Order No. 36 dt. 15/06/2017
The case of the complainant in brief is that the complainant for having an accommodation met with o.p. nos.1 and 2 who offered the complainant to sell a flat in the new building to be constructed at 62, Rakhal Das Auddy Road, P.S. Alipore, Kolkata-27. It was agreed that the complainant would purchase a flat measuring more or less 370 sq.ft. at a price of rs.8,75,000/- and the complainant paid the amount as per the terms and conditions of the agreement. In such manner the complainant paid total consideration of Rs.8,75,000/- and took possession of the flat. In spite of getting possession of the flat the complainant repeatedly requested the o.ps. to execute the deed of conveyance and also complete the incomplete portion of the said flat. On the basis of the said fact the complainant filed this case praying for direction upon the o.ps. to execute and register the deed of conveyance in respect of the flat in favour of the complainant and to refund the amount of Rs.8000/- for installation of the electric meter in the complainant’s flat and to complete the sewerage line of the said building on obtaining occupation certificate from the KMC and to supply of water regularly and compensation.
The o.ps. contested this case by filing separate w/vs and denied all the material allegations of the complaint. It was stated by o.p. nos.1 and 2 that after payment of the entire consideration price o.p. nos.1 and 2 delivered possession of the flat in question to the complainant in complete and finished condition on 14.2.11. It was further stated that they are ready and willing to execute and register the deed of conveyance in respect of the flat in favour of the complainant but on every occasions the owners of the land being o.p. nos.3 to 5 avoided and neglected to execute and register the deed of conveyance in respect of the flat in question without any reason. The o.p. nos.1 and 2 denied that the water connection was not provided in the said flat in question and after completion of the entire work of the flat the possession was handed over. There was no deficiency in service on the part of o.p. nos.1 and 2 and as such, the case is to be dismissed.
In their w/v o.p. nos.3 to 5 stated that o.ps. got the premises no. 62, Rakhal Das Auddy Road, P.S. Alipore, Kolkata-27 by was of succession. After becoming the absolute joint owner of the said premises they decided to develop the property but due to paucity of fund they approached o.p. nos.1 and 2 for the purpose of development of the said land. The o.p. nos.3 to 5 also entered into a development agreement with o.p. nos.1 and 2. The o.p. nos.1 and 2 even after completion of the building and delivery of possession in respect of different purchasers failed to provide delivery of the possession in respect of the flat to the owners and the owners’ allocation has remained incomplete. In view of the said fact o.p. nos.3 to 5 failed to execute the deed of sale. The o.p. nos.3 to 5 also stated that o.p. nos.1 and 2 deviated from the plan sanctioned by the KMC and the electric meter stood in the name of the mother of o.p. nos.3 to 5 was disconnected due to non payment of electric bill for illegal consumption of electricity by o.p. nos.1 and 2. Because of such dispute o.p. nos.3 to 5 failed to execute the deed of sale in favour of the respective flat owners who have been given possession. Since there was no deficiency in service on the part of o.p. nos. 3 to 5, therefore they cannot be held liable for the compensation and other reliefs.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant entered into an agreement with o.p. nos.1 and 2 for having a flat?
- Whether the flat was given possession by o.p. nos.1 and 2?
- Whether o.p. nos.3 to 5 failed to execute and register the deed of sale in respect of the said flat in favour of the complainant?
- Whether there was any deficiency in service on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that in order to purchase the complainant entered into an agreement with o.p. nos.1 and 2 being the developer who entered into an agreement with o.p. nos.3 to 5 for constructing a building. After the construction of the said building o.p. nos.1 and 2 gave possession in respect of the flat to the complainant, but some unfinished work remained which has not been completed by o.p. nos.1 and 2 and further o.p. nos.3 to 5 failed to execute and register the deed of conveyance for which the complainant is facing great hardship. In view of the said fact the complainant filed this case praying for reliefs.
Ld. lawyer for the o.p. nos.1 and 2 argued that as per the terms of the agreement entered into between the developer and the complainant the flat has been given possession and nothing has been left to be completed by o.p. nos.1 and 2. The water connection, sewerage, all those things have been provided in the flat occupied by the complainant. The o.p. nos.1 and 2 complied the terms and conditions of the agreement which was entered into between the complainant and o.p. nos.1 and 2. The only fact which o.p. nos.1 and 2 could not do i.e. being the developers they cannot execute the deed of conveyance if the land owners do not cooperate. Since the land owners were requested for execution of the deed of conveyance but they avoided to do the same for which o.p. nos.1 and 2 cannot be held responsible for no compensation can be imposed upon them.
Ld. lawyer for the o.p. nos.3 to 5 argued that as per the agreement entered into between the developers and o.p. nos.3 to 5 they failed to provide the flat in respect owners allocation, o.p. nos.1 and 2 did not provide the said accommodation to the land owners allocation and the flats have not been provided to the owners i.e. o.p. nos.3 to 5, though o.p. nos.1 and 2 gave possession in respect of the flat to the purchasers. The o.p. nos.3 to 5 also stated that o.p. nos.1 and 2 have not paid the electric bill for which electric connection has been disconnected and there was also dispute regarding providing of sewerage facility for which o.p. nos.3 to 5 are suffering due to heavy rainfall and stagnation of water. All these things were brought to the notice of o.p. nos.1 and 2, but they ignored the same, for which o.p. nos.3 to 5 failed to discharge their duty by executing the deed of conveyance in respect of the individual flat owners. In view of the said fact ld. lawyer for o.p. nos.3 to 5 prayed for dismissal of the case.
Considering the submissions of the respective parties it is undisputed fact that the complainant entered into an agreement with o.p. nos.1 and 2. It is also an admitted fact that the complainant paid the entire consideration price to o.p. nos.1 and 2 and after getting the consideration price o.p. nos.1 and 2 geve possession of the flat to the complainant. It is also found from the materials on record that there was dispute between the land owners and developers for which the complainant is suffering. Actually o.p. nos.3 to 5 have their grievances against o.p. nos.1 and 2, but for the internal fend between the o.ps., the complainant cannot suffer. The o.p. nos.3 to 5 being the land owners whenever entered into an agreement with o.p. nos.1 and 2 was fully aware regarding the terms and conditions of the said development agreement and non fulfillment of the terms and conditions of the development agreement o.p. nos.3 to 5 would have resorted the legal action against o.p. nos.1 and 2. But after completion of the flat and delivery made by o.p. nos.1 and 2, o.p. nos.3 to 5 cannot keep themselves away by not registering the said deed of sale in favour of the complainant for which the complainant had no fault on his part. Since there was deficiency in service on the part of o.ps. therefore the complainant will be entitled to get the relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.368/2012 is allowed on contest with cost against the o.ps. The o.p. nos.3 to 5 are jointly and/or severally directed to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant and the o.p. are jointly and/or severally directed to pay to the complainant compensation of Rs.50,000/- (Rupees fifty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
