FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Briefly the case of the complainant is that he was a monthly tenant under the erstwhile landlords of Premises No. 130/C, Dr. Lal Mohan Bhattacharjee Road, Kolkata-700014 who transferred their ownership to one Nishambhu Nath Jana by executing and registering a Deed of Conveyance dated 12.02.1982. Complainant’s tenancy was attorned to the new owner who received rent from the complainant till his death. Nishambhu Nath Jana died leving behind the OPs 3 to 6, 8, 9 and Swapan Jana as his legal heirs. Swapan Jana died leaving behind OPs 7 (a) and 7 (b) as his legal heirs. Thus, they became the joint onwers of the property fully described in the Schedule-A of the Agreement for Sale dated 12.08.2012. Successors of Late Nishambhu Nath Jana entered into a Development Agreement dated 24.12.2007 with OPs 1 & 2/Developers for construction of a G+3 Storied building in the A Schedule property. Legal heirs of Late Nishambhu Nath Jana executed and registered a Power of Attorney in favour of the Developers. OPs 1 and 2 agreed to sell one flat on the 2nd floor of the proposed building measuring about 550 sq. ft. consisting of 02 bed rooms, Bath, Kitchen and Varandah. Total Sale price of the flat is Rs. 4,40,000/-. An Agreement for Sale dated 12.08.2012 was executed to that effect. OPs 1 and 2 intended to use sub-standard building materials, fittings and fixture and the complainant had incurred Rs. 3,00,000/- to meet standard fittings, fixtures and floor slabs. Complainant paid the entire sale price before obtaining formal possession of the booked flat. Developers delivered more or less 416 sq. ft carpert area instead of 550 sq. ft. carpet area on the 2nd floor of the G+3 storied building. Despite several request the Developers did not execute and register Deed of Conveyance of the booked flat. OPs 1 and 2 failed to discharge their legal obligation which tantamount to gross deficiency of service and unfair trde practice. With these averments prayer has been made by the complainant to direct the OPs to execute and register Deed of Conveyance, to return the excess amount of sale price along with damages, compensation and litigation costs.
OPs 1 and 2/Developers resisted and contested the complaint by filing a joint WV. Preliminary objections of false and frivolous complaint, no cause of action and maintainability have been taken. OPs/Developers have denied all facts and allegations of the complainant. It is also denied that they used sub-standard materials in the G+3 storied materials in the G+3 storied building. It has been pleaded that possession of the booked flat has been handed over to the complainant since long. Complainant is solely responsible for non execution and registration of Deed of Conveyance due to lack of fund. Accordingly, the Developers have prayed for dismissal of the complaint.
Despite service of notice remaining, OPs did not turn up to contest the case. No WV is filed within the statutory period as provided under CP Act. Thus, the case runs ex parte against the remaining OPs.
Complainant Saurendra Nath Maity has filed his evidence supported by an affidavit. He has also relied the documents annexed with the complaint petition. We have heard argument on merit and have also perused the record including documents annexed with the complaint petition.
We find that there is no doubt to the fact that complainant was a monthly tenant under the erstwhile landlords of premises No. 130/C, Dr. Lal Mohan Bhattacharjee Road, Kolkata-7000014 who transferred their ownership to one Nishambhu Nath Jana by executing and registering a Deed of Conveyance dated 12.02.1982. complainant’s tenancy was attorned to the new landlord who also received rent from the complainant till his death. Nishambhu Nath Jana died leaving behind the OPs 3 to 6, 8 9 and one Swapan Jana as his legal heirs. The said Swapan Jana died leaving behind OPs 7 (a) and 7 (b) as his legal heirs. Thus, the OPs 3 to 7 (b) became the joint owners of the property fully described in the Schedule A of the Agrement for Sale dated 12.08.2022. Successors of Late Nishambhu Nath Jana entered into a Developerment Agrement dated 24.12.2007 with the OPs 1 & 2/Developers for construction of G+3 storied building in the said A schedule property. They also executed and registered a General Power of Attorney in favour of the Developers. An Agrement for Sale dated 12.08.2012 was executed between the successors of Nishambhu Nath Jana, OPs 1 & 2 and the complainant for sale of one flat on the second floor of the proposed building measuring about 550 sq. ft. consisiting of 2 Bed Rooms, Bath, Kitchen and varanda. Total sale price of the flat is Rs. 4,40,000/- though the complainant has paid Rs. 5,11,000/- to the OPs 1 and 2 against the proper money receipts.
