Dated : 28 Sep 2022

 HON’BLE MR. SUDIP NIYOGI,                                                                         PRESIDENT

FACTS

Simply put, the case of the complainant is that he had approached the Opposite Parties for buying one self-contained residential flat comprising two bed rooms, one living cum dining, two toilets and one kitchen etc. on the 2^nd floor of the G+3 storied building on the land belonging to the owner Opposite Party No. 1 to be constructed by Opposite Party No. 2 at a consideration of Rs.3,25,000/-. Accordingly, one agreement for sale was made on 27/09/1993. The complainant paid the entire consideration to the Opposite Parties and the possession of the said flat was handed over to the complainant on 19/06/1995 pending execution of the deed of conveyance in respect of the said flat. Complainant repeatedly requested the Opposite Parties for execution and registration of the deed of conveyance but the Opposite Parties failed to comply with his request. Thereafter, the Opposite Party No. 2 died and complainant requested the Opposite Party No. 1 for execution of the deed but he also illegally demanded money from him. Finally, the complainant issued a legal notice through his Ld. Advocate on 18/08/2021 and the same was returned with an endorsement “not known”. As the execution of the deed of conveyance still remained elusive, the complainant approached this Commission in order to get execution and registration of the deed of conveyance in respect of his flat and also prayed for compensation and cost of litigation etc.

            Opposite Party No. 1 did not appear and contest this case. Subsequently, the name of the Opposite Party No. 2 was expunged in view of the death of Opposite Party No. 2 namely, Sri Mahesh Kumar Khemka on the prayer of the prayer of the complainant.

            Now the point for consideration is if the complainant is entitled to get relief (s) in this case.

FINDINGS

            Complainant filed his evidence along with documents namely, deed of agreement dated 27^th September, 1993, paper showing payment of consideration, copy of death certificate of Opposite Party No. 2, certified copy of the development agreement dt. 18/12/1992 made between the Opposite Party No. 1 and Opposite Party No. 2 in respect of the project and also the documents showing possession of the flat in favour of the complainant and paying periodical expenses for maintenance of the building etc.

            We have gone through the evidence of the complainant and also the documents carefully.

            What we find Opposite Party No. 1 was the owner of the land where one G+3 storied building was constructed. Opposite Party No. 2 is the promoter of the said project by virtue of the development agreement entered into between Opposite Party No. 1 and Opposite Party No. 2 on 18/12/1992. It is also found that the complainant made an agreement with Opposite Party No. 2 for buying one flat in question at a consideration of Rs.3,25,000/-. The documents also revealed that the entire amount of consideration for the flat was already paid to the Opposite Party No. 2 who was the developer. It is further found from the document/letter of the complainant and also the occupancy certificate issued by the developer dt.19/06/1995 that the complainant was given possession of his flat and he has been enjoying the same after completion of construction and he is also found paying the expenses for maintenance of the building periodically.

            Ld. Advocate for the complainant submitted that though the entire consideration price was paid and the flat was handed over to the complainant long back but the Opposite Parties did not execute the deed of conveyance in favour of his client despite repeated request and subsequently, with the death of Opposite Party No. 2, Mahesh Kumar Khemka who was one of the director to Payel Housing Private Limited the complainant fell into immense mental anxiety for getting the deed of conveyance executed in his favour. It is further said that the existence of Payel Housing Private Limited is no more. Complainant also requested the Opposite Party No. 1 who is land owner for execution of the deed but allegedly he demanded money from the complainant.

            Now what we find the Opposite Party No. 1 made the development agreement with Opposite Party No. 2 for construction of the project on his land for which he also executed one power of attorney in favour of the Opposite Party No. 2. But subsequently, Opposite Party No. 2 died. So, it is Opposite Party No. 1 who is the original land owner, to execute the deed of conveyance in favour of the complainant as the innocent complainant cannot be made to suffer for an indefinite period despite having no fault on his part.

            This apart, the development agreement entered into between the owner i.e. Opposite Party No. 1 and the developer on 18/12/1992 contained several clauses wherein the obligation has been cast upon the owner to execute deed of conveyance in favour of the  transferees/purchasers of flat from the developer’s allocation. Here in this case as the complainant got his flat for consideration out of the developer’s allocation and has been in possession also paying periodical expenses for maintenance of the building, the Opposite Party No. 1 is bound to execute and register the deed of conveyance in favour of the complainant.

 Be it noted here, Opposite Party No. 1 despite having full knowledge of the case of the complainant did not appear and present his case, if any, contradicting the contentions and allegations of the complainant. Therefore, the case of the complainant and his contentions and allegations remained unchallenged and we are not in a position to disbelieve his case as the evidence and the documents produced by the complainant are sufficient to prove his claim made in this case.

Therefore, the complainant is entitled to get an order for execution and registration of a deed of conveyance in his favour by Opposite Party No. 1. Complainant is also entitled to get compensation of Rs.30,000/- for mental anxiety and harassment suffered by him and Rs.5,000/- for cost of litigation.

Accordingly,              it is             

ORDERED

That the instant case be and the same is allowed ex parte against the Opposite Party No. 1.

Opposite Party No. 1 is directed to execute and register the deed of conveyance in respect of the flat of the complainant within a period of 45 days from the date of this order.

The cost of execution and registration of the deed of conveyance to be borne by the complainant.

Opposite Party No. 1 is also directed to pay Rs.30,000/- (Rupees Thirty Thousand Only) for mental anxiety and harassment and Rs.5000/- (Rupees Five Thousand Only) for cost of litigation to the complainant within the said stipulated time.

In default of compliance with the aforesaid order by Opposite Party No. 1, complainant shall be at liberty to proceed in accordance with law.