FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the complainants in a nutshell is thatcomplainants executed an agreement for sale dated 05/11/2012 with the OP1 for booking a car parking space on the  ground floor (south east Corner), measuring an area  more or less 360 sq.ft at premises No. 99/3, Dr. G.S. Bose Road , P.S. – Kasba , Kolkata – 700039, , Kolkata – 700156 and also hired construction service one medium size covered garage / car parking space at the ground floor of the complex for a total consideration of Rs.63,02.100/- and  paid an  amount of Rs.7,00,000/- out of total consideration amount of Rs.9,00,000/-.OP1 handed over the possession of the said car parking space to the complainants and assured that deed of conveyance shall be executed in favour of the complainants very soon. But that was not happened. Complainants requested to OP1 several times for execution and registration of deed of conveyance in respect of said car parking space. But OP1 did not execute and register any deed of conveyance in respect of said flat in favour of the complainants. Complainants are ready and willing to pay the balance amount of Rs.2,00,000/- to the OP1at the time of registration of the said garage space. Subsequently complainants came to know that the Land Owner , namely JagatTaranBharsa , who executed the Power of Attorney in favour of the OP1 died leaving behind OPs 3 to 6 as his legal heirs and successor. After demise of said JagatTaranBharsa the OP1 has lost the Power of Attorney. Therefore complainants requested OPs to take steps or make arrangements for registration of said car parking space. But OPs took no steps. Thereafter complainants sent letters dated29/03/2018 and 06/01/2019 to the OPs to requesting thereby to execute and register deed of conveyance in favour of the complainants in favour of the said car parking space. But till date no step has been taken by the OPs. Hence the consumer complaint to get justice.

OP1 has contested the case by filing written version assailing the maintainability of the case and denying and disputing all allegations made out in the complaint petition. The case of the OP is that an Agreement for Sale dated 05.11.2012 for car parking space was mutually entered into by and between the parties and OP1 has already handed over the possession of the said car parking space to the complainant. OP1 is also ready to execute sale deed in favour of the complainants as per agree for sale dated 05/11/2012. Further Op1 stated that the registered Power of Attorney executed by the JagatTaranBharsa and Smt. Shati Rani Das being owner in favour of the OP1. Said JagatTaranBharsa died living behind OPs 3 o 6 as his legal heirs. After demise of said JagatTaranBharsa the Registered Power of Attorney executed by JagatTaranBharsa since deceased , has lost its validity  and as such the OP1 is unable to register sale deed in favour of thecomplainants. OP1 rquested several times to OP2 and OPs 3 to 6 for registration of sale deed in favourof the complainants but no fruit full result came out.Therefore there is no deficiency in service on the part of the OP1.

OPs 2 to 6 despite service of notice of the complaint have failed to file Written Version within the limitation provided u/s 38(2) of the Consumer Protection Act, 2019. No request for condonation of delay or extension of time for filing written version is made. Therefore, right of the OPs 2 to 6 to file WV is closed.

Complainants have filed his evidence by way of affidavit supporting the allegations made in the complaint.Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced of the complainant.

The pleadings of the complainant and the evidence on record make it quite clear that complainants booked one car parking space measuring about 360sq.ft. in the premises No. 99/3, Dr. G. S. Bose Road , P.S. _ Kasba , Kolkata – 700039 by executing an agreement for sale dated 05/11/2012. It is also not in dispute that the complainant has already paid Rs.7,00,000/- as part consideration amount towards the total  consideration amount of Rs.9,00,000/-. As per terms of the agreement, the OP1 handed over the subject car parking space to the complainants. Admitted fact is that one of the Land Owners namely JagatTaranBharsa, died leaving behind OPs 3 to 6 as his legal heirs. Therefore, the Power of Attorneyexecutd by the said JagatTaranBharsasince deceased has lost the validity. As such OP1 has no power to execute the registration of deed of conveyance. Ld. Advocate for the OP1 submitted that OP1 is willing and ready to execute the sale deed of the said car parking space in favour of the complainants and subsequently he made request to the OP2 and OPs 3 to 6 several times for registration of deed of conveyance of the said car parking space in favour of the complainants.

In view of the above circumstances it is found that the OP1 has already handed over the possession of the car parking space in dispute to the complainants and the Power of Attorney which executed in favour of the OP1, after demise of JagatTaranBharsa ,one of the Land Owners, is no more in force. It is observed by us that OP2 and OPs 3 to 6had to take necessary steps regarding the said Power of Attorney and to execute the deed of conveyance in favour of the complainants. But they fall deficient to render the service on their part. On evaluation of materials on record, it transpires that the complainant being 'consumer' as defined in Section 2(7)(i)(ii) of the C.P.Act 2019 hired the services of OPs on consideration  and OPs have failed to fulfil their part of obligations as per Agreement for Saledated 05.11.2012and thereby deficient in rendering services towards the complainant within the meaning of Section 2(11) read with Section 2(42) of the Act.  Therefore, the complainant is entitled to some reliefs.  Despite payment of bulk consideration amount and agreed to pay the balance amount, when the complainants was deprived from having a car parking space for long years, certainly it caused tremendous mental agony and harassment for which they are entitled to compensation and considering the loss suffered by them. Under compelling circumstances, the complainants have to knock the door of this Commission constituted under the Act.

It is pertinent to note that despite service of notice of the complaint, OP2 and OPs 3 to 6 did not put in appearance nor the OPs 2 to 6  filed Written Version in response to the complaint. As they have failed to controvert the allegations in the complaint by filing Written Version, the allegations in the complaint are deemed to have been admitted as correct. It is well settled that the allegation made in the complaint, if not denied is deemed to be admitted as correct. The complainants in their affidavit did support the allegations in the complaint. Therefore, it cannot be said that complainant has failed to prove deficiency in service.

In that perspective, keeping in view the decision of the Hon'ble Supreme Court reported in (2018) 5 SCC 442 (Fortune Infrastructure - Vs. - Trevor D'Lima) it can be held that a person cannot be made to wait indefinitely for possession of the flat allotted to them and in such circumstances entitled to seek refund of the amount paid by him along with compensation. Therefore, it appears to us that in the facts and circumstances when there is clear deficiency in rendering services on the part of the OP2 and OPs 3 to 6  in executing the deed of conveyance of the said car parking space the complainants are entitled to get reliefs  along with compensation and litigation cost.

In view of the above, the complaint is allowed on contest against the OP1 and on ex parteagainst the OPs 2 to 6 with the following directions:

(i) The OP1, OP2 and OPs 3 to 6 are directed to take necessary steps and make arrangements for execution and registration of the deed of conveyance of the said car parking space in favour of the complainants subject to payment of remaining balance of Rs.2,00,000/- by the complainant to the OP1.

(ii) The OPs 2  to 6 are jointly and severally directed to make payment of Rs.25,000/- to the complainant as costs of litigation;

(iii)  The OPs 2 to 6 are jointly and severally directed to pay an amount of Rs.25,000/- to the complainant as compensation for causing mental harassment and agony.

(iv) The above payments must be made within 30 days from date of communication of this order.

Let copy of the order be supplied to the parties as per C.P. Regulation.