Date of filing : 04/08/2022
Date of Judgement : 25/11/2024
Sri Manish Deb, Hon’ble Member
The brief fact of the case is that the OP No. 2 is a developer and proprietor of his proprietorship business under the name and style of M/s. MAA KALI ENTYERPRISE i.e the OP No.1. and OP No.3 & OP No.4 are joint owners of all that piece or parcel of land 4 cottahs 8 chittak of Mouza- Bansdroni, J.L No.45 R.S Plot No. 275(P) & 3198 P.S Regent Park, Kolkata, the OP No.2 being the proprietor of M/s. Maa Kali Enterprise, approached by the OP No.3 & OP No.4 with a proposal to develop the said property by constructing a straight four storied building upon the said premises and the OP No.3 OP No.4 entered into a development agreement with OP No.1 duly represented by OP No.2 which was registered on 17.01.2018.
That the complainant came in contact with the OP No. 2 and accepted the proposal of the OP No.2 to purchase a flat measuring about 400 sq.ft. more or less super built up area on the ground floor under KMC Premises No.195 Bansdroni Govt Colony Kolkata 700070, for a total consideration amount of Rs.8,20,000/-. Accordingly the complainant entered into an agreement for sale dated 14.03.2018 with OP No.1 duly represented by OP No. 2 where OP No. 2 have unequivocally assured the complainant to handover the vacant possession of the said flat after completion of the construction of the said new straight four storied building within a period of 18 months from the date of signing of the agreement for sale dated 14.03.2018.
That the complainant case is also that out of the said total consideration amount, the complainant have already paid a total sum of Rs.6,45,000/- only as advance to the OP No.1 duly represented by OP No.2 by way of cheque as well as cash as per the terms and conditions mentioned in the Agreement for Sale dated 14.03.2018.
That the complainant further states that it is unfortunate to mention herein that it has been lapse of more than 4 years from the date of agreement for sale to till date and the Opposite Parties have failed to deliver the possession of the said flat and registered the same in favour of the complainant as per the terms and conditions stated in the agreement for sale.
Thereafter on several occasions the complainant has personally visited the office of the OP No.1 & OP No.2 and requested them to execute & registered the deed of conveyance of the flat and deliver the possession of the same but till the date filing of the case the OP No.1 and OP No.2 have neither showed any positive initiative to handover the vacant possession ,to execute & registered the deed of conveyance of the flat nor bothered to return back the money, rather the OP No.1 & OP No.2 deliberately not received the phone calls of the complainant and also tried to avoid the complainant with an intent to not deliver the vacant possession of the said flat and/or return the money which the OP No.1 & OP No.2 took for selling the said flat.
That the complainant also states that thereafter on several occasion the complainant visited the office of the OP No.1 with a request to either to deliver the vacant possession of the said flat and execute the registration of the same or to return back the advance amount but each and every time the OP No.1 & OP No.2 failed to comply with the terms and conditions of agreement for sale dated 14.03.2018 and in this manner the OP No.1 & OP No.2 held up the money of the complainant for transfer of the said flat for more than four years or more which is a clear indication of deficiency in service on the part of the OP No.1 & OP No.2.
That the complainant by a letter dated 07.06.2022 intimated the OPs to execute a deed of conveyance in favour of the complainant and further handover the possession of the said flat or alternatively return back the hard earned money of the complainant along with simple interest as the rate of the interest prevalent in the market but till date of filing of this complaint petition the OPs did not respond to the said letter and Ops have failed to comply with terms and condition of the sale agreement by showing wilful negligence on their part. After that having no other options left the complainant was finally compelled to send a legal notice dated 23.06.2022 to all the Ops through his Ld advocate stating the entire facts and asked to refund the hard earned money amounting to Rs.6,45,000/-.
Thereafter the complainant has initiated this complain case before this commission and prays for direction upon OP No.1 & OP No.2 to execute a deed of conveyance in favour of the complainant and further handover the peaceful possession of the said flat or alternatively pay the claim amount of sum of Rs.6,45,000/- along with simple prevailing bank interest of RBI Rules.
That the OP No.1 and OP No.2 be directed to pay the compensation amount of Rs.2,00,000/- for the mental agony and harassment caused to the complainants. OP No.1 & OP No.2 be directed to pay a further sum of Rs.50,000/- as litigation cost.
