Dt. of filing- 30/07/2018

Dt. of Judgement- 26/07/2019

Mrs. Sashi Kala Basu, Hon’ble President.

          This complaint is filed by Shri Dilip Roy  under Section 12 of the Consumer Protection Act against the  Opposite Parties namely (1) M/s. Amarnath Roy  being the represented  through its Proprietor  Shri Amarnath Roy,  (2) Sri Krishna Keshab Dasgupta, (3) Sri Pranotosh Dasgupta, (4) Shri Hrisikesh Dasgupta and (5) Sri Bireswar Dasgupta, alleging deficiency in rendering services on their part.

          Case of the complainant in short is that OP  Nos. 2 to 5  being the absolute  owner of the property  described in the  schedule ‘A’ and ‘B’  executed  a development  agreement on 28.11.2006 with the OP No.1 the developer and a Power of Attorney   was also executed by OP Nos. 2 to 5 in favour of  OP No.1 on 28.11.2006. On 07.09.2009, a Memorandum of Understanding was executed by the OPs with the complainant to sell ‘B’ schedule car parking space in the ground floor having a covered area approximately 150 sq.ft. more or less at a total consideration  price  of Rs. 3,00,000/-. Complainant has paid  consideration amount to the confirming party. Thereafter on 04.11.2011 in pursuance of the said Memorandum of Understanding  dated 07.09.2009, an agreement of sale was also executed. Although possession of the car parking space has been handed over to the complainant   but the deed of conveyance has not been executed in favour of the complainant. Complainant sent a draft deed of conveyance on 25.02.2018 and approached the OPs. But OP No.1 demanded further amount of Rs. 1,00,000/-. So, the present complaint  has been filed for  directing the OPs  to complete the registration of the deed of conveyance, to complete the mutation of the complainant’s portion,  for directing the OPs not to ask any further amount, for  compensation of Rs. 1,00,000/- and for the cost of the proceedings.

          Complainant has annexed with the complaint petition, copy of the development agreement, copy of agreement entered into between the parties in the year 2011, copy of the Memorandum of Understanding dated 07.09.2009, copy of the draft deed of conveyance and copy of notice sent by the complainant through his Ld. Advocate dated 09.07.2018.

          On perusal  of the record it appears  that in spite of service of notices as the OPs  did not take any step,  case  came up for exparte hearing  vide order dated 27.12.2018.

          So, only point requires determination is :-

          Whether  the complainant is entitled  to the relief  as prayed for ?

Decision with reasons

          In support of his claim that  by an agreement dated 07.09.2019, complainant  agreed to purchase car parking space in the ground floor  having a covered  area  approximately 150 sq.ft. more or less, complainant has filed the relevant agreement. On perusal of the said agreement,  it appears that  the OPs  agreed  to sell the said car parking space  at a  consideration price of  Rs.3,00,000/-. From the copy of the development agreement entered into between the OP Nos. 2 to 5 and OP No.1 it appears that they had entered into the said agreement for development and raising of the building in the  schedule ‘A’  property mentioned in the  said agreement. In order to show that complainant has paid the entire consideration price of Rs.3,00,000/-, complainant has filed the original agreement and from the Memo of Consideration therein, it appears that the payment of sum of Rs.  3,00,000/-  has been  acknowledged by the  OP No.1. Complainant has also filed the Money receipts  issued by OP No. 1 which indicates that the  complainant  has made  the payment  of the consideration as  agreed. Admittedly, possession of the said car parking space has already been handed over to the complainant. But the deed of conveyance has not been executed in his favour. If that be so, then the complainant is entitled to execution and registration  of the deed of conveyance in respect of car parking space as agreed especially when before  this Forum  there is absolutely no contrary material to counter or rebut the claim of the complainant. However, the mutation of the same has to be done by the complainant himself as there was no such agreement that the mutation will also be done by the OPs. Since the complainant has been enjoying the possession of the property in question, We do not find any justification to allow the compensation as agreed. However, he is entitled to the litigation cost.

Hence,

                                    Ordered

          CC/458/2018 is allowed exparte.  Opposite Parties  are directed  to execute and register  the deed of conveyance  in respect of the  car parking space as agreed in the agreement dated 07.09.2009 within three months from the date of this order. OPs are further directed to pay litigation cost of Rs. 10,000/-  within the aforesaid  period of three months.