FINAL ORDER/JUDGMENT

Presented by:

Minakshi Chakraborty,  Presiding Member.

 Brief facts of the case: This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant that on 27^th June, 2015 the complainant has entered into an agreement with the opposite parties in respect of purchasing a flat and the opposite parties are lawful owner of three storied building cum residential flat namely ‘Sumbul Apartment’ situated on and over the A schedule property and that the opposite parties are engaged in their profession and due to their engagement their father Azduddin Khan acted as a attorney on behalf of the opposite partier under the said Power of Attorney. The father of the opposite party, was fully authorized to do all acts, deed and in discharging the duty in capacity of rightful owner and was also authorized to mortgage, transfer or alienate the property or any flat as per his choice and the opposite party are legally bound to ratify all the acts, deeds done by their lawful attorney cum father Azduddin Khan  and the said Azduddin Khan after obtaining sanction plan from Debanandapur Gram Panchayet, developed and constructed three storied building cum residential apartment ‘Sumbul Apartment’ at Khanka Sharif, near station road, Mazjid Para, Bandel, Post-Bandel, P.S. Chinsurah, Dist- Hooghly, which is specifically mentioned in A scheduled  and that after construction of the said apartment the lawful attorney cum father, Azduddin Khan intended to sell the flats of the apartment to the intended purchaser/purchasers and that as such in pursuance of the proclamation for sale this petitioner along with her husband contacted Azduddin Khan and requested him to sell their third floor of the Apartment, consisting of an area of 792.08 sq.fit and super built up area of 951.14 sq.ft. along with garage covered area of 327.02 sq.ft. and its super built up area 392.42 sq.ft. fully described in Schedule B property of the petition and has been described as suit property for the sake of convenience and that the petitioner has offered a sum of Rs. 17,00,000/- the total consideration money of the suit property of the petition and the offered price was reasonable and no other buyer was ready to pay more than the offered price and as such the lawful attorney Azduddin Khan with the consent of the opposite parties agreed to sell the B schedule property and this petitioner was immediately ready to get the same and she paid Rs, 5,00,000/- as advance consideration for purchasing the said “B” schedule property to the said attorney cum father of the parties namely, Azududdin Khan in presence of witness. Said Azuddin Khan received the entire amount of Rs. 5,00,000/- from this petitioner and gave possession in favour of the petitioner in respect of the property and it was agreed between the parties that rest consideration of Rs. 12,00,000/- will be paid by vendee to the vendor at the time of final registration and be it mentioned here that in the mean time lawful attorney had fallen ill and his position was not good and as such the attorney Azuddin Khan had been admitted in Delhi for his better treatment  and that in spite of treatment the condition of Azuddin Khan was not improving and he was not in a position to appear before the Registering authority for execution and registration of sale deed and that as such in order to avoid any dispute the attorney Azuddin Khan executed an agreement for sale on 27/06/2015 in favour of petitioner in proof of agreement for sale and received Rs. 5,00,000/- as advance in respect to B schedule property in presence of witness and that later on condition of Azduddin Khan further became critical as such he called upon his sons i.e. opposite parties and intimated about the execution  of agreement for sale and receiving of Rs. 5,00,000/- with respect to B schedule Flat. The opposite parties have promised to execute the sale deed in favour of the petitioner whenever the petitioner asked these opposite party to do so and that unfortunately said attorney Azduddin Khan died in Delhi and after his death petitioner asked the opposite parties on several occasion to execute absolute sale and personally meet at their residence upon which the opposite parties have promised to execute absolute sale deed in favour of the plaintiff within few month, but opposite parties did no fulfill their promise and that suddenly in the month of September, 2016 the petitioner heard a rumor in the locality that B schedule flats is going to be sold and an stranger has also come to the suit property to inspect the suit property then this petitioner has enquired into the matter and get knowledge of the fact that the opposite parties are going to sell the B schedule flat to the some other person illegally and that this petitioner was shocked to know the whole affair as because she is possession over the B schedule property since last two years. On 29/10/2016 this petitioner through her Ld. Advocate has sent legal notice dated 27/10/2016 through registered post with A/D to the opposite parties with a request to execute deed of  sale in favour of this petitioner in respect of B schedule flat but the opposite parties with malafide intentions has refused to receive the notice though after tearing out the develop of the notice had gone through the comments of the notice and that the petitioner is/was always ready and willing to purchase the said “B” schedule flat and ready to pay balance consideration to the opposite parties but after death of their father the opposite parties are avoiding to execute absolute sale deed in favour of this petitioner which they are legally bound to do so. For that reason this petitioner in spite of having profession of B schedule flat is facing much trouble and legal problem which is tantamount to deficiency in service by the opposite parties and that the petitioner has already performed her part of the contract but the opposite parties are silent from executing sale deed in favour of the petitioner with respect of the B schedule Flat.

