FINAL ORDER / JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainants have filed this case U/s 35 of CP Act, 2019 submitting, inter alia that
the original owner, Md. Ayaz being the original owner of Premises No. 42 Ekbalpur Road, PS- Ekbalpur Kolkata-700023 has with the OPs 1 to 5 entered into an agreement to promote and construct a multi storied building at Premises No. 42 Ekbalpur Road, PS- Ekbalpur Kolkata-700023.
It is stated by the complainant that Md. Ayaz died in the mean time and the OPs 6 to 10 are the legal heirs of the Md. Ayaz. The original owner of the premises in question mentioned in the schedule petition of complaint.
It is further stated that the predecessor in interest of the complainants namely Pushpa Devi Surana entered into an agreement for purchase of a flat with the OPs in the premises in question being flat No. 42, 3C, on the 3rd floor of the constructed building along with one car parking space in the ground floor measuring about 700 sq. ft. for a consideration of Rs. 5,00,000/- only. The agreement for sale was executed on 01.08.1996 between the Pushpa Devi Surana and the OPs 1 to 5. The OP-5 Md. Ayaz since deceased and his predecessor intestate i.e. the OPs 6 to 10 are entered into the agreement in the place of Md. Ayaz. After completion of the proposed construction, the OPs 1 to 5 handed over the possession of the flat in question to Puspha Rani Surana on 12.08.1997 after receiving full consideration but due to sudden demise of Md. Ayaz, the deed of conveyance could not be execute in spite of repeated request made by the complainants. Ultimately, in the year 1999 a tri-partite agreement was executed between the OPs and the flat owners and accordingly, the OPs 6 to 10 agreed to sign the deed of conveyance. After demise of, Pushpa Devi Surana, the present complainants being her legal heirs became the owners of the subject flat.
After filing of this claim application, copy was served upon the OPs and the OPs 2 to 5 have expressed their willingness for execution and registration of the deed of conveyance in respect of subject flat in their WV. The OP 6 to 10 did not appear in his case. So, the case do run ex parte against them.
Hence, this petition of complaint is filed by the complainant with a prayer to give direction to the OPs for execution and registration the deed of conveyance of the subject flat mentioned in the schedule of the petition of complaint and also prayed for giving compensation of a sum of Rs. 1,00,000/- for harassment, mental pain and unfair trade practice along with litigation cost of Rs. 20,000/-.
The OPs have contested the claim application submitting, inter alia that they are entered into agreement for sale with the complainant in the year 1996 in respect of the subject flat as mentioned in the agreement for sale and in schedule petition of complaint.
It is further stated by the OPs 1 to 4 that they have contested the claim application. They further stated that on 12.08.1997. They have received full consideration amount of Rs. 5,00,000/- of the subject flat from the complainant and issued the money receipt to that effect and copy of money receipt is marked as “Annexure-A”.
The contesting OPs further stated in their WV that they are willing to execute and register the deed of conveyance in respect of the subject flat along with the car parking space in favour of the complainants but the complainants are delaying in process of registration by making several excuses.
The contesting OPs further admitted that they have handed over the peaceful and vacant possession of the subject flat along with car parking space to the complainants. They also issued the possession letter thereof.
The contesting OP further stated that they sent a letter dated 08.07.2021 to the complainants by expressing their willingness of registration process of the subject flat and car parking space. Copy of letter dated 08.07.2021 is annexed as “ Annexure-D”.
As per OPs case, the petition of complaint is baseless, frivolous and after thought and there was no deficiency in service on their part. So, the complainants are not entitled to get any compensation and the petition of complaint is liable to be dismissed.
In view of the above stated facts and circumstances, the following points of consideration are as follows.
- Is the case maintainable in its present form?
- have the complainants any cause of action to file the case
- Are the complainants a consumer?
- Is there any deficiency in service on the part of the OPs?
- Are the complainants entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On careful perusal of the materials on record and considering the position of law, it appears that admittedly, the complainants are the consumer and the OPs are the service providers.
It is revealed that the case is well maintainable in the eye of law. This commission has ample jurisdiction to try this case.
It is the complainants case that their predecessor in interest Pushpa Devi Surana had entered into an agreement for purchasing the subject flat in Premises No. 42 Ekbalpur Road, PS- Ekbalpur Kolkata-700023 initially, with the OPs 1 to 5. It is also admitted fact that one Md. Ayaz was the original owner of the premises in question and during process, he died intestate by leaving behind his legal heirs OP 6 to 10 and the OPs 6 to 10 subsequently, entered into the case in place of deceased Md. Ayaz. The complainants in their written argument stated that Pushpa Rani Surana booked the subject flat being No. 3C on the 3rd floor of the flat in question measuring about 700 sq ft along with car parking on the ground floor for consideration of Rs. 5,00,000/- only and the agreement for sale was executed on 01.08.1996 between the Pushpa Rani Surana and the OPs 1 to 5. It is also admitted fact that the OPs 1 to 5 handed over the possession of the subject flat as mentioned in the agreement for sale dated 01.08.1996 and the schedule petition of complaint to the Puspha Devi Surana complainants on 12.08.1997 after receiving full consideration and issued the possession letter to that effect.
From the admission of the contesting OPs 1 to 4 in their WV, it is palpably clear that the subject flat has not yet been registered by executing a deed of the registration by the OPs. The OPs 6 to 10 though did not appear in this case but they entered into the tri-partite agreement executed in the year 1999 between the OPs and the flat owners and accordingly, the OPs 6 to 10 agreed to sign the deed of conveyance. The OPs 1 to 5 also expressed their willingness for registration of the deed of conveyance in their WV.
Under such circumstances, this commission is of view that the present complainants being the legal heirs of the original complainant Pusha Rani Surana could be able to prove their case against the OPs beyond all reasonable doubt that since long after getting the possession of the subject flat the OPs delaying to execute the registration of the deed of conveyance in respect of the subject flat in favour of the complainants.
Such conduct of the OPs should be termed as deficiency in service for which they would be liable to pay compensation to the complainants.
On the basis of discussion made above, it is held by this commission that the case is well proved by the complainants beyond all doubt and they are entitled to get relief as prayed for.
All the points are thus considered and decided favorably to the complainants.
Hence,
Ordered
that the case be and the same is decreed on contest against the OPs with cost of Rs. 5,000/-
The OPs are directed to execute and register the deed of conveyance of the subject flat and the car parking space as detailed in the agreement for sale dated 01.08.1996 and in the schedule mentioned in the petition of complaint in favour of the complainants within 45 days from the date of this order.
The OPs are further directed to pay compensation of a sum of Rs. 20,000/- only to the complainants either jointly or severally within 45 days from the date of this order along with litigation cost of Rs. 5,000/- only.
Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.
