FINAL ORDER/JUDGMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Brief facts of the case are that complainant was a monthly tenant under Rama Shankar Pandey and Lalan Pandey, the predecessors of OPs 4 to 14 in respect of a shop room at a rental of Rs. 3,000/- per month at KMC premises No. 29, Bediadanga 2nd Lane, Kolkata -700 039. During the life time of Rama Shankar Pandey and Lalan Pandey they along with OPs 1 & 2 including the complainant entered into a tripartite agreement dated 08.08.2013 for purchasing a shop room measuring about 170 sq. ft. at a sale price of Rs. 51,000/- for the purpose of earning her livelihood, by means of self employment. The husband of the complainant paid the entire consideration amount to OP 1/developer against money receipt dated 19.09.2013. The predecessors of the OPs 4 to 14 during their life time executed and registered a Development Agreement and also registered a General Power of Attorney both dated 16.07.2014 in favour of the OPs 1 to 3. On the demise of said Rama Shankar Pandey and Lalan Pandey, the OPs 4 to 14 became the co-owners of the property fully mentioned in the schedule of the complaint petition. OP 1 is a partnership firm and OPs 2 and 3 its partners constructed the building on Premises No. 29, Bediadanga 2nd Lane, Kolkata - 700 039 and delivered the shop room measuring about 170 sq. ft. to the complainant. The developer also issued possession letter to the complainant. On the death of Rama Shankar Pandey and Lalan Pandey the General Power of Attorney lost its force for which the OPs 1 to 3 could not execute and register Deed of Conveyance in favour of the complainant for which she is suffering from mental agony. A dispute cropped up between the partners of OP 1 and the OPs 4 to 14. The partners of OP 1 firm expressed their inability to execute and register Deed of Conveyance on account of cease of General Power of Attorney. Hence, the complainant approached the commission on the allegation of deficiency in service and unfair trade practice on the part of the OPs.
OP 4 has contested the case by filing WV alleging that the complainant is not a consumer under the provision of CP Act, 2019 and the alleged agreement dated 08.08.2013 is a fraudulent document as their predecessors were illiterate person. They had no knowledge about English language and somehow any person put their signatures in the alleged agreement in Hindi letter. Complainant has given falls names and addresses of the OPs 5 to 14 who are not residing at the address mentioned in the cause title of the complaint petition. Complainant is a tenant in respect of the shop in question and she is a defaulter of payment of rent since long. The answering OP and OPs 5 to 14 are not bound to execute and register any Deed of Conveyance in favour of the complainant. There is no deficiency in service and/or unfair trade practice on the part of the answering OP. Complaint is not maintainable and liable to be dismissed.
Despite service of notices of the complaint upon the OPs 1 to 3 and 5 to 14 they did not turn up to contest the case by filing WV within the statutory period provided under the CP Act, 2019. Thus, the case runs ex-parte against the OPs 1 to 3 and 5 to 14.
Complainant Smt. Savita Tiwari has filed her E/chief supported by an affidavit in support of her case. She has also relied the documents annexed with the petition of complaint. Complainant also filed written argument. Despite opportunities given to the answering OP 4 he fails to file E/chief in support of his defense.
We have perused the material available on record and heard the Counsel for the complainant.
The fact that the complainant booked a shop room measuring an area of 170 sq. ft. instead of her old shop room on the proposed building situated at Premises No. 29, Bediadanga 2nd Lane, Kolkata -700 039 at a consideration of Rs. 51,000/- in terms of a Memorandum of Agreement dated 08.08.2013. The said tripartite agreement was executed between the predecessors of the OPs 4 to 14 and OPs 1 to 3 including the complainant. It is evident from the money receipt dated 19.09.2013 that the husband of the complainant paid the entire sale price of Rs. 51,000/- to the OP 1 and on completion of the proposed building the OPs 1 to 3 have already delivered physical possession of the shop in question to the complainant. The allegation of the complainant is that despite of full payment of sale price the developer and the OPs 4 to 14 did not execute and register Deed of Conveyance in favour of the complainant on account of internal dispute between the developer and the legal heirs of Rama Shankar Pandey and Lalan Pandey. On the death of the fathers of OPs 4 to 14 the registered power of attorney lost its force. The answering OP 4 in his WV alleges that the complainant is a monthly tenant under them in respect of the shop in question and she is a defaulter in payment of rent. OP 4 did not file his E/chief and any scrap of paper to establish that the complainant is a tenant in respect of the shop in question under them and is a defaulter in payment of monthly rent. Thus, there is no leg to stand the defense taken by the OP 4.
A failure of the developer and the legal heirs of Rama Shankar Pandey and Lalan Pandey to comply with the contractual obligation to execute and register Deed of Conveyance of the shop in question within a stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been under taken to be performed in pursuance of the contract in relation to the service.
In this circumstances, it is clear that the OPs failed to execute and register Deed of Conveyance of the shop in question in favour of the complainant within the stipulated period on receiving entire sale price. The register Power of Attorney has lost its force on account of the death of Rama Shankar Pandey and Lalan Pandey and the OPs 4 to 14 being the legal heirs and the developer are bound to execute and register Deed of Conveyance in favour of the complainant. Consequently, we hold that the OPs are deficient in providing their services to the complainant.
Keeping in view of the facts of the present case, we directed the OPs to execute and register Deed of Conveyance of the shop in question measuring about 170 sq. ft. at Premises No. 29, Bediadanga 2nd Lane, Kolkata -700 039 fully mentioned in the schedule of the complaint petition within 60 days from the date of the order. The OPs 1 to 3 are directed to pay Rs. 10,000/- to the complainant as litigation cost. If the OPs fail to comply the above order in that event the complainant may approach for execution and registration of the Deed of Conveyance through the commission and the complainant will bear the registration cost and stamp duty.
The consumer case is allowed on contest against the OP 4 and ex-parte against the OPs 1 to 3 and 5 to 14.
A copy of this judgment be provided to the parties free of cost as mandated by the CP Act, 2019. The judgment be uploaded forthwith on the website of the commission for perusal of the parties.
