Date of Filing : 13 December, 2018.
Date of Judgement : 10 April, 2023.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This case arises when the complainant, Smt. Namita Das, filed a complaint under Section 12 of the Consumer Protection Act, 1986, herein after called the said Act, against (1) Sri Biswanath Mukherjee, (2) Sri Udaysankar Dutta, (3) Smt. Bina Dutta and (4) Smt. Gita Roy, herein after called the Opposite Parties or O. Ps., alleging deficiency in service occurred from the part of the Opposite Parties.
Succinctly put, complainant’s case is that while searching for a residential flat she came in contact with the O. P. No. 1 who was assigned to construct a multi-storied building at the premises of the owners, the O. P. Nos. 2 to 4 herein above, being no. 47Z, Selimpur Road, P. S. – Kasba, presently Garfa, Kolkata – 700 031. Complainant, after physical inspection of the site, agreed to purchase a flat at the 1st Floor of the building for a total consideration of Rs.5,50,000/-. An Agreement for Sale was executed between the complainant and the O. P. – 1 on 20/05/2005 and before execution of this agreement complainant paid Rs.2,50,000/= to O. P. – 1. Thereafter complainant paid the entire consideration to the O. P. – 1 and the O. P. – 1 issued possession letter for the subject flat on or about 17/01/2009. Complainant got possession of her scheduled flat and she is enjoying her flat. But the complainant alleged that her flat has not been registered in her name and the O. P. – 1 has failed to execute the Deed of Conveyance. On 01/08/2018 complainant sent a legal notice through her Advocate to all the O. Ps. requesting them to execute the Deed of Conveyance but all notices returned undelivered. Finding no other way complainant filed this instant complaint petition with the prayer to direct the O. Ps. to execute the Deed of Conveyance in respect of the subject flat in her favour, together with Rs.5,00,000/- for compensation and Rs.20,000/- as litigation cost to be paid by the O. Ps.
Complainant filed copies of (i) Agreement (for Sale) dated 20/05/2005 and (ii) legal notice sent to the O. Ps. on 01/08/2018 as annexure to the complaint petition.
This Commission served notices, after admission, to the O. Ps. to appear and contest the case. Only the O. P. – 3 appeared before this Commission through her counsel and filed her written version. But the other O. Ps. never appeared and the case proceeded ex parte against O. P. Nos. 1, 2 & 4. Thereafter complainant filed the Affidavit-In-Chief and O. P. – 3 filed her questionnaire. Complainant then filed Affidavit-in-reply and O. P. – 3 did not file any evidence. Consequently argument was heard and the complainant filed Brief Notes of Argument.
We are now in the juncture to put forward the final decision in this case. But before delivering decision in this case we have to consider the following questions:
1. Whether the complainant can be treated as a Consumer in this case?
2. Whether the O. Ps. failed to act as per contract thereby causing deficiency in service? And
3. Whether the complainant is entitled to get relief as prayed for?
Let us take these points one by one to come to a final decision.
DICISIONS WITH REASONS
1. The records in this case state that the complainant executed an agreement for sale with the O. P. – 1 on 20/05/2005 intending to purchase a flat in the first floor of the proposed building being constructed by the O. P. – 1 and prior before signing this agreement she paid Rs.2,50,000/- to the O. P. – 1 on different dates. This clearly indicates that she is a consumer to the O. P. – 1 as defined under Section 2(1)(d)(ii) of the C. P. Act, 1986 [Section 2(7)(ii) of the C, P, Act, 2019]. She is a consumer to O. P. Nos. 2 to 4 also as they are the owners of the land on which the building was being constructed by the O. P. – 1, the developer and the complainant purchased a flat in this building..
