Date of filing : 22.11.2018

Judgment : Dt.18.9.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Atasi Sarkar alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Animesh Dutta, (2) Sri Dwijoy Ghosal, (3) Smt. Ebha Ghosal, (4) Smt. Sikha Dey, (5) Smt. Abha Dey and (6) Smt. Nibha Dey.

            Case of the Complainant, in short, is that the OP No.2, namely Dwijoy Ghosal and the predecessor-in-interest of OP No.3 to 6 namely Debendra Kumar Dey being the owners of the property described in the schedule A of the complaint petition entered into a development agreement with the OP No.1 on 23.7.2001 and also executed a General Power of Attorney in her favour to develop the said property by constructing a four storied building thereon. As the Complainant was in need of accommodation, she by an agreement dt.12.5.2004 agreed to purchase a flat described in Schedule B of the complaint from the developer namely OP No.1 from the developers’ allocation at a total consideration price of Rs.2,60,000/-. Complainant paid Rs.1,00,000/- out of the said total consideration on the very date of execution of the agreement and rest of the amount has also been paid within three months from the date of execution of the said agreement. The Complainant was also handed over possession of the schedule B property as agreed in the agreement through a possession letter dt.6.10.2010. But in spite of making several requests to the OPs, the deed of conveyance has not been executed in favour of the Complainant. So, ultimately, a notice was sent by the Complainant through her Ld. Advocate dt.18.9.2018. But, no heed was paid. So, the present complaint has been filed for directing the OPs to execute and register the deed of conveyance in favour of the Complainant in respect of the B schedule property, to pay compensation of Rs,1,00,000/- and litigation cost of Rs.50,000/-.

            Complainant has annexed with the complaint petition, copy of the development agreement dt.23.7.2001, copy of the power of attorney, the agreement entered with the Complainant dt.12.5.2004, the possession letter dt.6.10.2010 and also copy of the notice sent by the Complainant through her Ld. Advocate.

            On perusal of the record, it appears that notice was sent to the OPs and ultimately the service was also made by way of paper publication. But none of the OPs took any step and so vide order dt.6.6.2019, the case came up for ex-parte hearing.

            So, the only point requires determination is whether the Complainant is entitled to the relief as prayed for.

            Decision with reasons

            In support of her claim that by an agreement dated 12.5.2004, the Developer agreed to sale her schedule B property at a consideration of Rs.2,60,000/-, Complainant has filed the said agreement. She has also filed the copy of the development agreement entered into between the OP No.2 and the predecessor-in-interest of OP No.3 to 6 with the OP No.1. On perusal of the agreement dt.12.5.2004, it appears that payment of Rs.1,00,000/- has been acknowledged by the OP developer on the very date of execution of the agreement. Agreement also bears several endorsements by the developer on different dates acknowledging receiving of further amount by way of cheque or by cash. It has been claimed by the Complainant that she has paid the entire balance amount of Rs.1,60,000/- and consequent to the same, possession letter has been issued and she has been delivered the possession. The possession letter dt.6.10.2010 issued by the OP developer substantiate the claim of the Complainant about the payment of the entire amount and the handing over of the possession of the flat. As apparently, deed of conveyance has not been executed as per the terms of said agreement dt.12.5.2004, the Complainant is entitled to the execution of deed of conveyance in her favour in respect of the flat as agreed especially when before this Forum there is absolutely no contrary material to rebut or counter the claim of the Complainant. Since the Complainant will have to pay the cost towards registration as per present market value, she is also entitled to the compensation and also litigation cost.

            Hence it is

                                      ordered

            CC/637/2018 is allowed ex-parte. OPs are directed to execute and register the deed of conveyance in favour of the Complainant in respect of the flat as per agreement dt.12.5.2004, within three months from the date of passing of this order. They are further directed to pay compensation of Rs.40,000/- and litigation cost of Rs.10,000/- within the aforesaid period of three months. In default, the sum shall carry interest @ 9% p.a. till realization.