Order No. 10 dt. 17/03/2020

        The case of the complainant in brief is that the complainant entered into a development agreement, power of attorney and agreement on 12/12/2005 whereby the complainant agreed to purchase the schedule property as mentioned in the complaint petition. In the said agreement for sale entered into by and between the owners viz. Sri Hari Charan Chokhany, Sri Mohanlal Chokhany, Sri Basant Kumar Chokhany, Sri Arun Kumar Chokhany, Ashok Kumar Chokhany, Sri Vinod Kumar Chokhany, Sri Kailash Pati Chokhany. It was stated that prior to the execution and registration of the deed of conveyance dated 23/11/2007 one of the co-owners viz Basant Kumar Chokhany having undivided 1/5^th share in the property in question died intestate on 06/12/2006 leaving behind four daughters and one son viz. Jayashree Chokhany, Madhushree Chokhany, Poonam Chokhany, Mrs. Rajshree Chakraborty (Chokhany) and Ashish Chokhany as his legal heirs and thus the undivided 1/5^th shares could not be conveyed and/or transferred in favour of the complainant. The property as mentioned in second schedule of the complaint in the subject matter of the deed of conveyance dated 23/11/2007 was provided through developer’s allocation. The complainant was assured that balance 1/5^th share of Basant Kumar Chokhany would be conveyed to the complainant later by the legal heirs of Basant Kumar Chokhany. Subsequently, the complainant managed to get a deed of conveyance on 21/02/2019 executed in their favour by only two legal heirs and legal representative of Late Basant Kumar Chokhany out of five and got the same registered in the office of Additional Registrar of Assurance II, Kolkata for the year 2019. Although remaining three heirs Late Basant Kumar Chokhany are also bound to convey their shares to the complainant as per the agreement for sale. The o.p. no.1 being the developer confirmed such execution and registration as confirming party thereof. In view of such execution and registration of deed of conveyance in favour of the complainant in respect of 2/25^th shares of Late Basant Kumar Chokhany and o.p. nos. 2 to 4 refused and avoided to convey and/or transfer their undivided 3/25^th shares interest inherited by them deceased father Basant Kumar Chokhany. The complainant requested the o.p. nos. 2 to 5 to execute and register the deed, but they failed to execute and register the same, for which the complainant filed this case praying for direction upon the o.ps to execute and register the deed of conveyance in favour of the complainant in respect of the C Schedule property as mentioned in the complaint petition being undivided 3/25^th share / interest of Late Basant Kumar Chokhany in respect of the flat no.2E, 2^nd Floor, Block-II of Premises no.21, Baranashi Ghosh Street, Kolkata – 700 007 as well as to pay compensation and litigation cost.

            In spite of receipt of notices the o.ps did not contest this case by filing w/v and as such, the case has proceeded ex parte against them.

            The complainant has adduced evidence stated inter alia that the complainant entered into a development agreement, power of attorney and agreement on 12/12/2005 whereby the complainant agreed to purchase the schedule property as mentioned in the complaint petition. In the said agreement for sale entered into by and between the owners viz. Sri Hari Charan Chokhany, Sri Mohanlal Chokhany, Sri Basant Kumar Chokhany, Sri Arun Kumar Chokhany, Ashok Kumar Chokhany, Sri Vinod Kumar Chokhany, Sri Kailash Pati Chokhany. It was stated that prior to the execution and registration of the deed of conveyance dated 23/11/2007 one of the co-owners viz Basant Kumar Chokhany having undivided 1/5^th share in the property in question died intestate on 06/12/2006 leaving behind four daughters and one son viz. Jayashree Chokhany, Madhushree Chokhany, Poonam Chokhany, Mrs. Rajshree Chakraborty (Chokhany) and Ashish Chokhany as his legal heirs and thus the undivided 1/5^th shares could not be conveyed and/or transferred in favour of the complainant. The property as mentioned in second schedule of the complaint in the subject matter of the deed of conveyance dated 23/11/2007 was provided through developer’s allocation. The complainant was assured that balance 1/5^th share of Basant Kumar Chokhany would be conveyed to the complainant later by the legal heirs of Basant Kumar Chokhany. Subsequently, the complainant managed to get a deed of conveyance on 21/02/2019 executed in their favour by only two legal heirs and legal representative of Late Basant Kumar Chokhany out of five and got the same registered in the office of Additional Registrar of Assurance II, Kolkata for the year 2019. Although remaining three heirs Late Basant Kumar Chokhany are also bound to convey their shares to the complainant as per the agreement for sale. The o.p. no.1 being the developer confirmed such execution and registration as confirming party thereof. In view of such execution and registration of deed of conveyance in favour of the complainant in respect of 2/25^th shares of Late Basant Kumar Chokhany and o.p. nos. 2 to 4 refused and avoided to convey and/or transfer their undivided 3/25^th shares interest inherited by them deceased father Basant Kumar Chokhany. The complainant requested the o.p. nos. 2 to 5 to execute and register the deed, but they failed to execute and register the same, for which the complainant filed this case.

            It is found from the materials on record that the developer being represented by o.p. no.5 who was the power of attorney holder executed the deed of sale in favour of the complainant, but Basant Kumar Chokhany died, as such the legal heirs inherited 1/5^th share left by deceased Basant Kumar Chokhany. Subsequently a deed of conveyance was executed by two heirs and legal representative of Late Basant Kumar Chokhany out of total five, but the remaining three i.e. o.p. nos. 2, 3 and 4 refused and/or avoided to convey and/or transfer their 3/25^th shares in favour of the complainant which they inherited from their deceased father Basant Kumar Chokhany. The complainant has filed documents in support of his contention. Since the evidence of the complainant has remained unchallenged, so we have no other alternative but to accept the contention of the complainant. In view of the facts and circumstances as stated above, we hold that there is deficiency in  service on the part of o.p. nos. 2 to 4 and they must be given direction for execution and registration of deed of conveyance in respect of their undivided shares inherited from their deceased father Basant Kumar Chokhany. Accordingly, we hold that the complainant will be entitled to get the relief. Thus the case is disposed of accordingly.

            Hence, ordered,

            That the CC No.321/2019 is allowed ex parte with cost against the o.p. nos. 2 to 4 and dismissed ex parte against other o.ps without cost. The o.p. nos. 2, 3 and 4 are jointly and/or severally directed to execute and register the deed of conveyance in respect of their respective shares of the disputed flat in favour of the complainant along with to pay compensation of Rs.5,000/- (Rupees Five Thousand Only) each to the complainant for harassment and mental agony and litigation cost of Rs.5,000/- (Rupees Five Thousand Only) within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.