This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants that opposite party no. 1 is a developer and the rest opposite party nos. 2 to 9 are the legal owner in respect of the schedule land where the schedule flats are situated measuring 05 Cottahs comprising of R.S. Dag no. 1276, R.S. Khatian No. 1214, corresponding L.R. Dag no. 2535, L.R. Khatian No. 3101 at Mouza Kotrung, J.L. No. 8 and being Municipal Holding No. 85, Sukanta Sarani, Ward no. 7 within the ambit of Uttarpara- Kotrung Municipality, P.S. Uttarpara in the District of Hooghly and the opposite party nos. 2 to 9 being the land owners executed a development agreement with opposite party no. 1 and appointed him as a developer to construct a multi-storied building on the said land as per the building plan and on various terms, conditions and stipulations contained therein and moreover by a power of attorney, the vendors (the above land owners) have appointed the developer as their constituted attorney to develop and construct on the said land a multi storied building in terms of the plan sanctioned by the Uttarpara-Kotrung municipality and authorized the developer to transfer the Developers’ allocation or any part or portion thereof to any purchaser/ purchasers of it’s choice and as per said terms and conditions opposite party no. 1 being a developer had constructed multistoried building on the said property as per sanctioned plan by the Uttarpara-Kotrung Municipality.

            The complainants also state that on 7/03/2010 the complainants purchased a flat being unit no. 203 in 2^nd floor @ Rs. 875/- per sq. ft. entered into an agreement for sale with opposite party no. 1 and several times they paid Rs. 6,36,250/- out of total consideration money of Rs. 6,56,250/- in respect of the said flat and opposite party nos. 1 and 2 issued advance money receipt in respect of said payment in favour of them and on 7.8.2011 they also issued possession certificate in favour of them and gave possession of said flat in favour of them and since then they are residing in the above flat and the complainants are always ready to pay the balance consideration money to the opposite parties against the said flat in question at the time of execution of sale deed in their favour and several times they requested opposite parties to execute the Deed of Sale in their favour in respect of their schedule flats respectively but opposite parties intentionally took time with various pretext and lastly on 26^th January, 2017 the complainants requested opposite parties to execute the deed of sale in their favour in respect of said flat but opposite parties refused to do the same.

            The complainants also state that on 10.3.2017 the complainants through their ld. Advocate has sent legal notice through registrar post A/D to the opposite parties with a request to execute deed of sale in favour of the complainants in respect of schedule flat but the opposite parties till to date did not execute any deed of sale in favour of the complainants in respect of the schedule flat and the complainants are always ready and willing to get the sale deed executed and as such the complainants immediately paid Rs. 6,36,250/- to the opposite parties and same has been acknowledged by the opposite party nos. 1 and 2 and the opposite parties are avoiding to execute absolute sale deed in their favour which they are legally bound to do and the cause of action of this suit lastly arose on 26.1.2017 when the complainants requested the opposite parties to execute the deed of sale in their favour and thereafter on 10.3.2017 when they sent legal notice through their ld. Advocate with a request to execute the deed of sale in favour of them and after receiving the said notice this opposite parties failed to do their performance in respect of executing deed of sale in respect of schedule flat in respect of the schedule flat and till now is continuing.

            Complainants filed the complaint petition praying direction upon the opposite parties to execute a Deed of Sale in favour of these complainants in respect of the schedule flat along with common facilities together with the undivided proportionate share of land along with proportionate share of common area and facilities attached to the building and apartment and to pay sum of Rs. 50,000/- for mental agony for deficiency in service on part of the opposite parties and to pay a sum of Rs. 50,000/- as compensation as well as litigation cost and to give any relief or reliefs as deem fit and proper in law and equity.

            The opposite parties contested the case by filing written objection denying inter-alia all the material allegation as leveled against them and they submits that they are always ready to execute deed of sale in favour of the complainants after receiving the balance consideration from the complainants and praying direction upon the complainants to give direction to the complainants to pay the balance consideration to them and at the same time give direction to the opposite parties to execute deed of sale in favour of the complainants.