            Complainant filed the complaint petition praying direction upon the opposite parties to execute a Deed of Sale in favour of the complainants in respect of schedule mentioned flat along with garage covered area of 327.02 sq.ft. and its super built up area 392.42 sq.ft. common facilities together with the undivided proportionate share of common area and facilities attached to the building and apartment and to pay sum of Rs. 50,000/- for mental agony and to pay a sum of Rs. 50,000/- as compensation as well as litigation cost and to give relief or reliefs as deem fit and proper.

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

Argument highlighted by the ld. Lawyers of the parties

            Heard argument of complainant side at length. In course of argument ld. Lawyer of complainant has given emphasis on evidence and documents produced by the parties.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief?

DECISION WITH REASONS

Issue no.1:

        In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii)  of the Consumer Protection Act, 1986.The point is thus answered in the affirmative.  

Issue no.2:

                 Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.

Issue nos. 3 & 4:

Both the issues are taken up simultaneously for the sake of convenience.

            The complainant in her written notes of argument averred that on 27^th June 2015 she entered into an agreement with the opposite parties in respect of purchasing a flat described in the schedule B. It is also stated that opposite parties are lawful owner of 3 storied building cum residential flat namely, SUMBUL APARMENT. That the father of the opposite party was authorized to do all acts, deed and in discharging the duty in capacity of rightful owner and also authorized to mortgage, transfer or alienate the property or any flat as per his choice. That said Azduddin Khan after obtaining sanction plan from the Debanandapur gram Panchayat developed and constructed three storied building cum residential apartment namely, SUMBUL APARTMENT  at Khanka Sharif at Bandel, P.S.- Chinsurah, Dist.- Hooghly. That after construction of the said apartment the lawful attorney Azduddin Khan intended to sell the flats of the apartment to the intended purchaser. That in pursuance of the proclamation of sale this petitioner along with her husband contacted Azuddin Khan and requested him to sell third floor of the apartment, consisting of an area of 792.08 sq.fit and super built up area of 951.14 sq.ft. along with garage covered area of 327.02 sq.ft. and its super built up area 392.42 sq.ft. fully described in Schedule B property of the petition and has been described as suit property for the sake of convenience and that the petitioner has offered a sum of Rs. 17,00,000/- the total consideration money of the suit property of the petition and the offered price was reasonable and no other buyer was ready to pay more than the offered price and as such the lawful attorney Azduddin Khan with the consent of the opposite parties agreed to sell the B schedule property and this petitioner was immediately ready to get the same and she paid Rs, 5,00,000/- as advance consideration for purchasing the said “B” schedule property to the said attorney cum father of the parties namely, Azududdin Khan in presence of witness. Said Azuddin Khan received the entire amount of Rs. 5,00,000/- from this petitioner and gave possession in favour of the petitioner in respect of the property and it was agreed between the parties that rest consideration of Rs. 12,00,000/- will be paid by vendee to the vendor at the time of final registration and be it mentioned here that in the mean time lawful attorney had fallen ill and his position was not good and as such the attorney Azuddin Khan had been admitted in Delhi for his better treatment  and that in spite of treatment the condition of Azuddin Khan was not improving and he was not in a position to appear before the Registering authority for execution and registration of sale deed and that as such in order to avoid any dispute the attorney Azuddin Khan executed an agreement for sale on 27/06/2015 in favour of petitioner in proof of agreement for sale and received Rs. 5,00,000/- as advance in respect to B schedule property in presence of witness and that later on condition of Azduddin Khan further became critical as such he called upon his sons i.e. opposite parties and intimated about the execution  of agreement for sale and receiving of Rs. 5,00,000/- with respect to B schedule Flat. The opposite parties have promised to execute the sale deed in favour of the petitioner whenever the petitioner asked these opposite party to do so and that unfortunately said attorney Azduddin Khan died in Delhi and after his death petitioner asked the opposite parties on several occasion to execute absolute sale and personally meet at their residence upon which the opposite parties have promised to execute absolute sale deed in favour of the plaintiff within few month, but opposite parties did no fulfill their promise and that suddenly in the month of September, 2016 the petitioner heard a rumor in the locality that B schedule flat is going to be sold and a stranger has also come to the suit property to inspect the suit property then this petitioner has enquired into the matter and get knowledge of the fact that the opposite parties are going to sell the B schedule flat to the some other person illegally and that this petitioner was shocked to know the whole affair as because she is possession over the B schedule property since last two years. On 29/10/2016 this petitioner through her Ld. Advocate has sent legal notice dated 27/10/2016 through registered post with A/D to the opposite parties with a request to execute deed of  sale in favour of this petitioner in respect of B schedule flat but the opposite parties with malafide intentions has refused to receive the notice though after tearing out the develop of the notice had gone through the comments of the notice and that the petitioner is/was always ready and willing to purchase the said “B” schedule flat and ready to pay balance consideration to the opposite parties but after death of their father the opposite parties are avoiding to execute absolute sale deed in favour of this petitioner which they are legally bound to do so. For that reason this petitioner in spite of having profession of B schedule flat is facing much trouble and legal problem which is tantamount to deficiency in service by the opposite parties and that the petitioner has already performed her part of the contract but the opposite parties are silent from executing sale deed in favour of the petitioner with respect of the B schedule Flat.

