Date of filing : 10.7.2019

Date of Judgment : Dt.27.1.2021

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Mridula Mitra alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Mrs. Mamata Nath, (2) Nisith Chandra Nath and (3) Tapas Karmakar.

            Case of the Complainant, in short, is that late Naresh Chandra Nath entered into a development agreement dt.31.7.1993 with late Bijay Krishna Karmakar and late Rabindra Nath Karmakar being the land owner to develop a multi storied building over the property described in the said development agreement. Complainant by an agreement for sale dt.19.6.1996 purchased a flat at a total consideration price of Rs.2,50,000/-. The possession of the flat has already been delivered to the Complainant on 17.8.1997 by late Naresh Chandra Nath/developer. Said Naresh Chandra Nath died leaving behind OP No.1 & 2 as his legal heirs and the owner Rabindra Nath Karmakar and Bijoy Karmakar died leaving OP No.3 as their legal heirs. Rabindra Nath Karmakar had died intestate as a bachelor leaving his brother Bijay Krishna Karmakar as sole owner who subsequently died leaving his widow Smt. Kamala Karmakar and son OP No.3. Thereafter, Kamala Karmakar also died leaving OP No.3 as sole legal heir. In spite of repeated requests, the deed of conveyance has not been executed in favour of the Complainant by the OPs. So, the present case for directing the OP to register the flat in question in favour of the Complainant and to direct OP No.1 & 2 to pay Rs.30,000/- as compensation and Rs.15,000/- as litigation cost.

            Complainant has annexed with the complaint, copy of the agreement entered into between the owners and the developers on 31.7.1993, copy of general power of attorney executed by the owners in favour of the then developer, the agreement dt.19.6.1996 entered into between Complainant and the developer, the receipts showing payment, possession letter regarding handing over of the possession of the flat in question on 17.8.1997 to the Complainant and copy of the legal notice dt.18.5.2019.

            On perusal of the record, it appears that OP No.1 & 2 have contested the case by filing written version. However, OP No.3 did not take any step and thus the case proceeded ex-parte against OP No.3.

            So, only point require determination – Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

            Complainant has claimed that he purchased the flat in question as described in the schedule of agreement dt.19.6.1996 and has made full payment. He has filed the said agreement and the receipts. On perusal of the possession letter, it appears that the possession of the flat as described in the agreement was handed over to the Complainant by the developer i.e. predecessor-in-interest of the OP No.1 & 2 on 17.8.1997. OP No.1 & 2 have filed the written version and have admitted the claim of the Complainant. However, they have contended that since power of attorney was not executed in their favour by the owner after the death of previous owners they could not execute the deed of conveyance in favour of the complainant, even though they have always been willing to register the said flat in favour of the Complainant. So, on consideration of these documents inclusive of the admission by the OP No.1 & 2, the Complainant is entitled to execution of the deed of conveyance in her favour in respect of the flat as per agreement. However, keeping in view the facts and situation of this case, we find no justification to direct OP No.1 & 2 to pay the compensation as they have specifically claimed that no power of attorney was executed in their favour.

            Hence

                            ordered

            CC/334/2019 is allowed on contest against OP No.1 & 2 and ex-parte against OP No.3. OPs are directed to execute and register the deed of conveyance in favour of the Complainant in respect of the flat as per agreement dt.19.6.1996 within two months from this date. OPs are further directed to pay litigation cost of Rs.10,000/- within the aforesaid period of two months.