Case of the complainants in brief is that the father of the complainants namely Sri Binoy Krishna Halder (now deceased) was a tenant under OP no. 2-7 (land owners) since long and was in possession of 300 sq. ft. of the tenanted premises. The OP no. 2-7 being the land owners entered into an agreement with OP no.1,the developer and accordingly an agreement for development was executed by and between them wherein a written agreement the developers as well as the land owners agreed to give the total area of a flat measuring 440 sq. ft. after completion of the said project to the father of the complainants and accordingly the legal heirs of OP no. 2, 3, 5, 6 , 7 and OP no. 4 entered into a development agreement with the promoter under name and style Huston construction Pvt. Ltd, the OP no 1. It is stated in the petition of complaint that on 03.12.1992 he had entered into a memorandum of agreement with the land owners wherein it was agreed by the parties that father of the complainants was to pay Rs. 15,000/- as total consideration amount in respect of the said flat measuring about 440 sq. ft. and accordingly the father of the complainants paid the entire consideration by instalment basis to the OPs. It is further stated that after completion of the ground floor the OPs invited the father of the complainants to take possession of the flat in first part in the year 1995. On behalf of the land owners Mr. Sudhir Dey Roy requested the father of the complainants by sending letter to take possession in the first phase of the project immediately so that the OPs can start the second phase of the project with an assurance that they shall execute and register the flat within 18 months from the date of issuance of the said letter. Accordingly the father of the complainants agreed to take possession of the said flat but at the time of taking possession it was revealed that the measurement of the said flat was exceeded from the agreement dated 03.12.1992 and that relevant point of time considering the financial condition of the father of the complainants the OPs agreed to consider the new measurement of the flat (690 sq.ft.) in the same consideration. Thereafter, the OP no. 1 allotted flat no. 1 in the ground floor measuring about 690 sq.ft. which is given in the schedule B below in writing dated 13.02.1995 to the father of the complainants. It is further stated that since after taking possession of the said flat the father of the complainants requested said Sudhir Dey Roy to register the schedule flat but in unknown reason the said Sudhir Dey Roy (now deceased) delaying the same and unfortunately on 20.03.1999 the father of the complainants died leaving behind his legal heirs. It is further stated that on 30.08.1999 the said Sudhir Dey Roy also died leaving behind his three sons who are OP no. 2 and 3 and another son namely Sri Bijon Dey Roy also died without having any legal heirs. After demise of said Sudhir Dey Roy the process of registration work of the said flat and the whole project work has changed. The complainants on several occasions requested the OPs to take part of the registration process but OPs did nothing to that effect. It is further stated that a fresh registered power of attorney by and between the land owners and one of the director of the developer was executed on 14.09.2012 and at that time the complainant went to the OPs for the registration of their flat in question but the OPs were differing the matter. Finding no other way the complainants on 18.08.2020 sending legal notice to the OPs requested them to execute and register the flat in favour of the complainants. But OPs did not turn up. Hence the complainants filed this case praying for direction upon the OPs to execute and register the deed of conveyance along with compensation of Rs. 3,00,000/- and litigation cost of Rs. 30,000/-.

Service of notice upon OP no 2 was effected on 24.05.2022 and service of notice upon rest of the OPs were effected through daily newspaper publication .In spite of that none appeared on behalf of the OPs .Hence, the case was proceeded ex parte against all the OPs vide order no. 09 dated 12.09.2022.

                                   Decision with reasons

To prove their case the complainants adduced the agreement dated 18.09.1993 from where it appears that the landowner of the premises were agreed to give total area of 440 sq.ft. to the tenant Sri Binoy Krishna Halder and it was agreed by and between the parties (para 6) that the owner shall deliver the proposed allotted flat with habitable condition and the covered built up area must be in conformity with the sanctioned plan. Further, it appears from the letter dated 31.04.1995 that OP-developers requested the father of the complainants to take possession of the flat situated at first phase, ground floor of the project and assured him to register the said flat within 18 months from the date of getting possession. Accordingly the father of the complainants took possession of the said flat and thereafter on several occasions he requested the OPs to execute the deed of conveyance which was not executed during his lifetime and he passed away on 20.03.1999 leaving behind his legal heirs. The complainants are the legal heirs of Shri Binoy Krishna Halder. It is observed that the execution and registration part of the flat is only required to be done. It will be just and proper if OPs are directed to execute and register the deed of conveyance in favour of the complainants. As the inaction of the Ops compelled the complainants to file this case they are liable to pay the compensation and litigation cost.

In the result the petition of complaint succeeds.

                                        Hence, it is,

                                                   Ordered

that the complaint case being No. CC 45 of 2021 is allowed ex-parte against the Ops.

OPs are directed to execute and register the deed of conveyance in favour of the complainants within two months from this date of order. Ops are further directed to pay Rs. 35,000/- as compensation and Rs. 20,000/- as cost of litigation to the complainants within two months from this date of order, failing which interest @ 12% shall accrue on the entire amount.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and Corrected by

[HON'BLE MRS. Sagarika Sarkar]
MEMBER