Sri Ashoke Kumar Pal, President
The matrix of the instant complaint case in a nutshell is that with the intention to purchase a flat the complainant booked a flat measuring about 450 Sq. ft. in the 3rd Floor of the Apartment being Flat No.B-3 more fully described in the schedule of the petition of complainant as well as agreement for sale dated 21.11.2015 at a valuable consideration of Rs.8,50,000/- (Rupees eight lakhs fifty thousand) only. The complainant paid Rs.8,20,500/- (Rupees eight lakhs twenty thousand) on different dates and the OPs acknowledged the receipt of the same by issuing money receipts in favour of the complainant. On 21.11.2015, an agreement for sale was executed by and between the parties in respect of the scheduled flat. It was agreed that the possession of the scheduled flat is to be delivered to the complainant within 30th April, 2016 along with execution and registration of Deed of Conveyance. Subsequently on many occasions the complainant requested the OPs to execute and register a Deed of Conveyance along with delivery of possession of the scheduled flat but the OPs failed and neglected to do the same on various pretexts and moreover they are trying to sell/ transfer/ alienate the scheduled flat to a 3rd party. Subsequently the complainant took possession of the incomplete flat in inhabitable condition and thereafter the complainant made the same habitable after completion of the incomplete works spending Rs.52,000/-. As the OPs failed and neglected to comply with the terms and conditions of the agreement for sale dated 21.11.2015 and also failed to execute and register a proper Deed of Conveyance in respect of the scheduled flat in favour of the complainant receiving the balance consideration amount, the complainant was compelled to file the instant case on the reliefs sought for in the petition of complaint.
The OP Nos. 1, 2, 3 and 4 did not come forward to contest the case and as such the instant case was proceed ex-parte as against the OP Nos. 1, 2, 3 & 4 as per order No.4 Dated 21.12.2020 and order No.11 Dated 02.11.2021.
OP No.5 contested the case by filing W/V. It was contended that at the time of execution of the development agreement dated 26.09.2014 the OP No.1 was not a party in the said agreement and the Power of Attorney executed in the year 2014 was not executed in favour of the OP No.5. In the year 2017, OP No.5 Sayani Nath joined in the business / firm as a partner and on 07.03.2019 left the said business as a partner by way of a Deed of dissolution of partnership. OP No.5 also denied the other material averments as the petition of complainant parawise and prayed for dismissal of the complaint case with cost.
Points for consideration :-
- Is the complainant, a consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get reliefs as prayed for?
Decision with reasons :-
Point No.1:-
On perusal of the case record along with copies of documents, it appears that the complainant was willing to purchase the scheduled flat more fully described in the schedule of the petition of complaint as well as agreement for sale dated 21.11.2015 and the O.Ps agreed to sell the same to the complainant for which the agreement for sale dated 21.11.2015 has been made by and between the parties. The complainant paid Rs.8,20,000/- on different dates towards the total consideration amount of Rs.8,50,000/- and the OPs acknowledged the same by issuing money receipts. Therefore, the complainant is a consumer as defined U/S 2(7) of the Consumer Protection Act, 2019.
As such, first point is decided in favour of the complainant and against the OPs.
Point No:2 :
The complainant booked the scheduled flat and entered into an agreement dated 21.11.2015 with the OPs to that effect. The complainant also made payment of Rs.8,20,000/- out of the total consideration amount of Rs.8,50,000/- and the OPs acknowledged the same by issuing money receipts from which it appears that all the payments have been properly made. On the other hand, despite payment of the major portion of the consideration amount by the complainant as per terms of the agreement dated 21.11.2015, the OPs failed and neglected to execute and register a proper Deed of conveyance in favour of the complainant. Therefore, it is clear from the averments of the complainant that the OPs are guilty of deficiency in service and unfair trade practice.
As such, the second point is also decided in favour of the complainant and against the OPs.
Point No.03 :-
The complainant booked the scheduled flat more fully described in the schedule of the petition of complaint as well as in the schedule of the agreement for sale dated 21.11.2015 from the OPs and made payment of Rs.8,20,000/- out of the total consideration amount of Rs.8,50,000/-. But the OPs violated the terms and conditions of the agreement dated 21.11.2015. Neither the OPs executed and registered a proper Deed of conveyance in respect of the scheduled flat in favour of the complainant nor supplied the relevant documents e.g. completion certificate etc., moreover the OPs are trying to sell / transfer / alienate the scheduled flat to a third party. Therefore as the complainant did not get any positive response from the OPs he was compelled to file the instant complaint case against the OPs on the reliefs sought for in the petition of complaint. As such, there is no hesitation to hold that the complainant is entitled to get the reliefs as prayed for as the OPs did not execute and register a proper Deed of Conveyance in respect of the scheduled flat in favour of the complainant and also did not hand over the relevant documents e.g. completion certificate etc. The complainant failed to get proper service from the OPs. On the other hand, the complainant was harassed by the OPs by various ways. Therefore, the complainant is entitled to get the reliefs as prayed for.
Thus the third point is also decided in favour of the complainant and against the OPs.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the instant case be and the same is hereby allowed on contest against the OP No.5 and ex-parte against the rest of the OPs with cost of Rs.25,000/- (Rupees twenty five thousand) only.
The OPs are jointly and severally liable and are directed to execute and register a proper Deed of Conveyance along with completion certificate in respect of the scheduled flat as described in the schedule of the petition of complainant and agreement for sale dated 21.11.2015 in favour of the complainant within 60 days from the date of passing this order.
That the O.Ps are hereby restrained by an order of permanent injunction from transferring, selling or alienating the scheduled flat by any means whatsoever to-any third party excepting the complainant.
That the OPs are jointly and severally liable and are also directed to pay Rs.50,000/- (Rupees fifty thousand) to the complainant towards the expenditure incurred by the complainant to complete the incomplete works of the scheduled flat to make the same habitable, within 60 days from the date of passing this order.
That the OPs are jointly and severally liable and are also directed to pay compensation of Rs.45,000/- (Rupees forty five thousand) only for harassment, mental pain and agony suffered by the complainant and deficiency in service within 60 days from the date of passing this order.
That the OPS are jointly and severally liable and are directed to pay the litigation cost of Rs.25,000/- (Rupees twenty five thousand) within 60 days from the date of passing this order.
That the complainant is at liberty to put the order into execution after the expiry of 60 days in case the orders are not complied with by the OP within 60 days from the date of passing this order.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
Ashoke Kumar Pal
President
