Date of filing :14.11.2017
Judgment : Dt.28.6.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Sri Bimal Krishna Goswami and (2) Smt. Bharati Goswami, alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Manwar Huda, (2) Jawaid Alam, (3) Sri Shyamal Dasgupta, (4) Sri Nirmal Dasgupta, (5) Sri Kamal Dasgupta, (6) Sri Saral Dasgupta & (7) Smt. Sikha Majumder.
Facts in brief are that the OP Nos.3 to 7 are joint owners of a piece of a land measuring about 2 cottah 8 chittak with structure at premises No.3/3,Adarshanagar Colony, Dhakuria, Kolkata – 700 031, in E.P. No.48A, S.P.No.77/1 in C.S.Dag No.336(P), Mouza – Selimpur, J.L.No.37, P.S.-Kasba now Garfa Municipal Corporation Ward No.92, Dist.-South 24 Parganas and being desirous to develop said plot of land they entered into a Development Agreement on 6.3.2014 with the OP Nos.1 & 2 for developing the said plot of land by constructing a three storied building demolishing old structure at their own costs. The Complainants have stated that the Complainants approached OP for purchasing a flat to be constructed on the said plot of land and entered into an Agreement for Sale on 15.11.2015 in respect of a flat measuring about 600 sq.ft. super built up area together with right to common use of common space and benefits, free from all encumbrances at a consideration of Rs.14,00,000/- and as per Agreement for Sale dt.15.11.2015, the Complainant paid entire consideration amount by six installments by cheque being Nos.532151 dt.16.11.2015 amounting Rs.2,15,000/-, 899219 dt.16.11.2015 amounting Rs.1,35,000/-; 775483 dt.8.1.2016 amounting Rs.2,50,000/-, 775485 dt.18.01.2016 amounting R.2,00,000/-, 775486 dt.27.1.2016 amounting Rs.2,00,000/- and 775481 dt.7.12.2015 amounting Rs.4,00,000/- drawn on Allahabad Bank, but, in spite of receiving the entire consideration amount the OP failed and neglected to hand over possession of the said flat and to execute and register the Deed of Conveyance in favour of the Complainant. It is stated by the Complainants that on 8.6.2017 the OP Nos.1 & 2 issued possession letter under pressure in favour of the Complainant but did not execute and register the Deed of conveyance and finding no other alternative the Complainant issued legal notice dt.8.7.2017 through Ld. Advocate that too went in vain and the Complainant by filing the instant Consumer Complaint prayed for direction upon OP to execute and register the Deed of Conveyance in favour of the Complainants to pay compensation of R.5,00,000/- and other reliefs.
The Complainant annexed Development Agreement dt.6.3.2014, Agreement for Sale dt.15.11.2015, money receipt dt.26.1.2016, 15.11.2015, 28.12.2015, 4.12.2015, Advocate’s letter dt.18.7.2017.
Notices were served but the OPs did not turn up so the case proceeded ex-parte against the OPs vide Order No.8 dt.13.3.2018.
Decision with reasons
The Complainants claimed to have entered into Agreement for Sale on 15.11.2015 in respect of a flat to be constructed at premises No.3/3, Adarshanagar Colony, Dhakuria, Kolkata-700 031, measuring about 600 sq.ft. super built up area at a consideration of Rs.14,00,000/- and paid entire consideration amount to the OP Nos.1 & 2, Copy of Agreement for Sale dt.15.11.2015 and money receipts filed by the Complainants support such contention of the Complainant.
Further, it appears from Development Agreement dt.6.3.2014 that the OP Developer was empowered to negotiate with the intending purchaser and to receive consideration in respect of Developer’s allocation. It further appears from Development Agreement that owner’s are entitled to get two flats in the ground floor measuring 500 sq.ft. covered area, one flat on the first floor measuring about 500 sq.ft. covered area, one flat on the 2nd floor measuring about 500 sq.ft. covered area one flat on the 3rd floor measuring about 500 sq.ft. covered area and the Developer’s are entitled to get rest of the portion.
On perusal of Agreement for Sale it appears that the Complainant entered into the Agreement for Sale in respect of a flat measuring about 600 s.ft. super built up area on 1st floor (Western side) of the said building from the Developer’s allocation.
It further appears from Advocate’s letter dt.18.7.2017 that the Complainants requested the OP to execute the Deed of Conveyance in favour of them.
Since the evidence filed by the Complainant swearing affidavit remains unrebutted and unchallenged, there is no reason to disbelieve the same. The Complainants entered into an agreement for sale and as per terms of the agreement paid entire consideration amount to the OP Developer and also got possession of the subject flat. Therefore, the Complainants are very much entitled to get the said flat registered in favour of them.
Further, it is evident from the documents on record that as per Agreement for Sale the Complainant paid agreed consideration amount but the OP did not perform their contractual obligation and this is an example of deficiency in service. Therefore, the Complainant are entitled to get Rs.50,000/- towards compensation to be paid by the OP Developer.
However, the OP Nos.1 & 2 compelled the Complainant to file the instant case. Therefore, the OP Nos.1 & 2 is liable to pay litigation cost.
In the result, the Consumer Complainant succeeds.
Hence ordered
That CC/642/2017 is allowed in part ex-parte with cost against the OP Nos.1 & 2 and without costs against the OP Nos. 3 to 7.
The OPs are directed to execute and register the Deed of Conveyance in favour of the Complainant within three months from the date of communication of this order.
OP Nos.1 & 2 are further directed to pay Rs.50,000/- towards compensation and Rs.7,500/- towards cost of litigation within the aforesaid period.
