Date of Filing : 13 December, 2018.
Date of Judgement : 10 April, 2023.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This case arises when the complainants, (1) Sri Tarun Banerjee and (2) Smt Putul Banerjee, 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 their part.
The complainant’s case is, in short, that while searching for a residential flat he 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 2nd Floor of the building for a total consideration of Rs.4,25,000/-. An Agreement for Sale was executed between the complainant and the O. P. – 1 on 03/11/2008 and before execution of this agreement complainant paid Rs.3,00,000/= to O. P. Thereafter complainant paid the entire consideration to the O. P. – 1 and the O. P. – 1 issued possession letter for the subject flat on 17/01/2009. Complainant got possession of his scheduled flat and he is enjoying the flat. But the complainant alleged that his flat has not been registered in his 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 his favour, together with Rs.4,00,000/- 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 03/11/2008 and (ii) legal notice sent on 01/08/2018 to the O. Ps. 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. O. P. – 3 did not file any evidence. Consequently argument was heard and the complainant filed Brief Notes of Argument.
We are now in a state 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 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.
DICISION WITH REASONS
1. The records in this case state that the complainant executed an agreement for sale with the O. P. – 1 on 03/11/2008 intending to purchase a flat in the second floor of the proposed building being constructed by the O. P. – 1 and prior before signing this agreement he paid Rs.3,00,000/- to the O. P. – 1. This clearly indicates that the purchaser/complainant 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 purchaser/complainant purchased a flat in this building for a consideration.
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 30/11/2008. 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 Gita 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, Selmpur Road, P. S. – Kasba (now Garfa), Kolkata – 700 031. Complainant agreed to purchase a flat in the second floor for a total consideration of Rs.4,25,000/-. It is stated in this agreement that complainant paid Rs.3,00,000/- 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 he got the possession on 17/01/2009 so it is presumed that he has paid the total consideration before getting the possession of the flat.
An interesting 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 his discontent that the Deed of Conveyance has not been executed and Registration has not been made in his 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 03/11/2008 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 main part of 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 in executing the Deed 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 found that the super built up area of the flat is 400 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 his complaint stating that she has not received any part of the consideration, yet she was always ready to sign in the Deed of Conveyance as a co-owner of the land, it was the duty of the complainant to come forward with his 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 complainant is entitled to get relief. The O. Ps. are liable to execute the Deed as per the agreement dated 03/11/2008. The O. P. – 1 is liable to pay compensation to the complainant as he failed to complete the sale process by executing the Deed. O. P. – 1 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/669/2018 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 complainants in accordance with the agreement dated 03/11/2008 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.
