Date of Filing : 27/02/2020
Date of Judgment: 20/11/2024
Sri Manish Deb, Hon’ble Member
Brief fact of the case is that the OP No.3 & 4 as land owners by way of development agreement dated 30.03.2017 they engaged the OP No.1 and 2 to carry out the development work on the land situated at 44A S N Roy Road, also known as 162/25 , S N Roy Road , P.S Behala, Kolkata- 700038.
The OP No.3 & 4 also executed a power of attorney dated 30.03.2017 in favour of OP No.1 and 2 for smooth carrying out of the development work.
The OP No.1 and OP No.2 as constituted attorney of the OP No.3 and OP No.4 have executed an agreement for sale with the complainant for sale of one self contained flat on the second floor (front side) on the northern side, measuring 450 square feet super built up area, at KMC Premises No.44A S N Roy Road having mailing address 162/25 S N Roy Road, P.S. – Behala, Kolkata – 700 038 at a total consideration of Rs.11, 00,000/- only.
The OP No.1 and OP No.2 have on series of occasion have received consideration money part by part out of a total consideration of Rs.11,00,000/- only from the complainant.
That simultaneously with the execution of the said agreement for sale, complainant has paid to OP No.1 and OP No.2 and they have received from complainant a sum of Rs. 3,00,000/- as advance.
That further on 19-07-2017 Rs.1,00,000/-, on 05-02-2018 Rs.50,000/-, on 06-02-2018 Rs.50,000/-, on 07-02-2018 Rs.50,000/-, 19-04-2018 Rs.50,000/-, on 20-04-2018 Rs.50,000/- on 21-04-2018 Rs.50,000/-, on 23-08-2018 Rs.50,000/-, on 25-08-2018 Rs.50,000/-, on 27-08-2018 Rs.50,000/- complainant has paid to OP No.1 and OP No.2, who have received same from complainant.
That complainant demanded for registration of the deed of conveyance in her favour on taking the balance of total consideration money, whereas all the OPs have assured that they will execute and registered the deed of conveyance in favour of complainant within the end of December 2018.
Thereafter the complainant has several times meet with OPs and demanded to the ops to complete the deal but all the opposite parties jointly and severally have promised to execute the deed within latest October 2019. The complainant is always ready and willing to complete the transaction.
That on 16-10-2019 the complainant personally meets with OP No.1 and OP No.2 but he OP No.1 and OP No.2 further deferred the matter with lame excuse. Further on 28-11-2019 the complainant meet with the OP No.1 & OP No.2 but they again refused for registration proceedings of the flat . In such circumstances the complainant through her Ld. Advocate by letter dated 20-12-2019 demanded execution and registration of deed of conveyance and to complete the deal on receipt of balance consideration of Rs.2,50,000/- within 15 days from the date of receipt of the letter.
The said letter was sent by a registered post with A/D. The OP No.1 received the said letter on 26-12-2019. Inspite of the receipt of the said letter, the OPs have failed to complete the deal by way of registration of the flat after receiving balance consideration money.
Hence this complaint is filed before this commission by the complainant.
The Complainant prayed for direction upon the OPs to execute and register the deed of conveyance in favour of the complainants by receiving the balance consideration money and failing which the deed of conveyance is to be registered through the this commission, alternatively order also to be passed for refund of entire advance money of Rs.8,50,000/-and order for compensation a sum of Rs.5,50,000/- for mental agony and harassment and order for cost.
The all opposite parties No. 1 & 2 have contested the case by filing written version against complaints filed by the complainants. where they have denied all allegation labelled by the complainant against them, denied any deficiency in service on their part and contended that opposite party No.1 & 2 were ready to registered the deed conveyance but the complainant neglected to make balance consideration money in time even after several times request of the opposite party No.1 & 2.
Opposite parties No. 1 & 2 stated that if the opposite party No.1 & 2 got the total consideration money on time they could be able to transfer the constructed flat to the complainants on time. The opposite party No.1 & 2 also contended that they are not liable to execute the deed of conveyance, because the as per terms of power of attorney the sale proceeds of any unit shall be credited to the account of the owners , for which execution and registration of the subject flat should be effected and execution and registration of the deed of flat on the part of the owners/ opposite parties No. 3 & 4.
The Opposite parties No. 3 & 4 also have contested the case by filing written version and also filed reply against affidavit and questionnaire wherein they have denied any deficiency in service on their part and mentioned that it is only the inordinate delay on the part of the opposite party No.1 & 2, they have contended that the opposite party No.1 & 2 could able to transfer the constructed flat to the complainants after delivering the owners allocation as per schedule “B” of the development agreement but The opposite party No.1 & 2 did not rendered the owners allocation, but the opposite party No.1 & 2 entered into a sale agreement with the complainants.