            From the discussion herein above, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainants are the consumer of the opposite parties or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainants are entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussions of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires that the complainants is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainants here in is a consumer of the opposite parties.
2. Both the complainants and the opposite parties are residence/having their office addresses within the district of Hooghly. For mental agony and other expenses which is within Rs. 2,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3. The case of the complainant is that the opposite party no. 1 is a developer and the rest opposite party nos. 2-9 are the legal owner in respect of the schedule land where the scheduled flats are situated, being land owner op nos. 2-9 executed development agreement with opposite party no. 1 and opposite party no. 1 as a developer constructed a multistoried building on the above mentioned land and the above land owner appointed the developer as their constituted attorney and to construct on the said land a multistoried building as per sanctioned plan by the Uttarpara-Kotrung municipality.

The dispute cropped up between the parties when the complainant on 7.3.2010 purchased a flat being unit no. 203 in 2^nd floor @ 875 per sq.ft. entered into an agreement for sale with opposite party no. 1 and paid Rs. 6,36,2501/- out of total consideration money of Rs. 6,56,250/- and the opposite party nos. 1 and 2 issued money receipt in respect of the said payment in favour of the complainant and opposite party nos. 1 and 2 issued possession certificate in favour of the complainant and since then the complainants are residing in the said flat. The complainants are ready to pay the balance money to the opposite parties against the said flat in question at the time of execution of sale deed in favour of the complainants and several times the complainants requested the opposite parties to execute the deed of sale in the favour of the complainants of the scheduled flats. But the opposite parties intentionally took time with various pretext and lastly on 26^th January, 2017 the complainant requested the opposite parties to execute the deed of sale in the favour of the complainants in respect of the said flat but the opposite parties refused to do the same.

The complainants sent legal notice through their ld. Advocate on 10.3.2017 with a request to execute the deed of sale in favour of the complainants in respect of the said flats but the opposite party nos. 1 and 2 are avoiding to execute absolute sale deed but the opposite parties failed to do their performance in respect of executing the deed of sale in respect of schedule flat along with common facilities.

Dispute cropped up when he opposite parties failed to response at the utterance of the complainants. Getting no alternative, the complainants filed the instant complaint case before this Forum praying direction upon the opposite parties to execute the deed of conveyance in favour of the complainants and to pay compensation for harassment and mental agony and litigation cost as there is deficiency of the service on the part of the opposite parties.

The opposite parties contested the case by filing written version and submit that they are always ready to execute deed of sale in favour of the complainants after receiving the balance considerations from the complainants.

            After perusing the complaint petition, written version and hearing the parties this Forum is in the opinion that the complainants paid the consideration money during agreement for sale of Rs. 6,36,350.- out of total consideration money of Rs. 6,56,250/-.

            The opposite parties in their written version admitted that they have taken money and always ready to execute deed of sale in favour of the complainants after receiving the balance consideration from the complainants. But facts remains that delay of execution and registration of deed of this complaint caused deficiency of service of the opposite parties. So, the opposite parties cannot evade their responsibility.

             Therefore relying upon the materials on record we have no hesitation to hold that the complainants are entitled to an order of getting the deed executed in their favour. It reveals from the record that opposite parties appeared before this Forum and filed W.V/W.O stating that the opposite parties are always ready to execute deed of sale in favour of the complainants after receiving the balance consideration and prayed before this Forum with a direction to the complainants to pay the balance amount to the opposite parties and at the same time pleased to give direction to the opposite parties to execute the deed of sale in favour of the complainants.

            It is also evidence that the complainants are in the possession of the said flat and the opposite parties issued possession certificate in favour of the complainants and they also issued advanced money receipts in respect of the said payment to the complainants.

            After hearing ld. Advocate for both the parties we have come in a conclusion that the both are ready to comply the order as shall be imposed by this Forum.

Hence,

it is

ordered

that the complaints case being no. 212 of 2017  be and the same is allowed on contest against the opposite parties with a litigation cost of Rs. 6000/- to be paid by the opposite parties to the complainants. The opposite parties are directed to execute sale deed in favour of the complainant and the complainant is also directed to pay the balance consideration amount to the opposite parties at the same time.

            The opposite parties are directed to pay the litigation cost of Rs. 6000/- to the complainant within 45 days from the date of passing this order.

At the event of failure to comply with the order the opposite party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.