DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _145_ OF ___2015_
DATE OF FILING : 26.3.2015 DATE OF PASSING JUDGEMENT: 09/12/2016
Present : President : Udayan Mukhopadhyay
Member(s) : Mrs. Sharmi Basu & Subrata Sarkar
COMPLAINANT : Ms. Sarmistha Ray,w/.o Sandeep Panikkal,d/o Chandranath Ray , previously of Konkan Prantiya Housing Society ltd. Shivshrushti , Flat no.A/3, 1st Floor, Kurla East, Mumbai – 400024. And also at UTI Bank Ltd. Central office, 131, Maker Tower, 6th floor, Block E, Cuffee Parae, Mumbai-400005 , at present residing at N/332, Taramani Ghat Road, Paschim Putiary, P.S. Haridevpur, Kolkata – 41 and at House no.38, Raghuram Nagar Colony, near K K Garden, Sun City, Hyderabad-500008.
O.P/O.Ps : 1. Killa Nirman Pvt. Ltd. 1, Sarat Bose Road, Kolkata – 20
2. Moon Raker Construction Pvt. Ltd. 11, Croked Lane, Kolkata-69
Proforma O.,Ps 3. Axis Bank ( previously UTI Bank Ltd.), Trishul, 3rd Floor, Opposie Samartheswar Temple, (Near Law Garden), Eillisbridge, Ahamedabad-380006.
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J U D G E M E N T
Udayan Mukhopadhyay, President
The short case of the complainant is that on 18.1.2015 a Tripartite Agreement was executed amongst the petitioner, the O.P-1,2 and the UTI Bank Ltd. , now known as Axis Bank , for taking home loan wherein it has been declared that the vendor/developer has no objection in creating the equitable mortgage of the said flat and that the said vendor shall execute and register the deed of conveyance in favour of the complainant and the same shall be submitted to the Ban k. It has been further stated that in terms of the said agreement for sale dated 12.3.2004 O.P nos. 1 and 2 undertook to complete the said flat more or less described in the schedule and also delivered possession thereof within 30 months from the date of the said agreement for sale and/or from the date of the commencement of the work. The complainant already paid total consideration money of Rs.17,28,600/- out of which bank loan was Rs.16, 45,520/- and 10% from the complainant’s own fund i.e. Rs.1,72,860/- ,that is why full consideration money including full and final payment has already been given to the complainant in May, 2007 and possession of the said flat has also been delivered.
Thereafter complainant is paying property tax to the KMC after formation of “Springdale” Flat Owners Association and also paying maintenance charges to the association regularly. But the O.P nos. 1 and 2 did not pay any heed to execute and register the deed of conveyance ,although draft deed of conveyance was prepared and the same was handed over to the O.P nos. 1 and 2 on 27.8.2007 for verification. It has strongly claimed that due to delay to execute and register the deed of conveyance the stamp duty and registration charge has already been increased ,that is why, O.P nos. 1 and 2 made deficiency in service for not executing the deed of conveyance in time . Hence, this case praying for a direction to the O.Ps to execute and register the deed of conveyance regarding the schedule property and if the O.Ps failed , then registration work may be done through the Ld. Forum and also prays for cost and compensation to the tune of Rs. 1 lac and other reliefs.
O.P nos. 1 and 2 filed written version and has denied all the allegations leveled against them. It is the positive case of the O.ps that although complainant wanted to get the deed of conveyance but they failed to cooperate with the O.Ps for registration of the deed of conveyance. It has further stated that O.Ps sent a letter through their ld. Advocate on 10.3.2015 and reply to the letter dated 26.2.2015 and in reply the O.Ps state that there is no bar on their part to do the registration in favour of the complainant subject to all the costs and expenses to be borne by the complainant. It has claimed that O.Ps are always ready and willing to assist for the purpose of registration but complainant did not take any initiative in this regard. Accordingly, the O.P nos. 1 and 2 prays for dismissal of the case.
The Proforma O.P-3 also filed written version and has stated that it was unnecessary impleaded in this case . It is the further contention of the O.P-3 that they have advanced loan to the complainant for purchasing a flat at 4D, 4th Floor of the building namely SPRINDALE having super built up area of 1340 sq.ft at Mouza Shibpur, Parganas Khaspur, Khatian no.22,55,56,58 and 70 and portion of Dag no.767,770,768, 430 and 407 within P.S Tollygunge, KMC Ward no. 98. This Proforma O.P-3 also stated that the loan has been repaid and this O.P-3 has no interest in the subject matter of the instant proceedings and also prays for dismissal of the case since complainant has no claim against this Proforma O.P-3.
