West Bengal

South 24 Parganas

CC/08/169

Sri Siddhartha Guha. - Complainant(s)

Versus

Mrs. Subhra Majumdar. - Opp.Party(s)

27 Nov 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _169_ OF ___2008__

 

DATE OF FILING : _6.8.2008__                             DATE OF PASSING JUDGEMENT:  _27.11.2015

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Subrata Sarker

                                                                             

COMPLAINANT             :    1. Sri Siddhartha Guha,s/o late S.N. Guha

2.    Nabinita Guha,w/o Siddhartha Guha

Both of 91, Monoharpukur Road, Kol-29, and also of 4A, South Park, Santoshpur, Kolkata-75.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

 

-VERSUS  -

 

O.P/O.Ps                            :  1. Mrs. Subhra Majumdar, w/o Sri Animesh Majumdar of 47, South Park, Kol-75, prop of M/s “Pyramid” of 17, South Park, Kolkata – 75.

                                             2.    Sri Shyamal Kanti Maitra,s/o late Pijush Kanti Maitra of 4, South Park, Santoshpur, Kolkata – 75

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President          

 

The short case of the complainant is that O.P-2 is the absolute owner of the land measuring 6 chattak more or less pertaining to RS Dag no. 911 ,municipal premises no.63, South Park, Kolkata – 75 . He entered into a development agreement with the O.p-1 who obtained sanctioned plan and power of attorney from the land owner, O.P-2. The complainant was aware about the said construction of proposed building and agreed to purchase a flat on the north east side of the second floor being flat no.2A comprising super built up area with stair case and other common facilities measuring more or less 880 sq.ft together with proportionate undivided share in the land of the proposed building at a total consideration of Rs.10 lacs and one agreement for sale was executed on 9.5.1997 with the O.P-1 wherein O.P-2 was a confirming party being the owner and it was agreed that O.Ps shall convey and sell out flat no.2A on the North East side of second floor ,total super built up area 880 sq.ft. It has stated that the complainant has paid entire consideration money as agreed in the said agreement for sale dated 9.4.1997 on different dates vide two cheques issued in UBI, Kasba Branch and O.P-1 acknowledged the same issuing money receipt. . It is the further case of the complainant that they obtained loan from SBI, Kasba Branch and original agreement is lying with the Bank. But after payment of entire consideration money O.P-1 after a lapse of several years handed over possession of the said flat on 15.4.2000 but did not execute and register the deed of conveyance till date. Hence, this case with a prayer for execution and registration of deed of conveyance and compensation of Rs.2 lacs and cost.

Insptie of sending summon O.P-1 is not contesting the case . Hence, the case is running against him exparte.

O.P-2 being the owner of the land is contesting the case by filing written version, wherein he has denied that he never entered into any agreement for sale in respect of any flat with the complainant. So, he is unnecessary party and the agreement for sale is hopelessly barred by limitation. He has further started that in view of specific provision of the agreement, the O.P-2 is completely an unnecessary party. Accordingly, the present petition is vitiated by misjoinder of necessary party. It has further denied that they are ready and willing to perform their obligation as mentioned in the agreement for sale and also categorically denied regarding delivery of possession of the flat . It has further stated that there is dispute between O.P-1 and O.P-2 which is pending before the Civil Court being TS no.20 of 2002 ,wherein O.P-2 has taken the plea that Development Agreement entered into between O.P-1 and O.P-2 is void and not enforceable due to interpolation and uncertainty. It has further stated that the complainant never made any demand to this answering O.P-2 for execution and registration of deed of conveyance . Accordingly, O.P-2 prays for dismissal of the case.

Points for decision in this case is whether there is any deficiency in service on the part of the O.Ps or not.

                                                            Decision with reasons

It appears from the development agreement along with its annexures that developer has already received entire consideration money and in terms of the agreement the complainant is entitled to get registration of the flat particularly when he is in possession of the said flat. Moreover, from the letter of statement of Union Bank of India it is appearing that complainant has obtained loan of Rs.5 lacs from the Bank for purchasing the flat  and original agreement for sale is lying in the Bank custody till the dues is outstanding. It appears from Annexure C that complainant is enjoying electricity line from CESC in the said flat no.2A second of the said building. So, there is no dispute that the complainant is in possession of the said flat in terms of the agreement. The owner being O.P-2 is bound to execute the deed of conveyance because he has already made a development agreement with the O.P-1 ,that is why O.P-1 sold the developer’s allocated portion and that is why complainant purchased the said flat after paying his good money of Rs.10 lacs and also enjoying possession of the said flat without any hindrance by any other parties even the landlord ,that is why CESC has been able to provide electricity in the said flat. Now it is the right of the complainant to get the registered deed of conveyance and the developer and the landlord are jointly responsible for non-registration of the said flat.

            So, we find that there is a deficiency in service by not executing the deed of conveyance in favour of the complainant in terms of the agreement for sale by the O.Ps.

Accordingly, it is

                                                                        Ordered

That the application under section 12 of the C.P Act is allowed in exparte against O.P-1 but allowed on contest against O.P-2.

Both the O.Ps are directed to execute and register the deed of conveyance in respect of the said flat mentioned in the schedule of the complaint within 30 days from the date of this order, failing which, complainant is at liberty to approach before this Forum for appointment of machinery of the Forum for execution and registration of the said flat.

Both the O.Ps are jointly and/or severally directed to pay compensation to the tune of Rs.50,000/- and cost of Rs.10,000/- to the complainant within 30 days from the date of this order, failing which, complainant is at liberty to recover the amount through execution proceedings.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

Member                                                                                                                       President

Dictated and corrected by me

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

           

.

Ordered

That the application under section 12 of the C.P Act is allowed in exparte against O.P-1 but allowed on contest against O.P-2.

Both the O.Ps are directed to execute and register the deed of conveyance in respect of the said flat mentioned in the schedule of the complaint within 30 days from the date of this order, failing which, complainant is at liberty to approach before this Forum for appointment of machinery of the Forum for execution and registration of the said flat.

Both the O.Ps are jointly and/or severally directed to pay compensation to the tune of Rs.50,000/- and cost of Rs.10,000/- to the complainant within 30 days from the date of this order, failing which, complainant is at liberty to recover the amount through execution proceedings.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

Member                                                                                                                       President