Date of Filing: 19.02.2020

Date of Judgment: 02.02.2022  

Mrs.  Sashi Kala Basu, Hon’ble  President

This complaint is filed by the complainant , Miss Poulomi Nandi, under section 12 of the C.P Act, 1986 against the opposite parties   (referred to as O.Ps. ) namely 1) Arup Mukherjee and 2 ) Tapan Kumar Dutta, alleging deficiency in service on their part.

The case of the complainant in short is that O.P no.2 was the owner of the property who entered into a development agreement dated 20.4.2011 with the O.P no.1 and also executed a power of attorney in favour of O.P no.1 on 20.4.2011. Complainant along with his mother by an agreement for sale dated 13.3.2015 agreed to purchase the flat described in schedule B of the agreement as well as Schedule B of the complaint at a total consideration of Rs. 10 Lac. Inspite of payment made by the complainant the O.P has neither handed over the physical possession of the flat nor has executed and registered the deed of conveyance. So, the present complaint is filed by the complainant ,praying to direct the O.P no.1 to hand over physical possession of the flat in complete habitable condition, to execute and register the deed of conveyance, to pay extra stamp duty and registration fee of Rs. 40,000/- , to pay Rs.15000/- towards arrear municipal tax, to hand over the completion certificate, to pay compensation of Rs. 20,000/- towards mental agony and to pay interest @9% p.a on the said sum paid by the complainant of Rs. 10 lac.  

Complainant has filed copy of the Agreement entered into between the parties, money receipts showing payment, copy of the development agreement and the power of attorney entered into between the O.Ps, copy of the letter sent to the O.P no.1 , developer and the copy of possession letter dated 14.3.2015 ,requesting the complainant to accept delivery of possession. Copy of electricity bill is also filed.

On perusal of the record it appears that inspite of service of notice no step was taken by the O.Ps and thus case was directed to be proceeded exparte against them.

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

 Decision with reasons

In order to substantiate her claim that she along with her mother purchased the flat as described in Schedule B of the complaint and has made the payment towards the consideration, complainant has filed copy of the agreement and the money receipts issued by the O.P developer. But on a careful scrutiny of the agreement it appears that the agreement was entered into by the complainant namely Poulomi Nndi and her mother, Dipali Nandi, with the O.P, developer, who was also the constituted attorney of the owner, O.P no.2. This is also the admitted case of the complainant that she and her mother named in the agreement agreed to purchase the flat. Even though it is the case of the complainant that the said Dipali Nandi, one of the purchaser, is dead, but it is nowhere stated that after her death the complainant is the only legal heir. On the contrary it is apparent from the complaint itself that she died leaving behind the complainant and her husband who has not been made party in this case. So, apparently the present complaint suffers from nonjoinder of necessary party. However, since it is settled principle of law that on the ground of defect of parties, a case cannot be dismissed and the opportunity has to be given, the same can be considered subject to the complainant establishing her case on merit.

On perusal of the agreement entered into between the parties, it is apparent that entire building was completed and the developer while enjoying, possessing seizing with the Flat, sold the same. This is categorically reflected in page 7 of the agreement . The recital in the agreement also indicates that the payment of consideration was fully made on the very date of execution of the agreement which is another indication of the fact that it was a readymade flat and while enjoying the said flat, O.P no.1 sold the same to the complainant. To bring a case within the ambit of C.P Act, primary element is purchase of goods or hiring of service on payment of consideration. In this case, apparently there was no service hired or availed of by the complainant. The agreement entered into between the parties reveals that the transaction was a simplicitor sale of flat. So, in such a situation complainant cannot be a consumer under the provisions of the C.P act and thus, the complaint is not maintainable.

Hence,

              ORDERED

That CC/ 76/2020 is dismissed exparte.