Date of Filing : 04 March, 2021.

Date of Judgment :  22 March,  2023.

Mr. Dhiraj Kumar Dey,   Hon’ble Member.

            The instant case arises when Mrs. Mita Ghosh, on behalf of the Complainants, filed a complaint U/S 35 of the Consumer Protection Act, 2019, hereinafter called the said Act, against 1) Mr. Subir Mitra, 2) Mr. Shyamal Das, 3) Mr. Nanda Das, 4) Mr. Samar Das, 5) Smt. Deepa Dutta, 6) Mr. Apu Das and 7) Smt. Jhunu Das (herein after called as Opposite Parties or O. Ps.) alleging deficiency in service on the part of the O. Ps.

            The factual matrix of the case, in hand, is that one Smt. Maya Das, since deceased, the owner of the premises No. 391/17, Prince Anwar Shah Road, having mailing address: 1/17, Poddar Nagar Colony – 1, P. S. – Jadavpur, entered into a Development Agreement with one Smt. Anjali Mitra, since deceased, as a Developer on 21/08/1998 for construction of a G+2 storied building in the same premises after demolishing the existing structure. On 22/05/2001 Mr. Manotosh Ghosh, the deceased husband of Smt. Mita Ghosh, Complainant No. – 1 herein above, entered into a Memorandum of Agreement with the developer intending to purchase a self contained flat on the ground floor being No. 3A measuring about 275 sq. ft. super built up area.  It is stated in the complaint that the total consideration of Rs.3,00,000/- was fully paid by the then alive Mr. Manotosh Ghosh. It is said in the complaint that the Owner and the Developer had not executed and registered the subject flat in favour of the purchaser.  Meanwhile the Developer, Mrs. Anjali Mitra, died leaving behind the O. P. No. – 1 above named as her legal heir.  Also the Owner Mrs. Maya Das died leaving behind the O. P. Nos. – 2 to 7 as her legal heirs.  The Purchaser, namely Mr. Manotosh Ghosh also died on 20/12/2020, leaving behind his wife and two daughters, the complainant Nos. 1 to 3 above named, as his legal heirs.  After demise of the purchaser the complainants tried to get their flat be registered and the Deed of Conveyance be executed by the O. Ps.  But that had never been happened. They sent a legal notice in this effect to all the O. Ps. on 22/01/2021 for such execution, together with possession letter, which was also remained fruitless and ultimately this complaint arises wherein the complainants prayed to direct the O. Ps. to execute and register the Deed of Conveyance in their favour, to pay by the O. Ps. Rs.50,000/- for harassment, mental agony and sufferings, Rs.1,00,000/- for adopting unfair trade practice and such other order(s) as this Commission deem fit and proper.

            The complainant attached copies of (i) Memorandum of Agreement dated 22/05/2001, (ii) Development Agreement dated 21/08/1998, (iii) Gift Deed dated 10/09/1992 and (iv) legal notice dated 22/01/2021 as annexure to the complaint.

            This Commission, after receiving the complaint, admitted it as maintainable and sent notice to the Opposite Parties to contest the case by filing their written versions.  Postal track report reveals that notice was served to the O. P. – 1 in one of his addresses whereas the postal remarks in respect of service of notice upon each of the O. P. Nos. 2 to 7 bear “Item Returned Refused” which surmount to good service. So, date of filing their respective written versions was fixed. None appeared except the O. P. – 1 who appeared before the Commission through his Advocate and prayed for supplying copy of complaint petition so that he could file his written version.  But later the O. P. – 1 failed to file the written version.  Ultimately the case proceeded ex parte.  Thereafter complaints filed their Affidavit-In-Chief and brief notes on arguments.  Finally this Commission comes to the point of delivering the final order on the complaint.

            The statement of the complaint and annexure therein, the day-to-day proceedings and the other documents are taken into consideration for finalising the order.

            We are now in the juncture to consider the following questions:

            1.  Whether the complainants are the Consumers as defined in the Act?

            2.  Whether the Opposite Parties are deficient in delivering their promised service?

And,    3.  Whether the Complainants are entitled to get relief as prayed for?

            Let us take these points one by one to come to a decision.  Be it mentioned here that if the O. Ps. had participated in the case then it would be easier for better judgement in this case. 

Decision with reasons 

  1.   The material fact of the complaint states that one Late Manotosh Ghosh, husband of the Complainant No. – 1 and father of the Complainant Nos. – 2 & 3, entered into an Agreement for Sale on 22/05/2001 with one Late Anjali Mitra, the developer and wife of the O. P. – 1, intending to purchase a flat from Developer’s allocation at the ground floor measuring about 275 sq. ft. super built up area for a consideration of Rs.3,00,000/-.  It is stated in the complaint that the entire consideration was paid by the purchaser.  So, as per definition U/S. 2(7) of the Act, the purchaser is a Consumer who hired service from the Developer. After the demise of the purchaser his legal heirs become the consumer to the developer.