They also stated that they have cancelled the registered general power of attorney by revocation of general power of attorney on 25.10. 2017 for which execution and registration of the subject property could not be effected by them.
POINTS FOR DECISION are
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
- Whether the complainant is within limitation under C.P.Act,2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for
OBSERVATION
The complainant fall in the category of the “consumer” under C.P. Act, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties are deficient by not completing execution and registration of the subject property after taking balance amount of consideration money.
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged as the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative.
The complainant has submitted his evidence, brief note of argument in the case.
DISCUSSIONS AND FINDINGS
The contesting OP No 1, 2, 3 & 4 have filed their respective written versions in the case. The Opposite Parties 3 & 4 filed Evidence, the complainant exchanged Questionnaire and Reply during the trial of the case, the complainant advanced oral argument in the case.
We have applied our mind and gone though the material on record together with the Annexure /documents filed by both the parties.
That complainant demand for registration of the deed of conveyance in her favour by ops after taking the balance consideration money , whereas all the opposite parties have assured the complainant that they will execute and registered the deed of conveyance in favour of complainant within stipulated period as mentioned in the sale agreement.
The complainant is/ was always ready and willing to complete the transaction and got registration of conveyance in favour by opposite parties.
That the opposite parties are guilty of wrongful acts, the opposite parties jointly and severally failed and neglected to render their service to the complainant and failed to act in accordance with the sale agreement. Opposite parties was/ is duty bound to execute the deed of sale & registered the same in respect of the flat as mentioned in the schedule of the sale agreement and deliver the possession of the flat on receipt of total consideration in favour of the complainant.
Hence we find that inordinate delay on the part of the opposite parties in delivery of possession and registration of the deed of sale in respect of the flat is deficiency on the part of the opposite parties i.e to the extent of non delivery of possession of the flat as well as non execution of deed of conveyance in favour of the complainant.
Going through the agreement of sale we find that the said flat should have to delivered to the complainant together with execution of deed of conveyance latest by the 10th Nov. 2017 ( within four month from the Execution of the sale agreement). But we find that the opposite parties were/are failed and neglected to do so. Thus there was clear cut delay of several years / months as per time schedule mentioned in the sale agreement. It is also comes from the material and fact of the case that the complainant paid more than 70% of the total consideration amount in favour of opposite parties No.1 and 2 till the filing of this complaint petition.
The claim of opposite parties No.1 & 2 in there written version are not trustworthy because if the power of attorney was revoked by the opposite parties No. 3 & 4 on 25.10.2017 , how the opposite parties No. 1 & 2 have managed to received the part payment on several dates till 24.08.2018 , even the complainant have served lawyers notice upon the OP No. 1 & 2 for taking balance consideration money and to execute and registered the deed of conveyance in favour of the complainant , the opposite parties shall not sustain the balance of justice at all.
Further the delivery of possession of flat and execution of deed of conveyance denied by OPs till date. Hence the payment stated to be due on the part of the complainant, as claimed by OP No. 1& 2, also does not sustain.
It is to be mentioned that the agreement for sale was executed by opposite parties No. 1 & 2 and also on behalf of the owners / opposite parties No. 3 & 4 on 10.07.2017, whereas the power of attorney was revoked on 25.10.2017, by the opposite parties No. 3 & 4, thus the opposite parties No. 3 & 4 cannot remain inactive and abstain themselves from the liability of execution registration of deed of conveyance and delivery of the possession of the flat in favour of the complainant in time.
It is clearly mentioned in the sale agreement that as all opposite parties are signatory of the agreement and they will discharged their duties as per development agreement, power of attorney and finally sale agreement, and opposite parties shall hand over possession of flat to the complainant after execution and registration of deed of conveyance /title document of the said flat/apartment to the complainant
Accordingly, we find , on part of the all opposite parties are in deficiency of service and responsibility towards the complainant, which was not completed on the part of the opposite parties and it is a gross unfair trade practice on the part of the opposite parties.
In our opinion, the complainant has succeeded in establishing his case and thereby entitled to get relief.
Hence it is
ORDERED
CC No.90/2020 is allowed on contest against OPs with cost.
1) All OPs are directed to execute and register the deed of conveyance with respect to the flat mentioned in the sale agreement as well as mentioned in the complaint petition filed by complainants in favour of the complainants within 60 days from the date of this order.
2) Alternatively refund the entire advance money of Rs. 8,50,000/- with 12% interest per annum by the OP. No. 1 & 2 to the complainants from the date of sale agreement within 60 days from the date of this order.
3) OP No. 1 & 2 are to pay compensation of Rs. 80,000/- to the complainant within 60 days from the date of this order.
4) OP No. 1 & 2 are also directed to pay Rs. 10,000/- towards cost of litigation to the complainant within 60 days.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
