Date of Filing : 16/11/2022
Date of Judgement: 27/09/2024
Sri Manish Deb, Hon’ble Member
This is an application under section 359(1)(a) of Consumer Protection act, 2019.
The Brief fact of the case is that the OP No.3 to OP No.7 are the joint owners of all that piece and parcel of land measuring Premises No.31/2 , Sahapur Colony, P.O. & P.S. New Alipore, Kolkata – 700 053.
That the OP No.3 to OP No.7 being owners of Schedule A property entered into a development agreement on 31.03.2016 with one developer cum promoter namely Anil Kumar Dutta, son of Late Ganesh Chandra Dutta which was registered at the office of ADSR Alipore and recorded. As per the above referred development agreement said Anil Kumar Dutta agreed to develop the Schedule A property by constructing a multi storied building with certain terms and conditions as mentioned therein.
That to effectuate the development works the OP No.3 to OP No.7 also executed a Power of Attorney on 31.03.2016 which was also registered before the ADSR Alipore and recorded.
That when the construction just started in the Schedule A property said Promoter/Anil Kumar Dutta due to shortage of funds was in search of prospective buyers and coming to know about the intentions of the developer /Anil Kumar Dutta the complainant who was also in search of a residential flat in the same locality approached him and it was agreed that the complainant shall purchase all that piece and parcel of one self contained flat on the north side i.e. front side flat on the 5th floor measuring 600 sq.ft. super built up area more or less together with proportionate undivided share of land and all common amenities and facilities of premises No.31/2, Sahapur Colony, PO & PO New Alipore, Kolkata 700 053 which is more fully described in Schedule “B” of the sale agreement at a price of Rs.3,00,000/-.
That due to urgent need of money the complainant on request of Sri Anil Kumar Dutta , the developer paid a sum of Rs.1,40,000/- only as booking money on 05/06/2016 and later he also paid Rs.3,00,000/- only on 02/09/2016 and Rs.3,00,000/- only on 02/08/2017 and on the same date 02/08/2017 Anil Kumar Dutta delivered possession of the schedule B flat of the sale agreement to the complainant and issued possession letter stating the payments received by him on different dates from the complainant .
That as above referred Anil Kumar Dutta on 02/08/2017 after receiving Rs.3,00,000/- i.e. after receiving total Rs.7,40,000/- delivered possession of the flat in question to the complainant to do necessary renovation works with a promise to execute an agreement for sale at the earliest, it was settled that before registration of flat the balance amount shall be paid by the complainant. Relevantly, the complainant made additional expenses of Rs.2,00,000/- and also made expenses in the roof of the building as water was percolating in the new building.
The complainant continued to make payments but developer Anil Kumar Dutta failed and neglected to execute an agreement for sale. On good faith the complainant since she had taken possession she continued to pay balance part consideration amount on different dates paid on 31/01/2018 Rs.4,00,000/-, paid on 18/01/2018 Rs.10,000/-, paid on 25/01/2018 Rs.4,00,000/- and ultimately on 02/02/2018 said Anil Kumar Dutta further took Rs.4,00,000/- only and executed an agreement for sale and promised to execute deed of conveyance in favour of the complainant as soon as he receives completion certificate of the building that on 12/02/2018 complainant again paid Rs.6,00,000/- and ultimately paid all consideration money of the flat .
Subsequently the complainant requested the developer to execute the deed of conveyance as entire amount has been paid but said Anil Kumar Dutta convinced the complainant that since completion certificate from KMC has not been issued it shall not be possible to execute the deed of conveyance, as a layman the complainant believed the assurance of said Anil Kumar Dutta and started to reside in flat.
The complainant started to reside in the flat since 02/08/2017 .The complainant has applied for CESC meter and has got the same from the CESC, she has also taken gas connection in respect of the flat.
The complainant on several occasions requested Anil Kumar Dutta to execute Deed of Conveyance but he took time citing different reasons and also told the complainant that since delivery of possession has been given to her she need not worry about the registration of the flat.
Incidentally, said Anil Kumar Dutta expired in the year 2019 left behind him the OP No.1 and OP No.2 are his legal heirs and successors.
Thus the complainant requested OP No.1 & OP No.2 to make arrangements to execute the deed of conveyance as promised by their father but they refused.
Ultimately, the complainant sensing that the legal heirs of Anil Kumar Dutta i.e. OP No.1 & OP No.2 has no intention to execute registered deed of conveyance issued a notice upon them dated 31/08/2022 through her advocate requesting inter alia to execute a deed of conveyance in respect of the flat.
That none of the OPs have replied the above referred letter, hence the complainant has been constrained to initiate this instant complain br4fore this commission.