            Complainant filed the complaint petition praying direction upon the opposite parties to execute a Deed of Sale in favour of the complainants in respect of schedule mentioned flat along with garage covered area of 327.02 sq.ft. and its super built up area 392.42 sq.ft. common facilities together with the undivided proportionate share of common area and facilities attached to the building and apartment and to pay sum of Rs. 50,000/- for mental agony and to pay a sum of Rs. 50,000/- as compensation as well as litigation cost and to give relief or reliefs as deem fit and proper.

            It is pertinent to mention here that despite serving notice through newspaper publication the opposite parties did not appeared though 4.1.2018 was fixed for filing W/V by the opposite parties and on the same day this Commission appointed a local inspection commission. Inspite of paper publication opposite parties did not appeared so the case is proceeded ex parte against opposite parties.

            The Mr. Jagannath Dey, Assistant Engineer, PWD Civil has submitted the commission report on 13.7.2022.

            It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainant has made several requests to the opposite parties to get the deed executed in favour of her but it remained unheeded. The opposite parties tried to evade their responsibility in execution & registration of sale deed.

             Hon’ble National Commission in Papiya Roy Burman v. Swapan Kumar Aich,2018 (4) CPR 724 (NC) held that when the landowners enter into agreement with the builder for developing their land, they are liable to sign the conveyance deed along with the builder as confirming parties.  So we may safely conclude that the opposite parties are also responsible to execute the deed of conveyance in favour of the complainant.

            Therefore relying upon the materials on record we have no hesitation to hold that the complainant is entitled to an order of getting the deed executed in her favour. Since the landowner as well as well as developer did not take appropriate steps for execution of sale deed in favour of the complainant within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant. However, since the complainant is in possession considering the loss suffered by her, she is entitled to get compensation of Rs.10,000/- from the opposite parties.

            Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non execution & registration of the impugned flat by adducing cogent document/evidence so the prayer of the complainant is allowed. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint petition is thus disposed of accordingly.

Hence

ORDERED

 that the complaint case being No.15/2017 be and the same is allowed ex-parte against the opposite party No.1 &2 with a litigation cost of Rs.8,000/- to be paid by the opposite parties.

The Opposite Party No. 1 to 2 are directed to execute and register the deed of conveyance in favour of the complainant in accordance with the terms of the agreement within 45 days from the date of passing this order otherwise the complainant may get the deed executed through the machinery of this Forum.

     The Opposite Party No.1 & 2 are directed to pay compensation amounting to Rs 10,000/-  towards loss suffered by the complainant and Rs 8000/ as litigation cost within 45 days from date failing which the complainant is at liberty to take recourse to law.

In the event of nonpayment/ non compliance of the above noted direction the opposite parties are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website www.confonet.nic.in.