Dt. of filing – 02/08/2019

Dt. of Judgement – 13/02/2020

Mrs. Sashi Kala Basu, Hon’ble President

        This consumer complaint is filed by the Complainant namely Smt. Sudipta Chatterjee under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) M/s. Ananaya 1a) Smt. Rupa Roy 1b) Smt. Sampa Das 2) Smt. Kumkum Ghosh 3) Smt. Kaushiki Roy and 4) Sri Kalyan Sehanobish, alleging deficiency in service on their part.

          Case of the Complainant in short is that Smt. Shila Sehanobish since deceased was the owner in respect of the property being KMC Premises No.74/4/4B Sri Ram Thakur Road formerly J. C. Road being postal address 4/7B, Bijoygarh, Kolkata-700032. She had acquired the property by way of registered deed dated 03/11/2008 executed by the Governor of State of West Bengal under the disposal of Refugee Relief & Rehabilitation Department. For the better use and enjoyment of the said property said Shila Sehanobish entered into a development agreement on 15/5/2013 with the Opposite Party No.1 to raise a multi storied residential building and she also executed a General Power of Attorney  in favour of Opposite Party No.1 being represented by its partners Opposite Party No.1a & 1b.Consequent to the said development agreement, Opposite Party No.1 entered into an Agreement for Sale with the Complainant to sell a self contained flat in the second floor of the said building at a consideration of Rs.13,00,000/-. The said agreement for sale was executed between the Complainant and Opposite Party No.1 in their capacity as developer and Constituted Attorney of the owner on 12/4/2015. Complainant has paid the entire consideration money and accordingly receipt issued by Opposite Party No.1. She has already been delivered possession of the flat and since then Complainant is in possession of the said flat. The said Shila Sehanobish died intestate on 17/6/2018 leaving behind her two daughters and one son being Opposite Party No.2 to 4 who have become the owner of the said property by inheritance. Several times Complainant requested the Opposite Parties to execute and register the Deed of Conveyance in her favour. But the Opposite Parties deliberately failed to execute the same. 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 cost of Rs.50,000/-.

          Complainant has annexed with the complaint, copy of the development agreement entered into between Opposite Party No.1 and the owner Shila Sehanobish on 15/5/2013, copy of the General Power of Attorney dated 17/5/2013, copy of agreement for sale dated 20/4/2015, receipts showing payment of consideration price, copy of electric bill and the notice dated 14/2/2019 sent by the Complainant to Opposite Parties through her Ld. Advocate.

          On perusal of record it appears that inspite of service of notice none of the Opposite Parties appeared nor filed any written version and thus vide order dated 21/10/2019 the case was directed to be proceeded ex-parte.

          So the only point requires determination is:

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

Decision with reasons

          At the very outset it may be pertinent to point out that in order to support her claim that she purchased a flat by an agreement dated 12/4/2015, Complainant has filed the copy of the said Agreement for Sale and has filed the original receipts. Original agreement has not been filed. However, affidavit to this effect has been filed by the Complainant stating that original agreement was not handed over to the Complainant at the time of agreement. From the agreement dated 12/4/2015 it appears that consequent to the development agreement between the Opposite Party No.1 and the original owner Shila Sehanobish on 15/5/2013 (copy of which has been filed) and consequent to the General Power of Attorney also executed by the said original owner (since deceased) in favour of Opposite Party No.1, developer Opposite Party No.1 agreed to sell the flat as described in the Schedule ‘B’ of the agreement dated 12/4/2015 in favour of the Complainant at a consideration of Rs.13,00,000/-. Even though original agreement has not been filed for the reason stated in the affidavit. But on consideration of the original receipts filed by the Complainant it appears that these receipts bears the signatures of Opposite Party No.1a and 1b, the partners of Opposite Party No.1. It is also specially stated in these receipts that the Complainant made payment of those amount for the flat in the second floor of the building. So the claim of the Complainant that she agreed to purchase the flat as described in the Schedule ‘B’ of the agreement dated 12/4/205 (copy of which is filed), cannot be disbelieved. It is true that the Complainant should have had the original agreement for sale with her being purchaser, but for the said reason Complainant cannot be denied the relief of execution and registration of Deed of Conveyance especially when she has already been handed over possession of the flat and has been enjoying the same. It has to be borne in mind that the object of legislation of the Consumer Protection Act is beneficial in nature for the consumers and so for the said technical reasons Complainant cannot be denied the relief as prayed especially when before this Forum, no contrary material is forthcoming in order to counter or rebut the claim of the Complainant. It may also be mentioned here that embargo period of ten years expired on 3/11/2018. As per terms of the agreement, the Deed of Conveyance was to be executed after one month of expiry of embargo period i.e. December, 2018. So as per the terms of the agreement Opposite Parties were liable to execute the deed in favour of the Complainant but as the same has not been done, Complainant is entitled to the execution and registration of the deed in her favour.

Hence,

                         ORDERED

CC/384/2019 is allowed ex-parte against the Opposite Parties. 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 12/4/2015 within 2(Two) months from the date of this order. Opposite Parties are further directed to pay litigation cost of Rs.10,000/- within the aforesaid period of 2(Two) months.