed sale and this agreement shall be treated as cancelled and void."

It is contended that the petitioner failed to pay the installments in time.

All these arguments pale into insignificance as it was observed by the State Commission:

"In our case, inspite of having a schedule of payment in schedule D to the agreement, the opposite party No.2 has received cheques from the complainant on diverse dates and lastly on 12-01-2011. It means and indicates that like complainant opposite party No.2 has taken a liberal view in accepting the payment of consideration amount part by part. In that perspective, the ld. District Forum has rightly observed that the opposite party No.2 has no occasion to cancel the agreement unilaterally on the basis of clause 10 of the agreement. A conjoin reading of clause (8) and clause (10) of the agreement clearly postulates that prior to cancellation of the agreement a notice should have been given by the developer to the purchaser claiming balance consideration amount. The opposite party No.2 did not issue any letter demanding payment of balance amount rather issued a notice for revocation of agreement for sale on 08-03-2010 without giving an opportunity to the complainant to make payment of the balance amount. Therefore, the decision referred herein above on behalf of the appellant will not help in any way to the developer to absolve his responsibility to execute the deed of conveyance in favour of the purchaser after accepting maximum amount of consideration money.

It may be pertinent to record here after delivery of judgment an application had been filed before the ld. District Forum on 19-02-2013 on behalf of the opposite party No.2/developer stating that the flat in question has already been delivered to a third party. The ld. District Forum by order No.19 dated 19-02-2013 rejected the said application. We find that in the memorandum of appeal no such ground has been taken. The application filed before the ld. District Forum does not disclose the name of transferee to whom the developer has transferred the flat or the date when the said flat has been transferred. The developer did not take any pain to file a copy of the sale deed in respect of the flat in question before this Commission to substantiate the assertion and as such, we must draw an adverse presumption against the appellant/developer. Therefore, considering the entire materials on record and after giving consideration to the submissions advanced by the ld.advocates appearing for the parties we find that the ld. District forum was quite justified in passing the order impugned and since the order does not suffer from any shortcoming, there is no reason to interfere with the order impugned. In other words, the appeal being meritless one deserves dismissal with costs which we quantify at Rs.5,000/-."

I am unable to take a different view than the view taken by both the fora below. The petitioner should have given a notice before cancelling the agreement. It is difficult to fathom why should the consumer take a dallop of injustice from someone because he is holding an influential seat. The purpose of law is to prevent the strong always having their way.

There is no merit in the case. The revision petition is dismissed.