Date of Filing : 23/03/2022

Date of Judgement : 28.11.2023

Sri Sudip Niyogi, Hon’ble President

                                                                Brief Facts

OP 2 & 3 being the partners of OP 1 – an unregistered partnership firm are the owners of 5/6^th share of the subject premises by way of purchasing  of the same from the original owner and OP 4 to 9 are the owners of 1/6^th share of the subject premises situated at No. 255/55, N.S.C. Bose Road, postal address (2/16) Naktala, P.S. Netaji Nagar, Kolkata 700 047.  OPs 4 to 9 jointly entered into a registered development agreement executed on 12/12/2014 with OP 1 in order to develop the said property, one power of attorney was also executed on the same day by which OPs 4 to 9 nominated and authorized OP No. 2 & 3 being the partners of OP 1, to develop the property and do all acts and deeds etc. as stated in the said document. 

Subsequently, the complainants entered into an agreement with the developer i.e. OP 1, 2 & 3 to purchase one 1150 sq.ft. super built up area more or less with one car parking space on the ground floor at a consideration of Rs.46,00,000/- and at the time of execution and registration of the said document complainants paid Rs.11 lakh and agreed to pay the balance consideration in terms of the agreement for sale.  However, they paid a sum of Rs.37,50,000/- in total and were ready and willing to pay the balance consideration of Rs.8,50,000/- at the time of registration of the deed of conveyance and handing over the possession of the said flat and car parking space.  According to agreement, the complainants were to receive their flat within 18 months from the date of the said agreement, but the said developers failed to complete the construction work and handover the physical possession of the same to the complainants within the stipulated time as agreed upon.  Complainants availed bank loans to acquire the said property and repaid the entire loan without getting possession of the subject property and sustained a huge loss of Rs.40,72,000/-.  Complainant No. 1 is a working lady and complainant No. 2 is a senior citizen suffering from co-morbidities.  They requested repeatedly to the developers to execute the sale deed and handover the physical possession of the subject property.  They also lodged a complaint with the concerned P.S.  So, they approached this commission in order to get execution and registration of a deed of conveyance of the subject property on payment of balance consideration. 

Initially OP 1, 2 & 3 and 8 entered appearance but they did not file any written version.  The notice against the other OPs were issued through newspaper publication, but none of them appeared to contest the case.  So, the complaint was heard exparte. 

Now, the point for determination is, whether the complainant is entitled to any relief(s) in this case.

                                                                      Findings

In order to substantiate their contention, complainants filed one original agreement for sale and also the copies of money receipts showing payment made by them on different dates.  It is found from these documents that complainants had made the said agreement for sale with the developers i.e. OP 1, 2 & 3 on 6/5/2015 whereby they had agreed to buy the scheduled property i.e. the flat and the car parking space at a consideration of Rs.46,00,000/-.  The stipulated time for delivery of the said property was 18 months from the date of the agreement.  It is also found that the complainants paid the amount of Rs.37,50,000/- to the developers towards consideration and they made it clear that they would pay the balance consideration at the time of execution and registration of the document and handover the property to them.  So, on going through the materials on record and considering the unchallenged testimony of the complainant, it is found that the complainants are entitled to relief(s) in this case as prayed for.  Therefore, the instant complaint should be allowed against the OPs and complainants are also entitled to Litigation cost of Rs.10,000/-.

Hence, it is

                                              ORDERED

That the instant complaint is allowed exparte against the OPs.

OPs are directed to execute and register a deed of conveyance in favour of the complainants on receipt of the balance consideration from them in accordance with the agreement for sale dt. 6/1/2015. 

OP 1, 2 & 3 are also directed to pay litigation cost of Rs.10,000/- to the complainants.  The aforesaid order shall be complied with by the OPs within 45 days from the date of this order failing which the complainants shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

President