Date of filing :26.7.2017
Judgment : Dt.28.3.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Mira Dey alleging deficiency in service on the part of the opposite parties namely (1) M/S Tamal alias Tomal Enterprise, (2) Sri Achinta Ghosh, (3) Smt. Ruma Ghosh, (4) Sri Tuhin Ghosh, (5) Sri Tamal Ghosh and (6) Sri Gurudas Saha.
Case of the Complainant in brief is that the OP No.6 is the owner of a land measuring more or less 1(one) cottah 8(eight) chhittaks, comprised in S.P. No.792, Mouza-Shibpur, J.;L.No.42, P.S.-Jadavpur,Dist.- South 24-Parganas and numbered as 4/31, Azadgarh, P.S.-Jadavpur, Kolkata-700 040, Dist.- 24 Parganas, by virtue of a registered Deed of Gift donated by Governor of West Bengal, in 1994 – entered into a Development Agreement dt.17.5.2010 with OP Nos.1, 2 & predecessor in interest of OP Nos.3, 4 & 5 for development of the said plot of land by constructing a multi-storied building and as per the said Development Agreement the OP Nos.1, 2 and predecessor in interest of OP Nos.3,4 & 5 were entitled to enter into Agreement for sale with the intending purchaser to sale flats from developer’s allocation. The Complainant have stated that during construction of the said building the Complainant entered into an agreement for sale on 1.6.2011 with the OP Nos.2 & 6 in respect of a flat on 1st floor having more or less super built up area and 325 sq.ft. at the building being constructed within the Municipal premises No.140/1/88/1,. NSC Bose Road, postal address 4/31, Azadgarh, P.S.-Jadavpur, Kolkata-700 040, Dist.- South 24-Parganas being the Developer’s allocation at a consideration of Rs.4,90,000/-. Accordingly, the Complainant paid total amount of consideration to the OP No.2 and predecessor of OP Nos.3,4 & 5, namely Tapash Ghosh, on different dates and got possession of the said building on 25.9.2011 and since then had been requesting the OPs to execute and register the Deed of Conveyance in respect of the said flat in favour of her but the said OPs did not pay heed to that request. However, the said Tapas Ghosh died intestate on 1.6.2015 leaving behind his widow Ruma Ghosh two sons namely Tuhin Ghosh and Tamal Ghosh as his legal heirs who are impleaded in the instant Consumer Complaint as OP Nos. 3, 4 & 5 respectively. It is further stated that lastly on 10.2.2017 the Complainant visited OPs and requested them to execute the Deed of Conveyance in favour of the Complainant and that too yielded no fruitful result. Accordingly, the Complainant has prayed for direction upon the OPs to execute and register the Deed of Conveyance in favour of the Complainant as per term of the Agreement for Sale dt.21.6.2011, to pay Rs.2,00,000/- towards compensation and Rs.50,000/- towards cost of litigation, pain suffering and interests.
Notices were served upon the OPs but the OP Nos.1 to 5 did not turn up and therefore, the case was proceeded ex-parte against OP Nos.1 to 5.
The OP No.6 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating, inter alia, that the OP No.6 is ready and willing to execute registration of Deed of Conveyance in favour of the Complainant in respect of the scheduled mentioned flat. The OP No.6 further stated that as per terms of the Development Agreement dt.17.05.2010, the OP Nos.1 to 5 was to pay Rs.3,50,000/- out of which Rs.80,000/- still remaining unpaid. Accordingly, OP No.6 prays for necessary orders may be passed by this Forum.
The Complainant adduced evidence against which OP filed questionnaire towards cross examination to which the Complainant filed reply. The OP No.6 did not file evidence.
In course of argument, Ld. Advocate for the Complainant narrated the fact mentioned in the petition of complaint.
Ld. Advocate for the OP submitted that he is ready and willing to execute the Deed of Conveyance.
Decision with reasons
The Complainant has claimed to have entered into an agreement for sale in respect of the property in question with the OPs on 1.6.2011 at a consideration of Rs.4,90,000/- which she has already paid and got possession of the said flat on 25.9.2011. Copies of Agreement for sale dt.1.6.2011, money receipt issued by OP Developers and certificate of delivery and possession of the flat dt.25.9.2011 substantiate such version of the Complainants.
The landowner OP contested the case and submitted that he is ready and willing to execute registration of Deed of Conveyance. However, there is no representation on behalf of the Developers and on perusal of the copy of Agreement for sale dt.1.6.2011 it appears that the landowner did not put his signature under the agreement for sale.
Under such circumstances, it will be just and proper if the O.P. Developers fail, registration of Deed of Conveyance be executed through this Forum.
It is observed that the Complainant has no grievance regarding delivery of possession of the said flat. Under such circumstances, we are inclined to pass no order as to compensation and cost.
In the result, the Consumer Complaint succeeds.
Hence,
ordered
That CC/413/2017 is allowed in part ex-parte against OP Nos.1 to 5 and on contest against OP No.6 but without any order as to cost.
The OPs are directed to execute registration of Deed of Conveyance of the schedule mentioned flat in favour of the Complainant, within one month from the date of communication of this order to OP Nos.1 to 5 in default, the registration of Deed of Conveyance will be executed through the machinery of this Forum.
