Sri Ashoke Kumar Pal, Hon’ble President :-
Stripped of unnecessary details, the case of the complainants in a nutshell is that the complainants booked a flat measuring about 1060 S.ft. super builtup area more fully described in schedule-B of the petition of complaint and agreement for sale dated 08.12.2016 at a valuable consideration of Rs. 30,00,000/- (Rupees thirty lakhs) only. The complainants paid Rs. 29,00,000/- (Rupees twenty nine lakhs) only on different dates and the O.Ps. acknowledged the receipt of the same by issuing money receipts. It was agreed upon that the delivery of possession of the scheduled flat in habitable condition will be handed over to the complainants within 28.02.2017. But ultimately, the O.Ps. violated the terms and conditions of the agreement for sale dated 08.12.2016 and failed to deliver possession of the scheduled flat to the complainants despite payment of a considerable amount of Rs. 29,00,000/- (Rupees twenty nine lakhs) only out of the total consideration amount of Rs. 30,00,000/- (Rupees thirty nine lakhs) only and despite repeated requests by the complainants. After payment of Rs. 29,00,000/- (Rupees twenty nine lakhs) only, the O.P. No. 1 / developer delivered the symbolical/provisional possession of the scheduled incomplete flat vide letter date 06.03.2017 with an assurance to complete the flat within a short period. But ultimately nothing was done to make the scheduled flat habitable and by letter dated 16.08.2018 the O.P. No. 1 / developer gave symbolical possession of the scheduled flat without giving any physical possession of the said flat and without executing and registering any deed of conveyance in respect of the same. Despite possession letter dated 16.08.2018 the complainants were obstructed by the O.P. Nos. 2 and 3 / land owners to enter into the scheduled flat intimating that the power of attorney has been revoked and as such, letter of possession has no force at all. After payment of the balance amount of Rs. 1,00,000/- (Rupees one lakh) only to the O.P. Nos. 2 and 3 / land owners they gave possession letter in respect of the scheduled flat on 26.04.2021 and the complainants were allowed to enter into the same. Thereafter, the complainants contacted with the O.P. Nos. 1, 2 and 3 several times for registration of a proper deed of conveyance in respect of the scheduled flat in favour of the complainants. But ultimately the O.Ps. failed to execute and register a proper deed of conveyance in respect of the same which prompted the complainants to file the instant complaint case on the reliefs sought for in the petition of complaint.
O.P. No. 1 did not come forward to contest the case by filing W.V. As such, by order No. 5 dated 03.01.2023 the instant complaint case was declared to be heard ex-parte against the O.P. No. 1.
The O.P. Nos. 2 and 3 contested the case by filing W.V. contending inter-alia that the claims of the complainants are all false. The specific case of the O.P. Nos. 2 and 3 is that as per terms of the joint development agreement dated 27.01.2015 the O.P. No. 1 was to confirm the delivery of the owner’s allocation as mentioned in the said agreement which was not done by the O.P. No. 1. The alleged transaction in between the complainant and the O.P. No. 1 is collusive and the same is not binding upon this O.P. Nos. 2 and 3. Accordingly, the O.P. Nos. 2 and 3 on 13.09.2018 revoked and cancelled the joint power of attorney executed by them in favour of the O.P. No. 1 by virtue of registered deed of Revocation of General Power of Attorney dated 13.09.2018. As such, the O.P. Nos. 2 and 3 are not liable to execute and register the final deed of conveyance in respect of the suit flat in favour of the complainants. The O.P. Nos. 2 and 3 also denied the other material averments of the petition of complaint para wise and prayed for dismissal of the complaint case as against the O.P. Nos. 2 and 3.
Points for Decision :-
- Are the complainants, consumers?
- Are the O.Ps. guilty of deficiency in service and unfair trade practice?
- Are the complainants entitled to get relief as prayed for?
