Dt. of filing – 24/04/2019

Dt. of Judgement – 10/01/2020

Mrs. Sashi Kala Basu, Hon’ble President

        This consumer complaint is filed by the Complainant namely Ranjit Kumar Nath under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Mrs. Mamata Nath 2) Nisith Chandra Nath and 3) Tapas Karmakar alleging deficiency in service on their part.

          Case of the Complainant in short is that Opposite Party No.1 & 2 are the legal heirs of Late Naresh Chandra Nath (since deceased) who was proprietor of M/s. Sreeram Construction. Opposite Party No.3 is the legal heir of late Bijay Krishna Karmakar and late Rabindra Nath Karmakar and has now become sole and absolute owner of premises no.54, South Park, Santoshpur under Jadavpur Police Station. A development agreement dated 31/07/1993 was entered into between predecessor in interest of Opposite Party No.1 & 2 and predecessor in interest of the Opposite Party No.3, to develop a multi-storied building. Power of Attorney was also executed by the predecessor in interest of Opposite Party No.3 in favour of predecessor in interest of Opposite Party No.1 & 2, developer. Complainant was in search of garage for his car parking and thus approached the then developer namely Naresh Chandra Nath who was also his brother, who agreed to sale the Complainant, car parking garage measuring about 350 sq. ft. built up area from developer’s allocation at a consideration of Rs.1,50,000/-. Complainant paid Rs.1,30,000/- and has always been ready to pay balance amount of Rs.20,000/-. Possession of car parking in question has already been delivered to the Complainant by the then developer by issuing possession certificate along with the key of the garage dated 28/12/1998. But inspite of several approach by the Complainant to the Opposite Parties, after the death of the then developer, Opposite Parties have not registered the deed in favour of the Complainant. So a notice was sent by the Complainant through his Ld. Advocate but all in vain and so the present complaint has been filed by the Complainant praying for directing the Opposite Parties to register the said garage in his favour, to pay Rs.30,000/- by Opposite Party No.1 & 2 as compensation and litigation cost of Rs.15,000/-.

          Complainant has annexed with the complaint, copy of the development agreement dated 31/7/1993, copy of the Power of Attorney dated 31/5/1996, possession certificate dated 28/12/1998, copy of the notice dated 14/2/2019 and also the notice dated 4/3/2019 sent by the Opposite Party No.1 & 2 in reply to the notice of the Complainant.

          Opposite Party No.1 & 2 has contested the case by filing written version contending inter alia that they have several times stated the fact that though they are willing to register the said garage in favour of the Complainant but without Power of Attorney from the present land owner/Opposite Party No.3,  they could not execute and register the deed.

          Opposite Party No.3 did not take any step and the case has been heard ex-parte against him. During trial, Complainant filed a petition praying for treating the complaint petition as evidence and as the Opposite Party No.1 & 2 by filing a petition submitted that they shall not file any questionnaire or any evidence, the argument was heard.

          So the only point requires determination:-

          Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

          It is claimed by the Complainant that the development agreement was entered into between Bijay Krishna Karmakar and Rabindra Nath Karmakar who are the land owners and predecessor in interest of Opposite Party No.3 and the predecessor-in-interest of OP No.1 & 2, namely Naresh Chandra Nath being the proprietor of M/s. Sreeram Construction, to develop the property and to raise multi-storied building. Copy of the development agreement dated 31/7/1993 has been filed by the Complainant wherefrom it appears that as per specific terms, builders had powers and authority as authorised agent of the owners, to enter into agreement for sale with the intending buyers. Power of Attorney was also executed and the copy of the same has been filed by the Complainant. It appears that consequent to the said development agreement and the Power of Attorney executed by and between predecessors in interest of both the Opposite Parties, the then developer entered into an agreement with the Complainant to sale a covered garage measuring 350 sq. ft built up area in the ground floor. Copy of the said agreement for sale dated 30/10/1998 has been filed whereby it is specifically stated that the delivery of physical possession of car parking would be made on 24/12/1998. Further a copy of the possession certificate has also been filed which is dated 24/12/1998 which appears to have been issued by the then developer namely Naresh Chandra Nath in favour of the Complainant. It is claimed by the Complainant that since then he has been in possession of the said covered garage in the ground floor. It may be pertinent to mention here that the signature in the possession letter of the then developer namely Naresh Chandra Nath and the signature in the agreement for sale though differs but the best person who could challenge the same were the Opposite Party No.1 & 2 being legal heirs of said developer. But since the Opposite Party No.1 & 2 have not disputed that the Complainant is in possession of the garage in question and have categorically stated that they are ready and willing to execute the deed but unable to do so in the absence of Power of Attorney in their favour. In such a situation, Complainant is entitled to the execution and registration of the deed in his favour especially when no contrary material is forthcoming before this Forum to counter or rebut the claim of the Complainant. Complainant has also prayed for compensation but in the given situation of this case and as Complainant has been enjoying possession of the property in question but chose to remain silent and moved the matter only in 2019, we find no justification to allow compensation as prayed for.

Hence,

               ORDERED

CC/238/2019 is allowed on contest against Opposite Party No.1 & 2 and ex-parte against Opposite Party No.3.

Opposite Parties are directed to execute and register the Deed of Conveyance in respect of the garage as per agreement in favour of the Complainant within 3(Three) months from this date on payment of balance consideration of Rs.20,000/- by the Complainant to the Opposite Party No.1 & 2. They are further directed to pay litigation cost of Rs.10,000/- within the aforesaid period of 3(Three) months.