Date of filing: 31.05.2018
Date of Judgment: 31.01.2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by the complainants namely (1) Mihir Kr. Bhattacharya and (2) Smt. Jharna Bhattacharya under section 12 of the Consumer Protection Act, 1986, against the opposite parties (referred as OPs hereinafter) namely (1) M/s. Shalini Construction (2) Sri Pranab Mitra, Proprietor of the Shalini Construction (3) Sri Prabir Mukherjee (4) Sri Subir Mukherjee and (5) Smt. Rina Bhattacharya alleging deficiency in service on the part of the opposite parties.
Case of the complainant in short is that O.P. Nos. 4 to 5 being the land owners entered into a development agreement with O.P. Nos. 1 & 2 on 09/05/2003 to construct a multi storied building over the property described in the said development agreement. As per the said development agreement developer allocation was 65% of total constructed area and the rest was of the owners’ allocation. On 14/05/2005 O.P. Nos. 1 & 2 being the developers entered into an agreement with the complainants to sell a flat measuring 700 sq. ft. on the ground floor being no. G-2 at a consideration price of Rs. 3,75,000/-. Complainant has paid the entire consideration amount as settled and has paid further sum of Rs. 1,02,000/-. A total sum of Rs. 4,92,000/- has been paid by the complainants to the developers. After delay of all most eight years developer handed over the possession of the flat to the complainants and issued a possession letter on 20/04/2013. But in spite of several request by the complainants to initiate the process of execution and registration the deed of conveyance, O.P. paid no heed. A demand notice was also sent by the complainants through their Ld. Advocate but all in vain. So the present complaint has been filed praying for directing the opposite parties to execute and register the deed of conveyance in favour of the complainants, for directing O.P. Nos. 1 & 2 to pay Rs. 7,00,000/- as compensation and Rs. 50,000/- as litigation cost.
OPs 1 & 2 are contesting the case by filing the written version denying and disputing the allegation contending specifically that the development agreement dated 09/05/2003 was entered into between the owners and OP No. 1 & 2 the developers but the said owners did not execute and register general power of attorney in favour of the developer. However as per the terms of the development agreement the land owners agreed to execute and register the deed of conveyance in favour of the prospective purchasers of the flats in the newly constructed building by the developer. It is further contended by the O.P. 1 & 2 that agreement for sale dated 14/05/2005 was executed for sale of 625 sq. ft. and not 700 sq. ft. as alleged by the complainant. The complainants had asked for a flat of 700 sq. ft. super built up area against payment of extra money. But complainants have not paid the full amount towards the said extra area and extra work done and a sum of Rs. 1,50,000/- is due to be paid by the complainants to the O.P. 1 & 2. So the developer is entitled to get money for the extra super built up area of 75 sq. ft. and the extra work done inside the complainants flat at their request. So the OPs have prayed for dismissal of the present complaint.
O.P. Nos. 4 & 5 have also contested the case by filing the written version contending specifically that O.P. 1 & 2 entered into the alleged agreement for sale dated 09/05/2003 with the complainants in their personal capacity and not as constituted attorney of the owners. So the O.P. Nos. 4 & 5 are no way liable for any default of the developer. So the O.P. 4 & 5 have also prayed for dismissal of the complaint.
OP No. 3 did not take any step. So the case has been heard exparte against him.
During the course of the trial parties filed their respective examination in chief followed by filing of questionnaire and reply thereto. Ultimately date was fixed for argument. But during argument no step was taken by O.P. Nos. 1 & 2. Brief notes of argument has been filed by the complainant. O.P. Nos. 4 & 5 have advanced their argument.
So the following points require determination:-
- Whether there has been any deficiency in rendering of services on the part of the opposite parties?
- Whether the complainants are entitled to the relief as prayed for?
