In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No.146/2010
1) Smt. Bratati Biswas,
58, Brair Wood Drive E, Warren, N.J.-07059
2) Smt. Bani Das,
38A, Lansdowne Terrace, 1st Floor, Kolkata-26 ------------ Complainants
---Versus---
1) M/s. Howrah Enclave Pvt. Ltd.
7/1B, Hazra Road, P.S. Tollygunge, Kolkata-26.
2) Sri Partha Dey, Director of M/s. Howrah Enclave Pvt. Ltd.
7/1B, Hazra Road, P.S. Tollygunge, Kolkata-26.
3) Smt. Kamala Ghosh
4) Sri Jyotirmoy Ghosh
5) Smt. Tiyasa Basu
6) Sri Tanmoy Ghosh
3 to 6 residing at 38A, Lansdowne Terrace,
P.S. Tollyfgunge, Kolkata-26. ----------- Opposite Parties
Present : Sri Sankar Nath Das, President.
Smt. Sharmi Basu, Member
Order No. 25 Dated 24/12/2012.
Sharmi Basu, Member
In a nutshell the case of the complainant in short is that complainants have entered into an agreement for sale on 21.7.1999 with the developer (o.p. nos.1 and 2), wherein o.p. nos.3 to 6 are the landowners for purchasing a flat with a car parking space and total consideration amount of that property as per agreement for sale was already paid to o.p. nos.1 and 2 by the complainants and physical possession of that property was given by the developer to them on 1.6.04. But after repeated requests of the complain ants o.ps. did not execute and register the deed of conveyance in favour of the complainants in relation to the property in question.
Hence the complainants have no alternative but to file the instant case before this forum for redressal of the dispute and they prayed for relief as mentioned in the petition of complaint.
Even after valid service of summons o.p. nos. 3to 6 did not appear before this Forum and the instant case was heard ex parte against o.p. nos.3 to 6. O.p. nos.1 and 2 had entered their appearance in this case by filing w/v and denied all the material allegations labeled against him and interalia stated that due to unwillingness of the complainants to execution and registration of the aforesaid deed of conveyance in relation to the suit property could be performed and being developer o.p. nos.1 and 2 are always willing to execute and register the same in favour of the complainants and prayed for dismissal of the case.
Decision with reasons:
We have gone through the pleadings of the parties, evidence and documents in particular and it is observed by this Forum that it is fact that complainants had entered into an agreement for sale for purchasing a flat along with car parking space and they paid the entire consideration amount of the suit property to the developer (o.p. nos.1 and 2) but the deed of conveyance had not been executed and registered in favour of the complainants in relation to the suit property.
As per the contention of the developer (o.p. nos.1 and 2) instant case is barred by limitation. In this regard it is need to be mentioned that the Hon’ble Apex Court has already been pleased to observe that in case of real estate dispute cause of action shall be continued till the execution and registration of deed of conveyance shall be executed and registration in favour of the purchaser / consumer by the developer and/or landowner. Therefore, in light of the aforesaid valuable observation of Hon’ble Supreme Court the instant case is not barred by limitation.
In that landmark decision of the Hon’ble Apex Court it has also been observed that non-execution of deed of conveyance tantamount to deficiency in service of the developer and/or landowner towards the purchaser / consumer. Therefore, we are strongly of the opinion that developer (o.p. nos.1 and 2) even after receiving total consideration amount of the suit property were duty bound to register the same in favour of the complainants and landowners (o.p. nos.3 to 6) also cannot shirk off their responsibility.
Therefore, we are of the opinion that due to the aforesaid inaction of the o.ps. the complainants have to suffer profuse financial loss and mental agony and value of stamp duty in relation to registration of property and they are entitled for relief.
Hence, ordered,
That the case is allowed with cost on contest against nos.1 and 2 and ex parte against o.p. nos.3 to 6. All the o.ps. are jointly and/or severally directed to execute and register the Deed of Conveyance in favour of the complainants in relation to the suit property. O.p. nos.1 and 2 are jointly and/or severally directed to pay Rs.1,00,000/- (Rupees one lakh) only to the complainants as compensation for the financial loss and mental agony of the complainants due to deficiency in rendering service of the o.p. nos.1 and 2, even after receiving total consideration amount of the suit property from the complainants and also O.p. nos.1 and 2 are jointly and/or severally to pay Rs.10,000/- (Rupees ten thousand) only as litigation cost to the complainants. O.ps. are directed to comply the aforesaid order within 45 days from the date of communication of this order, i.d. o.p. nos.1 and 2 are jointly and/or severally directed to pay Rs.200/- (Rupees two hundred) only per day and o.p. nos.3 to 6 are jointly and/or severally directed to pay Rs.100/- (Rupees one hundred) only per day till full and final compliance of the aforesaid order.
Complainants are at liberty to file execution case before this Forum in case of non-execution of the aforesaid orders within stipulated period.
Supply certified copy of this order to the parties free of cost.
