For the Complainant - Miss. Aditi Kumar, Advocate
FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
Brief facts of the case are that OPs 1 & 2 are the owners of a land measuring about 05 Cottahs 08 Chittak with a old structure standing thereon being KMC Premises No. 22/1A Raj Krishna Ghosal Road, P.S.-Kasba, Kolkata-700042 and they entrusted OP-3 M/s. French Builders, a Partnership Firm to construct a three storied building on the said land by executing Development Agreement dated 14.07.1999. The OPs 1 & 2 also executed a Power of Attorney dated 06.08.1999 in favour of OPs 4 to 6, partners of OP-3 to execute and perform all acts and deeds on their behalf. Complainant was a monthly tenant under OP-1 in respect of a room situated on the rear portion of the ground floor of said premises. Complainant approached the OPs with an intention to purchase a flat measuring about 750 Sq. ft. super built up area on the 2nd floor of North Western Side including a covered car parking space on the front portion of the ground floor of the proposed building measuring about 120 Sq. ft. little more or less. Two Agreement for Sale dated 06.08.1999 and 07.09.2000 were executed between the complainant and the OPs 4 to 6 being the partners of OP-3. The value of the subject flat and covered car parking space were Rs.2,50,000/- and Rs.50,000/- respectively. The proposed building was constructed by the OP-3 and during such time, it was ascertained that 40 Sq. ft. of super built up area is shortage than 750 Sq. ft. of super built up area of the subject flat, a supplementary Agreement for Sale dated 23.11.1999 was executed between the complainant and OPs 4 to 6 to the effect that the Developer/OP-3 has agreed to pay Rs.800/- per Sq. ft. on 40 Sq. ft. super built up area to the purchaser / complainant on delivery of vacant peaceful possession of the flat. Complainant paid the entire consideration amount to the OPs 4 to 6 on different dates after adjusting of Rs.32,000/- from the total consideration amount as per supplementary Agreement for Sale dated 23.11.1999. The OPs 4 to 6 have delivered vacant peaceful possession of the subject flat including the car parking space to the complainant on 18.05.2005. Despite repeated requests and reminders, the OPs have not taken any initiation to execute and register Deed of Conveyance of the subject flat and car parking space to the complainant though the complainant was always ready and willing to get the Registered Deed of Conveyance. There is deficiency in service and unfair trade practice on the part of the OPs. Hence, the complainant has filed the instant consumer case praying for direction upon the OPs to execute and register Deed of Conveyance in respect of the subject flat and car parking space including compensation and litigation cost.
OPs were served of complaint. However, despite service of notices upon them, no WV is filed. Thus, the case has proceed ex parte against the OPs.
Decision with Reasons
Complainant has filed his evidence by way of affidavit supporting the allegation in the complaint. Ld. Advocate for the complainant has taken us through the consumer compliant as also the evidence adduced in support of the complaint. On perusal of the Development Agreement dated 14.07.1999, it appears to us that the OPs 1 and 2 being owners of KMC Premises No. 22/1A, Raj Krishna Ghosal Road, P.S.-Kasba, Kolkata-700042 entrusted the OPs 4 to 6 being the partners of OP-3 M/s French Builders for construction of a three storied building on the said premises and the OPs 1 and 2 also executed a power of attorney dated 06.08.1999 in the favour of the OPs 4 to 6 to execute and perform all the acts and deeds on their behalf. We have it from the Agreement for Sale dated 06.08.1999 and 07.09.2000 that the OPs 4 to 6 being the partners of OP-3 agreed to sell a flat on the second floor of north western side measuring about 750 sq. ft. super build area consisting of 02 bedrooms, 01living room, 01 kitchen, 02 toilet and 01 covered Varanda with grill together with proportionate undivided share of land and a covered car parking space measuring about 120 sq. ft. more or less on the front portion of ground floor of the proposed building. From the above documents, it is clear that agreed consideration amount of the flat and covered car parking space were Rs. 2,50,000/- and Rs. 50,000/- respectively. It is also clear from the supplementary agreement dated 23.11.1999 that the partners of OP-3 agreed to pay the complainant Rs. 800/- per sq. ft. on 40 sq. ft. super build up area during delivery of vacant peaceful possession of the said flat on the ground that the area of the subject flat is approximately 592 sq. ft. instead of 625 sq. ft. build up area. Complainant has categorically alleged that he has paid entire amount to OPs 4 to 6 being the partners of OP-3 M/s French Builders after adjustment of Rs. 32,000/- in terms of the supplementary agreement. The subject flat and car parking space were handed over to the complainant on 18.05.2005 but more than 14 years have been elapsed but till date the OPs did not execute and register Deed of Conveyance of the subject flat and covered car parking space in favour of the complainant. The OPs have opted not to file WV despite service of notice of the complaint, the above allegation of the complainant is deemed to have been admitted as correct. In order to prove said allegation, complainant has filed his affidavit reaffirming the allegations made out in the complaint petition. Thus, it stands prove that despite delivery of possession of the subject flat and covered car parking space, the OPs have failed to execute and register Deed of Conveyance in favour of the complainant. In absence of any explanation for failure to execute and register Deed of Conveyance of the subject flat and covered car parking space, we have no hesitation in concluding that the OPs have committed deficiency in service as also have indulged in unfair trade practice.
Now the question as to what should be the amount of compensation to be granted to the complainant. Ld. Advocate for the complainant however, has prayed compensation of Rs. 3,00,000/-. The amount of compensation is too much excessive as possession of the subject flat and covered car parking space have already been delivered to the complainant on 18.05.2005. Thus, in our view, OPs 4 to 6 shall pay Rs. 50,000/- as compensation to the complainant.
The complainant should bear the stamp duty and cost of registration etc.
Sequel to the above, we allow the complaint ex parte in part with following directions:-
- The OPs are directed to execute and register Deed of Conveyance of the subject flat measuring about approximately 592 sq. ft. build up area and covered car parking space measuring about 120 sq. ft. more or less to the complainant.
- The OPs 4 to 6 are jointly and severally directed to pay Rs. 50,000/- (Rupees fifty thousand) only as compensation on account of mental and physical harassment suffered by the complainant.
- The OPs 4 to 6 are jointly and severally directed to Rs. 5,000/- (Rupees five thousand) only towards litigation cost.
The above directions be complied by the OPs within a period of 45 days from the date of the order, failing which the complainant shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act, 1986 against the OPs.
Order be communicated to the complainant as per rules.