But since then despite several requests made by the complainant on different dates and times, the OPs did not execute the deed of conveyance and register the same in favour of the complainant as a full consideration money paid by the complainant. The Predecessor of the ops No. 1 and 2 expressed his willingness to execute the deed of conveyance but OP1 & OP 2, the legal heirs of the predecessor in interest, did not pay heed to execute the deed of conveyance also did not act according to the contents of sale agreement . After giving possession to the complainant, the Predecessor of the ops No. 1 and 2 during his life time promised to execute the deed of conveyance.
Since all OPs paid a deaf ear to the request of the complainant for executing and registering the deed of conveyance, the complainant filed this complaint praying for direction to OPs to execute the deed of conveyance in respect of the flat purchased by her together with the direction to pay Rs.5,00,000/- as compensation and Rs.50,000/- as cost of litigation by the OPs.
POINTS FOR DISCUSSION
Whether complainant fall in the category of the “Consumer” under Consumer Protection Act 2019.
Whether the present complaint is within limitation under Consumer Protection Act, 2019.
Whether the commission has the jurisdiction to decide the present complaint.
Whether the opposite party in deficient in providing its services to the complainant.
Whether the case is maintainable or not.
Whether the complainant is entitled to get relief as prayed for.
OBSERVATION , DISCUSSION AND FINDINGS
The complainant falls in the category of the “Consumer” under Consumer Protection Act 2019.
It is filled within two years from the date on which the cause of action has arisen.
The commission has territorial jurisdiction to decide the present complaint as the property in question is situated at premises No. 31/2, Sahapur colony, P.O. & P.S. New Alipore, Kolkata -700053
The main question for consideration before us is whether the opposite party is deficient by not providing service for interior decoration within stipulated period after receiving advance from the complainant.
And our view is the opposite parties are liable in deficiency in service and unfair trade practice as alleged.
Our view regarding entitlement of getting relief sought by the complainant is also affirmative.
The complainant filed her evidence. The complainant also filed BNA and advanced verbal arguments.
We have meticulously gone through the materials on records with application of mind.
It is surprising to note that while the complainant was given possession of the said flat in 02.08.2017 after payment of the amount of Rs.7,40,000/- pursuant to the agreement of sale dated 02/02/2008, and subsequently paid total consideration money the OPs are failed to execute and register the deed of conveyance in favour of the complainant for the reasons best known to them. Though as per agreement of sale, the OPs were duty bound to execute register the deed of conveyance.
Op No. 1 & 2 was very much competent to execute the deed of conveyance on behalf of the developer as legal heirs, but that did not happened.
But since then despite several requests made by the complainant on different dates and times, the OPs did not execute the deed of conveyance and register the same in favour of the complainant as a full and final service towards the complainant as agreed upon between them vide agreement of sale dated 02/02/2018. The Predecessor of the ops No. 1 & 2 expressed his willingness to execute the deed of conveyance but OP1 & OP2, the legal heirs of the predecessor in interest, did not pay heed to execute the deed of conveyance. also did not act according to the contents of sale agreement , after giving possession to the complainant, during his life time to execute the deed of conveyance.
Whereas other ops No. 3 to 7 being owners of the property they can’t remain silent as they have executed power of attorney and development agreement in favour of developer, and got interest from the developed property even they are in principal and agent relation amongst as developer and the owner of the property which developed .
Since all OPs paid a deaf ear to the request of the complainant for executing and registering the deed of conveyance, the complainant filed this complaint praying for direction to OPs to execute the deed of conveyance in respect of the flat mentioned in the sale agreement.
Notices were served upon all the OPs but none appeared to contest the case by way of filing written version within the statutory period. Thus the case proceeded ex parte against all OPs.
It is needless to mention that without execution and registration of the deed of conveyance, the right and title of the complainant over the purchased property does not hold good at all.
In our view deficiency in service on the part of OPs is established. As the OPs do no contest the case, the evidence and arguments, adduced by the complainants remains unchallenged and in our opinion, the complainant has successfully established her case thereby, making herself eligible for the relief(s), sought for.
Hence it is
ORDERED
CC No.633 of 2022 is allowed ex parte against all OPs with cost.
- All OPs are directed to execute and register the deed of conveyance in respect of the flat which mentioned in the schedule of the sale agreement in favour of the complainant within 60 days from the date of this order.
- The OPs are also directed to pay Rs.50,000/- towards compensation and Rs.20,000/- towards cost of litigation within 60 days from the date of this order.
- The OPs are also directed provide copy of completion certificate of the building/ flat from the concern authority to the complainant.
In case of failure, on the part of the OPs to comply the above order, the complainant will be at liberty to file execution as per law.
Dictated and corrected by
Member
