NAMITA SAHA D/O LATE RADHA GOBINDA SAHA, 54, PRATAPGAR ROAD, POLICE, STATION NIMTA, KOLKATA Vs. NILIMA DUTTA GUPTA & 6 ORS. W/O SRI MONOJ KANTI DUTTA GUPTA, 23/2/35, K.B. SARANI, KOLKATA

JUDGEMENT

(1.) The complainant entered into an agreement with the respondent on 12.09.2009 for purchase of a residential flat measuring 750 sq. feet at Mouza Krishnapur, now known as Shyam Nagar in the jurisdiction of P.S. Dum Dum for a consideration of Rs. 9,50,000.00. Since the complainant did not pay the balance sale consideration within the time stipulated in the agreement dated 12.09.2009, the parties entered into a subsequent agreement dated 21.01.2011. The second agreement thereafter governed the relationship between the parties and they were bound by the terms and conditions incorporated in the said second agreement. The second agreement, to the extent, it is relevant, reads as under:

(2.) It would thus be seen that as per the aforesaid agreement, the complainant was required to pay Rs. 4,50,000.00 by March 2011 and Rs. 3,50,000.00 by April 2011. Admittedly, the aforesaid payment was not made. The complainant/petitioner therefore, failed to perform his part of the aforesaid agreement dated 21.01.2011. Since the petitioner/complainant himself failed to perform his part of the said agreement, he cannot insist upon the opposite party performing its part of the agreement, despite the default committed by him. On account of the default committed by the petitioner/complainant in making payment to the opposite party as per the demand schedule agreed by him, the opposite party, exercising its power under Clause 7 of the said agreement, had an option to cancel the agreement and refund the balance payment after making the agreed deduction.

(3.) The learned counsel for the petitioner has drawn my attention towards the letter dated 28.09.2011 sent to the complainant by the respondent. Vide aforesaid letter, the respondent informed the complainant that he had become a defaulter and therefore, unless he contacted them within 15 days, they will refund the balance payment after deducting Rs. 20,000.00 as per the terms of the agreement. The contention is that within 15 days of receipt of the said notice, the complainant had complied with the notice by contacting the opposite party by way of a legal notice dated 15.10.2011. We have perused the aforesaid legal notice of the petitioner dated 15.10.2011. Vide above referred legal notice, he did not make an unequivocal offer to pay the balance amount to the opposite party along with agreed interest. The purpose of giving the aforesaid notice dated 28.09.2011 obviously was to give one more opportunity to the complainant to make payment of the balance amount along with agreed interest within 15 days thereof. Instead of tendering the balance amount with agreed interest, the complainant, by way of the aforesaid legal notice, insisted upon withdrawal of the cancellation letter dated 28.09.2011 and fixing up a date and time to execute and register the conveyance deed on accepting the balance consideration. The aforesaid course of action was not what the opposite party wanted the complainant to do vide its letter dated 28.09.2011. The opposite party was not at all required to give any more time to the complainant. It was only a concession given to the complainant to contact the opposite party and make payment of the balance amount along with agreed interest, within 15 days of the issue of the said letter dated 28.09.2011. Instead of taking advantage of the aforesaid concession given to him by the opposite party, the complainant chose to send a legal notice insisting upon withdrawal of the cancellation and simultaneous execution of the deed of conveyance against payment of the balance consideration without even offering to pay interest. Execution of the conveyance deed, simultaneously with the payment was neither offered by the opposite party, nor was it otherwise envisaged in the agreement. The execution of the deed would have happened later, in due course, after possession had been taken. Therefore, no advantage from the aforesaid letter 28.09.2011 can be taken by complainant.