2. Now we consider the point whether there is any deficiency in service has been occurred from the part of the O. Ps. Let us take the Agreement executed on 20/05/2005. In this agreement we see that there is a citation about the title of the land. It is stated therein that the Govt. of West Bengal gifted the subject land to Sri Nagendra Nath Dutta, S/o. Late Rash Behari Dutta in 1989. On 04/02/2001 the said Sri Nagendra Nath Dutta died on 4.2.2001 leaving behind Sri Udaysankar Dutta, Miss Bina Dutta and Smt Shibani Roy, w/o. Sri Shyam Roy, as his legal heirs and successors. His wife, Smt. Santisudha Dutta, was predeceased on 02/05/1997. In order to develop the property the legal heirs, the O. P. Nos. 2 to 4 stated herein above, executed a Development Agreement, along with Power of Attorney, with the O. P. – 1, partner of M/s. CONCRETE CONSTRUCTIONS, on 06/09/2004 for construction of a three storied building in the schedule property being premises No. 47Z, SelImpur Road, P. S. – Kasba (now Garfa), Kolkata – 700 031. Complainant agreed to purchase a flat in the first floor for a total consideration of Rs.5,50,000/-. It is stated in this agreement that complainant paid Rs.2,50,000/- on different dates as part payment prior to signing the agreement and it was decided that the rest amount would be paid at the time of possession. Complainant has not submitted any receipt of payment wherefrom we can decide when the rest amount was paid. However, as she got the possession on 17/01/2009 so it is presumed that she has paid the total consideration before getting the possession of the flat. An interesting point is to be noted here that Smt. Shibani Roy is named as the legal heir of Late Nagendra Nath Dutta and her signature is there in the agreement dated 20/05/2005. No document has been put forward by the complainant wherefrom we get the name, Smt. Gita Roy, the O. P. No. – 4 herein above.
Another point is to be noted here that the complainant was remained silent for nine and a half years after getting possession of the flat about her discontent that the Deed of Conveyance has not been executed and Registration has not been made in her favour. However as the Deed of Conveyance has not been executed so, as it is a settled principle, cause of action still persists despite the possession has been given. The O. P. – 1 promised through the agreement dated 20/05/2005 that he, along with the land owners, i.e. the O, P. Nos. 2 to 4 herein above, are bound to comply with the formalities as per existing laws. Execution of the Deed of Conveyance is the prime and proper duty in selling a flat to the purchaser which the O. Ps. have failed to perform. It is not stated in the complaint petition and also in the agreement that the complainant is purchasing the Developer’s allocation. If that may be, yet the owners have also a major role in such execution. So, we can say that the O. P. – 1/Developer as well as the other O. Ps. have failed to perform their duty thereby causing deficiency in service as defined under Section 2(1)(g) & 2(1)(o) of the C. P. Act, 1986/Sec. 2(11) & 2(42) of the C. P. Act, 2019.
Another interesting point is that the complainant never stated the area of the flat. It is the agreement only where we find that the super built up area of the flat is 975 sq. ft.
In the written version, O. P. – 3, signed as Bina Dey instead of Bina Dutta, denied all the allegations the complainant put forward in her complaint stating that she has not received any part of the consideration, yet she was always ready to sign in the Deed of Conveyance a co-owner of the land, it was the duty of the complainant to come forward with her proposal to execute the Deed. O. P. – 3 put forward some ordinary questions in her questionnaire which do not require any analytical discussion.
3. So, considering the two points discussed herein above, we come to a decision that the O. Ps. have made some deficiency in rendering service to the purchaser/complainant and that the complainant is entitled to get relief. The O. Ps. are liable to execute the Deed as per the agreement dated 20/05/2005. The O. P. – 1 is liable to pay compensation to the complainant as he failed to complete the sale process by executing the Deed, he is also liable to pay litigation cost as the complainant is compelled to knock at the door of this Commission to get her grievance be redressed.
Hence,
it is
ORDERED
That the Complaint Case No. CC/668/2018 is allowed on contest against O. P. – 3 and ex parte against O. P. Nos. 1, 2 & 4.
All the Opposite Parties are directed to execute the Deed of Conveyance in respect of the subject flat in favour of the complainant in accordance with the agreement dated 20/05/2005 and register it at the complainant’s costs. The O. P. – 1 is directed pay Rs.20,000/- as compensation and Rs.5,000/- as litigation cost to the complainant.
These directions should be complied within 60 days from the date of this order failing which an interest @ 9% will be imposed on the amount stated herein above till the execution and realisation.
