Date of filing: 16/09/2020
Date of Judgment: 28/06/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Sri Ashim Kumar Chakraborty under section 35 of the Consumer Protection Act, 2019, against opposite parties (referred as OPs hereinafter) namely (1) Md. Firoz (2) Murshid Alam (3) Smt. Jaya Ghosh (4) Smt. Bani Ghosh (5) Smt. Tapati Ghosh (6) Sri Ashish Ghosh and (7) Sri Manash Ghosh alleging deficiency in service on the part of OPs.
Case of complainant in short is that OP Nos. 3 to 7 being the owners entered into a development agreement with OP 1 & 2 dated 06/10/1997 for the purpose of constructing a multi storied building on the land as described in schedule of the said agreement. Thereafter opposite parties being owners and the developer entered into an agreement for sale notarised on 28/03/2000 wherein OP 1 & 2 agreed to sell the flat as described in the schedule ‘B’ of the agreement for sale to the complainant from the developers allocation. Complainant has paid the entire sum of Rs. 3,60,000/- towards consideration price and he has also been delivered the possession of the flat on 18/06/2000 by OP 1 & 2. But the deed of conveyance has not been executed in his favour and so the present complaint has been filed praying for directing the opposite party to execute and register the deed of conveyance in favour of the complainant, to pay compensation of Rs. 1,00,000/- and to pay the cost of litigation.
On perusal of the record it appears that OP 1 & 2 have filed the written version contending specifically that the present complaint has been filed by the complainant after twenty years. It is further contended that complainant himself did not approach the OPs for the execution and registration of the deed. So they have prayed for dismissal of the case.
OP Nos. 3 to 7 also filed the written version stating specifically that they have already expressed their bonafide intention on receipt of the notice sent by the complainant through his lawyer that they are ready and willing to execute the deed of conveyance.
During the course of the evidence it appears that affidavit in chief was filed by the complainant but no questionnaire was filed by the OPs neither any evidence was filed by them. So ultimately argument on behalf of the complainant was heard. OPs did not take any step even during the argument.
So the following point requires determination:-
- Whether there has been any deficiency in service on the part of the OPs?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
Both the points are taken up for a comprehensive discussions. In order to substantiate his claim complainant has filed the agreement for sale entered into between the parties, the possession letter and copy of the notice sent by the complainant through his Ld. Advocate as well as the reply sent by the OPs 3 to 7 dated 18/03/2020. Complainant has also filed a copy of the electricity bill showing occupation of the flat and enjoying electricity therein.
On a careful scrutiny of the written version filed by OP 1 & 2 as well OP Nos. 3 to 7, execution of agreement for sale notarised on 28/03/2000, to sell a flat as described in Schedule ‘B’ of the said agreement, has not been disputed and denied. The payment of entire consideration price of Rs. 3,60,000/- by the complainant to the OP 1 & 2 is also not in dispute. Admittedly complainant is in possession of the flat since 18/06/2000. He has also filed possession letter dated 18/06/2000 appears to have been issued by OP 1, one of the developers. This is also an admitted fact that the deed of conveyance in respect of the said flat as per agreement for sale has not been executed and registered in favour of the complainant. However the only contention raised by OP 1 & 2 is that complainant himself did not approach for such execution and registration of the deed. It is true that as per the terms of the agreement for sale OPs are liable to execute and register the deed of conveyance, but it has not been explained by the complainant as to why he remained silent for nearly 20 years. There is absolutely no document filed by the complainant barring notice dated 11/02/2020, to show that he had approached at any time to the OPs for execution and registration of deed. So since complainant himself remained silent, we find no justification to pass any order as to compensation or litigation cost as prayed by the complainant.
Hence
ORDERED
CC/192/2020 is allowed on contest. Opposite parties are directed to execute and register the deed of conveyance in favour of the complainant in respect of the flat as per the agreement for sale notarised on 28/03/2000, within two months from this date.
