Date of filing :9.1.2018

Judgment : Dt.27.4.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Tapashi Saha alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Jayanta Nandi and (2) Lakshmi Kanta Das

            Case of the Complainant, in brief, is that the Complainant entered into an Agreement for Sale on 24.9.2014 with the OPs i.e. the OP No.1 Developer as well as Constituted Attorney of the OP No.2 landowner for purchasing a flat measuring about 720 sq.ft. of super built up area more or less, on the entire 2^nd floor of a building to be developed by the OP No.1 at premises No.46, Baghajatin, Kolkata-700 032, P.S.-Jadavpur, Sub Registration Office, Alipur now within the local limits of the Kolkata Municipal Corporation under Ward No.102, mailing address – J/61, Baghajatin, P.S.-Jadavpur for a consideration of Rs.10,00,000/- only. It is further stated by the Complainant that even after receiving entire amount of consideration the OPs did not show urge to execute and register the Deed of Conveyance although the Complainant requested the OP Developer on several occasions to execute the same but that yielded no fruitful result. The Complainant has stated that the OP Developer delivered possession of the said flat to her. It is further stated by the Complainant that on the pretext of Registration of the Deed of Conveyance, the OP Developer had taken the Agreement for Sale in original but did not return the same to the Complainant so far. It is further stated by the Complainant that the delay in execution of Registration of Deed of Conveyance has accumulated huge unpaid Municipal Taxes which would create a huge financial liability on her at the time of mutation of the said flat. According to the Complainant this inordinate delay in execution of Registration of Deed of Conveyance not only amounts to deficiency in service but also amounts to unfair trade practice and the Complainant by filing the instant Consumer Complaint prays for direction upon the OPs to execute and register the Deed of Conveyance, to pay Rs.1,00,000/- towards registration fee, to pay Rs.1,00,000/- towards the arrear Municipal Tax, to hand over Completion Certificate, to pay Rs.50,000/- towards compensation, to pay interest @ 9% p.a. on the deposited amount and other reliefs.

            Notices were served but the OP did not turn up so the case proceeded ex-parte against OPs vide Order No.6 dt.20.3.2018.

            The Complainant annexed Agreement for Sale dt.29.9.2014 possession letter dt.15.12.2015, Development Agreement dt.15.1.2014, General Power of Attorney dt.15.1.2014, Money receipts dt.17.8.2014, 24.09.2014, 18.11.2014, 30.12.2014, 13.02.2015, 6.05.2015, 15.12.2015

Decision with reasons

            The Complainant by filing the instant petition of complaint claims the right of title on the property in dispute by execution of Deed of Conveyance in favour of her stating that she had entered into an Agreement for sale on 24.09.2014 with the OPs in respect of the said property. The Complainant banked on the said Agreement for Sale to establish her right on the property in question. However, as per provision of Section 101 of the Indian Evidence Act, 1872, burden of proof lies on the person who is bound to prove existence of any fact related to legal right or liability dependent on the existence of fact which he asserts. As per provision of Section 64 of the Indian Evidence Act, 1872, documents must be proved by primary evidence except the cases which are mentioned under Section 65 supra. Section 65 o the Indian Evidence Act, 1872 described the cases in which secondary evidence relating to documents may be given.

            In the instant case, the Complainant neither adduced primary evidence nor did adduce secondary evidence to prove the document i.e. agreement for sale dt.24.09.2014 since she failed to produce the agreement for sale in original nor any cogent evidence to show that the said document has been in custody of the OP No.1 as she claimed and, therefore, burden of proof has not been discharged by her in respect of her claim. In fact, the Complainant failed to prove her case.

            In the result, the Consumer Complainant does not succeed.

            Hence,

ordered

            That the Consumer Complaint being No.CC/8/2018 is dismissed ex-parte but without any order as to costs.