Date of Filing: 10.12.2020
Date of Judgment: 12.09.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant, Sanjay Biswas, under section 12 of the C.P Act, 1986 against the Opposite Parties(referred to as O.Ps hereinafter) namely 1) Barun Das 2) Subhasis Bhowmick, 3) Soumitra Neogy ,4) Soumendra Shankar Neogi and 5) Mita Neogi Sanyal, alleging deficiency in service on their part.
The case of the complainant in short is that by an Agreement for Sale dated 30.7.2012 entered into between him and the O.P no.1 and 2, , complainant agreed to purchase a flat measuring an area of 272 sq.ft described in the schedule B of the agreement at a total consideration of Rs. 16 lac. The O.P nos. 1 and 2 being the developers had entered into a development agreement with the O.P nos. 3 to 5 being the owners on 29.7.2007 and also subsequently they had entered into a supplementary development agreement on 1.2.2012. Complainant has paid entire consideration amount of Rs.16 lac to the O.P nos. 1 and 2 and the possession of the flat has also been handed over to the complainant on 20.6.2013 by issuing a possession letter. But inspite of handing over possession and the complainant being always ready and willing to pay the entire expenses for registration of the deed , the O.Ps have not executed the deed in his favour . One of the land owners namely Neeta Neogi died intestate as spinster on 30.4.2016. Since inspite of repeated requests the O.Ps have failed to execute the deed of conveyance in favour of the complainant, the present complaint has been filed by the complainant praying for directing the O.Ps to execute and register the deed of conveyance in respect of the schedule flat as per agreement , to hand over copy of the completion certificate, to pay compensation of Rs. 2 lac for mental pain, agony and litigation cost of Rs. 50,000/-.
The O.P nos. 1 and 2 have contested the case by filing written version contending inter alia that they have always been ready and willing to execute and register the sale deed in favour of the complainant . But the present owners are not ready and willing to execute the deed in favour of the complainant. As the execution of the deed was beyond the control of the O.P nos. 1 and 2 , they have prayed for dismissal of the case against them.
ON perusal of the record it appears that O.P nos. 3 to 5 being the owners inspite of service of notice did not take any step and thus the case has been directed to be proceeded exparte against them.
During the course of the trial complainant has filed his examination-in-chief but O.P nos.1 & 2 did not file questionnaire or any evidence on their behalf. So, the case was fixed for argument . Heard argument of the Ld. Advocate appearing for the complainant. O.P nos. 1 and 2 have filed BNA.
So, the following points require determination:
- Whether there has been deficiency in rendering services on the part of the O.Ps?
- Whether the complainant is entitled to the relief as prayed for ?
Decision with reasons
The complainant in support of his claim, that by an agreement for sale dated 30.7.2012, he agreed to purchase a flat on payment of Rs. 16 lac as consideration price , has filed the copy of the said agreement. It may however be pertinent to point out that O.P nos. 1 and 2 in their written version have not disputed and denied either about the execution of the agreement between them and the complainant or payment of the total consideration of Rs. 16 lac to them by the complainant. It is also admitted by them that they have already delivered possession in respect of the flat to the complainant as per agreement.
The only contention which has been raised by them is that due to non-cooperation on the part of the owners being O.P nos. 3 to 5 herein, the deed of sale could not be executed in favour of the complainant in respect of the subject flat. However, on perusal of the documents filed in this case by the complainant and also the statement of O.P nos. 1 and 2 in their written version itself, it appears that they were empowered by the power of attorney executed in their favour by the owners to execute and register the sale deed in favour of the intending purchasers including the complainant. Copy of the Power of Attorney as well as the development agreement entered into between the developers and the owners has been filed by the complainant and it is evident from the power of attorney executed by the owners in favour of the O.P/developers that it has been specifically mentioned therein that the O.P/developers could enter into an agreement for sale and to receive from the intending purchaser/purchasers any earnest money and to sign , execute and register the deed of conveyance in favour of the purchasers. So, the said recital in the power of attorney executed by the owners in favour of the developers is very categorical that the developers could execute the deed of conveyance in favour of the complainant. Admittedly the possession of the flat was handed over to the complainant on 20.6.2013 and one of the owners in the development agreement namely Nita Neogi died on 30.4.2016. So, after the delivery of possession in the year 2013, it is not cleared as to why the sale deed could not be executed by the developers in favour of the complainant. There is no explanation forthcoming from the side of the O.P developers. The power of attorney executed by the owners may have lost its effect after the death of Neeta Neogi , one of the owners, but she died in the year 2016 i.e 3 years after the possession was delivered. So, the contention of the O.P/developer that due to failure on the part of the O.Ps/land owners they could not execute the sale deed in favour of the complainant is devoid of any merits. In such a situation, since admittedly no deed has been executed in favour of the complainant, complainant is entitled to the direction upon the O.Ps to execute and register the deed of conveyance in respect of the subject flat in favour of the complainant and also entitled to the compensation from the O.Ps/developers, because due to the delay in execution of the deed, complainant will have to bear the cost of registration as per the present market value.
Hence,
ORDERED
CC/326/2020 is allowed on contest against the O.P nos. 1 and 2 and exparte against O.P nos. 3 to 5.
The O.Ps are directed to execute and register the deed of conveyance in favour of the complainant in respect of the flat as per agreement dated 30.7.2012 within 3 months from this date.
The O.P nos. 1 and 2 are further directed to pay compensation of Rs. 40,000/- and litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of 3 months.
