Date of filing : 21.05.2018

Judgment : Dt.28.06.2019

Mrs. Sashi Kala Basu, Hon’ble President

          This  application  filed under Section 12  read with Section  13 of the Consumer Protection Act, 1986 by the complainants namely (1) Smt. Renu Sardar alias Renubala Sardar (2) Miss Ahima  Sardar (3) Miss Susoma Sardar against the Opposite Parties namely (1) M/s. Lokenath Das Construction (2) Sri Lokenath Das (3)Sri Amal Kumar Bhowmick (4) Smt. Sadhya  Ghatak alleging  deficiency  in rendering service  on their part.

          Case of the complainant in short is that  OP no. 4   being the sole and absolute owner  in respect of the homestead  land measuring  1 cottaha 11 chitak and 12 sq.ft.  little more or less  together with building  standing thereon known as Municipality Premises no.  12/48,Prince Golam Hossain  Shah Road under Police Station Jadavpur, entered into a development agreement  with the OP Nos. 1 to 3 on 11.07.2008 for the purpose of raising new  4 storied  building thereon  demolishing  old structure. OP nos.  1  to 3 thereafter   entered into an agreement  for sale  dated 15^th day of November,  2010 with the complainants  to sell a flat  described in the schedule of the complaint petition at a  total consideration  price of 6,75,000/- complainants have paid  total amount of Rs. 5,75,000/-  out of consideration price of Rs.  6,75,000/-  to the OP Nos. 2 to 3. OP  had agreed to deliver  possession  of the flat  on January 2012 but they failed to do so.  OP nos. 1 to 3 however thereafter  delivered the physical possession  of the flat but in a incomplete position  for which the complainants had to complete  the remaining unfinished  work by spending  a sum of Rs. 39,341/- . Complainants have obtained the electric connection and also got  their names mutated in the Kolkata Municipal Corporation. But till today , OPs have failed  to execute  and register the deed of conveyance in favour of the  complainants. So, ultimately present complaint  has been filed praying  to direct the  OPs  to execute  the deed of conveyance and to present the same before the Registering Authority, to pay  compensation  of Rs. 50,000/- and litigation  cost of Rs. 30,000/- .

Complainant have annexed with the  complaint petition, Copy of the agreement for  sale  dated 15.11.2010 entered into by and between the parties, copy of the money receipt , copy of the CESC bills as well as the bill of KMC. They have also  filed copy of the demand notice  sent on 28.03.2018 through their Ld. Advocate  to the OPs.

          OP Nos.1 and 2 have contested the case by filing  Written Version  denying and disputing  the allegations made  against them in the complaint petition contending inter alia that the complainants  failed to make the payment in time as agreed in the agreement. OPs have also denied  that the possession of the flat was not delivered within the stipulated period. It is further contended  that the complainants  themselves  did not come forward  for execution of the sale deed  on payment of  balance consideration money. So, OP Nos. 1 an 2 have prayed  for dismissal of the case with cost.

 On perusal of the record it appears that the OP nos. 3 and 4  did not take any step and thus the case  proceeded exparte against them.

          During the course of the evidence,  complainants and the contesting OPs filed their respective affidavit-in-chief followed  by filing questionnaire  and reply thereto. Ultimately, argument has been advanced.  Written notes of argument  have also been filed by both  the parties.

 So following points require determination.

1. Whether  there has been any deficiency in service on the part of the  OPs ?
2. Whether  complainants are  entitled to the relief as prayed for?

Decision with reasons

          Point Nos. 1 and 2 :

          Both the points are taken up together  for discussion  in order to avoid repetition. This is an admitted fact that an agreement was entered between the  complainants and  OP Nos. 1 to 3  on 15.11.2010 whereby complainants agreed to purchase the schedule flat  on payment of  consideration  price of Rs.  6,75,000/- . It is also  not  disputed  by OP Nos. 1 and 2  that the OP Nos. 4  being the owner  had entered into a development agreement with them on 11.07.2008.Admittedly, complainants have been delivered  possession of the schedule flat. However,  the deed of conveyance has not been  executed. It is also the claim of the complainants that  the flat  was delivered to them  with unfinished   work  which was to be completed by the complainants   themselves  on payment of Rs. 39,341/-. However, in the instant case, complainants  have only prayed  for direction upon the  OPs to execute and  register  the deed of conveyance. Complainants have claimed  that they have made payment of Rs. 5,75,000/-  out of total consideration  price of Rs. 6,75,000/- .  OP on the other hand,   in the written version has denied  making payment  of Rs. 5,75,000/- by the complainants. But it appears  that  in the  Brief Notes of Argument  filed by the OP Nos. 1 and 2, they have admitted  about the payment of  a total sum of Rs.  5,50,000/-  by the complainants. Complainants have also  filed  certain  receipts  showing the payment made by them. On consideration  of the receipts and   inconsistent  stand taken by  OP Nos. 1 and 2  in their  written version and  subsequently during evidence and in the  argument filed by them, the contention  of the OPs  that Rs. 5,75,000/-  as claimed by the complainants, have not been  paid  cannot be accepted. However, it is an admitted fact   that Rs.1,00,000/-  is due to be paid  by the complainants towards the balance consideration price. So, as apparently deed of conveyance has not been executed by the OPs, there has been  deficiency   on their part and  thus complainants are entitled to  the execution and registration  of deed  in their favour. But since the   possession has already been delivered  and the complainants  have been enjoying the flat, there is no justification to allow the  compensation as prayed.

These points are thus answered accordingly.

Hence,

                                    Ordered

          CC/303/2018 is allowed on contest against OP Nos. 1 and 2 and exparte against OP Nos. 3 and 4. OPs are  hereby directed  to execute  the deed of conveyance in favour of  the complainants in respect of the  scheduled flat and present it for registration  within  three months from the date of this order on receiving the balance consideration price of Rs. 1,00,000/- from the complainant. OPs are further directed to pay litigation  cost of Rs.  12,000/-  within the aforesaid  period of three months failing which the said  sum shall carry interest  @ 10% p.a. till realisation.