Date of filing: 30/07/2020
Judgment date: 04/08/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed under section 35 of the Consumer Protection Act, 2019 by Shyam Chand Chatterjee against the opposite parties (referred as OPs hereinafter) namely (1) Sri Debasis Nag (2) Sri Kalyan Nag (3) Smt. Madhabi Nag and (4) Sri Mukul Saha alleging deficiency in service on their part.
Case of the complainant in short is that OP 1 to 3 being land owner had entered into a development agreement dated 07/12/2008 with the OP 4 the developer to construct a G+3 building on the premises no. 27, Kanungo Park under Police Station Jadavpur presently under Patuli Police Station. Complainant by an agreement for sale dated 30/7/2010 entered into between the parties agreed to purchase a flat along with car parking space described in the schedule ‘B’ of the agreement at a total consideration price of Rs. 4,11,000/-. Complainant has paid the entire consideration price of Rs. 4,11,000/- and the possession of the flat and the car parking space has also been delivered by the OP 4 the developer to the complainant on 24/10/2012. But in spite of repeated request the OPs have not executed and registered the deed. A notice was also sent dated 06/07/2020 by the complainant upon the OPs to execute and register the deed but all in vain. So the present complaint has been filed praying for directing the OPs to execute and register the deed of conveyance in respect of the flat and car parking space as per agreement for sale dated 30/07/2010, to pay compensation of Rs. 20,000/- towards harassment and Rs. 50,000/- as litigation cost.
On perusal of the record it appears that only OP 4 has contested the case by filing the written version contending specifically that the complainant was occupying the entire premises as an outsider and as the OP 4 being the developer could not obtain the sanctioned building plan unless the premises was vacated by the occupant, OP 4 was forced to negotiate with the complainant. The consideration price of the flat and car parking space was actually Rs. 8,00,000/- and the sum of Rs. 3,89,000/- is still to be paid by the complainant. So OP 4 has prayed for dismissal of the case.
OP 1 to 3 in spite of the service of notice, did not turn up so the case has been heard exparte against them.
During the course of the trial complainant filed examination in chief on affidavit but the contesting OP 4 did not take any step nor filed any questionnaire. The OP 4 also failed to adduce any evidence in spite of opportunity given to him. So ultimately case was fixed for argument. As usual OP 4 did not take any step. Thus the complainant has been heard.
The only point requires determination is whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASONS
In support of his claim complainant has filed the copy of the agreement for sale dated 30/07/2010 entered into between the parties. It is evident from the written version filed by the OP 4 the developer that the execution of the said agreement for sale has not been disputed and denied. On perusal of the agreement for sale it appears that the complainant was occupying built up area of 830 sq. ft. in the existing building since 1986 and has been using the said area for residential purpose as an age old tenant. So the said recital in the agreement indicates that the complainant was a tenant in the said premises. It further appears that as complainant was occupying as tenant, to accommodate him, OPs agreed to sell a flat measuring 830 sq. ft. super built up area in the 3rd floor being flat no. C-3 and the car parking space in the ground floor measuring 140 sq. ft. in the proposed building to be constructed. Consideration price was settled at Rs. 4,11,000/-. There is no disputes as evident from the written version filed by OP 4 that the complainant has paid the said entire consideration price of Rs. 4,11,000/-.
So far as contention of the OP 4 that the actual price of the flat and car parking space was Rs. 8,00,000/-, no document has been filed by the OP 4 to substantiate such claim. Since execution of the agreement for sale is not disputed and consideration price in the agreement has been categorically mentioned of Rs. 4,11,000/-, the contention of OP 4 that the actual price was Rs. 8,00,000/- cannot be accepted. Same appears to be an afterthought and subsequent development for the purpose of this case. It will not be out of place to mention here that the complainant has also filed a money receipt which has been issued by the OP 4 on 24/10/2012 while handing over of the possession wherein OP 4 has acknowledged the payment of Rs. 4,00,000/- by the complainant as full and final payment. Rs. 11,000/- was already paid to OP at the time of execution of agreement for sale.
So in view of discussion as highlighted above, the complainant is entitled to the execution and registration of the deed as prayed by the complainant. However we do not find any justification to pass an order of compensation as complainant himself also remained silent since after handing over of possession in the year 2012.
Hence
ORDERED
CC/147/2020 is allowed on contest against OP 4 and exparte against OP 1 to 3. OPs are directed to execute and register the deed of conveyance in favour of the complainant in respect of the flat and car parking space as per agreement for sale dated 30/07/2010, within 45 days from the date of passing of this order. OPs are further directed to pay litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of 45 days.