Complainant alleges that the Developers intended to use substandard building materials, fittings and fixtures and he has incurred Rs. 3,00,000/- to meet standard materials, fittings, fixtures and floor slabs. Developers delivered more or less 416 sq. ft. carpet area in stead of 550 sq. ft. carpet area on the second floor of the G+3 storied building. Despite several request the Developers failed to discharge their legal obligations to execute and register Deed of Conveyance in favour of the complainant. Nothing on record to establish that the complainant incurred Rs. 3,00,000/- to meet standard materials, fittings, fixtures and the Developers handed over 416 sq.ft. covered area in stead of 550 sq. ft. area to the complainant. Complainant failed to file any application for appointment of Engineer Commisioner to measure the covered area of the flat. There is no explainantion on the part of the OPs 1 and 2 why they have received excess amount of Rs. 71,000/- from the comnplainant in lieu of sale price of Rs. 4,40,000/-. The OPs 1 and 2/Developers did not file E/chief despite opportunity given to them. Even they did not reply the notice dated 09.04.2018 issued by the complainant. Such a situation, to our mind, definitely means harassment, which is on account of refusal of his genuine complaint by the Developers. There is no evidence on the part of the developers to contradict the allegations of the complainant made out in the complaint petition. Thus, we are of the view that the Developers fail to discharge their legal obligation in executing and registering Deed of Conveyance which tantamount to gross deficiency in service and unfair trade practice.
Complainant claims Rs. 3,00,000/- as damages for using substandard materials and provided lesser space of the flat than the agreed area mentioned in the Agreement for Sale. We are not inclined to allow the prayer for damages as the complainant fails to produce any documentary evidence as well as evidence of Engineer Commisisoner to that effect.
In the light of the above observations, we are of the concerned view that the OPs 1 & 2/Developers are found deficient in giving proper service to the complainant. Therefore, the present complaint of the complainant deserve to succeed against the OPs 1 & 2 and the same is allowed. OPs 3 to 7 (b) being the erstwhile owners of the property fully mentioned in the schedule A of the Agrement for Sale have no liability to execute and register any Deed of Conveyance in favour of the complainant as by virtue of a registered General Power of Attorney they entrusted the Developers to sign execute all Agreement for Sale, Deed of Conveyance in favour of the intending purchasers on receiving consideration money in respect of the flat. Thus, the complainant is not entitled to get any reliefs against OPs 3 to 7 (b).
For the aforesaid discussion, we are incliend to allow the Consumer Complaint against the OPs 1 & 2 in the following terms:-
- OPs 1 & 2 are directed to execute Deed of Conveyance in favour of the complainant and the OPs 1 & 2/Developers are also directed to collect completion certificate of the building from the KMC and a copy thereof be supplied to the complainant.
- OPs 1 & 2 are jointly and severally directed to refund excess amount of Rs. 71,000/- (Rupees seventy one thousand) only to the complainant.
- OPs 1 & 2 are jointly and severally directed to pay Rs. 50,000/- (Rupees fifty thousand) only as compensation to the complainant for mental agony and harrasment.
- OPs 1 & 2 are jointly and severally directed to pay Rs. 5,000/- (Rupees five thousnad) only as litigation cost to the complainant.
Thus, the consumer case is disposed of in part against the OPs 1 & 2 and dismissed ex parte against the OPs 3 to 7 (b).
Execution and Registration of the Deed of Conveaynce and payments shall be made within 08 weeks from the date of this order, failing which the provisions enshrined U/ss. 71 and 72 of the CP Act would alos be attracted.
Copy of the judgment be supplied to the parties as per rules. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.
