Mridula Roy, J. - (1.) THE instant appeal is directed against the judgment and order dated 8.8.2012 passed by learned District Forum, South 24 Parganas in Complaint Case No. 134/2010 allowing the same on contest with cost of Rs. 10,000 against the O.Ps. directing the O.Ps to execute and register the Deed of Conveyance in favour of the Complainants in respect of the property in question after receiving the balance consideration amount of Rs. 4,67,500 from the Complainants within one month from the date of the order failing which the Complainants would be at liberty to put the decree into execution in accordance with law, further directing the O.Ps. to pay compensation to the tune of Rs. 3,00,000 and cost of Rs. 10,000 totaling to Rs. 3,10,000 to the Complainants within one month from the date of the order failing which the entire amount would carry an interest @ 10% per annum from the date of default till realization. Being aggrieved by that order the O.Ps. have preferred the instant appeal on grounds, inter alia, that the Respondents violated the terms and conditions of the agreement dated 2.7.2006, in respect of payment, the petition of complaint suffers from non -joinder of parties since the landowners has not been made party.
(2.) THE Complainants (Respondents herein) filed a complaint before the learned District Forum stating that they had entered into an Agreement for Sale dated 2.7.2006 with the O.P. Nos. 1 and 2 (Appellants herein) and the landowners for purchasing a self -contained flat having super built -up area of 900 sq. ft. to be constructed in a proposed multistoried building at premises No. 150, Banamali Naskar Road, Behala along with a car parking space at a consideration of Rs. 9,45,000 for the flat and Rs. 1,40,000 for the car parking space. The Complainants further stated that as per terms of the said agreement the O.Ps were to hand over the possession of the flat and register the same within August 2007 but the same has been remaining due in reality. The Complainant further stated that they have paid Rs. 6,17,500 as earnest money for the said property and Rs. 15,000 towards extra works. The Complainants apprehended that the O.P. - developers were trying to create a third party interest in respect of the said flat. Hence/this case. The Complainants prayed for direction upon the O.Ps to execute and register the Deed of Conveyance on receiving the balance amount of Rs. 4,67,000, to pay a sum of Rs. 3,00,000 towards compensation for causing mental harassment. The O.Ps appeared and contested the case by filing Written Version denying and disputing all the materials averments contending, inter alia, that the Complainants entered into an agreement for sale for purchasing a flat along with a car parking space at a consideration of Rs. 10,85,000 and the consideration amount was payable as per sixth schedule of the said agreement. The O.Ps. further contended that the Complainants made part payment only and that too was not in accordance with the agreed terms of the sixth schedule of the said agreement. The O.Ps have stated that an amount of Rs. 4,67,500 is still remaining as outstanding. Accordingly, the O.Ps prayed for dismissal of the petition of complaint with cost.
(3.) IN course of argument learned Advocate for the Appellant -Developer has submitted that the partners of the O.P. -Development firm and the landowners of the property in question entered into a development agreement empowering the Developer to construct the building, to enter into the agreement for sale with the purchasers, to receive amount and to sell the flats. Learned Advocate for the Appellant further stated that Arati Mukherjee and her daughter Sangita are the landowners. The Complainants have not impleaded the landowners in their petition of complaint. However, in the meantime Arati Mukherjee had died and the same was also not mentioned in the petition of complaint. Learned Advocate for the Appellant specifically submitted that it was agreed by the parties that entire amount would be paid by four installments. First two instalments were accordingly paid but thereafter the payment was not made as per schedule and even the Complainants did not pay the remaining amount such as Rs. 4,67,500. Learned Advocate for the Appellant has also submitted that the flat is ready and they are ready to handover the flats to the Complainants but they have no authority to register the flat in favour of the Complainants.;