West Bengal

South 24 Parganas

CC/166/2015

Sri Narendra Prasad Roy, S/O- Late Amulya Chandra Roy. - Complainant(s)

Versus

1. Sri Jayanta Dhar, Developer, S/O - Late Sukesh Chandra Dhar. Proprietor of M/S. D. Companion Offi - Opp.Party(s)

Mrs. Kalyani Dey.

31 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _166_ OF ___2015_

 

DATE OF FILING :2.4.2015                        DATE OF PASSING JUDGEMENT:  31/08/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu  & Subrata Sarker

                                                                             

COMPLAINANT        :     Sri Narendra Prasad Roy,s/o late Amulya Chandra Roy of 49, Pallisree , P.S. Netaji Nagar, Kolkata – 32.

                                          

• VERSUS  -

 

O.P/O.Ps                            :   1. Sri Jayanta Dhar,s/o late Sukesh Chandra Dhar , Prop. Of M/s D Companion Office of 58, Lotus Park, P.S. Netaji Nagar, Kolkata – 47.

                                              2.     Smt. Susmita  Sen, d/o late Santosh Kumar Sen at 25/3, Raja Manindra Road, Block-R, Flat no.10, P.S. Chitpur, Kolkata – 37.

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986  filed by the complainant on an allegation that he entered into an agreement on 5.12.2010 for sale of a flat  by the O.P/developer in the schedule of the property. It has further stated that on 22.1.2013 complainant filed a complaint before this Forum to hand over the schedule flat in actual possession and that case number was CC 33 of 2013 which was disposed of on 13.8.2013 directing the O.P to hand over the schedule flat  within one month from this date after receiving balance consideration money of Rs.2,50,000/- ,failing which complainant is at liberty to put the decree into execution in accordance with law. Thereafter complainant filed execution case and when W.A was issued O.P handed over possession of the schedule flat on 6.5.2014 .But as per agreement dated 15.12.2010 column no.10.1 in 11^th page it has been mentioned that developer shall complete the transfer in respect of the flat by executing deed of conveyance in respect of the schedule flat and vendor shall personally or through their Constituted Attorney also join in the said conveyance for conveying the right, title and interest in the undivided property of the said land in the premises attributable to the flat in favour of the purchaser. But inspite of repeated reminders, verbal and written, the O.P/developer did not fulfill the same and even after sending the lawyer’s notice O.P did not pay any heed to it. Hence, this complaint praying for direction upon the O.Ps to execute and register the deed of conveyance in respect of the schedule flat in favour of the complainant, compensation of Rs.1 lac , litigation cost of Rs.50,000/- etc.

The O.P-1 filed written version denying all the material allegations contending inter alia that complainant already filed one case being C.C.33 of 2013 on 22.1.2013 wherein he did not pray for execution and registration of the flat in dispute and ,therefore, this Forum rightly did not pass any order fo execution and registration of the said flat. So, instant case is hopelessly barred by limitation. It has further stated that complainant was not ready and willing to get the deed of conveyance executed at his own cost and also denied the request of the complainant for execution and registration of the flat. This answering O.P also denied the allegation leveled against them in paragraph 5,.6 and 8 etc . Accordingly this O.P prays for dismissal of the case as the case is barred by limitation and complainant is not entitled to get any relief whatsoever.

The case is running against O.P-2 in exparte in view of order no. 6 dated 11.9.2015 .

Points for decision in this case is whether there is any deficiency in service on the part of the O.Ps or not.

                                                            Decision with reasons

Admittedly complainant got possession ,cost and compensation from the developer in C.C.no.33 of 2013 at execution stage and it is also admitted fact that complainant paid balance consideration money after adjusting the cost and compensation.

But in the said complaint case complainant failed to mention the prayer as per agreement clause 10.1 that “ The developer shall complete the transfer in respect of the flat by executing a deed of conveyance in respect of the flat and vendor shall personally or through their Constituted Attorney also join in the deed of conveyance or convey the right, title and interest in the said undivided proportionate share of land in the premises attributable to the flat in favour of the purchaser”.

So, we find that execution of deed of conveyance has been mentioned in the agreement for sale but it was not covered in earlier C.C. case no.33 of 2013.  But that does not mean that said right of getting deed of conveyance will go bye , particularly when admittedly complainant has paid total consideration money and complainant is in possession of the flat in dispute. So, it is the verdict of the Hon’ble Supreme Court as well as Hon’ble National Commission that until and unless registration and completion certificate is completed, the cause of action will continue. So, the plea of barred by limitation by the O.P-1 has no leg to stand upon on a moment scrutiny.

Thus we find that the flat has not yet been registered. So, O.Ps are duty bound to execute and register the deed of conveyance in respect of the flat and deficiency in service is acted upon by the O.Ps.

It is true that O.P-1 has prayed that he has requested the complainant to get the deed of conveyance but the complainant did not do the same. Unfortunately O.P-1 did not file any documentary evidence wherein he expressed his willingness to the complainant for registration of the said flat.  So, that averment in the written version does  not legally stand and accepted.

Hence, we find that O.Ps are jointly and/or severally acted deficiency in service .

Hence,

                                                Ordered

That the complaint case is allowed on contest against O.P-1 and exparte against O.P-2.

Both the O.Ps are jointly and/or severally directed to execute and register the deed of conveyance  in respect of the schedule flat in favour of the complainant , of course, at the cost of the complainant i.e. complainant has to purchase stamp paper and bear the registration cost etc. within 30 days from the date of this order, failing which, O.P nos. 1 and 2 have to pay compensation to the tune of Rs.25000/- jointly and/or severally as well as litigation cost of Rs.5000/- to the complainant .

If the O.Ps failed to comply the order, the complainant is at liberty to execute the order through this Forum.

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                                                                       President

 

Dictated and corrected by me

                               

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

 

                                                Ordered

That the complaint case is allowed on contest against O.P-1 and exparte against O.P-2.

Both the O.Ps are jointly and/or severally directed to execute and register the deed of conveyance  in respect of the schedule flat in favour of the complainant , of course, at the cost of the complainant i.e. complainant has to purchase stamp paper and bear the registration cost etc. within 30 days from the date of this order, failing which, O.P nos. 1 and 2 have to pay compensation to the tune of Rs.25000/- jointly and/or severally as well as litigation cost of Rs.5000/- to the complainant .

If the O.Ps failed to comply the order, the complainant is at liberty to execute the order through this Forum.

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                                                                       President