OPs are not contest the case also not filed any written version and thus the case proceeded ex parte against all OPs, wherein they have not denied any deficiency in service on their part thus we are in view that it is only the inordinate delay on the part of the all OPs in execution and registration of the subject property.
POINTS FOR DECISION are
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
- Whether the complainant is within limitation under C.P. Act, 2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant is fall in the category of the “consumer” under C.P. Act, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties are deficient by non Execution and registration of the deed of conveyance of the flat and deliver of the possession of the same .
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged by the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative.
DISCUSSIONS AND FINDINGS
The complainant has filed evidence, and also forwarded Brief Note of Argument at the time of advancing oral argument in the case.
We have applied our mind and gone though the material on record together with the Annexure /documents filed by the complainant.
The complainant entered into the agreement for sale with opposite parties Since opposite parties agreed to execute the deed of sale and delivery of possession of the flat as mentioned in the sale agreement on receipt of total consideration.
Hence we find the inordinate delay on the part of the opposite parties in respect of Execution and registration of the flat and delivery of possession of the same in favour of the complainant on receipt of total consideration.
Going through the agreement of sale, we find that the said flat should have been completed in full and delivered it to the complainant together with execution and registration deed of conveyance and delivery of the possession of the flat latest by the September, 2019. But till the date 3rd August, 2022, the opposite parties have shows no intention to execute & register the deed of conveyance and deliver the possession of the flat in favour of the complainant, it is a clear cut delay of 24 months a long period , and it is deficiency and unfair trade practice on the part of the opposite parties.
In our opinion, the complainant has succeeded in establishing his case and thereby entitled to get relief.
That it was the duty of the OP No.1 & OP No.2 to handover the vacant possession of the said flat and all opposite parties execute and/or register the deed of conveyance in favour of the complainant but instead of handing over the vacant possession of the said flat and registering the said deed of conveyance, the OP No.1 & OP No. 2 intentionally avoided the complainant which also amounts to gross negligence on the OP No.1 & OP No.2.
That the inaction on the part of the OP No.1 & OP No.2 in this regard are absolutely illegal, unjust and malafide and deliberate violation to discharge their duties, liabilities and obligation which is undoubtedly deficiency in service and unfair trade practice on the part of the OP No. 1 & OP No. 2.
That the deceitful activities of the opposite parties have resulted in material loss to the complainant as well as mental agony and harassment. The opposite parties OP No. 1 & OP No. 2 cannot escape from their part of obligations.
The opposite parties are legally bound to discharge their duties and liabilities to provide service to the complainant in pursuance with their black and white undertakings to effectuate the agreement for sale by way of execution and registration of sale deed to bestow the right of ownership of the flat apart from delivery of possession with the letter of possession.
The opposite parties wilfully neglected to discharge their responsibilities and liabilities. it is needless to mentioned that owing to gross negligence on the part of the opposite parties to perform their above stated duties and obligations, the complainant has been suffering from huge pecuniary loss and mental agony on account of deficient service on the part of the opposite parties and OP No. 1 & OP No. 2 doubtlessly have acquired an art of running an unfair trade practice to cheat or deceit the consumers.
Hence the complainant is entitled to get delivery of the possession of the flat and car parking space after execution and registration deed of conveyance flat from the all opposite parties and compensation for harassment and mental agony and litigation cost from the OP No. 1 & OP No. 2.
Hence it is
ORDERED
CC No. 477/2022 is allowed ex parte against OPs.
1. All the opposite parties are directed to execute and register the deed of conveyance delivered the possession of the same in respect to the flat mentioned in the sale agreement as well as mentioned in the complaint petition filed by complainants in favour of the complainants within 60 days from the date of this order, Alternatively refund the entire advance money of Rs. 6,45,000/ with 12 % interest per annum from the date of execution of the sale agreement by OP No. 1& 2 to the complainants within 60 days from the date of this order.
2. OP No. 1 & 2 are to pay compensation of Rs. 50,000/- to the complainant within 60 days from the date of this order.
3. OP No. 1 & 2 are also directed to pay Rs. 10,000/- towards cost of litigation to the complainant within 60 days.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
