Order-14.
Date-05/09/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The complainant’s case, in short, is that OP4 being the absolute owner of the A Schedule property as mentioned in the complaint petition have got marketable title to the entirety of the said A Schedule property free from all encumbrances, charges, attachments, liens, lispendences entered into a joint venture agreement dated 15-12-2003 for the purpose of development of A Schedule property. OP4 also subsequently, executed a General Power of Attorney in favour of OP2 empowering him and authorizing him for commencement and completion of a three storied building at the A Schedule mentioned property. Complainant, thereafter, had entered into an agreement for sale with the OPs on 16-02-2004 for purchase of a self-contained residential flat measuring a super-built up area of 720 sq. ft. as described in the Schedule B. The price of B Schedule property was fixed as Rs.7,20,000/- as per the terms and conditions of the said agreement for sale dated 16-02-2004. The complainant also paid the said amount to the OPs on different dates. OP2 also received the said amount by issuing money receipt. Complainant has got the possession of B Schedule flat but the OPs did not provide the possession letter, completion certificate and other relevant documents relating to the said flat in spite of repeated requests to the OPs. The OPs in spite of repeated requests from the complainant avoided the matter of registration as well as possession certificate, completion certificate. It is alleged that the OPs are guilty of negligence and deficiency of services. Hence, this case.
OP1, 2 and 4 have neither appeared in this case nor filed any written version or contested the case and the case has proceeded ex parte against these OPs.
OP3 filed a written version contending, inter alia, that the case is not maintainable as against him. It is stated that all acts have been done by the OP2 and OP3 was not in the picture. It is also stated in the written version OP2 executed the documents and received consideration from the complainant and OP3 was in the dark. It is also alleged that OP2 is now absconding and taking advantage of the said situation. The complainant has filed this case after long lapse of time. It is also alleged that the complainant and the OP entered into the agreement in connivance with each other.
Point for Decision
- Whether the OPs are deficient in services?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the photocopy of agreement for sale dated 16-02-2004, photocopy of money receipt dated 16-02-2004, photocopy of payment receipt of ICICI Bank vide No.65146275 dated 10-02-2009, photocopy of settlement letter of ICICI Bank dated 06-02-2009 as filed by the complainant. From the documents on record it appears that the complainant paid the total consideration price of B Schedule mentioned property to the OPs and the OPs have received and acknowledged the same. It also appears that though the complainant has got the possession of the subject plot but till date the OPs did not provide the complainant with possession letter, completion certificate relating to the suit flat in spite of repeated requests to the OPs. It also appears that OPs did not execute and register a deed of conveyance in favour of the complainant relating to the suit flat in spite of repeated requests to the OPs and the OPs have been avoiding the matter of registration also. We think that the OPs are guilty of deficiency of service. We also think that the OPs are jointly and severally to effect registration of the subject flat in favour of the complainant.
Though written version is filed from the side of the OP3, none subsequently, came from the side of the OPs to contest or controvert the case of the complainant. The Evidence-in-Chief as adduced by the complainant remains unchallenged and uncontroverted. In absence of any contrary and controverting materials on record and having regard to the documents lying with the record we think that the OPs are deficient in rendering services to the complainant. We think that the complainant is entitled to get the relief as prayed for.
In result, the case succeeds.
Hence,
Ordered
That the instant case be and the same is allowed ex parte but on merit against the OPs with cost of Rs.5,000/- each.
OPs are jointly and severally directed to execute and register the proper deed of conveyance relating to the subject flat in terms of the agreement dated 16-02-2004 within 45 days from the date of this order.
OP2 is also directed to hand over the completion certificate, possession letter in favour of the complainant within the said stipulated period.
OP2 is also directed to pay an amount of Rs.50,000/- to the complainant as compensation for causing mental pain, agony and harassment within the said stipulated period.
If the OPs fail to execute the sale deed by registering it within the stipulated period in that case complainant shall have to file an application before this Forum for getting execution and registration of the sale deed by this Forum and for this purpose complainant shall have to bear all costs and service charges, execution and registration charges of the sale deed and also pay the charges for deputing an officer on behalf of this Forum for execution and registration of the sale deed on behalf of the OPs.
OPs are directed jointly and severally to comply the order failing which OPs shall have to pay penal damages of Rs.2,000/- each per month till final completion of the sale deed in respect of the subject flat and that shall be deposited to State Consumer Welfare Fund, West Bengal vide this Forum.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.