Points for decision in this case is whether the O.P nos. 1 and 2 made any deficiency in service ,for which complainant has to prays for registration of the flat .
Decision with reasons
Admittedly complainant booked flat no. 4D, 4th Floor of the building namely SPRINDALE having super built up area of 1340 sq.ft at Mouza Shibpur, Parganas Khaspur, Khatian no.22,55,56,58 and 70 and portion of Dage no.767,770,768, 430 and 407 within P.S Tollygunge, KMC Ward no. 98. It is also admitted that Proforma O.P provided loan and 10% amount was paid by the complainant for that flat and it is also admitted that complainant got possession in the year 2007 and thereafter she is paying property tax, electricity bill, maintenance charge to the Association . Thus complainant has proved his possession , but the allegation fo the complainant is that inspite of request and handing over draft deed of conveyance on 27.8.2007 for verification the O.P nos. 1 and 2 did not proceed further as they are reluctant to proceed for registration and in the midst registration charge has already been increased to a double for which complainant filed this case treating this case as a deficiency in service.
The O.P has admitted in their written statement that on 10.3.2015 through their ld. Advocate sent a letter for registration in favour of the complainant subject to payment of cost and expenses to be borne by the complainant. Admittedly possession was delivered in the year 2007 and draft deed was handed over on 28.8.2007 to the O.Ps for verification and O.P nos. 1 and 2 woke up on 10.3.2015 expressing their willingness to the complainant. This act is a glaring example of deficiency in service and we are holding, by that act, the O.P nos. 1 and 2 , price of stamp duty and registration has already been double in this passage of time from 2007 to 2015. So, there is no justifiable ground as placed by the O.P nos. 1 and 2 during the course of the argument as well as in their written statement and other documents that it is the complainant for whom the delay was caused from 2007 to 2015. So, we are satisfied that due to deficiency in service deed of conveyance , which is a mandatory, was not executed by the O.P nos. 1 and 2. Thus complainant has been able to prove her case.
Accordingly, it is
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest against the O.Ps .
The O.P nos. 1 and 2 are directed to execute and register the deed of conveyance regarding the property described in the schedule within one month from the date of this order, failing which, complainant is at liberty to approach before this Bench for registration of the deed of conveyance through the machinery of the Forum .
The O.P nos. 1 and 2 are further directed to pay jointly and/or severally Rs. 1 lacs towards compensation which has been assessed by this Bench since the stamp duty has already been in hike and the complainant has prayed that amount including the cost of the suit, for which, we do not propose any separate cost ,giving honour to the prayer of the complainant.
The Proforma O.P-3 was made party only to prove this Bench that the complainant paid consideration money through bank loan or not. So, case is disposed of against proforma O.P-3 as O.P-3 has no deficiency in service as well as unfair trade practice.
The complainant is at liberty to approach this bench after completion of one month regarding the compliance as stated above by the O.P nos. 1 and 2 for execution of the case and in that event interest will be imposed @9% p.a on the total awarded amount i.e. cost and compensation of Rs. 1 lac.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
Dictated and corrected by me
President
The judgement in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest against the O.Ps .
The O.P nos. 1 and 2 are directed to execute and register the deed of conveyance regarding the property described in the schedule within one month from the date of this order, failing which, complainant is at liberty to approach before this Bench for registration of the deed of conveyance through the machinery of the Forum .
The O.P nos. 1 and 2 are further directed to pay jointly and/or severally Rs. 1 lacs towards compensation which has been assessed by this Bench since the stamp duty has already been in hike and the complainant has prayed that amount including the cost of the suit, for which, we do not propose any separate cost ,giving honour to the prayer of the complainant.
The Proforma O.P-3 was made party only to prove this Bench that the complainant paid consideration money through bank loan or not. So, case is disposed of against proforma O.P-3 as O.P-3 has no deficiency in service as well as unfair trade practice.
The complainant is at liberty to approach this bench after completion of one month regarding the compliance as stated above by the O.P nos. 1 and 2 for execution of the case and in that event interest will be imposed @9% p.a on the total awarded amount i.e. cost and compensation of Rs. 1 lac.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
