The obligation of the vendor to convey an encumbrance-free, good, and marketable title subject to contract to the contrary.

JUDGMENT :

Amrita Sinha, J.

The offer:

Kolkata Metropolitan Development Authority (KMDA for short) initiated a housing project viz. Barrackpore Housing Project Phase - II comprising of various flats/shops/offices including common area and garages. KMDA published a brochure mentioning in details about the location, scheme, amenities, price, eligibility criteria, application procedure, mode of allotment, service charge, home loan facility, refund/general information, documentation for transfer of the apartment on payment of entire sale price etc. An applicant could submit in filled application form/application money at the bank branches mentioned in the said brochure.

2. The brochure mentioned that the scheme envisaged the outright sale of 288 apartments. There was provision for outright payments scheme and instalment payment scheme. Selection of allottees and assignment of apartment to the allottees was to be decided by draw of lots. There was home loan facility which could have been availed from any nationalised bank and/or financial institutions subject to fulfilment of required financial criteria. It was mentioned that KMDA shall handover possession of the apartment to the allottees only after full and final payment and formation of cooperative housing societies for the maintenance of common services and common areas. Subject to the conditions prescribed in the said brochure the apartments were to be transferred by KMDA in favour of the allottees by way of outright sale after payment of the final amount of the price in full and on execution and/or registration of the deed of transfer in the form prescribed by KMDA. The stamp duty, registration fee and all other expenses related to the execution and/or registration of the deed was payable by the allottees. There was a bar for transfer of the apartment by the allottee within five years from the date of execution of the deed of conveyance without prior permission of KMDA. It was further mentioned that KMDA had absolute right and title of the land on which the apartment was being constructed.

Acceptance:

3. The petitioners upon going through the information mentioned in the brochure made an application for allotment of an apartment in their favour. The said application was made on 19th December, 2008 along with a pay order of Rs. 26,000/- only. KMDA issued a letter of allotment in favour of the petitioners on 13th January, 2009 wherein the provisional sale price of the apartment was mentioned as Rs. 6,06,000/- (six lakh six thousand) only.

Hand-over of possession:

4. Vide a memo dated 4th February, 2009 KMDA issued a possession advice in favour of the petitioners wherein it had been indicated that as the petitioners deposited the entire premium amount the petitioners were entitled and authorised to take physical possession of the apartment personally. It was further mentioned that documents required for transfer of the apartment in their favour were under preparation by the law cell and the same would be forwarded to them as soon as the deemed society is registered under the West Bengal Cooperative Societies Act, 1983. Pursuant to the aforesaid possession advice the petitioners took possession of the apartment on 13th February, 2009 and a formal possession certificate was issued by KMDA in favour of the petitioners. In the said possession certificate it was mentioned that the apartment would be transferred by way of sale to the allottee. It was further mentioned that if the allottee does not get the deed executed and registered within the appointed date the allotment is liable to be cancelled at the discretion of KMDA in accordance with the terms and conditions published in the brochure.

Acceptance of sale price:

5. The petitioners paid the entire sale price of the apartment in question by a bank draft. Barrackpore Housing Cooperative Society Limited was the Society that was formed by the allottees of the said project in accordance with the terms mentioned in the brochure and the said Soc