Date of Filing: 09.12.2019

Date of Judgment: 27.12.2021

Mrs. Sashi Kala Basu, Hon’ble  President

This complaint is filed by the complainants , 1) Smt. Jhuma Chakraborty and 2) Sri Deep Chakraborty,  under section 12 of the C.P Act, 1986 against the Opposite Parties ( referred to as O.Ps hereinafter) namely 1)  M/s Basundhara Construction, 2) Sri Prabir Chowdhury, 3) Sri Chandan Bhattacharjee 4) Smt. Anju Das, 5) Sri Basudeb Goutam and 6) Smt. Sangita Bhattacharjee,  alleging deficiency in service  and unfair trade practice on the part of the O.Ps.

                The case of the complainant , in short, is that  O.P no.1 is a Partnership Firm being represented by its 2 Partners O.P nos. 2 and 3. The Schedule A property as mentioned in the petition of complaint was originally owned by Taru Bala Bhattacharjee, who had entered into an agreement to develop the property with the O.P no.1.  Complainants’ predecessor-in-interest namely Dulal Chakraborty had entered into an Agreement on 5.6.2001  to purchase the flat described in Schedule B of the complaint with the O.P no.1 at a consideration of Rs.5,30,000/-. He has paid the entire amount and O.P nos. 1 to 3 being the developer and its partners handed over the khas possession of the said flat to the predecessor in interest of the complainants in the year 2003. The said Dulal Chakraborty died o n 29.1.2015, leaving behind  the complainants as his legal heirs. The O.P nos. 4 to 6 are the owners of the property and they inherited the same on the death of original owner Taru Bala Bhattacharjee ,who died in the year 2005 ,leaving behind her only son and 2 daughters. The only son Abhijit Bhattacharjee and one daughter namely Manju Goutam died subsequently leaving behind O.P nos. 5 and 6. The complainants requested the O.Ps to register the deed of conveyance in respect of the flat in their names but the O.Ps paid no heed. So, the present complaint has been filed to direct the O.Ps to execute and register the deed of conveyance in the name of the complainants in respect of the subject flat , to pay compensation of Rs.2 lac  and litigation cost  of Rs.50,000/-.  

                The complainants have filed copy of the Development Agreement entered into between the original owner Taru Bala Bhattacharjee and O.P no.1, the Agreement for Sale dated 5.6.2001, money receipts showing payment , death certificate of Dulal Chakraborty, original predecessor i.e Predecessor-in-interest of the complainants, copy of possession letter and notice sent by the complainants through their ld. Advocate to the O.Ps.  

                O.P nos. 1, 2 and 3 are contesting the case by filing written version, contending specifically that they delivered possession of the flat to the complainants and have been always ready and willing to execute and register the deed of conveyance , but after the death of original owner the General Power of Attorney revoked and as a result the developer could not execute and register the deed of conveyance in favour of the complainants. The present legal heirs  of the original owner did not agree to execute a General Power of Attorney afresh in favour of O.P nos. 1, 2 and 3. So, there is no deficiency in service on the part of O.P nos. 1, 2 and 3.

                On perusal of the record it appears that inspite of service of notice upon O.P nos. 4 to 6 they did not take any step and thus the case was directed to be proceeded exparte against them.

                So, only point requires determination  whether the complainant is entitled to the relief as prayed for.

DECISION WITH REASONS

                In support of their claim that their predecessor-in-interest entered into an agreement with the O.P no.1 being represented by O.P nos. 2 and 3 to purchase the flat as described in Schedule B and paid the entire consideration price, complainants have filed the copy of the Agreement for Sale and the money receipts. They have also filed copy of the Development Agreement entered into between the original owner namely Taru Bala Bhattacharjee and the O.P no.1 being represented by O.P nos. 2 and 3. On perusal of the development agreement it appears that it is specifically stated therein that the Power of Attorney could be valid only till completion of the newly proposed building. O.P nos. 1,2 and 3  in their written version has admitted the case of the complainant about the execution of the agreement and the payment by their predecessor-in-interest towards the consideration price as settled in the agreement.  The only contention raised by the O.P nos. 1,2 and 3 is that due to death of the original owner the power of attorney executed in their favour by the original owner lost its force and so they could not execute and register the deed in favour of the complainants in respect of the subject flat.

                Since, admittedly no deed has been executed in favour of the complainants in respect of the subject flat inspite of payment of the entire consideration price, the complainants are entitled to registration of the flat in their favour, especially as before this Commission no contrary material is forthcoming to counter the claim of the complainants. It may also be mentioned here that as per the Development   Agreement, the O.P nos. 1,2 and 3 being the developers were specifically empowered to sell the flat in their allocations in the newly proposed building to the intending buyers  and to enter into an agreement with the intending buyers.

                So, in view of the discussions as highlighted above, the complainants are entitled to the relief of execution and registration of the deed of conveyance . They are also entitled to compensation as they have to bear the registration cost as per the present market value of the property. So, an amount of Rs.30,000/- will be justified as compensation.  

Hence,

                 ORDERED

That CC/644/2019 is allowed on contest against O.P nos. 1,2 and 3 and allowed exparte against O.P nos. 4 to 6.

The O.Ps are directed to execute and register the deed of conveyance in respect of the flat as per agreement dated 5.6.2001 within 3 months from this date.

They are also directed to pay an amount of Rs.30,000/- as compensation and litigation cost of Rs.10,000/- to the complainants within the aforesaid period of 3 months.