Date of filing: 22/01/2021                                        

Date of Judgment: 12/04/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed by the complainant namely Mrs. Debjani Biswas being represented by her registered Power of Attorney holder namely Sunip Mandal under section 35 of the Consumer Protection Act, 2019 against the opposite parties (referred as OPs herein after) namely (1) M/s. B.M. Construction Company Pvt. Ltd. (2) Sri Priti Bhusan Chatterjee (3) Sri Goutam Chatterjee (4) Mrs. Lily Roy and (5) Mrs. Ila Chakraborty alleging deficiency in rendering of service on the part of the opposite parties.

Case of the complainant in short is that the predecessor in interest of OP Nos. 2 to 5 namely Shanti Bhusan Chatterjee was the absolute owner of property being Municipal Premises No. 519, Baishnab Ghata under Police Station Patuli, Kolkata 700 084. He had entered into a development agreement dated 04/06/1993 with the OP No. 1 the developer to construct a multi storied building and also executed a Power of Attorney in favour of the OP No. 1. Consequently OP 1 the developer by agreement for sale dated 22/04/1996 agreed to sell the flat as described therein to the complainant at a consideration price of Rs. 6,27,000/- along with Rs. 16,500/- towards miscellaneous expenses. Complainant has paid the entire consideration price. In fact she has further paid Rs. 11,889.65/- and Rs. 6,000/- on account of extra job and maintenance for the said flat. On receiving the entire consideration money OP 1 had issued a no dues certificate in favour of the complainant on 20/04/1999. The possession of the flat was also handed over to the complainant on 20/04/1999. The OP 1 was under obligation to execute and register the deed of conveyance in favour of the complainant within 30 days from the date of handing over of the possession. But the OP No. 1 failed to discharge its function by making necessary arrangement to execute and register the deed of conveyance. Despite repeated request by the complainant, deed of conveyance has not been executed in favour of the complainant in respect of the flat in question. So ultimately complainant sent a notice through her Ld. Advocate on 16/05/2016 requesting the developer to execute and register the deed of conveyance but in response the OP developer asked for payment of balance consideration money in respect of the said schedule flat. But the complainant has paid the entire sum. So after waiting for a considerable period of time complainant again sent a notice through her Ld. Advocate on 20/07/2019 to the opposite parties for execution and registration of the deed of conveyance but all in vain. So the present complaint has been filed to direct the opposite parties to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant, to pay compensation of Rs. 2,00,000/- and litigation cost of Rs. 1,00,000/-.

On perusal of the record it appears that in spite of service of notice the OPs did not turn up, so the case has been heard exparte.

The only point requires determination is whether she is entitled to the relief as prayed for.

DECISION WITH REASON

In order to establish her claim, complainant has filed copy of the development agreement dated 04/06/1993 entered into between the owner namely Shanti Bhusan Chatterjee (Since deceased) and the OP developer and has also filed Power of Attorney executed in favour of the OP No. 1 by the said owner. OP Nos. 2 to 5 are the legal heirs of the said owner namely Shanti Bhusan Chatterjee. It appears from the agreement for sale entered into between the complainant and the OPs dated 22/04/1996 that OP No. 1 being the developer agreed to sell the flat as described in the schedule ‘B’ of the said agreement at a total consideration price of Rs. 6,27,000/-. It further appears from no dues certificate dated 20/04/1999 filed by the complainant which appears to have been issued by the developer OP 1 that the OP developer has acknowledged that he has received the entire consideration money and thus handing over the physical possession of the said flat to the complainant. Money receipt are also filed by the complainant in order to substantiate her claim that entire consideration price along with some extra sum towards the extra job done has been paid by the complainant. Since before this commission there is absolutely no contrary material, it is well established that the complainant has paid the entire consideration price.

However, it may be pertinent to point out that according to the complainant possession of the flat was handed over on 20/04/1999 but she remained silent for about 21 years and did not take any step for execution and registration of the deed of conveyance. As per clause ‘6’ of the agreement there is specific recital that if the vendor or confirming party were negligent and there was delay in registration of the sale deed, the purchaser / complainant shall be within her right to get the deed executed and registered through the court. But the complainant remained silent for the reason best known to her. It may also be pointed out that a declaration or affidavit is annexed with the agreement for sale wherein complainant has declared that at the time of construction of the proposed flat, she advised OP developer to make some deviation or the alternation of the proposed flat for her convenience at her own risk and cost and the OP developer was not responsible for such deviation or alteration from the original plan. The said declaration indicates that there has been some construction in the flat which is beyond the sanctioned building plan. But complainant remained silent and did not explain as to why such declaration was given. However be that as it may since before this commission there is no contrary material and apparently the deed has not been executed and registered in favour of the complainant in spite of payment of the entire consideration price, she is entitled to the same. But we find no justifiable reason to allow any compensation or litigation cost as prayed by the complainant.

Hence

             ORDERED

CC/55/2021 is allowed exparte. OPs are directed to execute and register the deed of conveyance in favour of the complainant in respect of the flat as per agreement for sale dated 22/04/1996 within 2 months from this date.