Sri Ashoke Kumar Pal, President.

The case of the complainants in short is that for the development of the plot of land situated at 'Naha Palace', Taltala Government Colony, P.O. -Batanagar, P.S. - Maheshtala ,Dist.- South 24 Pgs, Kolkata-700140, the O.P. Nos. 1, 2 and 3 claiming themselves to be the owners of the property entered into a development agreement dated 08.03.2016 with the developer Billal Hossain Mondal who was the sole proprietor of the company under the name and style M/S. Sagar Enterprise for the purpose of doing development works. The O.P. Nos. 1, 2 and 3 executed the power of attorney in favour of the said promoter / developer Billal Hossain Mondal. The complainants are the flat owners of the building known as 'Naha Palace' as aforesaid who entered into an agreement for sale (Annexure-B) collectively dated 01.01.2016, 12.08.2016, 23.08.2017, 23.05.2018 and 21.01.2017 with the promoter/builder Billal Hossain Mondal who took the entire responsibility to complete the project. As per terms of the agreement the complainants made payment of the major portion of the consideration amount to the said Billal Hossain Mondal and proper money receipts have been provided for the same. As per following statement the payments have been made by the complainants:-

(Total Rupees Sixty two Lacs six thousand eight hundred only).

Copies of money receipts are marked as Annexure-C collectively. The promoter/developer Billal Hossain Mondal delivered the possession of the flats to the complainants long ago who are residing therein without any obstruction from any corner. But the registration of the deed of conveyance has not been made. In the meantime Billal Hossain Mondal died on 01.12.2019 and thereby the obligation of the execution and registration of the deed of conveyance has been shifted from the owners. After the death of promoter Billal Hossain Mondal the complainants repeatedly requested the O.P. Nos. 1, 2 and 3 the owners herein to complete the registration of the flats. But the O.Ps. are reluctant to execute and register the proper deed of conveyance in favour of the complainants and / or their nominated person. The O.P. No. 3 Shyamali Naha through her advocate sent a notice on 30.06.2020 to quit and vacate to the complainants (Annexure-D). Apart from the O.P. Nos. 1, 2 and 3 there are four legal heirs also in the said property and one of them is still minor. The said fact has been suppressed by the O.P. Nos. 1, 2 and 3. The O.P. No. 3 filed a case under section 7 of the Gurdian and Wards Act before the Ld. District Judge, Hooghly at Chinsura being ACT VIII case No. 46 of 2020 for appointment of guardian and the complainants are impleaded as party to that case. As the owners failed and neglected to execute and register a proper deed of conveyance in favour of the complainants, a notice dated 05.01.2021 was sent through Advocate Ujjal Kumar Das. The O.Ps. received the said notice but no fruitful result was achieved. The complainants made payment of Rs. 62,06,800/-. But the O.Ps. took no steps to execute and register the deed of conveyance in terms of the agreement for sale and hence, this case.
O.P. Nos. 3, 6 and 7 contested the case by filing W.V. contending that the case of the complainants is false and not maintainable. The specific case of the O.P. Nos. 3, 6 and 7 is that the land in question measuring 4 kathas upon which the multistoried building is situated originally belonged to Phonibhusan Naha who died intestate leaving behind 3 sons e.g. Subhas, Kajal and Pradip who also died intestate leaving behind Bonani (widow), Krishna (widow) and Shyamali (widow) i.e. O.P. Nos. 1, 2 and 3 respectively. O.P. No. 1 Bonani has a son Amit, O.P. No. 2 Krishna has a son Sumit and a daughter Sriparna (O.P. No. 6) and O.P. No. 3 Shyamali has a minor daughter Sreetama (O.P. No. 7). Therefore the legal heirs of late Phonibhusan Naha inherited undivided and undemarcated share of land. At no point of time the holders of 16 annas interest of the above referred property together lawfully gave any person or any authority which can be acted upon either to promote/develop the above property or cause sale of apartment therefrom. The O.P. No. 7 being the minor daughter of O.P. No. 3 she already applied before the Ld. District Judge, Hooghly at Chinsura being Act Vlll case No. 46 of 2020 for appointment of guardian under section 7 of the Guardian and Wards Act for undivided 1/9 th share of the land which is still pending for disposal. The O.Ps. also denied the other material averments of the petition of complaint para wise and prayed for dismissal of the case with cost.
The instant case proceeded ex-parte against the O.P. Nos. 1, 2, 4 and 5.
From the pleading of the parties the following points for consideration has been formulated:-

        POINTS FOR CONSIDERATION:

1. Are the complainants  consumers?
2. Are the O.Ps. guilty of deficiency in service and unfair trade practice?
3. Are the complainants entitled to get reliefs as prayed for?

