Date of filing :26.4.2018

Judgment : Dt.29.3.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Sri Nandan Chakraborty, (2) Smt. Soma Chakraborty alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) M/s Raj Infrastructure, (2) Sri Arup Choudhury, (3) Sri Rajdeep Choudhury and (4) Smt. Naba Lakshmi Roy.

            The Case of the Complainant, in short, is that the OP No.1 to 3 are developers of the property described in the schedule A of the complaint petition and OP No.4 is the owner of the said property. They had entered into a development agreement on 16.12.2011 and the owners also executed a General Power of Attorney dt.16.12.2011 in favour of the OP No. 2 & 3 appointing as her constituted attorney. Complainant by an agreement dt.11.9.2012, entered into between them and the OP No.1 to 3 agreed to purchase a flat described in the schedule B of the complaint petition at a total consideration of price of Rs.3,60,000/-. He has paid a sum of Rs.3,17,000/-. It was agreed that the OP will hand over the possession and register the deed of conveyance within 18 months from the date of execution of agreement for sale. But in spite of several requests, OPs have not handed over possession nor they have executed and registered the deed of conveyance in respect of the said flat in favour of the Complainant. Complainants were always ready and willing to pay the balance amount of Rs.43,000/-. A notice was also sent by the Complainants through their Ld. Advocate on 18.3.2018 to the OPs for handing over the possession and to execute and register the deed of conveyance. But they did not pay any heed. So, ultimately, this case has been filed by the Complainants praying for directing the OPs to deliver the peaceful possession of the flat and to execute and register the deed of conveyance in favour of the Complainants, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.50,000/-.

            Complainants have annexed with the complaint petition, a copy of the development agreement entered into between OP No.4 with OP No.1 being represented by its partners OP No.2 & 3, copy of general power of agreement executed by OP No.4 in favour of OP No.1, also the agreement for sale entered into between Complainant and the developer on 18.9.2012 and also copy of the notice sent by the Complainants through their Ld. Advocate to the OPs.

            On perusal of the record, it appears that notices were sent to the OPs, but the OPs did not take any step and so, vide Order dt.3.10.2018, the case was directed to be proceeded ex-parte.

            The Complainants filed their evidence by way of affidavit-in-chief and ultimately also filed brief notices of argument. So, the point requires determination is whether the Complainants are entitled to the relief as prayed for?

Decision with reasons

            Complainants have claimed that the agreement was entered into between them and the OP developer, whereby the developer agreed to sell the schedule B flat as stated in the complaint petition at a total consideration price of Rs.3,60,000/-. In support of their claim that there was an agreement between OP No.4 the owner and the OP No.1 to 3, they have also filed copy of development agreement and copy of general power of attorney. According to Complainants, they have paid total amount of Rs.3,17,000/- and only Rs.43,000/- is due to be paid towards balance consideration price. It appears from the memo of consideration, with the agreement for sale dt.11.9.2012 that the OP No.3 one of the partners of the OP No.1 has acknowledged receiving total amount of Rs.3,17,000/- by way of cheques. As the case has been proceeded ex-parte, there is absolutely no contrary material to counter the case of the Complainants that they have made the payment as claimed by them. It appears that a notice was also sent but the OPs have neither delivered the possession nor have executed the deed. So, as agreed in the agreement by the developer to complete the construction and handover the peaceful possession within 18 months, but the same has not been complied, Complainants are entitled to the possession of the flat as agreed and for execution and registration of the deed in their favour. They are also entitled to the compensation keeping in view that they will have to bear all the stamp duties towards registration as per today’s market value. So, an amount of Rs.20,000/- will be justified as compensation.

            Hence

                                 ordered

            CC/218/2018 is allowed ex-parte. Opposite parties are hereby directed to deliver peaceful possession of the flat as described in the schedule B of the complaint petition to the Complainants and to execute and register the deed of conveyance in their favour within three months from this date on payment of balance consideration price of Rs.43,000/- by the Complainant. Opposite parties are further directed to pay Rs.20,000/- as compensation and Rs.10,000/- as litigation cost within the aforesaid period of three months, in default the entire sum shall carry interest @ 8% till realization.