Date of filing :12.12.2018
Judgment : Dt.12.12.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Kanad Ranjan Ganguly alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) M/S Kusum Construction, (2) Sri Sujit Kumar Chowdhury, (3) Sri Samar Chowdhury, (4) Sri Apurba Kumar and (5) Smt. Kaushalya Burman.
Case of the Complainant, in brief, is that the Complainant entered into an Agreement for Sale on 13.6.2000 with the OPs in respect of a flat being No.A2 measuring about 692 sq.ft. super built up area on the second floor of a building to be constructed by the OP developer on a piece of land lying and situated at premises No.106, Borakhola, P.S.-Purba Jadavpur, Kolkata-700 099 at a consideration of Rs.4,50,000/- and paid entire consideration amount.
The Complainant has stated that on the strength of said Agreement for Sale he obtained a Home Loan from LIC Housing Finance Ltd. vide Loan A/C No.410090091 and subsequently repaid the loan amount and the LIC Housing Finance Ltd. issued ‘no objection’ in favour of the Complainant. The Complainant has further stated that construction of the building was completed in December 2000 and possession of the said flat was handed over to the Complainant on 7.1.2001 by the OPs who also issued possession letter dt.7.1.2001 but in spite of receiving requests from the end of the Complainant on several occasions the OPs neglected to execute and register the Deed of Conveyance in favour of the Complainant and, therefore, being aggrieved the Complainant by filing the instant Consumer Complaint prayed for direction upon the OPs to complete the pending works, to execute and register the Deed of Conveyance in favour of the Complainant, alternatively, to register the same through machinery of this Forum, to pay Rs.1,00,000/- towards compensation and Rs.50,000/- towards cost of litigation.
The Complainant annexed Agreement for Sale dt.13.6.2000, possession letter dt.7.1.2001, money receipts, Advocate’s letter.
Notices were served but the OP Nos.1, 4 & 5 did not turn up. So, the case proceeded ex-parte against OP No.4, vide order dt.27.5.22019 and ex-parte against OP Nos.1 & 5 vide order dt.20.2.2019.
OP Nos. 2 & 3 contested the case by filing written version stating inter alia that OP Nos.2 & 3 are the partners of the OP No., M/S Kusum Construction and in terms of Agreement for Sale dt.13.6.2000 possession of the flat in question has been handed over to the Complainant on receipt of entire consideration amount of Rs.4,50,000/- but in spite of receiving requests on several occasions from the end of the OP, the Complainant has taken no step to register the Deed of Conveyance of the flat in question in his favour and has remained silent and as such there is no deficiency on the part of the OP Nos.2 & 3 has taken place, and accordingly, pray for dismissal of the case.
The Complainant prayed for treating the petition of complaint as affidavit-in-chief. Prayer was allowed. However, no questionnaire as well as no evidence was filed on behalf of OP Nos.2 & 3.
Main points for determinations
- Whether there is any deficiency in service on the part of the OPs
- Whether the Complainant is entitled to the relief as prayed for
Decision with reasons
Point Nos. 1 & 2 : Both points are taken up together for comprehensive discussion and decision.
Admittedly, an Agreement for Sale was executed by and between the Complainant and the OPs in respect of a flat to be constructed by the OPs and the Complainant paid entire consideration amount of Rs.4,50,000/-. It is also admitted that the possession of the flat in question was handed over to the Complainant.
The Complainant has alleged that after taking possession from the OPs he requested the OPs to execute and register the Deed of Conveyance and to handover completion certificate but the OPs failed and neglected to register the same.
However, the Complainant ultimately has not made any prayer for handing over completion certificate. So, the same has not been taken into consideration. On the other hand the OP Nos.2 & 3 have stated in their defence that they have requested the Complainant to take step for registration of Deed of Conveyance which the Complainant does not comply.
On perusal of Agreement for Sale dt.13.6.2000, it appears that the OP Nos.4 &5 were owners of two adjacent plots and by virtue of a Deed amalgamated their plots of land for better use and became joint-owners of a piece of land situated at premises No.106, Barakhola, P.S.-Kasba, Calcutta-700 078. It further appears from the said Agreement for Sale that as per terms and conditions agreed by the OP Nos.4 & 5 and M/s Kusum Construction (OP No.1herein) the Developer company raised the building on the said property at their own cost and entered into Agreement for Sale with the Complainant. On perusal of documents on record, it appears that the Complainant sent legal notice dt.24.8.2018 to the OP Nos.1, 2 & 3 for registration of the flat in question and allegedly the OPs paid no heed to that request. Be that as it may, it is contractual obligation of the OP/Developer to register the Deed of Conveyance.
In our view, the Complainant entered into Agreement for Sale and paid entire consideration amount and, therefore, he is entitled to get the flat registered in his favour.
The Complainant prayed for compensation and litigation cost. In this regard, we are of opinion that the Complainant entered into agreement for sale on 13.6.2000 and received possession of the flat on 7.1.2001 and, therefore, question of harassment does not arise at all. Furthermore, the landowners have not put their signature on the Agreement for Sale dt.13.6.2000 and they cannot be dragged to pay compensation.
Considering the circumstances, we are not inclined to award compensation and cost of litigation.
In the result, the Consumer Complainant succeeds in part.
Hence
ordered
That CC/661/2018 is allowed on contest against OP Nos.2 & 3 and ex-parte against OP No.1, 4 & 5 without cost. OPs are directed to execute and register the Deed of Conveyance in favour of the Complainant as per Agreement for Sale dt.13.6.2000 within three months from the date of communication of this order to OP Nos.4 & 5.
