Samaresh Kumar Mitra, Presiding Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant that on 21st July, 2013 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 parties 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 940.35 sq.fit and super built up area of 1127.42 sq.ft. with entire amenities and exclusive right to as the top floor 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.18,00,000/- (Rupees Eighteen Lacs only) 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 deed in her favour as this plaintiff in presence of witness paid the entire consideration money with a promise of the attorney to execute absolute sale deed immediately. Said Azuddin Khan received the entire amount of Rs.18,00,000/- (Rupees Eighteen Lacs only) from this petitioner and gave possession in favour of the petitioner in respect of the property and that 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 22/07/2013 in favour of petitioner in proof of agreement for sale and received the entire consideration money with 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 total consideration money of Rs. 18,00,000/- 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 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 three years and there is no other resident in West Bengal save and except this schedule flat and that on 29/10/2016 this petitioner through her Ld. Advocate namely Manoj Kumar, 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 get the sale deed executed and as such the petitioner immediately paid the entire consideration of Rs. 18,00,000/- to the lawful attorney cum father of the opposite parties and same has been acknowledged by the opposite party 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 hence this petitioner finding no other alternative being a consumer has filed this case before this Forum and thus the petitioner became a consumer within the Meaning of Consumer Protect Act under the opposite parties. The opposite parties became a service provider who is under obligation to provide service to the petitioner. The opposite parties failed to provide that service to the petitioner and performed unfair trade practice. The opposite parties are guilty of deficiency of service and they have caused mental agony and harassment to the complainant/petitioner and that the cause of action of this suit arose on 21/07/2013 when agreement for sale has been made in respect of B schedule flat namely ‘SUMBUL APARTMENT”situated at Khanka Sharif near station road, Masjid para, Bandel, P.O.– Bandel, P.S. –Chinsurah, Dist- Hooghly under Debanandapur Gram Panchayet which is within the jurisdiction of this Forum and lastly on 29/10/2016 when this petitioner through her Ld. Advocate sent legal notice to the opposite parties and day after day therefrom and that being a consumer, this petitioner is entitled to relief as prayed for and that the petitioner paid proper Bank Draft for this case
Complainant filed the complaint petition praying directions upon the opposite parties to execute a Deed of Sale in favour of the complainant in respect of schedule mentioned flat along with common facilities as per mentioned exclusive right of sue roof of top floor i.e. roof of 3rd floor of the building together with the undivided proportionate share of land along with 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.
Despite serving notice through newspaper publication the opposite party neither put their appearance nor filed written version so the proceeding run ex-parte against the opposite parties.
Complainant filed evidence on affidavit which is nothing but the replica of complaint petition so it is needless to discuss.
Complainant filed brief notes of argument which is taken into consideration for passing final order.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Sabina Parween is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Sabiha Parween is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the opposite party, as the complainant being the intending purchaser paid consideration money and possessing the schedule mentioned flat, so she is entitled to get service from the opposite party as consumer.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued for compensation for mental agony and other expenses including the cost of the flat ad valorem which is within Rs.50,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The complainant in her written notes of argument averred that on 21st July 2013 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 940.35 sq ft and super built up area of 1127.42 sq ft with entire amenities and exclusive right. It is also averred that the petitioner has offered a sum of Rs.18,00,000/- the total consideration money of the suit property of the schedule ‘B’ of the petition and offered price was reasonable and no other buyer was ready to pay more than 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 deed in her favour. That the said Azduddin Khan executed an agreement for sale on 21.07.2013 in favour of the petitioner. He became ill as such called these opposite parties and informed about the agreement for sale and receiving of consideration money of Rs.1800000/- so the opposite parties promised to execute the deed of conveyance. After the death of said Azaduddin Khan the petitioner several times requested the opposite parties to execute absolute sale and personally meet at their residence upon which the opposite parties have promised to execute sale deed in favour of the petitioner within few month, but the opposite parties did not fulfill their promise. That in the month of September,2016 the petitioner heard a rumor that the opposite parties are going to sell the suit property to some other person. Then the complainant send a legal notice by her Ld advocate to the opposite parties with a request to execute deed of sale in favour of this petitioner in respect of ‘B’ schedule mentioned property but the opposite parties with malafide intensions has refused to receive the notice. The petitioner is always ready & willing to get the sale deed executed as the petitioner has already paid the entire consideration of Rs.18,00,000/- to the lawful attorney cum father of the opposite parties. After the death of their father the opposite parties are avoiding to execute absolute sale deed in favour of this petitioner. So the complainant getting no alternative filed the instant complaint before this forum/commission. Complaint petition is unchallenged one as the opposite parties despite receiving notice did not turn up so the proceeding run ex parte against them.
During the pendency of the complaint petition the complainant sought for inspection report through this Commission. The Commission report dated 20.09.2019 speaks that a few cracks are seen on the floor marble at drawing room portion, sanitary pipe line on southern passage of building are not covered so foul odder & leaking water may polute that portion, some hire cracks have been developed at the roof top concrete through which seepage of water may take place during rain & some hire cracks have been observed on plaster of building. It is palpably clear that the construction of the impugned building is in question.
It is pertinent to mention that the complainant paid full consideration money, during the period of agreement and she is in possession since 2013 and the opposite party never disputed the payment.
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 compensation of Rs.30,000/- 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.
4). Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of execution & registration by deed of conveyance.
ORDER
Hence, ordered that the complaint case being No.16/2017 be and the same is allowed ex-parte against the opposite party No.1 &2 with a litigation cost of Rs.10,000/- to be paid by the opposite party.
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.30,000/- to the complainant for mental pain and agony within 45 days from the date of passing this order.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
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 & necessary action.
