Filed on 15.05.2017

Judgment : Dt.27.2.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Swapan Kumar Das and Smt. Sima Das alleging deficiency in service on the part of the opposite parties namely (1) M/s Design ‘O’ Execution, (2) Smt. Usha Rani Das, (3) Dilip Das (4) Sri Pradip Das and (5) Smt. Ratna Das.

            Case of the Complainant in brief, is that the Complainants entered into an agreement for Assignment on 5.5.2016 with the OP No.1 M/s Design ‘O’ Execution, a proprietorship farm represented by its proprietor Smt. Shila Mondal (Das),Developer, as first part, the Complainants namely Sri Swapan Kumar Das and Smt. Sima Das as assignee described as second part, the OP Nos.2 to 5 landowners, namely, Smt. Usha Rani Das, Dilip Das, Sri Pradip Das and Smt. Ratna Das as assignors/confirming parties as other part who are represented by their constituted Attorney Smt. Shila Mondal (Das) in respect of a flat under Developer’s allocation measuring 700 sq.ft. super built up area more or less situated in 2^nd floor South-East side of a building together with all proportionate right of common area and building at premises No.47 Ajaynagar, P.S.-Purba Jadavpur, Kolkata-700 075, Dist.-South 24 Parganas at a consolidated price of Rs.15,00,000/- payable as per terms of the agreement. The Complainants further stated that they had paid Rs.10,00,000/- on the date of execution of the Agreement i.e. on 5.5.2016 along with further payment of Rs.4,00,000/- on the same date and, subsequently, Rs.45,000/- on 23.2.2017 to the OP No.1 and thus they paid Rs.14,45,000/- towards consideration. The Complainants have further stated that it was mentioned that the Developer would complete the construction of the said flat within 4 months of the date of execution of Agreement dt.5.5.2016 but in spite of completing the same the OP No.1 neither informed the Complainant nor did deliver possession of the same to the Complainant on plea that she is unable to deliver possession of the said flat since completion certificate had not been obtained. The Complainants have specifically stated that possession of the said flat have not been delivered to them although they had made several correspondences including service of notice through their Ld. Advocate upon the OPs but to no effect. Hence the Complainant had prayed for direction upon the OPs to handover possession of the schedule B flat after receiving balance amount of Rs.55,000/- alternatively to refund Rs.14,45,000/- with interest, to pay Rs.50,000/- towards litigation cost and to pay Rs.4,00,000/- towards compensation.

            Notices were served upon the OPs but the OP No.1 did not turn up so the case was proceeded ex-parte against OP No.1 vide order No. 6 dt.04.08.2017

            The OP Nos.2 to 5 who are the landowners contested the case by filing written version denying and disputing all material allegations made out in the petition of complaint stated inter alia, that the answering OPs are not liable to provide the flat in question to the Complainant since they are unaware of the agreement executed by and between the Developer and purchasers and also regarding payment of consideration. It is further stated by the land owners that they have got owners allocation as per terms of the development agreement and they are in no way liable regarding non delivery of the flat in question. Accordingly, the answering OP prays for dismissal of the complaint.

            The Complainants filed affidavit-in-chief. The OPs filed a petition for treating the written version as evidence. Prayer was allowed. Thereafter, both parties filed questionnaire and reply thereto.

            In course of argument Ld. Advocate for Complainant narrated the fact mentioned in the petition of complaint.

            Ld. Advocate on behalf of OP Nos.2 to 5 did not take part in the argument.

Decision with reasons

            The Complainants claimed to have entered into an agreement for  assignment on 5.5.2016 with the OPs in respect of a flat at 47, Ajaynagar, P.S.-Purba Jadavpur, Kolkata-700 075, Dist.- South 24-Parganas, at a consideration of Rs.15,00,000/-. Copy of the agreement for assignment dt.5.5.2016 support such averments of the Complainants. The Complainants further claimed to have paid Rs.14,45,000/- towards part payment of consideration of Rs.15,00,000/-. Copies of money receipts dt.5.5.2016 and 23.2.2017 support the averment of the Complainants. It appears from the paragraph No.14 of page 11 of the said agreement that construction of the said flat/unit would be completed by the Developer within 4 months from the date of execution of the agreement but according to the evidence adduced by the Complainants that even after completion possession of the said flat has not been delivered to the Complainants.

            The land-owners have contested and stated that they are in no way liable for non-delivery of possession of the said flat to the Complainants but fact remains that they had executed a power of attorney in favour of the OP Developer empowering her to enter into agreement in respect of Developers allocation and thus they have become liable on behalf of the Power of Attorney holder.

            Considering the circumstances as stated hereinabove we are of opinion that the OPs to be directed to deliver possession and execute the registration of deed of conveyance in favour of the Complainants after receiving the balance amount of consideration from the Complainants.

            Further, the OP No.1 compelled the Complainants to file this case so the OP No.1 to pay the cost of litigation.

            Hence,

ordered

            that CC/264/2017 is allowed in part ex-parte against the OP No.1 with cost and on contest against OP Nos.2 to 5 but without cost.

            The OPs are directed to deliver possession and execute registration of deed of conveyance in respect of a flat within one month from the date of communication of this order to the OP No.1 after receiving balance amount of Rs.55,000/- from the Complainant.

            The OP No.1 is directed to pay Rs.10,000/- towards litigation cost within aforesaid period. Alternatively, delivery of possession and execution of registration of deed of conveyance will be done through the machinery of this Forum after filing execution application by the DHr. and, in that case balance amount of Rs.55,000/- will be deposited with the SCWF.