Hon’ble Mr. Sudip Niyogi, President FACTS The facts of this complaint, in brief, are that complainant No. 2 along with his mother Smt. Banalata Patra, since deceased, had entered into an agreement for sale dated 22/09/2003 in respect of a self-contained flat/ Unit No. 4 & 5 containing a super-built-up area measuring 1364 sq. ft more or less situated on the 3rd floor south-east-west side as mentioned in the 2nd schedule with Opposite Party Nos. 1 to 3 who are the developers and Opposite Party Nos. 4 to 7, the land owners at a consideration of Rs.13,36,720/- and out of which Rs.1,00,000/- was paid as earnest money by the purchaser at the time of execution of the said agreement for sale. The balance consideration was agreed upon to be paid as per the payment schedule mentioned in the agreement. Said Banalata Patra, mother of complainant No. 2, who died in 2007 during her lifetime had requested the developers and the vendors to execute the deed of conveyance in favour of the present complainants being her successors and her request was accepted by the Opposite Parties subject to furnishing of “No Objection” by her other heirs and said “No Objection” certificate has also been annexed with the complaint. Complainants paid Rs.12,00,000/- in total by making payments on different dates for which money receipts were issued. But the progress of the project work was very slow and complainants on repeated occasions requested the Opposite Parties to complete the project and deliver possession etc. However, on being asked, the complainants issued a cheque of Rs.3,79,100/- in favour of the developers’ Advocate towards stamp duty and registration of fees though the amount of the cheque was encashed and subsequently, one draft deed was served. But Opposite Parties did not take any initiative either to give delivery of possession or to execute the deed of conveyance though the construction of the project is virtually completed. So, complainants filed this case on the ground of deficiency in service and negligence on the part of the Opposite Parties and prayed for a direction upon the Opposite Parties to complete the project as stated in “B” schedule property and execute and register a deed of conveyance on payment of balance consideration and also hand over completion certification etc., compensation and cost of litigation. This case was heard ex parte against all the Opposite Parties as they did not enter their appearance and file written version during the statutory period. So, the point for consideration is if the complainants are entitled to relief (s) as prayed for. FINDINGS Complainants filed a sheaf of documents which include the memorandum of agreement dated 22nd September, 2003 between complainant No. 2 and his mother Banalata Patra, since deceased, as purchasers whereby the said purchasers had agreed to buy the scheduled property i.e. residential flat/ Unit No. 4 & 5 containing super-built-up area of 1364 sq. ft more or less situated on the 3rd floor south-east-west side comprising two bed rooms, two toilets, one kitchen, one dining and drawing and one Veranda to be constructed at the Premises No. 8A, Nirad Behari Mallick Road, Kolkata- 700006, P.S- Manicktala at a consideration of Rs.13,36,720/-, one memorandum of agreement dated 7th October, 2002 between the owners and the developers i.e. Opposite Parties for construction of a new building at the said premises, several documents showing payment and No Objection certificates etc. It is said that Banalata Patra died in 2007 and during her life time, she requested the developers and vendors to execute the deed of conveyance in favour of the complainants and the owners and the developers accepted the said proposal subject to furnishing No Objection by the other heirs of Banalata Patra. In this regard, we find complainants produced three original No Objection Certificates, one of Jadabendra Patra- husband of said Banalata Patra and two others are of Paramita Roy and Arpita Sadhukhan who are said to be the two daughters of said Banalata Patra. All of them expressed their no objection if the scheduled flat is registered in favour of Subhra Patra, son of said Banalata Patra. It is further found that Rs.12,00,000/- in all, have already been paid towards consideration of the said flats but despite all these, the execution and registration of a deed of conveyance in favour of the complainants remained elusive. Complainants claimed categorically that the construction of the said project is virtually completed. Not only that, complainants earlier on being asked deposited Rs.3,79,100/- vide cheque No. 077178 & 077112 dated 03/04/2014 of SBI, Hatibagan Branch in favour of the developers’ Advocate who encashed the same for the purpose of registration of the document. That apart, one draft copy of the deed of conveyance was also tendered by the developers but despite all these facts, neither there was delivery of possession of the flats, nor execution and registration of a deed of conveyance in favour of the complainants. It is found Opposite Parties did not contest this case by filing written version within the stipulated period and therefore, the case was heard ex parte against all of them. Having thus, gone through the entire materials on record and following the aforesaid discussion, we find that the complainants should get relief (s) in this case in the form of a direction upon the Opposite Parties to execute and register a deed of conveyance and deliver the possession in respect of the scheduled flats, compensation of Rs.15,000/- towards mental pain and agony suffered by the complainants and Rs.4000/- towards cost of litigation. Accordingly, it is ORDERED That the instant case be and the same is allowed ex parte against all the Opposite Parties. Opposite Parties are directed to execute and register a deed of conveyance in respect of the two flats as noted in the second schedule to the petition of complaint in favour of the complainants on payment of balance consideration of Rs. 1,36,720/- (Rupees One Lakh Thirty Six Thousand Seven Hundred Twenty Only) and deliver possession thereof to them after making them habitable. Opposite Parties are to pay Rs.15,000/- (Rupees Fifteen Thousand Only) for mental harassment and mental agony suffered by the complainants and also to pay Rs.4000/- (Rupees Four Thousand Only) towards cost of litigation to the complainants. Opposite Parties are jointly or severally liable to comply with the aforesaid order within 45 days from the date of this order. If the aforesaid order is not complied with by the Opposite Parties within the stipulated time as stated above, the complainants shall be at liberty to proceed in accordance with law. Dictated and corrected by me. President |