  DECISIONS WITH REASONS:

Point No. 1:

On perusal of the case record along with the copies of documents available on record, it appears that the complainants were willing to purchase the scheduled flats morefully described in schedule of the agreement for sale dated 01.08.2016, 12.08.2016, 23.08.2017, 23.05.2018 and 21.01.2017 and the O.P. Nos. 1, 2 and 3 agreed to sell the same to the complainants for which five agreements for sale as aforesaid were made by and between the parties. The complainants paid Rs. 62,06,800/- by installments on different dates starting from 02.08.2016. Therefore, the complainants are consumers as defined in Section 2(7) of the Consumer Protection Act, 2019.

As such, Point No. 1 is decided in favour of the complainants and against the O.Ps.    

Point No. 2:

The complainants booked the scheduled flat and entered into five separate agreements dated 01.08.2016, 12.08.2016, 23.08.2017, 23.05.2018 and 21.01.2017 with the O.Ps. to that effect. The complainants also made payment of Rs. 62,06,800/- on different dates and the O.Ps. acknowledged the receipt of the same by issuing money receipts. The complainants filed copies of the money receipts along with the petition of complaint from which it appears that all the payments have been properly made. On the other hand, despite payment of the major portion of the full consideration amount by the complainants as per terms of the agreement as aforesaid, the O.Ps. failed and neglected to execute and register a proper deed of conveyance receiving balance consideration amount. The complainants finding no other alternative sent a legal notice on 05.01.2021 through Ld. Advocate Ujjal Kumar Das demanding registration of the deed of conveyance.

But it appears that there are other owners in respect of the scheduled plot of land except O.P. Nos. 1, 2 and 3. So, at no point of time the holders of 16 annas interest of the above referred property together lawfully gave any person or any authority which can be acted upon either to promote / develop the above property or cause sale of apartment therefrom. The O.P. No. 7 being minor daughter of the O.P. No. 3 she already applied before the Ld. District Judge, Hooghly, Chinsura, being Act No. VIII, case No. 46 of 2020 for appointment of guardian under section 7 of the Guardian and Wards Act for undivided 1/9 th share of the land which is still pending for disposal. This being the legal position the development agreement dated 08.03.2016 and five agreements for sale cannot be said to be binding upon all the 16 annas share holders of the property and as such all the share holders of the property are not under any obligation to comply with the terms and conditions of the five agreements for sale as aforesaid.  Therefore, it cannot be said that the O.Ps. are guilty of deficiency of service and unfair trade practice as because they are not in a position to comply with the terms and conditions of the agreements for sale as the 16 annas share holders of the property did not execute the same.

As such, the Point No. 2 is decided in favour of the O.Ps. and against the complainants.

Point No. 3:

The complainants booked the scheduled flats from the O.Ps. and made payment of Rs. 62,06,800/- on different dates. But the O.Ps. are not in a position to comply with the terms and conditions of the five agreements for sale as stated herein before as the 16 annas share holders of the property i.e. all the O.Ps. did not execute the same. For execution and registration of the deed of conveyance representation of 16 annas share holders of the property are necessary for transferring right, title and interest in favour of the purchaser which is not possible at this moment due to Pendency Act VIII the case No. 46 of 2020 before the Ld. District Judge, Hooghly, Chinsura for appointment of guardian under section 7 of the Guardian and Wards Act as because one of the share holders of the property is still minor.

This being the legal position, the complainants although consumers are not entitled to get the reliefs as prayed for.

As such, the Point No. 3 is also decided in favour of the O.Ps. and against the Complainants.

In the result, the complaint case fails. 

Fees paid is correct.

Hence, it is

                                          ORDERED

That the instant case be and the same is dismissed on contest against the O.P. Nos. 3, 6 and 7 and ex-parte against the O.P. Nos. 1, 2, 4 and 5.

We pass no order as to cost.

Let a copy of the order be sent / supplied free of cost to the parties concerned.

The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.

           President