Dt. of filing : 18/2/2019
Dt. of Judgement : 02/02/2021
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Mr Supriyo Roy under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (referred as OPs hereafter) namely 1) M/s. Chakraborty & Co, 2) Sri Soumen Das, and 3) Sri Salil Das alleging deficiency in service on their part.
Case of the Complainant in short is that Opposite Party No.2 & 3 being the joint owners entered into development agreement with the Opposite Party No.1 on 17/12/2015 for development of the property as described in the schedule of the said agreement. General Power of Attorney was also executed in favour of the proprietor of Opposite Party No.1 namely Rudrabhanu Chakraborty on 2/2/2016. Subsequently Opposite Party No.1 as Constituted Attorney of Opposite Party No.2 & 3 by an agreement for sale dated 10/4/2018 agreed to transfer one self contained flat as described in the schedule of the said agreement at a consideration price of Rs.15,00,000/-. Complainant has paid total sum of Rs.14,50,000/- to the Opposite Party No.1 till the date of execution of the agreement. Complainant has always been ready to pay balance amount of Rs. 50,000/- at the time of execution and registration of Deed of Conveyance. But Opposite Parties have neither delivered the possession of the flat nor has executed the Deed of Conveyance in favour of the Complainant. As per agreement, the flat was to be delivered within six months from the date of execution of the said registered agreement for sale dated 10/4/2018. Complainant is residing in a rented accommodation and has been paying monthly rent of Rs.15,000/-. Since the flat has not been handed over, present complaint has been filed by the Complainant directing the Opposite Party to deliver the possession of the schedule flat and to execute and register the Deed of Conveyance in respect of the said flat as agreed on receiving the balance consideration amount, to direct the Opposite Party to pay the amount of monthly rent of Rs.15,000/- since November, 2018, to pay compensation of Rs.2,00,000/- and to pay litigation cost of Rs.50,000/-.
Complainant has filed agreement for sale dated 10/4/2018 entered into between the parties in support of his case.
On perusal of the record it appears that Opposite Party No.1/Developer has contested the case by filing written version contending inter alia that construction work was held up due to paucity of fund. Opposite Party No.1 proposed the Complainant to refund the money which he had received as earnest money. Thereafter he has refunded sum of Rs.17,53,400/- in total to the Complainant. So Opposite Party has prayed for dismissal of the case.
During the course of the trial, Complainant by filing a petition prayed for treating the complaint as evidence which was considered and allowed. However, no questionnaire was filed by the Opposite Party No.1. So the opportunity to file questionnaire by Opposite Party No.1 was closed vide order dated 8/11/2019. Thereafter by filing a petition Opposite Party No.1 prayed for treating the written version as evidence on behalf of Opposite Party No.1 which was considered and allowed. On submission of the Complainant that no questionnaire would be filed, ultimately the case was fixed for argument.
On perusal of the record it appears that Opposite Party No.2 & 3 did not take any step and thus vide order dated 23/4/2019 the case was directed to be proceeded ex-parte against the Opposite Party No.2 & 3.
So the following points require determination:
- Whether there has been deficiency in service on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion in order to avoid repetition.
Complainant has claimed that by a registered agreement for sale dated 10/4/2018, he agreed to purchase the flat as described in the schedule therein from the Opposite Party No.1 as developer and the Constituted Attorney of Opposite Party No.2 & 3. He has filed the said agreement wherefrom it appears that Opposite Party No.1 executed the said agreement as developer and Constituted Attorney of owners and agreed to sell the flat as described therein at a total consideration amount of Rs.15,00,000/-. It appears from the memo of consideration in the said agreement that total sum of Rs.14,50,000/- has been paid by the Complainant and the same is also admitted by the Opposite Party No.1 in his written version. Opposite Party No.1 has also admitted the claim of the Complainant that the possession of the flat in question has not been handed over to the Complainant. However, he has contended that due to paucity of fund he could not complete it and so he offered to refund the amount paid by the Complainant. It is further contended by him that subsequently he has returned total amount of Rs.17,53,400/- to the Complainant which also included the amount paid by the wife of the Complainant as earnest amount towards consideration for a separate flat for which she has filed another case being no.CC/100/2019. But in support of his claim that he has returned total sum of Rs.17,53,400/-, Opposite Party No.1 has not filed any document. Even though he has stated in his written version in paragraph 14 that he transferred the said amount through Bank, NEFT but no such Bank Statement has been filed. So in the absence of any document about refund of the money, contention of the Opposite Party that he has returned Rs.17,53,400/- cannot be accepted. So since neither the flat has been handed over to the Complainant nor the money has been refunded, Complainant is entitled to possession of the flat for execution and registration of the deed in respect of the said flat as prayed by him. However, so far claim of the Complainant that he is also entitled to monthly rent being paid by him, Complainant has not filed any document to substantiate that he is residing in any rented accommodation. He has neither filed any rent agreement nor any rent receipt. In such a situation he is not entitled to any amount towards reimbursement of rent as claimed by him. However, since the Complainant will have to pay the cost towards the registration of the Deed of Conveyance as per present market value, an amount of Rs.70,000/- as compensation will be justified and Rs.12,000/- as litigation cost. It may however be pointed out that it is an admitted case of the Complainant in CC/100/2019 filed by his wife that the Deed of Conveyance was executed in favour of his wife by the Opposite Party No.1 as Constituted Attorney of Opposite Party No.2 & 3 which indicates that the Opposite Party No.1 by General Power of Attorney has been empowered to execute and register the Deed of Conveyance in favour of the intending purchaser. So Opposite Party No.1 being empowered to do so is liable to execute the deed as well in favour of the Complainant.
Hence,
ORDERED
CC/99/2019 is allowed on contest against Opposite Party No.1 but dismissed ex-parte against Opposite Party No.2 & 3. Opposite Party No.1 is directed to deliver the possession of the flat and to execute the Deed of Conveyance in favour of the Complainant as per agreement dated 10/4/2018 within 3 months from this date on payment of balance consideration of Rs.50,000/- by the Complainant. Opposite Party No.1 is further directed to pay Rs.70,000/- as compensation and Rs.12,000/- as litigation cost to the Complainant within the aforesaid period of three months.
