Dt. of filing -18/06/2019
Dt. of Judgement – 18/02/2020
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Bholanath Malakar under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Das Enterprise 2) Ranju Das 3) Anjurani Das 4) Ujjal Das 5) Jewel Das 6) Mrs. Apel Das (Ray) 7) Rani Das (Pal) 8) Ruma Das (Bhowmik) and 9) Dalia Das (Dey), alleging deficiency in service on their part.
Case of the Complainant in short is that one Ganesh Chandra Das since deceased was the owner in respect of the property being K.M.C Premises No.64/8/1/138, Raipur Road mailing address 1/133, Sree Colony, Kolkata-700 092. He had acquired the property by way of gift dated 18/10/1989 executed by the Government of West Bengal through the Governor of State of West Bengal. In order to develop the property said Ganesh Chandra Das entered into a development agreement dated 12/12/2014 with Opposite Party No.1 & 2 which was also registered on 15/12/2014. Subsequently Complainant entered into an agreement with the Opposite Party No.1/developer dated 30/09/2016, to purchase a flat on the 2nd floor of the said building at a consideration of Rs.17,00,000/-. Complainant has paid total amount of Rs.16,75,000/- out of Rs.17,00,000/- and he is ready and willing to pay the balance amount of Rs.25,000/-. The possession of the flat has already been delivered by the Opposite Party No.1 to the Complainant on 5/10/2016. But inspite of repeated request the Deed of Sale has not been executed. Said original owner Ganesh Chandra Das died on 3/5/2017 and after his death Opposite Parties No.3 to 9 have become the owner of the said property being legal heirs of said Ganesh Chandra Das. Since on repeated request Opposite Parties did not execute and register the sale deed, present complaint has been filed praying for directing the Opposite Parties for execution and registration of deed of sale in respect of the flat as per agreement.
Complainant has annexed with the complaint, copy of the development agreement dated 12/12/2014 entered into between owner Ganesh Chandra Das with the Opposite Party No.1 represented by the proprietor Opposite Party No.2, copy of the agreement for sale entered into between the Complainant and the Opposite PartyNo.1 dated 30/09/2016, copy of the letter sent to the Opposite Parties by the Complainant dated 3/4/2019 requesting to execute and register the deed of sale.
On perusal of record it appears that inspite of service of notice, none of the Opposite Parties appeared nor filed any written version and thus vide order dated 8/11/2019, case came up for ex-parte hearing.
During the course of the trial Complainant filed affidavit-in-chief and ultimately argument has been advanced.
So the only point requires determination is:
Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
It is claimed by the Complainant that development agreement was entered into between owner Ganesh Chandra Das and the Opposite Party No.1 a Proprietorship Firm, on 12/12/2014 which was also registered on 15/12/2014 and consequent to the said development agreement Opposite Party No.1 agreed to sell the flat by an agreement for sale dated 30/09/2016 in favour of the Complainant. Complainant has filed the copy of the said development agreement and the original agreement for sale dated 30/09/2016.
On perusal of agreement for sale it appears that the Opposite Party No.1 being represented by its proprietor namely Opposite Party No.2 agreed to sale the flat describe in the Schedule ‘B’ of the agreement at a consideration of Rs.17,00,000/-. Said agreement was executed by the developer in his capacity as developer and also as Constituted Attorney of the owner namely Ganesh Chandra Das. In order to show that an amount of Rs.16,75,000/- has already been paid by the Complainant, Complainant has filed the copy of the Bank Pass Book showing payment. Memo of consideration in the agreement also reveals payments of Rs.16,75,000/-. There is no contrary material before this Forum in order to counter or rebut the claim of the Complainant about payment of amount of Rs.16,75,000/- . Moreover it is the admitted case of the Complainant that the possession has already been delivered to him on 5/10/2016. So on consideration of the documents filed by the Complainant as the Opposite Parties No.3 to 9 being the owners and Opposite Party No.1 being the developer has not executed and registered the deed of sale, Complainant is entitled to the deed of sale as per agreement in respect of the flat on payment of balance consideration of Rs.25,000/-.
Hence,
ORDERED
CC/289/2019 is allowed ex-parte.
Opposite Parties are directed to execute and register the deed of sale in respect of the flat in favour of the Complainant as per agreement dated 30/09/2016, within 60 days from the date of this order on payment of balance consideration price of Rs.25,000/- by the Complainant to Opposite Party No.1.
