Order-12.
Date-27/12/2011.
This is an application u/s.12 of the C.P. Act, 1986 alleging deficiency of service of the OPs.
The case of the complainants is that on 23-04-2004 they entered into an agreement with Nimai Chand Bose, deceased proprietor of M/s. N.C. Bose and Company and booked one flat on the front side of 3rd floor measuring 600 sq. ft. at 6/1B, Kamardanga Road, P.S. Entally, Kolkata – 46 @Rs.850/- per sq. ft. which area was extended to 704 sq. ft. for a total consideration 5,98,400/-(Rupees five lakh ninety eight thousand four hundred only). It is alleged that although the complainants paid the entire amount, the OP did not issue receipt for Rs.6,206/-. Thereafter, on 20-04-2008 the flat was delivered and possession handed over. The erstwhile promoter Nimai Chand Bose died on 08-01-2009. Although he fixed several dates for execution and registration of the deed of conveyance in favour of the complainant, he did not do so. The present OPs are the successors and legal heirs of Late Nimai Chand Bose. They were approached for getting the flat registered and then were sent a legal notice but while replying to the letter the present OPs did not execute and register the deed of conveyance. Hence, the complaint, praying for directions on the OPs :
- to execute and register the deed of conveyance;
- to pay compensation of Rs.50,000/- for causing harassment; and
- to pay the cost of the litigation.
Despite due service of notice, the OPs did not choose to contest the case.
The point for consideration is whether the complainants are entitled to the reliefs as prayed for.
Decision with Reasons
The complainants entered into an agreement with Nimai Chand Bose, the predecessor-in-interest of the OPs, for purchase of the flat. Nimai Chand Bose, since deceased, undertook to provide the service on receipt of the consideration money. Thus, the complainants were consumer u/s.2(1)(d) read with Section 2(1)(o) of the C.P. Act, the developer (housing construction), the service provider.
It is found that the developer was under the obligation of executing and registering the deed of conveyance in favour of the purchaser (vide clause 5 of the agreement). The complainants have submitted money receipts showing payment of the consideration money but has not submitted any money receipt for the amount of Rs.8,194/- which is claimed to have been paid without receipt. The point, however, is that no particular of date or denomination or cheque number is mentioned. The fact, however, remains that almost the entire consideration money has been paid and yet the developer or his successor-in-interest have not bothered to execute and register the deed of conveyance till date. Clearly, therefore, the OPs are liable for deficiency in service.
Non-registration of the transfer is a continuing cause of action and the present complaint cannot be said to be time-barred.
Thus, the complaint succeeds. Hence,
Ordered
That the complaint is allowed ex parte against all the OPs with costs of Rs.1,000/-(Rupees one thousand only).
The OPs are directed to execute and register the deed of conveyance in favour of the complainants within 30(thirty) days from the date of (1) payment of Rs.8,194/-(Rupees eight thousand one hundred ninety four only) by the complainants on demand of the OPs and (2) handover of the draft-deed by the complainants who shall also pay the costs, charges and fees for the process of execution and registration.
The OPs are further directed to pay, severally and jointly, Rs.2,000/-(Rupees two thousand only) to the complainants as compensation for the harassment and mental agony within 30(thirty) days from the date of communication of this order.
Let copies be supplied to the parties as per rules.