DECISION WITH REASON
Complainants have filed the agreement of sale entered into between the complainants and OP No. 1 & 2 wherefrom it appears even though the said agreement was prepared on 14/12/2002 but it was signed by the parties on 14/05/2005. The execution of the said agreement and that O.P. 1 & 2 agreed to sell the flat as described therein in favour of the complainants, has not been disputed and denied by the O.P. 1 & 2 the developers. Even though complainants have claimed that by the said agreement O.P. 1 & 2 agreed to sell flat of 700 sq. ft. area but the agreement for sale is very categorical that a flat in the ground floor being G-2 measuring 625 sq. ft. super built up area was agreed to be sold at a consideration price of Rs. 3,75,000/-. Admittedly entire consideration price as settled has been paid by the complainants and the possession of the flat has also been handed over to the complainants. However a dispute has been raised by the O.P. 1 & 2 that an amount of Rs. 1,50,000/- is still due to be paid by the complainants towards the extra area of 75 sq. ft and for the alleged extra work done inside the flat of the complainants. No document has been filed supporting those extra work done. However, it is evident from the admitted case of the parties. i.e. the complainant and O.P. No. 1 & 2 that the complainants did pay extra amount of Rs. 1,02,000/-. Complainants have also claimed payment of further sum of Rs. 10,000/- on 16/06/2013 and Rs. 5,000/- on 11/09/2013 to O.P. 1 & 2 to purchase the stamp paper for the purpose of deed of conveyance. But the payment of the said amount of Rs. 10,000/- and Rs. 5,000/- has been denied by the O.P. 1 & 2. However payment of total sum of Rs. 4,77,000/- has not been denied by the OP No. 1 & 2. So the said extra payment of Rs. 1,02,000/- apart from the payment of settled price of Rs. 3,75,000/- indicates that the said payment has been made towards the extra area of 75 sq. ft. as claimed by the complainants. Before us there is absolutely no document to substantiate the claim of O.P. 1 & 2 that an amount of Rs. 2,50,000/-was settled and agreed to be paid by the complainants towards the said extra area or any extra work. Even in the possession letter dated 20/04/2013 there is no mentioned that any amount was due to be paid to the developer by the complainants. In such a situation the claim of O.P. 1 & 2 about non-payment of alleged Rs. 1,50,000/- is nothing but an afterthought and thus cannot be accepted. It is strange that the consideration price settled for a flat of 625 sq. ft. only 3,75,000/- but for 75 sq. ft. only O.P 1 & 2 are claiming 2,50,000/- which is absurd. However since complainants have not filed any documents showing payment of further amount of Rs. 10,000/- and Rs. 5,000/- on 16/06/2013 and 11/09/2013 respectively towards purchase of stamp paper, we find complainants paid a total sum of Rs. 4,77,000/- only. It is evident that even though possession of the flat has been handed over but the deed of conveyance in favour of the complainants has not been executed and registered by O.P. No. 3, 4 & 5 who are the owners of property as well as the developers.
The contention of the O.P. 4 & 5 that they were not party to the agreement for sale and no power of attorney was executed by them in favour of the developer, in this context it may be pertinent to point out that O.P. 4 & 5 have not disputed and denied the execution of development agreement between them and the developer. The copy of the said development agreement has been filed wherefrom it appears that as per the terms and conditions therein, the owners agreed to execute the deed of conveyance or sale deeds in favour of the prospective purchasers of the flat in the said building to be constructed. It is also specifically mentioned in the said development agreement that the stamp duty and registration charges and all facilities in connection with the registration therewith will be paid and borne by the developer and or purchasers. So as per the specific terms of the development agreement in Para – 04, the owners are liable to execute the sale deed or deed of conveyance in favour of the complainants. In such a view of the matter complainants are entitled to the execution and registration of the deed of conveyance in respect of the subject flat and they are also entitled to compensation of Rs. 1,00,000/- not only for harassment and suffering of mental agony but also as they will have to pay the cost of registration as per the present market value.
Hence
ORDERED
CC/317/2018 is considered and allowed on contest against O.P. 1 & 2 and O.P. 4 & 5 and exparte against O.P. 3. Opposite parties are directed to execute and register the deed of conveyance in favour of the complainants in respect of the flat as per agreement signed on 14/05/2005 within two months from this date. Opposite parties are further directed to pay compensation of Rs. 1,00,000/- and litigation cost of Rs. 10,000/- within the aforesaid period of two months.
