DATE OF FILING : 26-03-2015.
DATE OF S/R : 15-06-2015.
DATE OF FINAL ORDER : 14-03-2016.
SMT. CHANDRA,
Wife of Jasoda Jiban Aditya,
By faith Hindu, By occupation House wife,
Resident of “Ashoka Apartment” 1st floor ( South East side ),
At 3/1, Ambika Kundu Lane,
P.S. Shibpur, District Howrah………. ………….…………………... COMPLAINANT.
1. M/S. Creative,
a partnership firm, having its office at
49, Kali Prosad Banerjee Lane, P.S. Bantra,
Howrah 711 101
being represented by its partners -
( a ) Sri Jyotimoy Roy,
son of late Ajit Kumar Roy,
( b ) Mr. Subrata Kanrar,
son of late Gopinath Kanrar,
2. Smt. Runu Lahiri,
wife of late Rathindra Prosad Lahiri.
3. Smt. Karabi Lahiri,
4. Smt. Tapasi Chowdhury,
w/o. Amitava Chowdhury,
all of A.T. Ghosh Road, P.S. Jagacha,
Howrah 711112.
5.( a ) Sri Subir Chakraborty,
son of late Saradindu Chakraborty,
(b) Smt. Debjani Bhattacharya,
w/o. Nirmal Kumar Bhattacharya,
& d/o. late Saradindu Chakraborty,
both residents of 7/4, Telco Colony, Jamsedpur,
PIN 831004. ……………………..……………………………………………Opposite Parties.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- The instant case was filed by complainant U/S 12 of the C.P. Act, 1986 wherein the complainant has prayed for a direction to be given upon the o.ps. to execute and register the sale deed in respect of the schedule flat, to pay compensation of Rs. 5 lacs and litigation costs of Rs. 10,000/- along with other relief/s as the Forum may deem fit and proper.
- Brief facts of the case is that on the basis of the Development Agreement dated 30.01.2002 entered between the land owners, being o.p. nos. 2 to 5 and the developer, o.p. no. 1, the power of attorney was given to the o.p. no. 1, developer, by the land owners. On the basis of the same, o.p. no. 1 took the entire purchase price of a flat and undertook to execute and register the Deed Of Conveyanceinto in favour of the complainant with respect to a flat measuring 750 sq. ft. ( approx.), including 15% super built in the first floor ( south-east side ). Complainant paid the total consideration amount and the flat was delivered to the complainant on 25.12.2003 vide Annexures collectively. After receiving possession, complainant has been residing there but unfortunately, even after repeated requests, the registration of sale deed is not completed till date by the o.ps. Being frustrated and finding no other alternative, complainant filed this instant case with the aforesaid prayers.
- Notices were served upon the o.ps. O.p. nos. 1, 3 & 4 appeared and filed written versions. O.p. no. 2 appeared but did not file any written version. O.p. no. 5 ( b ) appeared after fixing ex parte order against her. Accordingly the case was heard on contest against o.p. nos. 1 & 3 and ex parte against the rest.
- Upon pleading of the parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- Both the points are taken up together for consideration. We have carefully gone through the written versions filed by the o.p. nos. 1, 3 & 4 and noted their contents.It is a fact that complainant paid entire purchase price to o.p no 1 for purchasing the flat in question measuring 750 sq. ft. ( approx.), including 15% super built up in the 1st floor, south-east side, got the delivery of the possession of the flat in question on 25.12.2003 and the complainant has been residing there since then. But it is unfortunate enough that the execution and registration of the sale deed could not be completed as different unhappy incidence cropped up by way of death of landlords or otherwise. Legal heirs of the land owners did not execute the power of attorney in favour of the developer, o.p. no. 1 afresh. However, o.p. no. l has always been ready and willing to execute and register the same and it is also argued by the o.p. no. 1 that there is no deficiency on the part of the developer i.e., o.p. no. 1. O.p. no. 3 in her written version vide para 13 has accepted that a development agreement along with a general power of attorney was executed in favour of the developer being o.p. no. 1. It is also accepted by her that possession of the flat in question has already been delivered by the o.p. no. 1 to the complainant. But as a land owner, she has not got her possession till date so it is not possible to do any in favour of the complainant. The o.p. no. 4 in her written version has clearly denied that she has at all entered into any development agreement with o.p. no. 1. Accordingly she has no responsibility or liability to execute and register any sale deed in favour of the complainant and she has also mentioned the filing of different cases without filing any document, whatsoever. However, o.p. no.2, Rathindra Prosad Lahiri since deceased and substituted by order no. 4 dated 23.7.2015 by his wife and only legal heir, Smt. Runu Lahiri, verbally submitted before us that she has no difficulty to execute and register the sale deed in favour of the complainant.Here we take a pause. In this instant case we are to adjudicate the case of the complainant. And it is a fact that even after paying the full consideration amount for the flat in question, the complainant has been compelled to suffer for the non execution and registration of the sale deed in his favour since 2003. O.p. no. 1 ought to have taken positive step to get fresh power of attorney after death of different land owners as o.p. no. 1 had received the entire consideration amount from the complainant in 2003. And it is easily understood that without the registered sale deed, complainant is to face several problems and the ownership of the flat is not created in his favour. We all know that shelter is a basic need for all living creature. So the suffering of the complainant is felt and well understood by this Forum because he was really compelled to run from pillar to post for execution and registration of the sale deed by the o.ps. O.phave shown gross deficiency towards the complainant for no fault on the part of the complainant. And we are of the candid opinion that it is a fit case where the prayers of the complainant should be allowed. Points under consideration are accordingly decided.
Hence,
O R D E R E D
That the C. C. Case No. 117 of 2015 ( HDF 117 of 2015 ) be and the same is allowed on contest with costs as against the O.P. nos. 1, 3 & 4 and ex parte with costs against rest.
The O.Ps. be jointly and severally directed to execute and register the deed of sale in favour of the complainant with respect to the flat in question within 30 days from the date of this order i.d., Rs. 50/- per day shall be imposed upon the o.p. nos. till actual execution and registration of the sale deed. The complainant is to bear the cost of registration.
The o.ps. do further pay a sum of Rs. 20,000/- as compensation to the complainant and Rs. 5,000/- as litigation costs within 30 days from the date of this order i.d. @ 7.50% interest shall be charged till realization.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( Jhumki Saha )
Member, C.D.R.F., Howrah.
