Date of filing: 03.07.2019
Judgment date: 23.11.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant Arbind Kumar U/s. 12 of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the opposite parties (referred as O.P.s hereinafter) namely (1) Mrs. Bulu Bhattacharya and (2) Mrs. Krishna Banerjee.
The case of the complainant in short is that a development agreement was entered into between the opposite party No. 1 the developer and opposite party No. 2 the owner to develop and construct a building on the premises being no. 67A, Bikramgarh, P.S. Jadavpur, Kolkata – 700 032. Consequent to the agreement entered into between the opposite parties, O.P. No. 1 the developer decided to sell his allocation and complainant after coming to know about the same entered into an agreement to purchase a flat situated at 2nd Floor, having super built up area of 752 sq. ft. The agreement was entered into between the complainant and the O.P. No. 1 of 02.04.2004. Complainant has paid the entire consideration amount of Rs. 5,50,000/- to the O.P. No. 1 who delivered the possession of the flat on 15/09/2007. O.P. No. 1 also issued a possession letter but in spite of several request the deed of conveyance has not been executed and registered in favour of the complainant in respect of the said flat. So ultimately a legal notice dated 10/04/2019 was sent by the complainant through his Advocate but all in vain. So the present complaint has been filed praying for directing the opposite parties to register deed of sale in favour of the complainant and to pay compensation of Rs. 20,000/- and also to pay litigation cost of Rs. 5,000/-.
O.P. No. 1 has contested the case by filing the written version contending specifically that after receiving the entire consideration money from the complainant, O.P. No. 1 has delivered the possession of the flat but could not execute the deed in favour of the complainant as the O.P. No. 2 / land owner even though executed General Power of Attorney but in spite of assurance did not register the said General Power of Attorney and so for the said reason O.P. No. 1 has no authority or power to register the deed of conveyance in favour of the complainant. So the O.P. No. 1 has prayed for dismissal of the case against him.
On perusal of the record it appears that O.P. No. 2 the land owner did not take any step and thus the case has been heard exparte against her.
During the course of the trial complainant has filed Affidavit-in-Chief but after filing of the written version, no step was taken by O.P. No. 1. So ultimately the case was fixed for argument. BNA has been filed by the complainant.
The only point requires determination is whether the complainant is, entitled to the relief as prayed for?
DECISION WITH REASONS
In support of his claim that he agreed to purchase a flat and paid the consideration money, complainant has filed the copy of the agreement for sale and also the money receipt. However, it may be pertinent to point out that the O.P. No. 1 who is the developer has not denied either the execution of the agreement between him and complainant nor has denied the payment of the entire consideration price by the complainant. Admittedly the possession of the flat as per agreement dated 02/04/2004 has already been delivered to the complainant and the complainant is in possession of the said flat. The only contention which has been raised by the O.P. No. 1 is that he was unable to execute the deed of conveyance in favour of the complainant as the Power of Attorney in his favour was not registered by the owner / O.P. No. 2. Since before this Commission, there is absolutely no contrary material to counter the claim of complainant especially as the O.P. No. 2 the owner in spite of notice being served did not take any step, we hold that the complainant is entitled to the execution and registration of the deed in his favour in respect of the flat as per agreement. However, we find no justification to pass any order as to compensation because the complainant himself did not take any step immediately after the possession was delivered to him and the present case has been filed only in the year 2019 i.e. long after the delivery of possession.
Hence,
ORDERED
CC/326/2019 is allowed on contest against O.P. No. 1 and exparte against O.P. No. 2. Opposite parties are directed to execute and register the deed of conveyance in respect of the flat as per agreement dated 02/04/2004 in favour of the complainant within two months from this date.
