Order-17.

Date-22/06/2016.

This is an application u/s.12 of the C.P. Act, 1986.

          Case of the complainant, in short, is that OP1 is the promoter and developer of premises No.99/3, Dr. Girindra Sekhar Bose Road, P.S. Kasba, Kolkata – 39 and the OP2 and OP3 a to d are the owners of the said premises.  OP1 has constructed a G+3 and particularly three storied building at the premises No. 99/3, Dr. Girindra Sekhar Bose Road, P.S. Kasba, Kolkata – 39.  Shri Abinash Chowdhury, the husband and the father of the complainants, now deceased, entered into an agreement with OP1 for purchasing a flat on the north-

west side middle portion on the ground floor measuring about 300 sq ft. at premises No. 99/3, Dr. Girindra Sekhar Bose Road, P.S. Kasba, Kolkata – 39.  OP2 and Jagat Taran Bharsha, (now deceased), the predecessor in interest of OP3 a to d jointly executed a General Power of Attorney in favour of OP1 in respect of the said premises and it was duly registered also at the office of the Additional Registrar of Assurances-III, Kolkata.  OP1 has received the total consideration for selling the said flat to the husband and father of the complainants and the OP1 also acknowledged it through possession letter dated 15-04-2010 but till date the OPs have not executed any registered deed of conveyance in respect of the complainant in respect of the said flat.  The complainants also served a legal notice dated 14-07-2015 upon the OPs but to no good.  The complainants requested the OPs on several occasions for execution and registration of the deed of conveyance in favour of the complainants in respect of the said flat but till date the OPs have done nothing regarding to that effect.

          Hence, this case.

          OP1 entered into appearance and contested the case in filing written version.  The other OPs, however, have not contested the case and the case has proceeded ex parte against the remaining OPs.

          In filing written version OP1 has stated that the case is not maintainable either in law or in fact.  It is stated in the written version that OP1 handed over the possession of the flat in finished condition to the complainant and simultaneously the OP1 requested the complainant to get registered the said flat but the complainant denied the same.  OP1 further states that the OP never refused to execute and register the deed of conveyance in favour of the complainant.  It is also stated in the written version that Smt. Shanti Rani Das alias Dasi, Sri Jagat Taran Bharsa being the owner of the said land during their life time executed a general power of attorney in the favour of the OP1 empowering thereby to execute and register Deed of Conveyance.  The said land owners published regarding cancellation of said Power of Attorney in Bengali Newspapers .Bartaman. on 24-11-2010.  The OP informed the complainants regarding the said cancellation of Power of Attorney and also expressed his inability to execute deed of conveyance in favour of the complainant.

          It is further stated that due to demise of Jagat Taran Bharsha being one of the landowners, the said Power of Attorney has become invalid and as such, it is denied that OP1 refused to execute deed of conveyance in favour of the complainants.  It is stated that the allegation of the non-execution of Deed of Conveyance by the OP1 in favour of the complainants is false and motivated.  This OP has also denied any deficiency of service or unfair trade practice, on his part.  This OP has prayed for dismissal of this case against it.

Points for Decision

Whether the complainant is entitled to get the relief as prayed for.

Decision with Reasons

We have perused the evidences on record and documents thereon.  It appears that complainant filed the instant suit against OPs have effecting registration of the flat on execution of deed of conveyance.  OP1 is the developer of the premises in question and he is also the sole proprietor of M/s. Loknath Builder and Contractor having office and residence at 39/B, Bose Pukur Road, P.S. Kasba, Kolkata – 700 042 and the OP2 and OP3 a to d are the owners of the premises in question.  It also appears from the documents on record that oP1 has received the total consideration for selling the said flat to the husband and father of the complainants and the OPs also acknowledged such receipt of money through possession letter dated 15-04-2010 (Annexure-C referred to). 
We have also gone through stipulation as contained in Para 7 of Page 4 of the Agreement Deed dated 26-12-2004 it is stipulated therein that the 2^nd party is bound to get a Deed of Conveyance executed and registered in favour of the 1^st party.  We find that the OPs have not executed any Deed of Conveyance or registered the flat in favour of the complainants.  We also found that the legal heirs of Late Jagat Taran Bharsha have been brought on record and are parties in this case also but they have not contested the case for the reasons best known to them.  We find that the complainants have been suffering from non-execution and registration of Deed of Conveyance and their names also cannot be mutated as owners of the said flat.  We think that there is no tangible reason for non-execution and registration of the Deed of Conveyance in favour of the complainant from the end of the OPs.  OP1 has taken the plea that the landowners have cancelled the Power of Attorney in favour of the OP1 and, as such, OP1 is unable to execute the Deed of Conveyance in favour of the complainants.  We are afraid such a plea cannot sustain in the eye of law because the landowners are also parties in this case who can say OP1 and the landowners in collusion with each other are not depriving the complainants from their legitimate right?  OPs have not complied with the conditions laid down in the agreement dated 26-12-2004.  The OPs are depriving the complainants from their legitimate right and are unwilling to execute and register the Deed of Conveyance in favour of the complainant by taking different pleas.  We think that the complainants are entitled to get relief as per prayer in the complaint.  We also find that the complainants are suffering from materials loss or damage for the negligent and deficiency caused on the part of the OPs.  The OPs are guilty of deficiency in service and unfair practice of trade

Hence,

Ordered

That the case be and the same is allowed on contest against OP1 and ex parte against remaining OPs with a cost of Rs.5,000/- each.

          OPs are directed to execute sale deed and to register the same in favour of the complainant in respect of the flat which is under the possession of the complainant within 45 days from the date of this order when entire amount has been paid by the complainant to the OP2 developer.

          If the OPs fail to execute the sale deed by registering it within the stipulated period in that case complainant shall have to file an application before this Forum for getting execution and registration of the sale deed by this Forum and for this purpose complainant shall have to bear all costs and service charges, execution and registration charges of the sale deed and also pay the service charges for deputing officer on behalf of this Forum for execution and registration of the sale deed on behalf of the OPs.

          OPs are directed to comply the order failing which OPs shall have to pay penal damages of Rs.2,000/- per month till final completion of the sale deed in respect of the case flat and that shall be deposited to State Consumer Welfare Fund, West Bengal vide this Forum.

          OPs are hereby directed to comply the order within stipulated period of time failing which the complainant will be at liberty to put the order into execution as mandated u/s.25 read with Section 27 of the C.P. Act.