This complaint is filed by the complainant under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs, as the OPs did not take any step to execute and register the deed of conveyance in respect of the shop room in favour of the Complainant till filing of this Complaint.

The Complainant is a purchaser of the said shop room, OP 1 to 5 are the developers/ promoters by profession, who are engaged in promoting and developing the land for the purpose of providing residential/shop room/commercial space to the customers/ intending purchasers at large. The OP 6 to 10 are the registered land owners of the suit property/building. The Complainant being desired to purchase one shop room in the year 2003 to carry on business for earning his livelihood and accordingly the Complainant came into the contact of the OPs to that effect. The Complainant inspected the questioned site of the proposed shop room and expressed his desire to purchase the same at a valuable consideration, which is mentioned in the agreement for sale. After completion of the construction except some incomplete and unfinished work of the building as per the sanctioned building plan, the owner’s allocation of the said multi-storied building has taken by the OP 6 to 10 under their custody as per the terms and the conditions of the development agreement. The remaining shop room of the said multi-storied building were lying under the developer’s allocation, which were required to be sold out by the OP - 1 to 5 to the intending purchasers and the Complainant being an intending purchaser had approached before the OP 1 to 5 for purchasing one shop room along with other facilities. Being satisfied with all the relevant papers regarding the land, sanctioned plan and other facilities of the said building, the Complainant has expressed his desire to purchase one shop room and accordingly he had entered into an agreement for sale with the OP – 1 to 5 on 25.11.2002 upon some agreed terms and conditions and memo of consideration money as described in the agreement for sale. Accordingly, the Complainant on 22.01.2003 paid a sum of Rs. 45,000/- by cash in favour of the OP - 1 to 5 towards earnest money for purchasing the said shop room, which was duly acknowledged by the OP 1 to 5 by issuing proper money receipt under seal and signature. On 07.07.2003 the Complainant again paid a sum of Rs. 15,000/- in cash to the OP 1 to 5 and on 12.06.2004 paid Rs. 20,000/- towards the consideration money of the said shop room, which was also received by the OP 1 to 5 by issuing proper money receipts. In this fashion the Complainant paid Rs. 80,000/- to the said OPs as consideration money in cash on different dates. It was settled that the shop room will be provided on the ground floor of the said building measuring about 62 sq-ft (more or less). After completion of the entire construction work as per the sanctioned plan and specification of the said shop room in terms of the said agreement for sale dated 25.11.2002 the OP 1 to 5 have handed over the peaceful khas possession of the said shop room in favour of the Complainant. But till date no possession certificate has been issued in favour of the Complainant. Since getting physical possession therein, the Complainant is enjoying the same. The OP 1 to 5 have promised to hand over a copy of the completion certificate of the concerned building to the Complainant, but till date no such certificate has yet been issued by the OPs in favour of the Complainant, moreover, the Complainant does not find that the OPs have any intension to deliver the same. There is some incomplete and unfinished works in the shop room, which has not been completed by the OP 1 to 5 intentionally and they are harassing the Complainant deliberately. On several times the Complainant requested the OP 1 to 5 to complete and finish the unfinished and incomplete construction work of the said shop room, but the OP 1 to 5 did not pay any heed to his request. Due to such negligent conduct done by the OP 1 to 5 the Complainant being compelled to face lots of hazards, not only that the roof casting of the building has not been properly done by the OP 1 to 5. It is pertinent to mention that the OP 1 to 5 did not complete the entire construction work of the said building i.e. inside and outside colour of the building, seepage of water, painting of the stair case, door etc. The OP 1 to 5 have deprived the Complainant from getting the facilities and amenities and due to this reason he is suffering from several problems. The said facilities are very much necessary for the Complainant. By way of doing such illegal and negligent act/conduct, the OPs have harassed the Complainant physically and mentally. On several occasions the Complainant requested the OPs to execute and register the deed of conveyance in respect of the said shop room in his favour, but the OPs being reluctant did not take any step till filing of this Complaint. As the grievance of the Complainant have not been redressed by the said OPs, finding no other alternative the Complainant has approached before this Ld. Commission by filing this Complaint praying for direction upon the OPs jointly and severally to execute and register the deed of conveyance in respect of the shop room in his favour, failing which the sale deed be executed through the machinery of this Ld. Commission, to pay enhanced registration cost as per determination of the Ld. Commission, to pay compensation to the tune of Rs. 2,00,000/- due to harassment, mental agony, deficiency in service and negligent act, to provide completion certificate in respect of the multi-storied building as per the sanctioned plan, to pay entire tax and rent and litigation cost.

