Dt. of filing – 22/02/2019
Dt. of Judgement – 11/02/2020
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Samir Chowdhury under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) M/s. Usha Construction 2) Shri Susanta Das 3) Shri Sahadeb Chandra Saha 4) Shri Parimal Das 5) Shri Bimal Das 6) Shri Kamal Das 7) Smt. Jharna Das 8) Shri Tapas Das 9) Shri Rabi Das and 10) Shri Nemai Das alleging deficiency in service on their part.
Case of the Complainant in short is that predecessor in interest of Opposite Party No.4 to 6 namely Haripada Das since deceased was the owner in respect of the land measuring about 2 Cottahs 12 Chhitacks under Mouza Sibpur, E.P. No.228, S.P. No.268 under C.S. Plot No.363(P), 558(P) being K.M.C premises no.35/155 Mina Para Road under P.S. Jadavpur . Said Haripada Das died leaving behind three sons being Opposite Party No.4 to 6 and two daughters being Opposite Party No.7 and Sandhya Das who died subsequently leaving behind Opposite Party No.8 to 10. Said legal heirs of Haripada Das including Sandhya Das since deceased entered into a development agreement dated 9/1/2012 with the Opposite Party No.1 to3 to construct a 4 storied building. Subsequently Complainant entered into an agreement with the Opposite Party No.1 to 3 to purchase a flat described in the Schedule ‘B’ of the agreement for sale dated 14/3/2014 at a total consideration of Rs.14,20,000/-. Complainant has paid the entire consideration money to the Opposite Party No.1 to 3 and the possession of the said flat has also been delivered to the Complainant on 10/6/2014 by the developer Opposite Party No.1 to 3. After getting the possession, Complainant has requested to the Opposite Parties several times to execute and register the Deed of Conveyance but all in vain. Thus the present complaint has been filed by the Complainant praying for directing the Opposite Parties to execute and register the Deed of Conveyance in favour of the Complainant, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.50,000/-.
Complainant has annexed with the complaint, copy of the development agreement dated 9/1/2012, copy of the agreement for sale dated 14/3/2014, letter of possession, money receipts showing payment and the copy pf the notice sent by the Complainant to the Opposite Parties dated 26/11/2018 through his Ld. Advocate.
Opposite Party No.1 to 3 have contested the case by filing written version contending inter alia that after completion of the construction work, possession has already been handed over to the Complainant in respect of the flat as agreed but due to death of one of the co-owner namely Sandhya Das Power of Attorney executed in their favour lost its effect. Legal heirs of the said Sandhya Das being Opposite Party No.8 to 10 turned down the request of Developer Opposite Party No.1 to 3 for execution of supplementary development agreement and Power of Attorney. Opposite Party No.1 to 3 had no malafide intention in delaying the process of execution and registration of the Deed of Sale in favour of the Complainant.
On perusal of the record it appears that Opposite Party No.4 to 10 did not take any step inspite of service of notice and thus the case proceeded ex-parte against them.
During the course of the trial Complainant filed affidavit-in-chief but no questionnaire was filed by contesting Opposite Party. Neither they filed any evidence and thus ultimately argument was heard of both sides.
So the following points require determination:
- Whether there has been deficiency in service on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion.
In order to support his claim that by an agreement dated 14/3/2014 Complainant agreed to purchase a flat at a consideration of Rs.14,20,000/- and has paid the entire amount of consideration, Complainant has filed, copy of the said agreement and the receipts.
On perusal of the receipts it appears that entire payment of consideration price has been made by the Complainant. Payment has also not been disputed and denied by Opposite Party No.1 to 3. Neither there is any denial by them about execution of the agreement in favour of the Complainant on 14/3/2014. Admittedly the possession of the flat as per agreement has been handed over to the Complainant and to this effect letter of possession dated 10/6/2014 has also been filed. However, it appears from the agreement for sale that Opposite Party No.1 a partnership firm being represented by Opposite Party No.2 & 3 entered into the said agreement with the Complainant in their capacity as developer, as there is no reflection that they also represented as Constituted Attorney of the owners. But from the copy of the development agreement entered between Opposite Party No.1 to 3 with Opposite Party No.4 to 7 and the predecessor in interest of Opposite Party No.8 to 10 dated 9/1/2012, it is apparent that there is specific recital in paragraph 27 that the developer was entitled to transfer the flat in his allocation to different intending purchaser and the owners will be bound to sign in the agreement and the deed to be executed in favour of those intending purchaser. So on consideration of the said specific terms in the development agreement, the owners are liable to execute and register the Deed of Conveyance in favour of the Complainant. In such a situation, Complainant is entitled to execute and registration of the deed in his favour as per agreement and also entitled to compensation as he will have to bear the cost of registration as per present market value of the property. So an amount of Rs. 40,000/- as compensation and litigation cost of Rs.10,000/- will be justified.
Hence,
ORDERED
CC/109/2019 is allowed on contest against Opposite Party No.1 to 3 and ex-parte against Opposite Party No.4 to 10. Opposite Parties are directed to execute and register the Deed of Conveyance in favour of the Complainant in respect of the flat as per agreement dated 14/3/2014 within 2(Two) months from the date of this order. They are further directed to pay Rs.40,000/- as compensation and Rs.10,000/- as litigation cost within the aforesaid period of 2(Two) months.
