FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.35 of the C.P. Act, 2019.
The facts of the case are that the OPs 2 to 5 are the owners of a land measuring about 7 Cottahs 15 Chittaks 13 sq. ft. more or less situated at KMC Premises No. 207A Picnic Garden Road, Kolkata-700039 and OP-1 is a Developer by profession. The OPs 2 to 5 being the owners of the aforesaid land decided to raise a multi-storied building over the said plot of land and a Development Agreement dated 24.10.2019 was executed between the OP-1 and OPs 2 to 5. OPs 2 to 5 also executed a registered General Power of Attorney dated 24.10.2019 in favour of the OP-1. Complainant had entered into an Agreement for Sale dated 15.11.2019 with the OP-1 for purchasing a self contained flat measuring about 815 sq.ft. more or less consisting of three bed rooms, one kitchen, one varanda, one drawing cum dinning room, two toilets and one passage on the first floor of the proposed building at a total consideration of Rs. 18,00,000/-. Complainant has already paid Rs. 17,50,000/- to the OP-1 against proper money receipts. The OP-1 is liable to hand over physical possession of the subject flat within 05 months from the date of execution of the Agreement for Sale dated 15.11.2019 but he did not deliver possession, execution and registration of Deed of Conveyance of the subject flat. Complainant requested the OP-1 to accept the balance consideration of Rs.50,000/- and complete the registration and delivery of the possession of the flat. The OP-1 has failed to meet the commitment and also failed to provide the service. Hence, a notice dated 06.08.2020 was sent to the OP-1 but the OP-1 denied to handover physical possession as well as execute and register of deed of conveyance. Finding no other way out, the complainant filed the present consumer complaint.
Despite service of notices of the complaint, the OPs did not appear to contest the case by filing WV. Thus, the case has proceeded ex parte against OPs vide order dated 22.12.2021.
Complainant Shaik Anwarul Islam has filed his evidence by way of affidavit supporting the allegations made in the complaint. The complainant by way of un-contradicted testimony has proved that he has entered into an Agreement for Sale dated 15.11.2019 with the OP-1 to purchase a self contained flat measuring about 815 sq. ft. build up area consisting of three bed rooms, one kitchen, one varanda, one drawing cum dining room, two toilets and one passage on the first floor of the proposed building including undivided proportionate share of land at a consideration of Rs. 18,00,000/- situated at KMC premises No. 207A, Picnic Garden Road, Kolkata-700039. Complainant has already paid Rs. 17,50,000/- to the OP-1 against proper receipt. Complainant alleges that despite receiving of Rs. 17,50,000/- the OP-1 did not handover physical possession of the subject flat. Even the OP-1 did not execute and register Deed of Conveyance despite several request though he is ready and willing to pay the balance consideration amount of Rs. 50,000/-. As per Agreement for Sale, the OP-1 is liable to handover physical possession of the subject flat and also execute and register deed of conveyance of flat in favour of the complainant. There is absolutely no evidence on the part of the OP-1 to rebut the allegations of the complainant. Thus, the OP-1 fails to fulfill his commitment. It is well settled that the allegations made in the complaint, if not denied is deemed to be admitted correct. The complainant in his affidavit did support the allegations in the complaint. Therefore, it cannot be said that the complainant has failed to prove deficiency in service. Thus, we have no hesitation in concluding that the OP-1 has committed deficiency in service and also has indulged unfair trade practice. The OPs 2 to 5 have no liability to handover physical possession as well as execute and register Deed of Conveyance in favour of the complainant as they have already executed a registered Power of Attorney dated 24.10.2019 in favour of the OP-1 for execution and registration of the Deed of Conveyance.
In view of the foregoing discussion, the complaint is allowed ex parte against the OP-1/Developer and dismissed against OPs 2 to 5/Owners with following directions:-
- OP-1 is directed to deliver peaceful possession of the subject flat being No. 4 on the first floor measuring about 815 sq. ft. more or less situated at KMC Premises No. 207A Picnic Garden Road, Kolkata-700039 within 30 days from date of order.
- OP-1 is further directed to execute and register deed of conveyance in favour of the complainant in terms of the Agreement for Sale dated 15.11.2020 within 45 days from the date of passing of the order.
- OP-1 is also directed to pay Rs. 25,000/- to the complainant as compensation for mental agony and harassment within the stipulated period.
- OP-1 is further directed to pay Rs. 10,000/- to the complainant as litigation cost within the specified period.
- The complainant is directed to pay balance consideration amount of Rs. 50,000/- to the OP-1 within 30 days from the date of passing order.
Thus, the Consumer Case is disposed off.
Copy of the judgment be provided to the parties as mandated by the CP Act. The judgment be uploaded forthwith on the website of this Commission for perusal of the parties.