The petition of complaint have been contested by the OP 1 to 5 by filing written version contending that the person who had executed the General Power of Attorney in favour of the developers to do the entire works, the said person has expired hence, the General Power of Attorney is not valid at present. Though the legal heirs of the said deceased have come in the picture of this petition of complaint after substitution, being the OP 7 to 10, but until and unless General Power of Attorney is given to the developers, the OP 1 to 5 being the developers are not in a position to make any application before the appropriate Municipality for getting the completion certificate. Therefore, the developers are not in a position to provide any completion certificate to the present Complainant having no legal right and authority. Therefore, the prayer for providing completion certificate cannot be allowed at this juncture in favour of the Complainant. The Complainant has also sought for execution and registration of the sale deed in respect of the shop room in his favour but as no Power of Attorney has been given by the legal heirs of the deceased as the landowners, the developers has no authority to execute and register the sale deed of the shop room in his favour. The developers have admitted that the complainant paid consideration money to them for purchasing the shop room and though the physical possession has already been given to the Complainant in respect of the said shop room, the developers could not execute and register the sale deed in his favour till filing of this complaint. According to the OP 1 to 5 due to non existence of the General Power of Attorney the OPs could not perform his liability, hence there is no deficiency in service on behalf of these OPs. It is also submitted by the Ld. Counsel of the said OPs that the OPs have no objection if the sale deed will execute and register through the machinery of this Ld. Commission. According to the OP 1 to 5 as the complaint petition is devoid of any merit, the same is liable to be dismissed.

The petition of complaint have been contested by the OP 7 and 10 by filing written version stating that they are ready to execute the sale deed of the shop room in favour of the Complainant. But the Complainant did not approach before them for the said purpose prior to filing of this complaint. It is further submitted by the said OPs that the Complainant did not avail of any service from them by making payment of any amount towards consideration money, therefore the Complainant cannot be termed as a consumer in respect of the OP 7 and 10. The complaint petition is vague and baseless. The allegation of the Complainant regarding non issuance of the possession certificate cannot be casted upon their shoulder as it is the duty of the developers with whom the Complainant had entered into an agreement for sale and paid the consideration amount to the said developers. According to the OPs the petition of complaint is liable to be dismissed.

Both parties have adduced evidence on affidavit cross-examination has been made by way of questionnaire and replies and both parties have filed written notes of argument/brief notes of argument.

We have carefully perused the entire record, available documents and heard argument at length as advanced by the Ld. Counsel for the complainant and the Ld. Counsel for the developers. It is seen by us that the dispute of the instant complaint revolves within a very short compass. The moot allegation of the Complainant is that the developers did not take any step to execute and register the sale deed in respect of the shop room in his favour till filing of this complaint and hence being aggrieved with such conduct and action of the developers the Complainant has initiated this complaint before this Ld. Commission praying for certain reliefs. The record speaks that the Complainant had entered into an agreement for sale with the developers for purchasing one shop room for carrying on business for earning his livelihood by means of self employment. The consideration amount for the said shop room as settled by the OPs had already been paid by the Complainant and the developers have delivered the physical possession of the shop room to the Complainant and since then the Complainant is enjoying the same. In spite of providing physical possession the developers did not issue any possession certificate of the concerned shop room and completion certificate in respect of the building to the Complainant till date. The Ld. Counsel for the developers has submitted that as the person who had executed the General Power of Attorney in their favour to act upon everything in favour of the land owners, the said person had expired and with such expiry the General Power of Attorney has lost its validity. Thought the legal heirs of the said deceased have come in the picture of this complaint and the name of the deceased had already been substituted by the legal heirs in the cause title of the petition of complaint, but the said legal heirs did not execute any general power of attorney in favour of the developers to discharge the remaining liabilities in respect of the said multi storied building and therefore the developers are not empowered to execute and register the sale deed in his favour in respect of the said shop room. It is further submitted by the developers that they are also not empowered to approach before the concerned Municipality for getting the completion certificate of the said multi storied building.

