Date of Filing : 05/10/2021
Date of Judgment : 30/09/2024
Sri Manish Deb, Hon’ble Member
The OP No.1 to OP No.4 are the land owners and the OP No.5 is the developer/promoter.
That one Smt. Prativa Dey was the absolute owner in respect of KMC premises No.64/8/2/379, Rajpur Road, Kolkata–70092 popularly known as postal premises No.2/209, Sree Colony, Kolkata-92 under P.S. Jadavpur now Netaji Nagar measuring more or less 3 cottach 1 chittack 37 sq.ft.
That the said Smt Prativa Dey since deceased desirous of developing her land and property by constructing a new multistoried building comprising of several flats, shops and floors whereupon the developer being the OP No.5 approached the owner to carry out the development work and the owner agreed to do so and a development agreement dated 12.06.2006 was executed between the owner and the developer and subsequently the owner granted a registered General Power of Attorney dated 04.08.2006 in favour of the developer.
That the developer being the OP No.5 constructed a ground plus 3 storied building as per the terms and conditions of the development agreement dated 12.06.2006 upon the said plot of land of the owner.
That the developer being the OP No.5 herein in the month of November 2008 approached to sell one self contained full furnished decorated complete residential flat, situated on the 1st floor, East North side, measuring about 1660 sq.ft. super built up area together with unpartiable proportionate undivided share or interest in the land, and other amenities, fixtures , Household goods etc , at a total consideration of Rs.32,75,000/- only to the complainants and thereafter sale agreement dated 10.11.2008 was executed by and between the parties.
That the complainants has paid a total sum of Rs.30,50,000/- only on the different dates and manners as stated in the sale agreement, and OP No. 5 has acknowledged the same.
That on 31.01.2009 the said Prativa Dey died intestate leaving behind her four sons i.e. OP No.1 to OP No.4 as her only legal heirs and successors.
That in the year 2009, the OP No.5 handed over the flat to the complainants without providing one colour TV, two AC Machines one micro over one refrigerator and one washing machine.
That after getting possession of the flat on several occasions the complainants requested the OP No.5 to provide the furniture’s as per agreement for sale dated 10.11.2008. Initially he avoided the request of the complainants and lastly agreed to adjust and/or deduct the amount of the said furniture from the total consideration amount.
That after getting possession , (without possession letter) the complainants also requested the developer and the land owners i.e. the OPs herein for registration of the deed of conveyance in favour of the complainants but taking one after another plea delayed the matter by the opposite parties.
That the complainants state that they are ready and very eager to get the execution and registration of the said flat as enumerated in the deed of agreement for sale dated 10.11.2008.
But the developer and Legal heirs of land owners i.e op No. 1 to 4 who did cause amongst themselves, creating trouble and inviting problems by them even after having almost full payment as consideration money from complainant.
That complainant. Case is that such purported acts of the OPs/Developers/Owners are not in accordance with their commitments, which established an act of deficiency in services as well as instances of unfair trade practice and also caused mental agony and harassment to the complainant .
That the complainants state and submit that the OPs shall pay the compensation to the complainants for the harassment inconvenience and mental agony arising directly out of such breach of the agreement on the part of the OPs.
Whereas OPs had to executed the deed of conveyance in favour of the complainant in respect of the flat mentioned in the second scheduled of the sale agreement but OPs No. 1 to 4 refused to registered the flat in question in favour of the complainant.
The OP No 1 to 4 did not contest the case by filing written version and thus the case proceeded ex parte against OP No 1 to 4 , but OP.5 filed written version, a wherein he denied any deficiency in service on his part and mentioned that it is only the inordinate delay on the part of the OP No 1 to 4 in execution and registration of the subject property could not be effected by them.
POINTS FOR DISCUSSION
- Whether complainant fall in the category of the “Consumer” under Consumer Protection Act 2019.
- Whether the present complaint is within limitation under Consumer Protection Act, 2019.
- Whether the commission has the jurisdiction to decide the present complaint
- Whether the opposite party in deficient in providing its services to the complainant.
- Is the case is maintainable or not
- Is the complainant is entitled to get relief as prayed for
OBSERVATIONS
The complainant fall in the category of the “Consumer” under Consumer Protection Act 2019.
It is filled within two years from the date on which the cause of action has arisen.
The commission has territorial jurisdiction to decide the present complaint as the property in question is situated at premises no. 64/8/2/379, Raipur Road, P.S. Jadavpur, Kol-92.
That the opposite parties in spite of received the major advance money i.e Rs.30,50,000/- from the complainants they did not take any positive steps or imitative to registered the flat of the said flat to the complainants till the date of
That the complainants requested several times to the opposite parties for registration of the flat but the opposite parties make no response do need as per sale Agreement.
That the opposite parties on all occasions assured the complainants but they did not make any endeavour to execute and register the Deed of Conveyance in favour of the complainants in respect of the said flat .
That as per terms and conditions of agreement for sale that the registration work were be completed by the OPs within stipulated time mentioned in the sale agreement. but till the date of filing the complaint petition no positive response came from the opposite parties, and such activities of the opposite parties shall be deemed be as refusal of service as to execute and register the Deed of Conveyance in favour of the complainant is deficiency of services
The opposite parties did not comply with the requisition of the said agreement and the request of the complainant which have constrained the complainants to file this case.
The main question for consideration before us is whether the opposite parties are deficient in service by not registered the flat in question within stipulated period as per sale agreement.
And our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged.
Our view regarding entitlement of getting relief sought by the complainant is also affirmative
The complainant and contesting OP No. 5 have filed written version in the case but not adduced any evidences, in Reply and also not forwarded any Brief Note of Argument at the time of advancing oral argument in the case.
We have applied our mind and gone though the material on record together with the Annexure /documents filed by both the parties.
Hence we find the inordinate delay on the part of the Ops in execution of deed of conveyance with respect to it.
That petitioner are suffering for the flat, as the construction of the flat has not been fully completed by the OPs as per Agreement for Sale and for such petitioners suffered huge monetary loss.
That Complainants case is that the purported activities of the OPs shows and established the activities of ops are deficiency in services which ought to be provided as per terms and condition of sale agreement, whereas some specific terms and conditions though willfully and deliberately failed to carry out the by ops and failed to provide the services and flat as enumerated in the Agreement for Sale dated 10.11.2008.
Thus it was necessary to ops, on receipt of the total consideration as mentioned in the agreement for sale they should execute and registered the deed of conveyance in respect of the flat which mentioned in the second schedule of the sale agreement in favour of the complainants.
We have applied our mind and meticulously gone through the materials on record. In the written version submitted by OP No. 5, we do not find any reasonable ground and proof in support of OP No. 5’s contention that the he is ready for registration of the flat in favour of the complainant ,but other OPs are denied to Execute and registered . Moreover there was no denial on the part of the OPs with respect to receipt of the payment made by the complainant in terms of the agreement for Sale dated 10.11.2008, there was an established fact of deficiency in service by way of making breach of contract as per the agreement for sale.
By all means we are of the opinion that non filing of evidence and assurances of registration by the OPs are a clear cut proof of deficiency in service on the part of the OPs.
In our opinion, the complainants have succeeded in establishing his case and thereby entitled to get relief.
Hence it is
ORDERED
CC No.490/2021 is allowed against all OPs with cost.
- All opposite parties are directed to execute and register the deed of conveyance in respect of the flat as mentioned in second schedule of the sale agreement and schedule of the complaint petition in favour of the complainants on receipts of balance consideration money if any within 60 days from the date of this order.
- Opposite parties are directed to pay Rs. 1,00,000/- as compensation for harassment and mental agony and also pay Rs.20,000/- towards cost of litigation to the complainant within 60 days from the date of this order.
- The opposite parties are also directed to provide other articles and things, (i.e in completely decorated flat with furniture fittings, A/C machines etc ) as mentioned in the sale agreement.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
