Date of filing:13.08.2021
Date of Judgment: 18.01.2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Smt. Sharmistha Sur and Debnil Dey under section 35 of the Consumer Protection Act against opposite parties (referred as O.P.s hereinafter) namely (1) Chowdhury Construction (2) Sri Sushanta Chowdhury (3) Sri Bani Sanyal (4) Sri Soumitra Sanyal (5) Sri Pinaki Sanyal and (6) Ardhendu Ghosh alleging deficiency in service on the part of the opposite parties.
The case of the complainant in short is that opposite party no. 3,4 & 5 being owners’ of the schedule ‘A’ property entered into a development agreement with the O.P. No. 1 being represented by its proprietor O.P. No. 2 on 22/02/2018 to raise a four storied building consequent to the said development agreement, on 06/03/2010. Husband of the complainant No. 1 and the father of the complainant No. 2 namely Sri Swapan Kr. Dey (since deceased) entered into a Memorandum of Agreement to purchase one flat described in the schedule ‘B’ of the complaint at a consideration price of Rs. 7,35,000/- out of which said Swapan Kr. Dey predecessor in- interest of the complainants paid sum of Rs. 6,60,000/-. Rs. 5,00,000/- out of the said 6,60,000/- was paid by an account payee cheque to O.P. No. 6 at the instruction of the O.P. No. 2 and Rs. 1,60,000/- was paid in cash to the O.P. No. 2. Possession of the flat in the newly constructed building as per agreement was already handed over to the husband of the complainant No. 1 by issuing a possession letter but the deed of conveyance was not executed in his favour either by the opposite party No. 2 or by the O.P. Nos. 3 to 5. In the mean time husband of the complainant died on 29/12/2018. Complainant No. 1 had approached to the opposite parties to execute and register the deed of conveyance in favour of the complainants but no heed was paid and thus present complainant is filed praying for directing the opposite party 1 to 5 to register the deed of conveyance in favour of the complainants in respect of the schedule ‘B’ flat, to pay compensation of Rs. 50,000/- and to pay litigation cost of Rs. 30,000/-.
On perusal of the record it appears that the notices were sent but in spite of the service no step has been taken by the O.P.s and thus the case has been heard exparte.
So the only point requires determination:-
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
In support of their claim that their predecessor in-interest namely Swapan Kr. Dey had agreed to purchase a flat and has paid sum of Rs. 6,60,000/- complainants have filed Memorandum of Agreement dated 08/03/2010 wherefrom it appears the said Swapan Kr. Dey (since deceased) agreed to purchase a flat on the South-Eastern side in the 2nd floor of the four storied building lying and situated at premises number 1/45, Rajendra Prasad Colony under Jadavpur Police Station and paid Rs. 6,60,000/- out of the settled price of Rs. 7,35,000/-. However it appears that Rs. 5,00,000/- has been paid to one Ardhendu Ghosh who is O.P. No. 6 in this case. According to the complainant the payment of Rs. 5,00,000/- was paid to him as asked by the O.P. No. 2. Be that as it may since before this commission no contrary material is forthcoming to counter or rebut the claim of the complainant, complainant is entitled to the relief as prayed for. The possession letter dated 07/07/2010 shows that the possession of the flat was handed over to the predecessor in-interest of the complainants by O.P. No. 2. A copy of the death certificate is also filed wherefrom it appears that Swapan Kr. Dey died on 29/12/2018. So complainants are entitled to execution and registration of the deed of conveyance in respect of the flat on payment of the balance consideration price of Rs. 75,000/-. However we find no justification to allow any compensation as the possession was delivered in July, 2010 but the complainant no. 1 who also represents complainant no. 2 a minor son and their predecessor in-interest sat over the matter and did not take any step for registration of the deed. No document is filed by the complainant showing that any letter was sent to the O.P.s asking for registration of the deed of conveyance.
Hence
Ordered
CC/349/2021 is allowed exparte against O.P No. 1 to 5 but dismissed against O.P. No. 6. O.P. Nos. 1 to 5 are directed to execute and register the deed of conveyance in favour of the complainants in respect of the flat as per Memorandum of Agreement dated 08/03/2010 within two months from this date on payment of balance consideration price of Rs. 75,000/- by the complainants to O.P. No. 1 being represented by O.P. No. 2. O.P. Nos. 1 to 5 are further directed to pay litigation cost of Rs. 8,000/- to the complainants within the aforesaid period of two months.
