Dt. of filing – 27/07/2018
Dt. of Judgement – 31/01/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by complainants namely – (1) Shri Mrinal Chakraborty and (2)Mrs. Mithu Chakraborty under Section 12 of the Consumer Protection Act against the OPs namely (1) M/s. Sopan Construction Pvt.Ltd. represented by its Directors Mr. Binod Kumar Saraogi and Mr. Umang Saraogi, alleging deficiency in service on their part.
Case of the complainants in short is that OP No.1 being the owner and developer of land measuring 9 cottaha 11 chittacks 27 sq.ft. together with structure standing thereon by Municipal Premises No. 28/1, Ho-Chi-Min Sarani, P. S. Parasree, Kolkata – 700 061 proposed to raise multi-storied building after getting the plan sanction. They entered into an agreement dated 29.04.1998 with the complainant whereby the complainant agreed to purchase the flat being no. 4A in the North West Side measuring 818 sq.ft. on the 4th floor of the G+4 storied building together with proportionate share of land and all the amenities and facilities attached thereto, on consideration price of Rs.4,29,450/-. Complainants had applied for house building loan of Rs.2,50,000/- before HDFC Ltd for purchasing the said flat. Complainant has made payment of Rs. 4,29,450/- towards he said consideration amount and Rs. 39,450/- towards the cost for amenities and facilities attached thereto. OP handed over possession of the said flat to the complainants on 20.09.1998 upon receiving the entire consideration money. Complainants are in occupation of the said flat in question since after the possession was handed over to them. Their names are recorded in the assessment book of Kolkata Municipal Corporation and are liable to pay the tax. The complainants repeatedly requested the OPs to execute and register the deed of conveyance in their favour but they have avoided to register the deed. The complainants in the meantime had to go out of station in connection with their work. But whenever they came, requested the OPs to register the deed but all in vein. Ultimately, notice has been sent to OPs by the complainant through the Ld. Advocate but the notice returned with postal endorsement ‘absent intimation served’. So, the present complaint has been filed by the complainants praying to direct the OPs to execute and register the deed of conveyance in favour of the complainants in respect of the flat which is described in schedule ‘B’ of the complaint petition, to pay the damages of Rs. 1,50,000/- and the cost of the proceedings.
On perusal of the record it appears that the notice was sent but as no step taken by the OPs, vide order date d 01.10.2018, case was directed to be proceeded exparte against the OP.
Complainant has annexed with the complaint petition, copy of agreement for sale dated 29.04.1998, possession letter, consent letter issued by the OP dated 04.06.1998 to HDC Ltd. for issuance of the loan, the letter from the HDFC Ltd. , the tax bill issued by the K.M.C. and copy of the notice sent through Ld. Advocate. During the course of evidence, complainants have filed the affidavit-in-chief supporting their case in the complaint petition and subsequently also filed written notes of argument.
So, the point requires determination is whether the complainants are entitled to relief as prayed for.
Decision with reasons
On perusal of the agreement dated 29.04.1998 it appears that the same has been entered into between the OPs with the complainant for sale of the flat described in the Seventh schedule in the agreement. As per the recital of the agreement, Rs. 25,000/- as advance was paid agreeing to pay balance amount of Rs. 15,900/- only on demand from the Vendor but before the delivery of possession of the flat. However, it appears from the letter which has been issued by the OP dated 04.06.1998 to the Housing Development Finance Corporation Ltd. that the OP has stated about the agreement entered into between the OP Firm with the complainant whereby OP agreed to sell the flat at a total consideration of Rs. 4,29,450/- and Rs. 39,450/- for other amenities attached therein. It is also stated in the said letter that they had no objection against giving loan to the complainants as prayed by them. So from the said letter dated 04.06.1998 it is evident that the consideration price was Rs. 4,29,450/- with further amount of Rs. 39,450/-. According to the complainants they have paid the entire consideration price and to this effect they have also filed receipts showing issuance of the cheque to the OP Company. The possession letter has been filed dated 20.09.1998 whereby the OP has handed over Key of the flat No. 4A so the possession of the flat was handed over to the complainants on the said date. In order to show that they are possessing the flat, complainants have also filed municipal property tax receipt. So, on consideration of the documents filed by the complainants as referred to above, complainants have been able to establish their case and as the deed of conveyance has not been executed in favour of the complainants in respect of the subject flat, there has been deficiency in service on the part of the OP and thus the complainants are entitled to the relief as prayed for especially when there is no evidence before this Forum to counter and rebut the case of the complainants. However, as the complainants have been in possession of the subject, we do not find any justification to allow the compensation as prayed for.
Hence,
ordered
CC/453/2018 is allowed exparte. OPs are hereby directed to execute and register the deed of conveyance in favour of the complainants in respect of the flat as described in schedule –B of the complaint petition within three months from the date of this order. OPs are further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of three months in default the same shall carry interest @ 8% p.a. till its realisation.