Decision with Reasons :-
Point No. 1:-
On perusal of the case record along with copies of documents, it appears that the complainants were willing to purchase the scheduled flat more fully described in schedule-B of the petition of complaint and the agreement for sale dated 08.12.2016 which was executed and registered in between the complainants and the O.P. No. 1/developer. The complainants paid Rs. 29,00,000/- (Rupees twenty nine lakhs) only out of total consideration amount on different dates and also paid the balance amount of Rs. 1,00,000/- (Rupees one lakh) only to the O.P. Nos. 2 and 3 before getting possession of the scheduled flat. The O.Ps. acknowledged the receipt of the same by issuing money receipts. Therefore, the complainants are consumers as defined U/S 2(7) of Consumer Protection Act, 2019.
As such, Point No.1 is decided in favour of the complainants and against all the O.Ps.
Point Nos: 2 & 3:-
Both points are taken up together for consideration for the sake of convenience as they are interlinked.
The complainants booked the scheduled flat morefully described in the schedule – B of the petition of complaint and the agreement for sale dated 08.12.2016 from the O.Ps. and made payment of the full consideration amount of Rs. 30,00,000/- (Rupees thirty lakhs) only. But the O.Ps. violated the terms and conditions of the agreement for sale. Despite payment of the entire consideration amount, the O.Ps. although lately gave possession of the scheduled flat to the complainants but declined to execute and register a proper deed of conveyance in respect of the scheduled flat in favour of the complainants inspite of repeated requests by the complainants which prompted the complainants to file the instant complaint case against the O.Ps. on the reliefs sought for in the petition of complaint. As such, there is no hesitation to hold that the complainants are entitled to get the reliefs as prayed for as the O.Ps. declined to execute and register a proper deed of conveyance in respect of the scheduled flat in favour of the complainants despite payment of the entire consideration amount. The complainants failed to get service from the O.Ps. On the other hand, the complainants were harassed by the O.Ps. by various ways. O.Ps. also to avoided their responsibilities and liabilities by saying that the power of attorney given in favour of the O.P. No. 1/developer by the O.P. Nos. 2 and 3 was revoked on 13.09.2018. But it appears from the materials available on record that the agreement for sale was executed and registered on 08.12.2016. As such, the power of attorney was very much in existence at the relevant point of time. So, the O.Ps. cannot avoid their responsibility and liability taking the plea of revocation of the power of attorney. Therefore, the complainants are entitled to get reliefs as prayed for.
Thus, the Point Nos. 2 & 3 are also decided in favour of the complainants and against all the O.Ps.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the instant complaint case be and the same is hereby allowed ex-parte against the O.P. No. 1/developer and on contest against the O.P. Nos. 2 & 3/land owners with cost of Rs. 25,000/- (Rupees twenty five thousand) only.
The O.Ps. are jointly and severally liable and are directed to execute and register a proper deed of conveyance in favour of the complainants in respect of the scheduled flat as described in schedule – B of the petition of complaint and agreement for sale dated 08.12.2016, within 30 days from the date of passing this order.
Alternatively, a proper deed of conveyance in respect of the scheduled flat will be executed and registered through the machinery of this commission by filing proper application by the complainants putting the decree into execution after the expiry of 30 days.
The O.Ps. are jointly and severally liable and are directed to pay compensation to the tune of Rs. 3,00,000/- (Rupees three lakhs) only for delay in giving possession and incomplete flat, for mental pain and agony and harassment caused to the complainants within 30 days from the date of passing this order i.d., it will carry S.I. @10% p.a. w.e.f. the date of expiry of 30 days from this date till the date of final realization of the same.
That the O.Ps. are jointly and severally liable and are also directed to pay litigation cost of Rs.25,000/- (Rupees twenty five thousand) only within 30 days from the date of passing this order.
That the complainants are at liberty to put the decree into execution after the expiry of 30 days in case the orders are not complied with by the O.Ps. within 30 days from the date of passing this order.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
President