            2.   On careful scrutiny of the documents annexed with the complaint we find that One Mr. Amulya Chandra Das was gifted a land measuring 3 Cottah 7 Chittack 24 sq. ft. by the Government of West Bengal on 10/09/1992 lying and situated at C S Dag No. 649(P) + 844(P), comprising in E. P. No. 218 (S P – 102), Mouza – Arakpur, J L No. 39, P. S. – Jadavpur,  which was registered at the ADSR, Alipore.  After his demise his wife namely Late Maya Das, became the absolute owner of the land who made a notarised Development Agreement with the Developer namely Late Anjali Mitra on 21/08/1998 for construction of a G+2 storied building thereon.  It was decided in this agreement that proportionate share of both the Developer and Land Owner would 50 : 50.  The Developer then executed a Memorandum of Agreement on 22/05/2001 with Late Manotosh Ghosh intending to sale a flat measuring 275 sq. ft. super built up area in the ground floor out of her allotted share.  It was decided that, as stated in Clause 2 of the Agreement: “The builder has agreed to sell one flat on the ground floor being 3A facing North-East in the said building measuring more or less 275 sq. ft. of super built-up area and the purchasers have agreed to purchase the said flat for the consideration to be calculated at 700 Rupees per sq. ft. of super build-up area of the said flat which is described in the Schedule here under written.”  This Clause says that the total consideration of the flat has been settled at Rs.700 X 275 = Rs.1,92,500/-.  But the complainants stated in the complaint that their husband or father, as the case may be, has paid Rs.3,00,000/-.  But no receipt has been submitted in support of the claim of payment of Rs.3,00,000/-.  Surprisingly, there is no Memo of Consideration attached to this agreement.  In Clause 3, however, in this agreement, it is stated that: “The full and final payment will be made by the purchaser at the time of signature of agreement.”  As both the purchaser and the developer have put their respective signatures in this agreement, so we can assume that the entire consideration has been paid by the purchaser by the time the agreement was executed, whatever the amount may be.  There is no explicit statement given in the complaint petition which clearly states that when the complainants/their husband or father, as the case may be, got possession of the subject flat.  No statement has been made in the Memorandum of Agreement when the building was to be completed and when the flat was to be handed over to the purchaser.  According to Clause 7 (d) of the development agreement the developer intended to complete the building within twelve months from the date of commencement of excavation work at the said land.  So, we can think that the building might be completed before or after executing the sale agreement.  As the complainants prayed for the execution of the Deed of Conveyance only, so one can presume that they have the possession of the flat.  Now, in Clause 3.1 in the Memorandum of Agreement it is stated that: “The builder will arrange for execution and registration of the Deed of Conveyance by the owner in favour of the purchasers in respect of the undivided proportionate share or interest in land attributed to the said flat within a period of three years from the date of handing over possession of the same to the Purchaser and the builder will also join as confirming party in execution and registration of the said conveyance.”  As it was agreed, as per Clause 3.1 of the sale agreement, the execution of the Deed of Conveyance and registration ought to have completed within three years after giving possession of the flat, so the builder/developer cannot deny her obligation in executing the Deed of Conveyance. The developer, during her lifetime, had the binding duty which she had failed.  After the demise of the developer her legal heir(s) cannot evade the obligatory duty promised by the developer, especially when the developer executed the development agreement on 21/08/1998 with the owner in her individual capacity.  In this case the Land Owner, the Builder and the purchaser also died before such execution. 

            Now, we consider the Gift Deed, awarded by the Government of West Bengal, in respect of the land on which the building was being constructed. This Gift Deed was executed on 10/09/1992.  According to the condition of this Gift Deed the Donee shall have no right to alienate or transfer in any way the land within ten years from the date of the Gift Deed.  So, it can be presumed that execution of the Deed of Conveyance in respect to the subject flat should have to done after 10/09/2002.  But it seems to be very astonishing that the purchaser failed to get his flat be registered in his name during his life time, I. e. till his death on 20/12/2020.  Complainants have not stated clearly in their complaint whether the subject flat is in their possession or not.  In Point No. – 13 of their complaint petition they prayed to direct the O. Ps. to execute the Deed of Conveyance in their favour.  In the prayer portion also they prayed for the same.  But we see in the notice sent on 22/01/2021 they demanded to execute the Deed and register the flat and to provide the possession letter.  However we find no reason and we failed to understand why the purchaser and/or the complainants failed to get their flat be registered and the Deed of Conveyance  be executed especially when the original owner of the premises, Maya Das, and the original developer, Anjali Mitra, were alive.  In this case the Land Owner, the Builder and the purchaser also died before such execution.  The legal heirs of both the land Owner and the developer/builder cannot deny their respective obligations in this matter.

            Furthermore, it is a settled principle that cause of action, in the case of purchasing a flat from a developer constructing the flat, persists until and unless the Deed of Conveyance is executed and registered and possession is not given.  So the instant case is not barred by limitation according to the Consumer Protection Act, 2019.

            3.    These above discussions make it clear that there is a deficiency in rendering proper service to the purchaser/complainants occurred from the part of the O. P. – 1 and the O. P. Nos. – 2 to 7 have also some role in such deficiency which they cannot deny. Thus the complainants are entitled to get relief though they themselves and the deceased husband/father, as the case may be, were negligent in taking right steps in this direction.  The O. P. – 1 is liable to compensate for such deficiency occurred by his deceased wife as developer and all the O. Ps. are liable to pay litigation cost.

   Hence,

            it is

                 ORDERED

            That the Complaint Case being No. CC/127/2021 is allowed ex parte against all the O. Ps.

All the O. Ps. are directed to execute and register the Deed of Conveyance in respect of the Flat in accordance with the Memorandum of Agreement dated 22/05/2021 in favour of the Complainants and the cost will be borne by the Complainants. The O. P. – 1 is directed to pay Rs.30,000/- to the complainants as compensation along with Rs.5,000/- as litigation cost. The O. P. Nos. – 2 to 7 are directed to pay jointly and severally Rs.5,000/- as litigation cost to the Complainants.   

All these directions should be complied within 60 (sixty) days from the date of this order.