Dt. of filing- 28/06/2019
Dt. of Judgement- 19/02/2021
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed under Section 12 of the Consumer Protection Act,1986 by the complainant viz. Sri Raghabendra Chandra Banerjee against the Opposite Parties ( hereinafter referred to as O. Ps) viz. (1)HI-Rise Nirman Udyog Pvt. Ltd. represented by its Director Sri Ajay Sen, (2) Smt. Sadhana Bhaduri alleging deficiency in service on their part.
Case of the complainant in short is that OP No.1 being developer and OP No.2 being the Owner entered into a development agreement to raise a building after demolishing the old structure. Since the complainant was in search of a flat , he approached the OP No.1 to purchase a flat in the said project and by an agreement for sale dated 03.04.1996, OP No.1 agreed to sell the flat to the complainant as described in the schedule of the said agreement at a consideration of Rs. 2,13,750/- in respect of the land cost and Rs. 4,80,000/- towards the cost of construction. Complainant has paid the entire consideration as agreed and OP No.1 the developer has also handed over the possession of the said flat to the complainant and the complainant has been in possession of the same. But the OPs have not executed the deed of conveyance in favour of the complainant in spite of the repeated requests. So the present complaint is filed for directing the OPs to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant , to pay compensation of Rs. 3,00,000/- and to pay the cost of litigation of Rs. 50,000/-.
Complainant has annexed the copy of the said agreement dated 03.04.1996, Electricity bill, the letter of handing over the possession, photocopy of cheques showing payment and notice sent by the complainant to the OP through his Ld. Advocate dated 30.03.2019.
On perusal o the record it appears that inspite of service of notice , no step was taken by OP No.2 as well as OP No.1. So, the case was directed to be proceeded exparte against OPs.
During the course of the trial, complainant filed affidavit in chief and also subsequently filed the notes of argument. At the time of argument, OP No.1 also appeared and filed Brief Notes of argument which was accepted as it is settled Principles of Law that the OP who even though had not filed Written Version, can participate during the argument.
So, the following points requires determination:-
- Whether there has been any deficiency in service on the part of the OPs ?
- Whether the complainant is entitled to the relief as prayed for ?
Decision with reason
Both the points are taken up together for a comprehensive discussion. Complainant has claimed that he purchased the flat in question by an agreement dated 03.04.1996 and has paid the entire consideration price. On such payment he has also been handed over possession of the flat by the OP No.1 but deed of conveyance has not been executed in his favour by the OPs. In support of his claim, complainant has filed the copy of agreement entered into between the parties and it appears from the said agreement that the OP No.1 executed the said agreement in his capacity as constituted attorney of the owner and as developer. Even though many receipt have been filed by the complainant showing the payment of the consideration price but it appears from the BNA filed by the OP No.1 that the OP No.1 has admitted about the execution of the agreement and also payment of the consideration by the complainant. It is categorically stated by him that on payment of the entire consideration in terms of agreement for sale by the complainant, the developer OP No.1 handed over the possession. However, it is contended by the OP No.1 that the deed could not be executed and registered due to some problem with the O P No.2. So, since admittedly, the deed of conveyance has not been executed by the OPs in favour of the complainant, he is entitled to execution and registration of the deed in his favour as per agreement. He is also entitled to compensation as he will have to pay the registration cost for the deed of conveyance as per present market value.
So, Rs. 50,000/- as compensation and litigation cost of Rs. 10,000/- will be justified.
Hence ,
Ordered
CC/317/2019 is allowed against the Opposite Parties. Opposite Parties are directed to execute and register the deed of conveyance in respect of the flat in favour of the complainant as per agreement dated 03.04.1996 within two months from this date. Opposite Parties are further directed to pay compensation of Rs. 50,000/- and litigation cost of Rs. 10,000/- to the Complainant within the aforesaid period of two months.