According to the developers until and unless the General Power of Attorney is executed in their favour they cannot discharge their liabilities as per the terms and conditions of the agreement for sale. In this respect we are to say that as the names of the legal heirs of the deceased are very much on the record, hence, the legal heirs being the land owners are directed either to execute General Power of Attorney in favour of the developers or the land owners shall approach before the competent Municipality for getting the completion certificate in respect of the multi storied building and upon receipt of the same the substituted land owners shall deliver the same to the Complainant without any fail. In our considered view that as the Complainant has paid the consideration amount for purchasing the said shop room he is very much entitled to get it registered through the sale deed and it is the contractual liability of the developers to execute and register the sale deed in respect of the shop room in favour of the Complainant. If the developers will fail to register the sale deed in favour of the Complainant, the Complainant will be at liberty to register the same through the machinery of this Ld. Commission and to this effect the Complainant shall file a separate application before this Ld. Commission. The land owners are directed to execute General Power of Attorney to the developers and after getting the same the developers shall collect the completion certificate from the competent authority and deliver the same to the Complainant without any fail. The Complainant has sought for enhanced registration cost on the ground that though the possession was given in the year 2003, but in spite of several request made by the Complainant the developers did not bother to execute and register the sale deed till 2019/2022 and admittedly in the meantime the registration cost has already been enhanced. So, we are of the opinion that the developers is under the obligation to pay the enhanced cost for registration in a consolidated manner in the form of compensation. Admittedly as the grievance of the Complainant have not been redressed by the developers prior to filing of this complaint and by filing this complaint the Complainant had to incur some expenses towards litigation cost, hence, the Complainant is also entitled to get litigation cost to the Complainant.

Going by the foregoing discussion hence it is ordered that the consumer complaint being no. CC/10/2019 is hereby allowed on contest against the OPs with cost. The developers are directed to execute and register the sale deed in favour of the Complainant in respect of the shop room within 45 days from the date of passing of this judgement, failing which the Complainant is at liberty to register his shop room through the machinery of this Ld. Commission as per provision of law. The substituted landowners are hereby directed to execute General Power of Attorney to the developers so that the developers can discharge their contractual liabilities and responsibilities i.e. collection of completion certificate and registration of the sale deed etc. within a period of 30 days from the date of passing of this judgment, in default the land owners shall pay 50% of the awarded compensation to the Complainant and balance 50% shall be paid by the developers. The developers are directed to collect the completion certificate from the competent municipality and provide the same to the Complainant within 60 days from the date of passing this judgement. The developers and the land owners shall pay compensation conjointly to the tune of Rs. 20,000/- to the complainant due to unnecessary harassment, deficiency in service, prolonged delay, mental agony and pain etc., i.e. 50% be paid by the land owners and the rest by the developers within a period of 60 days from the date passing this judgement. The developers are further directed to pay litigation cost to the tune of Rs. 5,000/- to the Complainant within a period of 60 days from the date of passing this judgement, in default the Complainant will be at liberty to put the entire decree in execution as per provision of law.

Let a plain copy of this judgement be supplied to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER