Date of filing: 15/09/2021

Judgment date: 28/03/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by the complainant Sri Mantu Gopal Mondal under section 35 of the Consumer Protection Act, 2019 against the opposite parties (referred as OPs hereinafter) namely (1) Bose Construction and its proprietor  (2) Sri Krishna Gopal Bose alleging deficiency in rendering of service on the part of the OPs.

Case of the complainants in short is that by an agreement for sale dated 15/04/2013 entered into between the parties, complainant agreed to purchase a flat along with car parking space described in the schedule of the said agreement at a total consideration price of Rs. 50,00,000/-. The complainant has already paid Rs. 48,80,000/- out of Rs. 50,00,000/- but in spite of receiving the said sum neither the possession of the flat and car parking space has been handed over to the complainant by the OPs nor deed of conveyance has been executed and registered. So the present complaint has been filed praying for directing the OPs to hand over the peaceful khas possession of the flat in a habitable condition and to execute and register the deed as per agreement, to pay Rs. 100/- per day from 26/02/2014 for the harassment and mental agony, to pay Rs. 30,000/- as litigation cost and to pay Rs. 50,000/- for unfair trade practice and further to pay interest @ 18% p.a..

On perusal of the record it appears that no step has been taken by the OPs in spite of the service of notice and thus the case has been heard exparte.

So the only point requires determination is whether the complainant is entitled to the relief as prayer for?

DECISION WITH REASON

In order to substantiate his claim complainant has filed agreement for sale entered into between the parties on 13/04/2013 wherefrom it appears property described in the 2^nd schedule of the agreement was agreed to be sold to the complainant by the OP as developer and as constituted attorney of the owners at a total consideration price of Rs. 50,00,000/-. As per the terms of agreement it is evident that the OPs being developer have been authorised by the owner by way of Registered Power of Attorney to negotiate to the intending purchasers and also to execute and register the deed of conveyance on receiving the sum towards consideration price. So according to the said terms the OPs developer have been authorised even to execute and register the deed in favour of the purchasers including the complainant. In order to support his claim regarding the payment of sum, complainant has filed the money receipts showing such payments to the OP 1 being represented by OP 2. The agreement dated 13/04/2013 disclose that till execution of the said agreement, a total sum of Rs. 20,00,000/- was received by the OP 2 the proprietor of OP 1. So the receipt showing the payment after the said agreement has to be considered regarding the total sum paid by the complainant. It appears from the receipts filed by the complainant that since after the execution of the agreement complainant has paid further sum of Rs. 8,52,000/-. So Rs. 28,52,000/- (Rs. 20,00,000/- + Rs. 8,52,000/-) has been paid by the complainant in total.

It may be pertinent to point out that the complainant has also filed one agreement-cum-oath dated 04/07/2013 and one promissory note – cum- agreement dated 08/10/2013 wherefrom it appears that OP 2 has received sum of Rs. 15,00,000/- and Rs. 6,00,000/- respectively. But the said payment cannot be considered as payment towards the consideration price of flat and car parking space as it is very specifically mentioned in the two documents that the said amount has been taken by OP 2 from the complainant as loan. So those two documents are left out of consideration. To recover the same complainant has to approach the appropriate competent Civil Court. So as complainant in spite of making payment of Rs. 28,52,000/- has neither been handed over the possession nor the deed has been executed, he is entitled to the same but subject to payment of the balance consideration price of Rs. 21,48,000/. In the given fact and situation of this case we find no justification to allow any compensation.

Hence

             ORDERED

CC/440/2021 is allowed exparte. Opposite parties are directed to hand over possession of second schedule property as per agreement and to execute and register the deed of conveyance in respect of said property as per agreement dated 13/04/2013 in favour of the complainant within three months from this date, on payment of balance consideration price of Rs. 21,48,000/- by the complainant. OPs are further directed to pay litigation cost of Rs. 8,000/- within the aforesaid period of three months.