Date of Filing : 14/09/2018

Date of Judgement : 12/09/2023

Sri Sudip Niyogi, Hon’ble President

On 02/04/2016 complainant and her husband had entered into an Agreement for Sale with OP 2 who is the Proprietor of OP 1 Enterprise whereby the complainant and her husband as purchasers agreed to buy one 620 sq.ft. more or less self-contained flat along with undivided proportionate interest in the land etc. in the building situated at Kolkata Municipal Corporation Premises No. 130/124/1 Prince Golam Hossain Shah Road, P.S. Jadavpur, Kolkata 700 032 with billing address D/30/1, Katjunagar within P.S. Jadavpur at a consideration price of Rs.16,30,000/- from the allocation of OP 1 & 2 who are the Developers of the said building.  OP 3 here in this case is said to be the landlord who is said to have appointed the said Developer to develop the said premises following a development agreement.  The said Purchaser made payment of the entire consideration by way of making payment on different dates to the Developer who already delivered possession of the said flat to the Purchasers.  But, subsequently, no deed of conveyance has been executed allegedly by the Opposite Parties in respect of the said flat.  On getting delivery of possession, the complainant also took electricity connection to their flat in the name of her husband from the concerned authority.  According to the complainant, her husband expired subsequently with no deed of conveyance having been executed till now in their favour in respect of that flat.  Therefore, alleging deficiency in service against the Opposite Parties, Complainant filed this case seeking relief in the form of a direction upon the OPs for execution and registration of a deed of conveyance in respect of their flat, payment of compensation and cost of litigation etc.

Separate written versions were filed, one on behalf of OP 1 & 2 and the other for OP 3, challenging by both of them against the maintainability of the instant complaint.  In their written version, OP 3 claimed the complainant to be a trespasser in the said flat, for which complaint was also lodged with the concerned authority.  That apart, she also claimed one civil suit is pending. 

The point of consideration is whether the complainant is entitled to any relief in this case.

                                                            FINDINGS

Both parties filed their evidence. Also issued questionnaires and replies thereto.  Brief Notes of Argument also was filed on behalf of the complainant. 

From the documents filed on behalf of the complainants, it is found, the Agreement for Sale dt. 02/04/2016 was in fact entered into between OP 2, the Proprietor of OP 1 Enterprise and the Complainant and her husband where OP 3 is said to be the owner who was represented by the Developer.  The said Agreement also made it clear that complainant and her husband would buy one 620 sq. ft. approximately in the 1^st floor south-west portion flat at the premises as mentioned in the 2^nd schedule to the said agreement for sale.  The memo of consideration attached with the said agreement also revealed the payment of the entire consideration amount of the said flat to the developer out of whose allocation the complainant agreed to buy the flat.  The possession letter dt. 12/3/2017 issued by OP 2, the proprietor of OP 1 Enterprise as produced by the complainant also revealed that complainant has already got the possession of their flat.  This fact is also found to have been vindicated by the copy of the electricity bill in the name of Dipak Kumar Raut, the husband of the complainant in respect of their flat.  The death certificate produced by the complainant also revealed that her husband expired on 02/03/2018.  Complainant is also found to have issued one letter through her Advocate on 02/06/2018 addressed to the OP 1 & 2 requesting them to execute and register the deed of conveyance in their favour.

It is found that OP 3 filed copies of several documents relating to complaint made before the police alleging breaking of padlock in her premises, one criminal case under different sections of Indian Penal Code against OP 2 and others, one document cancelling the power of attorney in favour of OP 2 and also copy of the plaint in title suit bearing No. 1190 of 2018 against the present complainant and another for recovery of khas possession claiming the defendant to be the trespasser. 

From all these documents produced on behalf of OP 3, it is clearly found that OP 3 had executed one General Power of Attorney in respect of her property including giving the authority to make agreement for sale with the intending purchaser(s) on consideration etc.  The said general power of attorney was executed on 05/11/2014 with the agreement for sale between the complainant and her husband and the OP 1 & 2 was executed on 02/04/2016.  Subsequently, there may be cancellation of the said general power of attorney, but the fact remains that the complainant and her husband had entered into an agreement for sale with the OP 1 & 2 while the said power of attorney was still in existence.  Apart from this, we do not find any paper showing any order of injunction etc. passed in the said title suit at the instance of OP 3.  Therefore, in the circumstances, where the complainant is found to have already got possession of the flat in question on making payment of the entire amount of consideration and also having got electricity connection in the name of her husband, the complainant can in a legitimate way claim execution and registration of the deed of conveyance in her favour in respect of their flat.  Therefore, we do not find any impediment whatsoever on the documents produced by the parties to give relief to her.  Be it noted here that the original agreement for sale was executed between the complainant and her husband, Dipak Kumar Raut.  Subsequently the said Dipak Kumar Raut expired on 02/03/2018 i.e. prior to the filing of this complaint.  In her written argument, complainant claimed that she and her daughter, Manidipa Raut Das are the only heirs of said Dipak Kumar Raut.  One certificate in this regard was also produced by her from the concerned Panchayat.  In her written argument, complainant also prayed for execution of the deed of conveyance in favour of herself and her daughter, Manidipa Raut Das.

So, complainant is entitled to get an order for execution and registration of the deed of conveyance in favour of the complainant and her said daughter in respect of the schedule flat and she is also entitled to Rs.5,000/- for cost of litigation. 

Accordingly, it is

                                    ORDERED

That the instant complaint case stands allowed on contest against all the OPs. 

The OPs are directed to execute and register the deed of conveyance in favour of the complainant and her daughter, Manidipa Raut Das in respect of the scheduled flat and the cost in this regard will be borne by the complainant.

OPs are also directed to pay Rs.5,000/- to the complainant as cost of litigation. 

OPs are directed to comply with this order within a period of 45 days from the date of this order, failing which, the complainant shall be at liberty to proceed with the accordance of law.

Dictated and corrected by me

President